text:
    JAMES WILLIAMS v. STATE.
    No. A-1842.
    Opinion Filed November 29, 1913.
    (136 Pac. 599.)
    1. RAPE — Indictment—Sufficiency. To constitute a good charge of attempt to commit the crime of rape under section 2803, Rev. Laws 1910, some act done towards the commission of the crime and the failure must be alleged, and it is also necessary to allege an intent to feloniously have sexual intercourse by committing a rape as defined by section 2414, Rev, Laws 1910.
    2. APPEAL — -Modification of Judgment. Under section 6003, Rev. Laws 1910, of the Code of Criminal Procedure, this court, in the furtherance of justice, has the power to modify any judgment appealed from by reducing the sentence.
    3. RAPE — Assault with. Intent to Commit Rape — Sufficiency of Evidence. The evidence in this case considered, and held sufficient to show an assault with intent to commit rape.

      Appeal from District Court, Caddo County; Frank M. Bailey, Judge.

    James Williams was convicted of attempt to commit rape, and appeals.
    Modified and affirmed.

      W. W. Vaughn and Bristow & McFadyen, for plaintiff in error.

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

This appeal is prosecuted from a judgment of conviction entered on the 10th day of April, 1912, in which the defendant was adjudged guilty of the offense of attempt to commit rape, alleged to have been committed on or about the 17th day of February, 1912.

The charging part of the information is as follows:

“One James Williams, then and there being, did then and there intentionally, unlawfully, willfully, and feloniously make an assault upon one Mrs. W. W. Hyden, a female person over the age of eighteen years, and of previous chaste and virtuous character, with an intent, her, the said Mrs. W. W. Hyden, unlawfully and feloniously to rape, ravish, and carnally know, and he, the said James Williams, did then and there attempt to unlawfully and feloniously rape, ravish, and carnally know the said Mrs. W. W. Hyden; the said Mrs. W. W. Hyden not being the wife of the said James Williams.”

The verdict of the jury, omitting formal parts, is as follows:

“We, the jury impaneled and sworn to try the issues in the above-entitled cause, do, upon our oaths, find the defendant James Williams guilty as charged in the information herein, and submit his punishment to the court.”

The judgment and sentence of the court was that the defendant serve a term of 25 years’ imprisonment in the penitentiary.

The petition alleges various assignments of error; but the defendant’s counsel, in their brief, say:

“This case is brought to this court upon the one proposition, that of the punishment being for a greater period than authorized under the information and the law governing the punishment in this case, in that by said information the defendant is charged with the offense of assault with intent to commit rape, under section 2319, Comp. Laws 1909 (section 2338, Rev. Laws 1910), providing that: 'Any person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill, the punishment for which assault is not otherwise prescribed in this Code, is punishable by imprisonment in the state penitentiary not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment’ ”

—and conclude by saying:

“If we are right in this contention, then this case should be reversed, or the punishment should be reduced in keeping with the law, and such error should be corrected by the judgment and finding of this court.”

The only question presented is the sufficiency of the information to charge an offense under section 2803, Rev. Laws 1910, providing:

“Any person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punish'ment of such attempt, as follows.”

The Attorney General has filed a confession of error, which, after reviewing the record, concludes as follows:

“Our Code recognizes two separate and distinct crimes in this respect, each punishable under separate provisions of the law. It follows then that, in order for this judgment to stand, the information should have been sufficient to charge the crime of an attempt to commit rape. In this respect we think it fatally defective, in that it does not set out the facts which constituted the alleged attempt. It is, however, perhaps sufficient to charge the crime of assault with intent to commit rape, and, as the trial court instructed on the law applicable to such an assault, and as the jury returned a general verdict of guilty as charged in the indictment, we think the court should have pronounced judgment, and sentenced the defendant under section 2338, supra.’

It appears from the record that about the hour of 7 o’clock, p. m. on the date alleged Mr. W. W. Hyden left his wife and family at his home on the Engle ranch, about two miles southeast of Binger, and went to town, and on his way stopped where the defendant stayed, and told him that he was going to Binger to arrange for Mr. Engle to pay him for picking cotton. Shortly afterwards the defendant, a negro, went to his home, and, standing in the road, called Mrs. Hyden, and told her that her husband had fallen from his horse, and was lying in the road with a broken leg, and asked her to come and help carry him home. The night was dark, and she went with him some distance before she discovered he was a negro. She then ran to a nearby neighbor’s house; the defendant followed her, and called to her to stop. Shortly afterwards her husband returned. The defense was an alibi.

In a prosecution for attempt to commit rape under section 2803 (Rev. Laws 1910) of the Penal Code, in order to constitute a good charge of attempt to commit the crime of rape, it is necessary to aver in the information some act done toward the commission of the crime and the failure. It is also necessary to aver, where the female- is over the age of eighteen years, an intent to feloniously have sexual intercourse by committing a rape as defined by the Penal Code. Section 2414, Rev. Laws 1910.

In the case of Cunningham v. Commonwealth, 88 Va. 37, 13 S. E. 309, the Supreme Court of Appeals of Virginia held that to aver that accused “violently and feloniously made fin assault” is sufficient to aver an act done in the attempt. However-, we cannot follow this case, as a precedent, as the provisions of our Penal Code in this respect are different. The sufficiency of the information to charge the crime of attempt to commit rape was not challenged by proper demurrer or by motion in-arrest of judgment. The information is sufficient to charge the crime of assault with intent to commit rape, and the evidence is sufficient to sustain a conviction of either offense.

Our Criminal Procedure Act provides that:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary ór proper, prder .a new trial.” (Section 6003, Rev. Laws 1910.)

Under this statute, this court, exercising its revisory jurisdiction, has the power and authority to modify any judgment appealed from by reducing the sentence. Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170.

From a careful examination of the record, we are satisfied that the confession of error should be sustained, in that upon the verdict returned the trial' court should have considered it a verdict of guilty of assault with intent to commit rape. For this reason, the judgment appealed from will be modified, and the sentence reduced ' to five years’ imprisonment in the penitentiary, the maximum punishment prescribed for assault with intent to commit rape as defined by section 2338 of the Penal Code.

The judgment and sentence of the district court of Caddo county, as thus modified, will be affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    SHELLY LARRY v. STATE.
    No. A-1706.
    Opinion Filed November 29, 1913.
    (136 Pac. 597.)
    1. HOMICIDE — Self-Defense—Freedom from Fault. One who kills another under an apprehension of death or great bodily harm from assault must have been free from fault in bringing on the difficulty in order to justify the homicide. ,
    2. SAME — -Mutual Combat. Where the killing is done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death to one or -the other of the combatants, the defendant cannot justify on the ground that it was committed in self-defense, and it will be manslaughter, at least, unless the defendant can prove that before the fatal shot was fired he had Refused any further combat and had retreated as far as he could with safety, and that he killed his adversary of necessity, to save his own life or his person from great bodily harm.

      Appeal from District Court, Pittsburg County; Preslie B. Cole, Judge.

    -Shelly Larry was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      ..Arnote & Rogers, for plaintiff in error.

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

The plaintiff in error, hereinafter referred to as the defendant, was convicted of manslaughter in the first degree on an indictment returned by the grand jury at the October, Í908, term of the district court, charging him with the murder of one Frank Jackson on the 7th day of September, 1908, and in accordance with the verdict of the jury the court sentenced the defendant on the 18th day of December, 1911, to imprisonment in the penitentiary for the term of fifteen years. The defendant appealed by filing in this court on April 19, 1912, a petition in error with case-made.

It appears from the record that the deceased and the defendant were negroes, and the homicide was the result of a drunken row engendered by jealousy over the affections of a negro woman of ill repute. The tragedy occurred at Dow, a mining town in Pittsburg county. Immediately after the killing the defendant fled to parts unknown and was not seen in that county until early' in the year 1911, when he surrendered.

Lee Bertha, the negress, lived in a small -house at Dow, together with one or two others of her sex and race, and was employed at a negro restaurant at which numerous negro miners took their meals, among them being the deceased and the defendant. On the evening of September 7, 1908, Frank Jackson, the deceased, was talking to Lee Bertha when the defendant approached them and remarked, “What are you doing standing there talking to my wife.” The deceased became somewhat offended and left the restaurant and shortly thereafter the defendant left also. Shortly afterwards the deceased and the defendant met across the street from the restaurant and went to the place where Lee Bertha stayed. She was standing on the porch. The defendant said, “Now, here is the woman, ask her what I said and the deceased said, “Looks like you boys want to run over me,” and pulled a pistol and threw it down on the defendant. Defendant said, “You can kill me, but you cannot eat me-;” and the deceased grabbed him by his vest. The defendant slipped out of his vest and ran down the street. The deceased remained in front of the house ■ talking to Lee Bertha. In about twenty minutes the defendant returned with a shotgun; coming around the corner of the house he shot Frank Jackson, the deceased, in the back of the head, killing him instantly. There were several eyewitnesses to the shooting.

The defendant, as a witness in his own behalf, testified: That after talking with Frank Jackson- in the restaurant he met him on the street and Jackson said he wanted him to go with him to see Lee Bertha. That they went there together. Jackson drew a gun on him and said, “I ought to kill you,” and -grabbed hold of- his vest, and he ran away from him and went home. That his parents lived at Hartshorn and he decided to go over there, so he put on his clothes and took a gun with him and started for Hartshorn. That he went by Lee Bertha's to get his vest. The transcript of his testimony as to how the killing occurred is as follows:

“Q. Did you see Drank Jackson before you got there? A. No, sir. Q. Did you hear him? A. No, sir. Q. Did you know he was there? A.. No, sir; I never knowed he was there. Q. Well, did you see him after you got up there to the house? A. I never seen him until after I got right up in the shape I seen his gun. Q. You got up in the shape that you saw his gun ? A. Yes, sir. Q. What position was he in when you first saw him? A. Why, he was to say facing me when I first saw him. Q. How was his gun? A. Why he had his gun up looked to me in position to shoot. Q. Do you know whether he was holding it with one hand or both hands? A. I could not say whether he had it pulled with one or both, but it looked to me like he had both up. Q. When you saw him with his gun up that way what did you do? A. Why, I shot. Q. You shot? A. Yes, sir. Q. Well, why did you shoot, Shelly? A. Why, he had his gun pointed towards me and I thought maybe that he would, he would— Why did I shoot? I seed he had his gun up pointed towards me and I thought he was aiming going to shoot me, and I shot my gun to keep him from shooting me. I tried to shoot first, anyhow. Q. Tried to shoot first? A. Yes, sir.”

In the view we take of. this case, we do not think it necessary to discuss the questions raised by the defendant. The testimony of the state shows a case of deliberate assassination. While the defendant’s own testimony shows a case of killing in mutual combat, willingly entered into by the defendant, if we consider the case in its most favorable aspect for the defendant, he is upon his own testimony guilty at least of manslaughter in the first degree.

Where the killing is done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the slayer cannot justify on the ground that it was committed in self-defense, and it will be manslaughter at least, unless the survivor can prove that before the fatal shot was fired he had refused any further combat and had retreated as far as he could with safety, and that he killed his adversary of necessity, to save his own life or his person from great bodily harm. Evans v. State, 8 Okla. Cr. 78, 126 Pac. 586.

No question is raised as to the sufficiency of the indictment. The charge of the court is full and correct and more favorable to the defendant in some particulars than the evidence demanded. After a careful examination of the various questions, raised, we are satisfied that, under well-settled rules sustained and upheld by the decisions of this court, no prejudicial error was committed.

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

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


author: PER CURIAM.

text:
    SMITH BUSBY v. STATE.
    No. A-1872.
    Opinion Filed November 29, 1913.
    (136 Pac. 598.)
    WITNESSES — Cross-Examination of Accused — Prior Conviction. The state, in a criminal case, has the right to ask the defendant, as a witn'ess in his own behalf, upon cross-examination, whether or not he has been convicted of a crime, for the purpose of affecting his credibility.

      Appeal from County Court, Jefferson County; B. T. Price, Judge.

    Smith Busby was convicted of pointing a pistol, and brings error.
    Affirmed.

      W. Ii. Sayle and E. PJuser, for plaintiff in error.

      Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   PER CURIAM.

This appeal is prosecuted from a judgment of conviction entered on the 14th day of October, 1912. The charge was that the defendant, on or about the 27th day of June, 1912, did willfully and unlawfully point a pistol at another, to wit, M. F. Eaird. The jury left the punishment to the court. The sentence of the court was that the defendant serve three months in the county jail, and pay a fine of $50.

The information is sufficient, and no contention is made that the verdict is not sustained by the evidence; the sole ground of complaint being that the court erred in admitting certain evidence.

The defendant was a witness in his own behalf, and was asked upon his cross-examination if he had ever been convicted of a felony. He answered that he had been so convicted seventeen years ago. Counsel now contend that the conviction was too remote to be considered, and that the court should not have permitted this evidence to go to the jury. Our statute provides (section 5046, Rev. Laws 1910) that a witness may be discredited by showing on cross-examination his conviction of a criminal offense, and section 5882, Rev. Laws 1910, provides that “the rules of evidence in civil cases are applicable also in criminal cases.” The defendant had elected to testify as a witness in his own behalf, and, having done so, the county attorney had a right to ask him on cross-examination any question pertaining to the mat'ter at issue, or that would go to his credibility as a witness. Key v. State, ante, 135 Pac. 950, and cases cited.

Upon a careful consideration of the record, there seems to be no reason to doubt that the verdict of the jury in this case was entirely in harmony with the interests of justice.

The judgment of conviction is therefore affirmed.


author: FURMAN, J.

text:
      Ex parte EUGENE WILLIAMS.
    No. A-2116.
    Opinion Filed December 1, 1913.
    (136 Pac. 597.)
    ^EXTRADITION — “Fugitive from Justice’’ — Revocation of Parole, (a) To be a fugitive from justice under tbe laws of the Dnited States, it is not necessary that the person charged with having left the state in whieh the crime was alleged to have been committed should have done so for the purpose of avoiding prosecution anticipated or begun, but simply that, having committed a crime within the state, he leaves such state, and, when he is sought to be subjected to its criminal process to answer for his offense, he is found within the territory of another state.
    (b) A convicted prisoner, who has a parole, and who goes into another state, is a fugitive from justice within the provisions of the United States Constitution and laws, and as such is subject to extradition if his parole is revoked.
    (e) The legality of the revocation of a parole in the state of Indiana is a question for the -courts of Indiana, for they alone have the right to construe the Constitution and laws of that state.
    (d) Whenever the action of the Governor of Oklahoma in any matter is authorized by law, and comes before the court for review, it is our duty to sustain the Governor, and we take great pleasure in doing so.
    Petition for writ of habeas corpus by Eugene Williams.
    Denied.
    It appears from the record in this cause that the petitioner, Eugene Williams, was legally charged by indictment, and was ■tried and convicted for the crime of grand larceny in the circuit court of Vanderburgh county, in the state of Indiana, on the 12th day of July, 1909, and was sentenced to imprisonment in the penitentiary of Indiana from one year to fourteen years; that before the expiration of said sentence petitioner was paroled by the board of commissioners of the Indiana state prison, and removed from the state of Indiana to the state of Oklahoma; that on the 1st day of December, 1912, petitioner was declared a delinquent, and his parole was revoked. On this state of facts the Governor of Indiana presented requisition papers for the said Eugene Williams to the Governor of Oklahoma, which were honored by the Governor of this state, and his warrant issued for the arrest of petitioner, to be returned to the state of Indiana, as requested by the Governor of that state.
    /. G. Harley, for petitioner.

      Munden & Staley, for State of Indiana.
   FURMAN, J.

(after stating the facts as above). When this matter was presented to the Governor of Oklahoma, he properly referred it to the Attorney General for legal advice. The Attorney General advised the Governor that, to be a fugitive from justice under the act of Congress, it is not necessary that the person charged with having left the state in which the crime was alleged to have been committed did so for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a state committed a crime against the laws, he leaves such state, and, when he is sought to be subjected to its criminal process to answer for his offense, he is found within the territory of another state. In support of this proposition, the Attorney General cited the following authorities: Ex parte Dickson, 4 Ind. T. 481, 69 S. W. 943; Op. Gov. Fairfield (Me.), 24 Am. Jur. 226; State v. Richter, 37 Minn. 436, 35 N. W. 9; In re Voorhees, 32 N. J. Law, 141; People v. Pinkerton, 17 Hun (N. Y.) 199; Johnson v. Ammons (Ohio) 7 Am. Law Rec. 662; Hibler v. State, 43 Tex. 197; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544; In re Bruce (C. C.) 132 Fed. 390; In re Bloch (D. C.) 87 Fed. 981; In re White, 55 Fed. 54, 5 C. C. A. 29; Ex parte Brown (D. C.) 28 Fed. 653.

We are of the opinion that the advice of the Attorney General to the Governor states the law correctly. In further support of this proposition, we desire to cite the case of Drinkall v. Spiegel, 68 Conn. 441, 36 Atl. 830, 36 L. R. A. 486. In that case the Supreme Court of Connecticut held that a prisoner who violates a parole, and goes into another state, is a fugitive from justice within the provisions of the United States Constitution and laws, and that such person is subject to extradition.

There is but one question in this case, and that is the legality of the revocation of the parole of petitioner; but this is a question for the courts of Indiana, for they alone have the-right to construe their Constitution and laws. AVhen the Governor’s action in any matter is authorized by law, it is our duty to sustain such action, and we take great pleasure in doing so. We find that the Governor's action in this case is entirely proper, and within the law, and it is therefore upheld and sustained, and the writ is denied, and any officer of the state of Oklahoma who may noyv have petitioner in his custody is directed to surrender him to the duly authorized representative of the state of Indiana, in obedience to the Governor's warrant issued in this proceeding. It is further ordered that the extradition papers may be withdrawn from the files by the attorneys representing the state of Indiana.

Mandate will issue without delay.

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


text:
    CHARLEY SIMPSON v. STATE.
    No. A-1809.
    Opinion Filed December 2, 1913.
    (136 Pac. 778.)
    APPEAL — Burglary—Evidence. In a prosecution for burglary, the evidence held sufficient to sustain the verdict and judgment of conviction, and that no reversible error was committed on the-trial.

      Appeal from District Court, Comanche County; J. T. Johnson, Judge.

    Charley L. Simpson was convicted of burglary, and appeals.
    Affirmed.

      J. F. Thomas, for plaintiff in error.

      Chas. W.est, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the district court of Comanche county on the 29th day of January, 1912, in which the defendant was found guilty of burglary' and his punishment assessed at imprisonment in the penitentiary for a period of seven years.

It is disclosed by the record that plaintiff in error and L. L. Dorsey were jointly charged in the information with the crime of burglary, alleged to have been committed on the 25th day of December, 1911, by breaking and entering into, in the nighttime, a certain store building in the cit}' of Lawton. The defendant Dorsey pleaded guilty.

The proof on the part of the state amply justified the jury in finding the defendant guilty, and no evidence was introduced in behalf of the defendant. No authority is cited in support of the contentions made, and after a careful examination of the questions raised we are satisfied that under well-settled rules, sustained and upheld by the decisions of this court, no error was committed prejudicial to the substantial rights of the defendant.

The judgment of conviction is therefore affirmed.

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


text:
    WILL WILLIAMS v. STATE.
    No. A-1661.
    Opinion Filed December 2, 1913.
    (136 Pac. 778.)
    EVIDENCE — Admissibility—Larceny. Over the defendant’s objection a witness for the state was permitted to testify that the. defendant's father offered to pay him $50 to testify in favor of the defendant. There was no proof tending to show that such offer to pay witness was made by the authority, consent, or knowledge of the defendant. The court, overruling motion to strike out this testimony, said: “This man being the defendant’s father, I will let it stay in.” Held, that the evidence was incompetent and inadmissible and was calculated to prejudice the defendant, and that the erroneous rulings of the court constitute reversible error.

      Appeal from District Court, Choctaw County; A. H. Ferguson, Judge.

    Will Williams was convicted of larceny of a domestic animal, and appeals.
    Reversed.

      Richardson & Warren, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   DOYLE, J.

Plaintiff in error was indicted for the larceny of a two year old heifer and upon his trial was found guilty and was sentenced to be imprisoned in the penitentiary for one year. The judgment of conviction is here for review.

Among the numerous errors assigned is one, the consideration of which must result in a reversal of the judgment. As a witness for the state, Earl Hunt testified that he saw the defendant, Will Williams, and his codefendants, Dave White and George Hughes, driving a yearling, and that the defendant, Will Williams, shot it. He was then asked if he talked to Mr. J. T. Williams, the father of the defendant, about this case, and answered, “Yes.” He was then asked, “I will ask you how much he offered you to testify in this case?” and answered: “You want me to tell what he said to me?” “Yes, go ahead and state it.” Over the defendant’s objection the witness was permitted to answer as follows:

“We was coming on this train one day and down here at this little station, McCanns Spur, they stopped the train, something got wrong with it, and Mr. Williams came up and slapped me on the shoulder and said, ‘I want to speak to you.’ We stepped off, and he said, ‘What do you know about the case against the boys?’ I says, ‘Mr. Williams, I cannot tell you anything about the case and ain’t going to tell a thing about it.’ He says, ‘You know what the boys swore and I will give you $50 in money (and he put his hands in his pocket) if you will get up and swear that you were with the boys that day and did not see anything like this.’ I says, ‘I won’t do it;’ and about that time the train started on. That’s what I told him.”

The defendant moved to strike out the answer, which was overruled; the court saying: “This man being the father of the defendant, I will let it stay in.” To which language of the court the defendant excepted. In the brief for the state it is said: “We are unable to see how this testimony was admissible.” The defendant was not present when this alleged conversation occurred, and the evidence of the state fails to in any way connect him with the alleged proposition of his father. As a witness in his own behalf, the defendant denied any knowledge of such proposition; and his father, J. T. Williams, as a witness denied making any such offer to the state’s witness Earl Hunt. That this testimony was incompetent and prejudicial to the defendant we think there can be no doubt. If the minds of the jury were wavering on the question of the innocence or guilt of the defendant, this incompetent testimony which the court had sanctioned with judicial approbation was sufficient to turn the scale against the defendant.

In the case of Bruner v. U. S., 1 Okla. Cr. 205, 96 Pac. 597, a witness testified that the defendant’s brother had offered to pay her $25 if she would testify in the defendant’s behalf. Counsel for the defendant moved to strike this testimony out for the reason that it was not shown that the defendant was connected with the making of the offer. The court overruled the motion to strike. Mr. Justice Dunn, delivering the opinion of the court, after reviewing numerous decisions, said:

“Nor, as we have above said, are we able to say that this evidence was not prejudicial to the defendant. He was entitled to have the issue of his guilt or innocence presented to the jury upon the relevant and competent evidence properly applicable thereto, and he was entitled to be relieved of the damaging cloud which evidence of this character would throw over his entire case, unless he was responsible for it. The illimitable scope of undeserved damage the cause of a defendant might suffer through friends or enemies, should evidence of this character be admissible, is readily seen; and where in a case such evidence appears, and it is not clearly shown that the defendant is responsible for it, and proper exceptions are saved, a conviction will not be sustained.”

We deem it unnecessary to review the other errors assigned. For error in the rulings of the court with regard to the admissibility of the testimony discussed, the judgment of conviction is reversed, and the cause remanded for'another trial.

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


text:
    NEWT ROMINE v. STATE.
    No. A-1822.
    Opinion Filed December 6, 1913.
    (136 Pac. 775.)
    1. WITNESSES — Continuance—Grounds. It is the right of every citizen, when prosecuted for an offense, to have compulsory process to compel the attendance of his witnesses, but where the record does not show that a praecipe was filed, nor that a subpoena was issued or served upon absent witnesses, it will be presumed that a motion for a continuance on account of the absence of witnesses was piroperly overruled.
    2. TRIAL — Continuance — Motion — Diligence. Motion for continuance should show diligence.

      Appeal from District Court, McCurtain County; A. H. Ferguson, Judge.

    Newt Romine was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      Hosey & Leggett, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (C. /. Davenport, of counsel), for the State.
   DOYLE, J.

Plaintiff in error, Newt Romine, was indicted and tried for the murder of one Steve Etchieson, alleged to have been committed in McCurtain county on or about the 25th day of March, 1911. He was convicted of manslaughter in the first degree. On 'the 26th day of February, 1912, in accordance with the verdict, the court sentenced the defendant to imprisonment in the penitentiary for tlfe term of four years.

The evidence shows that the defendant and the deceased, with their families, occupied the same house on the defendant's farm near Bethel; the deceased had rented the farm; that on.the day alleged in the indictment they, with two others, Sid Sanders and F. F. Miller, had been hunting wild ponies in the hills, and the deceased and F. F. Miller returned to the house early in the evening; later the defendant appeared. They were all somewhat intoxicated. About 10 o’clock the defendant fired two shots at Miller, one hit him in the arm and the other in the leg. Pie then shot the deceased. The shooting occurred in the dooryard. Several witnesses testified that the defendant after the shooting stepped upon the porch and said, “If I ain’t killed them I am going to.” The deceased’s wife and one or two of her children went to a neighbor’s named Baker, about a quarter of a mile distant, and asked him to send for. a doctor. The defendant followed them, and talked to Baker in Choctaw, and said in English: “I have killed both of them.” The deceased was found dead the next morning, lying near a path that led to Baker’s. The defendant claimed that Miller and the deceased assaulted him, and that the, shooting was in self-defense. His testimony is without corroboration.

The only error assigned that is argued in the defendant's brief is the overruling of the motion of the defendant for a continuance. The indictment was returned September 30, 1911. The defendant was arraigned on the 4th day of December, 1911. The case was called for trial on the 24th day of February, 1912, 11 months after the homicide. Thereupon the defendant moved for a continuance, supporting the motion with his affidavit, in which he states:

“That he cannot safely proceed to trial at this time because of the absence of material witnesses, to wit, J. A. Morgan, Bob Anderson, and Sid Sanders. That these witnesses would testify to threats made by the deceased against the defendant, which threats are set out in the affidavit. That the following witnesses: H. M. Coker, Joe Blalock, Ed Graham, Gib Howard, Emmett Anderson, W. C. Cooper, Joe Dedwiler, Claud Adding-ton, Sherman McClain, George Trotter, and Clint Clark — if present, would testify that the general reputation that defendant bore in the community in which he lived as a peaceable law-abiding citizen was good, and that that of the deceased was that of a violent dangerous man.”

—that these witnesses were residents of the extreme northern part of McCurtain county, about 60 to 90 miles from the county seat, and that he had filed a praecipe for subpoenas for them; That he had been informed, and verily believed, that the nonattendance of "these witnesses was occasioned b}? their belief that they would be unable to secure the necessary expenses and remuneration for their time, and that he was without money or property with which to secure their attendance.

It is well settled by a long line of decisions of this court that the granting or refusal of a continuance in a criminal case is largely a matter of discretion of the trial court. The defendant’s affidavit presented no facts which, in the exercise of reasonable discretion by the court, would have warranted a continuance of the case. While it is the right of every citizen, when prosecuted for an offense, to have a fair and impartial trial, and tompulsory process to compel the attendance of his witnesses, no proper showing was made that a praecipe was filed, or that subpoenas were issued and served upon these witnesses. Nothing in the record shows when a praecipe was filed, and if these witnesses, had been duly subpoenaed, then it was the duty of the defendant to ask that attachments issue. He does not state that these witnesses were not absent through his procurement or consent. The law requires diligence in these matters, and a dé-fendant cannot sit still and wait until his case is called for trial before he begins to get ready. In our opinion, the affidavit does not disclose such diligence on the part of the defendant to procure the attendance of these witnesses as the law requires, or such that made it the duty of the court to grant the continuance.

The defendant was convicted of manslaughter in the first degree, and the minimum punishment assessed. We think he was fortunate, and' should be satisfied with his conviction, for under the evidence for the state, he was guilty of nothing less than murder. A careful examination of the whole case leads to the conclusion that no error has been committed, to the defendant’s prejudice. The judgment of conviction is therefore affirmed.

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


text:
    GROVER PHILIPS v. STATE.
    No. A-1759.
    Opinion Filed December 5, 1913.
    (136 Pac. 776.)
    1. APPEAL — Correction of Record — Presence of Defendant. The presence of a defendant is not necessary when an investigation is being made for the purpose of correcting a case-made or a transcript of the record.
    2. SAME — Case-Made—Conclusiveness. If any statement contained in a ease-made or a transcript of the record is questioned in the Criminal Court of Appeals, the statements contained in such ease-made or transcript of the record will not be accepted as conclusive; but the court may order an investigation in such manner as it sees fit, and correct the case-made or transcript of the record só as to make it speak the truth.
    3. SAME — Service—Necessity. If a case-made is not served upon the county attorney at the time fixed for that purpose by the trial court, such case-made will not be considered on appeal.

      Appeal from District Court, Jefferson County; Frank M. Bailey, Judge.

      Grover Philips was convicted of rape, and appeals.
    Appeal dismissed.
    This is an attempted appeal from a judgment rendered in the district court of Jefferson county, on the 9th day of December, 1911, upon a verdict wherein appellant was convicted of the crime of rape; and Ins punishment was assessed at five years’ confinement in the penitentiary. It was provided in the judgment that appellant should have 00 days in which to prepare and serve a case-made, and thereafter on February 5, 1912, the court made an order extending the time within which to serve the case-made, 30 days from February 7, 1912; and thereafter on March 2, 1912, the court made an additional order, further extending the time to prepare and serve the case-made, five days, thereby granting appellant 35 days from February 7th to serve the case-made, which said time expired on the 13th day of March, 1912. The record, as filed in this court, shows acceptance of service of the case-made by the county attorney of Jefferson county on the 12th day of March, 1912. The Attorney General, however, suggested a diminution of the record, and in support thereof alleged that the case-made was not served until or after March 15, 1912, and after the expiration of the time allowed by the trial court in which to serve the case-made. On the 8th day of March, 1913, this court made an order permitting the state to withdraw the record from this court to be transmitted to the district court of Jefferson county, with directions to the trial court to hear the testimony, and determine as a matter of fact just when the case-made was served on the county attorney of Jefferson county. The trial court heard the testimony of the witnesses in the case, and certified to this court its finding that the case-made was served on the county attorney of Jefferson county on or after the 15th day of March, 1912. All of which appears in the record before us.

      J. H. Harper, for appellant.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

(after stating the facts as above). Counsel for appellant has filed a brief in this cause in which he attacks-the finding of the trial court as to the date on which the case-made was served on the county attorney.

First. The first contention is that appellant was not present ■ when the investigation, upon which this finding was based, was held, although the appellant was represented by counsel. Counsel assumes the position that, as testimony was heard affecting a substantial right of appellant, his presence was absolutely necessary in such hearing. In support of this position he cites section 5761, Rev. Laws 1910, which is as follows:

“If the indictment or information is for a felony the defendant must be personally present, but if for a misdemeanor only, his personal appearance is unnecessary, and he may appear upon the arraignment by counsel.”

It will be seen that this section is the second paragraph of article 8 of the Revised Laws under the heading of, “Pleadings and Proceedings before the Commencement of Trial.” It only requires the presence of a defendant in a felony case at the trial upon which the question of his guilt or innocence of the crime charged is determined by the jury. It does not require the presence of a defendant at any hearing in which the question of guilt is not directly passed upon. See Ward v. Territory, 8 Okla. 12, 56 Pac. 704; Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766; Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Newton Henry v. State, post, 136 Pac. 982,. decided at present term. If it be true that appellant should be present when such matters are .under investigation, then if he were confined in the penitentiary, it would be necessary to take him out and carry him to the place where the investigation was being conducted, although his presence there would not subserve any good and lawful purpose. Appellant might just as well contend that it was necessary that he should be present when the case-made was settled and signed by the trial judge.

Second. Counsel for appellant contends that after the case’ made had been signed and settled by the trial judge it was conclusive, and could not be amended, and that this court was without jurisdiction to refer the case-made back to the trial judge for correction, in order that the case-made might speak the truth. In support of this contention he cites the case of Day v. Ter., 2 Okla. 409, 37 Pac. 806. It is not necessary for us to determine as to whether or not the law is correctly stated in Day’s case; it is enough for us to know that this is not the law of the state of Oklahoma. Section 1771, Rev. Laws 1910, is as follows:

“Said court shall have power, upon affidavit or otherwise, to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.”

This statute is similar to one in force in Texas, relating to the matter now under consideration. In the case of Thompson v. Hawkins (Tex. Civ. App.) 38 S. W. 236, the Civil Court of Appeals of that state said that it had the jurisdiction to inquire as to the truth of a record transmitted to it from the trial court, and with reference to the statute said: “The discretion given could scarcely be broader and m<3re extensive.” Under the statute above cited this court could determine the question upon affidavits, or in any manner it deemed proper. The best and safest policy was to refer the matter to the trial court, which, without unnecessary expense, could have all of the witnesses before it. This was fair alike to the state and appellant and his counsel. Section 5248, Rev. Laws 1910, is as follows:

“The certificate of the judge who settles and certifies the case-made shall be prima facie evidence of the facts therein recited, unless the case-made on its face shows affirmatively that such certificate is in some material respect incorrect, or the said certificate be proven incorrect by affidavits or other competent evidence introduced in the appellate court in connection with a motion to correct the record or case-made, under such rules and regulations as the court may prescribe.”

Third. It has always been the law of Oklahoma that an appeal in a criminal case may be taken as a matter of right, but that the manner of taking and perfecting such appeal is a proper subject for legislative control, and that the legislative direction must be observed. Bailey v. Ter., 9 Okla. 461, 60 Pac. 117; Arispi v. Ter., 2 Okla. Cr. 79, 99 Pac. 1099; Boncparte v. U. S., 3 Okla. Cr. 345, 106 Pac. 347; Chesney v. State, 3 Okla. Cr. 454, 106 Pac. 651; Dobbs v. State. 5 Okla. Cr. 475, 114 Pac. 358, 115 Pac. 370; Lyons v. State, 6 Okla. Cr. 581, 120 Pac. 665.

It has also been repeatedly held that a case-made will not be considered on appeal if it was not served on the county attorney at the time fixed for that purpose by the trial court. Cohn v. State, 4 Okla. Cr. 498, 113 Pac. 216; Hawkins v. State, 5 Okla. Cr. 276, 114 Pac. 356; Talley v. State, 5 Okla. Cr. 528, 115 Pac. 603; Billus v. State, 7 Okla. Cr. 37, 121 Pac. 790.

This being the settled law of this state, and as no case-made in this cause was served upon' the county attorney until after the expiration of the time directed by the trial court, and as this is an attempted appeal upon a case-made alone, we have no discretion except to dismiss the appeal, and it is therefore so ordered.

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


author: DOYDE, J.

text:
    J. W. KINCAID v. STATE.
    No. A-1807.
    Opinion Filed December 6, 1913.
    (136 Pac. 779.)
    1. TRIAL — Instructions—Refusal of Instruction Covered. When the law pertaining to the defense has been clearly and correctly expounded in the instructions given, it is not error to refuse instructions which are merely cumulative.
    2. APPEAL — Harmless Error — Argument of Counsel. In determining the effect of an improper statement made by the prosecuting attorney in the closing argument to the jury, the question is, Was the defendant prejudiced thereby? and the strength of the evidence supporting the conviction will be considered, and, where the guilt of the defendant is clearly established, it is not sufficient for a reversal.
    S. HOMICIDE — Harmless Error — -Failure to Instruct. Failure to instruct pursuant to Rev. Laws 1910, sec. 5902, relative to the burden resting on defendant in a murder case to prove mitigation or justification, being error in defendant’s favor, is harmless^

      Appeal from District Court, McCurtain County; A. H. Ferguson, Judge.

      J. W. Kincaid was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    Under an indictment which charged him with the murder of Levi Davis, in McCurtain county, on the 18th day of November, 1911, the defendant was convicted of manslaughter in the first degree. On the 20th day of February, 1912, the court, in accordance with the verdict of the jury, sentenced him to imprisonment in the penitentiary for the term of seven years. A substantial statement of the evidence is as follows:
    A. C. Wood was the first witness for the state. He testified : That he was 18 years of age and lived at Hochatown and was justice of the peace there. That he was in Kincaid’s store and heard Davis say to Kincaid that he had to settle with him right now or one or the other of them had to- leave the world, and Davis walked out of the store still talking back to Mr. Kincaid. That Kincaid followed him out with a pistol and he heard the pistol click and he spoke to him, calling him “Jim,” and Kincaid fired two shots. He went out and Davis was lying-on the ground. One shot entered the point of the left shoulder and the other entered above the eye. The shooting occurred about 3 o’clock in the afternoon, and Davis died about two hours later. That he saw Mr. Watson, Mr. Graham, Mr. Wilson, and Mr. Wiser in the store at the time of the killing.
    A. T. Wood, the next witness, testified: That he was 22 years of age and son of witness A. C. Wood and at the time of the killing was working for Kincaid as bookkeeper. That Davis had been working for Kincaid as fireman at the gin, and just prior to the killing Davis was at the office wanting a settlement out of Kincaid. That the dispute between Davis and Kincaid was over both the store account and the time worked at the gin. That Davis said that he would not settle and walked out. That Kincaid kept a pistol there in the office at the store, and after Davis walked out some one came into the office, but witness could not say whether it was Kincaid or not.
    T. W. Watson testified that he lived one mile and a quarter north of Hochatown, on a farm owned by Kincaid, and was running the gin for Kincaid at that time, and Davis was firing the engine. That he was in the store at the time of the killing. He described the killing as follows:
    “Mr. Davis was in behind the counter at the book desk, and just about the time I went in the store he came out from behind the counter and was walking towards the store door and made the remark that his time wasn’t right, and they better settle with him and settle with him right or one or tother of them would quit the country, and repeated that word about the third time and stepped out on the store gallery. * * * About the time he came out from behind the counter, Mr. Kincaid told him that he would settle with him; to go on and get sober and he would settle with him; and, when he made the remark that they would settle with him right or one or tother of them would quit the country, the next thing I noticed Mr. Kincaid came out from behind the counter and made a start towards the door and shot Davis.”
    ■ — that he heard Mr. Kincaid say that, “You say you would take my life or kill me, or something about those words." That Davis did not say a word. That Levi Davis and John Woods were working with him at the gin that day and both were drinking.
    Will Wiser, the next witness for the state, testified: That he lived at Hochatown; was present at the shooting. He described it as follows:
    “A. Well, the first I noticed of any dispute when I entered the house was when Mr. Davis come out from behind the counter where they was supposed to have been having a settlement, and he told Mr. Kincaid when he got ready to settle and settle right they would settle, and Mr. Kincaid told him that he would settle by them books; so Mr. Davis told him that he would settle with him and settle right or one or the other of them would leave the country, and walked on, and told him that he couldn’t do him like he had been doing some of them Choctaws around there, or something to that effect; 'and Mr. Kincaid asked him did he say he would kill him, and he said No’; he didn’t say that; and he asked again, and he said he didn’t say it, and he fired on him the first shot.”'
    —that he helped dress the body of the deceased and the wound on the forehead was powder burnt. That the deceased had nothing but a pocketknife which he had closed in his pocket. That he saw no other weapons.

      Charley Burk, the next witness, testified: That he was present at the killing. He described the circumstances as follows:
    “Q. Please state to the jury as best you can just what occurred there and what was said between Mr. Davis and Mr. Kincaid. A. Well, Mr. Davis come in there for a settlement. Pie was in there when I went in, and when I went in there I went after something; I don’t remember what it was; I think it was some nails probably; and I stood there a few minutes. Mr. Kincaid was out then, went after some change for an old gentleman; so he said he would go to the house after the change, and, when he come back, why they was something said about the settlement, and Mr. Kincaid told Mr. Davis that he would settle according to them books, and that’s the only way he would settle with him; said if he‘wanted to settle with them books they* would settle; and Mr. Davis told him that he wouldn’t settle with those books; that he didn’t have him enough time for the day before, Friday, and he told him, well, he wouldn’t settle with him that way; and Mr. Kincaid told him, 'All right, then;’’ that the books was there and he could settle with them if he wanted to; and so Mr. Davis told him whenever he — he* just says, 'Whenever you commence to settle with me,’ he says; and using some oath he says, 'You ain’t beating any Choctaw over the head with a plow point;’ and Mr. Kincaid was standing there and he started back toward that little office on the north side of the house, and as he come out from behind the counter he says, 'If I have to kill you, I will kill you;’ and he walked on past me, and I was standing something near eight feet of them, I guess, six or eight feet, and I told him, I says, ‘Don’t do that, Jim; that’s bad business;’ and he went on. He got something like a foot or two feet of the door, and he raised his gun and fired a shot, and Mr. Davis fell, and, after he fell, why he walked up and stuck the gun down and shot him in the forehead, and when he done that he turned around and walked toward the north end of the porch about six or eight feet, I suppose about six feet, and he says, ‘Is there anybody else here wants to kill me?’ and when Mr. Kincaid walked on around the house I just turned around myself and walked out the back door, and as I walked out the back door Mr. Kincaid he was walking around at the west door or north of the west door, that I come out of, and that’s the last I saw of him.”
    Roy Wilson testified that he lived at Plochatown and was present at the killing. He described it as follows:

      “A. Well, when I came into the house, Mr. Davis was behind the counter where the bookkeeper was, Mr. Fred Wood. He was keeping books at that time. I supposed he was trying to straighten up his time. He had been working for Mr. Kin-caid and just as I came into the house I heard Mr. Davis ask Mr. Wood if seven hours was all he got for a day’s work. That’s the first thing I heard as I came into the house; and Fred Wood said, 'That’s all I give you; that’s all the time I give you;’ or something to that effect. That Mr. Davis turned towards Mr. Kincaid and walked towards him and asked him if seven hours was all he got for a day’s work, or over a day, from daylight until dark; and Mr. Kincaid just answered, T didn’t keep the time; Fred Wood keeps the books;’ and Mr. Davis just turned and walked out from behind the counter behind me and walked towards the front door, and, as he walked towards the door, he just says, T won’t settle that way; you are going to settle with me right;’ and he walked to the front of the house and got out of the door on the edge of the porch, just on the outside of the door, and turned back facing the house, and as he turned back he says, 'Jim/ he says 'you are going to do me like you do these damned Indians, beat me around over the head.’ He repeated it again, ‘You are going to settle with me right, and going to settle right or me or you one will leave the country.’ Mr. Kin-caid was to my back. I just heard him say, ‘Do you mean that you are going to kill me?’ and turned and walked back towards the bookkeeper’s office. I never looked, at him to see what he was going after or anything about it. I was watching Mr. Davis more than anything else. But as he come out, around the counter behind me (he had his right side to me), come out around me, and after he got far enough past me towards the door that I could see his right hand, I saw the gun. Fie got somewhere near the center of the house from the end of the counter and the door and he asked Mr. Davis, ‘Did you say that you was going to kill me?’ and Mr. Davis just raised his hand and says, ‘No, I didn’t say that, Jim;’ and then Mr. Kincaid repeated it again, says, ‘Did.you say that you was going to kill me?’ He raised his hand the second time and said, T didn’t say that;’ and about that time the first gun fired. Q. About what part of the building — how far was it from the door? About how far when he fired this first shot? A. Well, as well as I understand it, somewhere between 8 and 12 feet. Q. Somewhere about halfway between the end of the first section of the counter and the door? A. Yes, something near that. Q. All right; go ahead and state what else, if anything? A. Well, when Mr. Kincaid fired the first shot, why Mr. Davis fell backwards and he hit the post; his shoulders or some part of him hit the post; fell backwards and struck a post, and it knocked him forward, and he just fell kinda hunke'red down sort of on his side; not side, but side of his head and back. Not plumb on his side, but the side of his head was on the floor. Didn’t lack much; and Mr. Kin-caid had just went up and made a second shot; didn’t look to me like he checked up; just walked up and got right close to him and sort of stooped over and fired the second shot in his head. Q. Did }'ou see the wounds, Mr. Wilson? A. Yes, sir; I did. Q. How many, and what part of the body did the balls take effect? A. One of them struck him in the left shoulder right about there (indicating), and the other one struck him in the head right along there and come out right by his right ear — over it. Q. Did you say Mr. Davis raised his hand and you held up your left hand? Which one did Mr. Davis -raise? A. Air. Davis raised his left hand. Q. Who was in the -room, if you know, in the store at that time? A. Well, there was several. I don’t know how I could call all the names. There was Fred Wood, he was in the office. Mr. Cam Wood was in the store, and Mr. Wiser and a fellow by the name of Graham, Charley Burks, and Mr. Watson, and there -\yere an Indian woman in there. I don’t remember now — yes, Will Wiser. I don’t remember whether there was anybody else or not. Q. Did you see Charley Burk in there? A. No, I didn’t see Charley Burk until after this happened, and they all began to stir around, and Charley was there then. O. Did you help dress the dead man? A. Yes, sir; I did. Q. How long after the shooting was it before you was out to the body? Out to where he fell? A. I believe about three or four minutes. Q. Did you notice any weapons, any gun or any kind -of weapon, on Mr. Davis during any of the time of the quarrel up until the time he was shot? A. Did not. Q. Did you see any weapons on or about him after he fell and was shot? A. Well, they were a pocketknife in his pocket that night when we dressed him. Q. Do you remember how he was dressed? A. Yes, yes, sir; he was running the engine there at Hochatown for Mr. Kincaid for the gin, and he had a pair of pants and a pair of overalls over them, and the knife was in his pants pocket under the overalls.”
    The state rests. James W. Kincaid, the defendant, as a witness in his own behalf, testified: That he had been living in Hochatown and vicinity for about seven years. That he had been engaged in farming, stock raising, gin, mercantile, and sawmill business. That deceased had been working for him as fireman at the gin. That on the morning of the difficulty witness went from his store to the gin and there was nobody there, and he got his team and hauled wood to the gin; got back with the first load about 10 o’clock, and saw that Davis was drinking; unloaded and went after second load and got back between 12 and 1 o'clock. At that time he considered Davis drunk and went up into ginhouse and told Watson to shut down the gin; then went home to dinner. Watson came while defendant was eating dinner and asked to let him run until he could finish the ginning they were then on. Witness told him to do it but to look after the boiler. After dinner he went back to gin and had it shut down.-—
    “Davis came up and said I had fired him. I told him I hadn’t fired him. He said, ‘By God, he was going to have a settlement with me; that he had been wanting to do something for me to fire him for; and by God he done it, and he could whip me and could whip that long-legged clerk of mine.’ Left the gin and went to the store and wasn’t there but a short time until they come and wanted me to number and brand a bale of cotton. Went back to the gin for this purpose. Davis come up again and told me I had fired him and had to settle with him; that, ‘By God, he was the best man there was on the ground.’ I said if I had to fight my way out I had as well get ready for it. I again went to the store to keep away from him. After I was there some little bit I had to weigh some cotton at the scales about 20 or 30 steps northeast of the store. Davis followed me out there. I had m)'- pistol. While I was weighing the cotton he helped me roll the cotton on the scales and take it off and roll it inside of the cotton yard, and when I would do that he would throw himself up against me, and when I would go to weigh the cotton he would pass, and he would rub against me and tell me he was the best damned man there was there, and if I said anything he would whip me. I never said anything to him. After I weighed the cotton I went to the house to keep away from him. After this it seemed like Davis had quieted down, and I went and put up my gun. Davis met me as I was going from the store to the house and said, ‘By God, you are slipping off, by God, trying to keep from settling with me.’ I told him, ‘No, I am not.' He says, ‘You are going to settle with me.’ I says, ‘Levi, 1 ain’t fired you at all; go and get sober and let’s have no trouble at all.’ During the afternoon Cam Wood told me to be on my guard; that Davis had said that one or the other of us would quit the world. After I came back from the house to the store I noticed Davis looking through the front window. He appeared to be mad. After that I again went and got my gun. Some minutes after that Davis came into the store. I- was in the north side waiting on a customer. He demanded a settlement, and I told Fred to straighten up the books and settle with him, if nothing else would do. Davis then went into the office. After he and Fred Wood was there some time, Wood called me. I didn’t go up until he called again, and when I got there Davis said he had put in more time than that and wasn’t going to settle that way. I said, 'I haven’t kept the books; I am willing to settle with you and give you all the time that’s coming to you.’ That I didn’t want anything only what was right both ways. When I said that Davis passed out by me. He was mad and said: ‘No, I am not going to settle by your books at all. I won’t settle any such way. By God, I am going to have my time, and you have got to settle with me, or you or me one will quit the world.’ He repeated that as many as three times. He went quartering towards the south side of the door as he went out. I thought his intention was to try to get the advantage of me and kill me. I had my gun and just walked up quartering towards the door in order to keep in sight of him. When he got outside the door he turned and said, T will kill you, and I will kill you now.’ Instantly as he turned back and said that, he throwed his right hand holding his pants like he • was trying to get a gun. I immediately shot twice as fast as I could. The first shot didn’t make any change in him. I shot to keep him from killing me. I was near the door when I shot the first time and right at the door the second shot. I was stepping forward all the time. Davis was standing when I fired both shots. Fie had a coat on. Davis never said he didn’t want to hurt me.”

      Armstrong & Etheridge and Steel, Lake & Head, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYDE, J.

(after stating the facts as above). The assignments of error relied upon for reversal of the judgment are, in effect, as follows: That the court erred in refusing to give the instructions requested by the defendant; misconduct of the prosecuting attorney in his argument to the jury.

The chai'ge of the court contained nineteen instructions. No objection was made nor exception taken to any instruction given. The defense requested the court to give eleven additional instructions. It is our opinion that the requested instructions were properly rejected, as all the law pertaining to the defense had been clearly and correctly expounded in the instructions given, which were more favorable to the defendant than the law contemplates.

Our Code of Criminal Procedure provides (section 5902, Rev. Laws 1910) that:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it,- devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

The court should have given an instruction based upon the foregoing section. See Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668. However, its failure to do so was an error in favor of the defendant, of which he cannot complain. When the defendant has had the benefit of a fair trial by an impartial jury, selected conform-ably to law, and fully and fairly instructed in every principle of law applicable to his defense, with no rulings against him that would tend to prejudice a substantial right or deprive him of his defense, he has received all that any citizen can rightfully demand.

During the closing argument of counsel for the prosecution, the assistant prosecutor made the following statement:

“Now, gentlemen of the jury, of all the dark and bloody and black murders that have ever been committed in McCurtain county, this is the blackest and the dirtiest, and unless you convict the defendant you may expect many more such dark and bloody murders.”

At which time counsel for the defendant took an exception. Thereupon the court admonished the counsel not to make use of such language before the jury. We think this statement went beyond the limits of legitimate argument and was improper. In determining the effect of an improper statement made by the prosecuting attorney iii the closing argument to the jury, the ■question is, Was the defendant prejudiced by such improper statement? and the strength of the evidence supporting the conviction will be considered.

The evidence in this case is that the defendant, without any provocation, deliberately shot the deceased, and, not satisfied with this, he stepped up to the prostrate form of his victim and shot him a second time. The evidence proved beyond all reasonable doubt that the homicide was murder. There was no room for even a probability that it was manslaughter in the first degree, nor was there any evidence fairly raising, or tending to raise, the issue of self-defense. We would not have reversed the judgment if the court had omitted to charge upon the issue of manslaughter in the first degree, because in our opinion the facts of the case did not demand that this issue be submitted.

The defendant, without excuse, unjustifiably, with a premeditated design to kill and murder, shot and killed Levi Davis. The jury in mercy, or in charity for the weakness of human kind, or possibly through a mistaken view of the law, lessened his crime to manslaughter in the first degree, and he should be satisfied with his conviction for the lesser offense.

A careful examination of the whole case leads to the conclusion that no error has been committed, to the defendant’s prejudice. The judgment is therefore affirmed.

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


text:
    DANIEL NARCOME et al. v. STATE.
    No. A-1848.
    Opinion Filed December 13, 1913.
    (136 Pac. 783.)
    HOMICIDE — Appeal—Record. In a prosecution for murder, the defendants were convicted of manslaughter in the first degree. Held, that no reversible error was committed upon the trial.

      Appeal from District Court, Hughes County; John Caruthcrs, Judge.

    Daniel Narcome and Jim Franks were convicted of manslaughter, and appeal.
    Affirmed.

      Crump & Skinner, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. 2Jatson, Asst. Atty. Gen., and Joseph L. Hull, Sp. Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiffs in error were convicted of manslaughter in the first degree, upon an information filed in the district court of Hughes county, on the 3d day of June, 1912, wherein it is charged that Daniel Narcome and Jim Franks, in said county, did on or about the 6th day of April, 1912, commit the crime of murder, bjr shooting and killing one Isaac Kernal. On the 10th day of June, 1912, in accordance with the verdict of the jury, the court sentenced the defendants to imprisonment in the penitentiary for the term of five years each. To reverse the judgment, the defendants appealed by filing in this court on October 9, 1912, a petition in error with case-made.

The evidence shows that Ben Reed, John Marks, and Isaac Kernal, the deceased, full-blood Indians, left the town of Holden-ville about sundown on the day of the killing, and were overtaken at the edge of town by Daniel Narcome .and Jim Franks, Indians, and that all went along together for about two miles. There Ben Reed had a fight with the two defendants. After that the defendants rode on ahead. About five miles south of Holden-ville, near the home of Narcome, they met the defendants standing by the side of the road, and Narcome had a shotgun and fired, hitting Isaac Kernal in the breast. Franks shot at them with a pistol. Ben Reed and John Marks jumped out of the wagon and ran away. The next morning, the body of Kernal was found lying upon the spring seat of the wagon.

The defendants took the stand as witnesses in their own behalf. Narcome testified that they were all drinking medicine .together at Holdenville that day; that he and Jim Franks left town together and overtook Ben Reed, John Marks, and Isaac Kernal, and he had a fight with Ben Reed; that they met them •again near Dirt creek, and Ben Reed struck him with a pistol; that he had a shotgun and handed it to Jim Franks, and Jim Franks fired the shotgun; that two pistol shots came from the men in the wagon, and he ran away.

The defendant Franks testified to substantially the same state of facts, and that he fired the shotgun at no particular person.

It is claimed that the court erred in refusing to admit an almanac in evidence, offered for the purpose of showing that the moon rose at 11:34 on the night of the killing. The record does not contain the purported almanac, and for this reason no question is presented for this court to pass upon.

Error is assigned upon one of the instructions given, No. 7, and the first part of this instruction is criticised; but no objection was made nor exception taken to this instruction. We see no objection to the instruction as a whole and can only regard the criticism made upon it as hypercritical.

The charge of the court fully and fairly presented the law of the case. A careful examination of the whole case leads to the conclusion that no error has been committed, to the prejudice of the defendants.

It follows that the judgment of the district court of Hughes ■county must be affirmed.

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