author: BAEEFOOT, J.

text:
    JOE E. FRANTZ v. STATE.
    No. A-9675.
    Sept. 11, 1940.
    (105 P. 2d.)
    E. F. Shutter, of Kingfisher, and Simons, McKnight, ¡Simons, Mitchell & McKnight, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and William O. Breedlove, Co-. Atty., of Kingfisher, for the State.
   BAEEFOOT, J.

Defendant was charged in Kingfisher county with the crime of operating, a motor vehicle upon the public streets of the “City Of Kingfisher, Kingfisher County, Okla., while under the influence of intoxicating liquor”; was tried, convicted, and sentenced to pay a fine of $400 and costs, and has appealed.

The facts, as revealed by the record in this case, were that defendant, who was a nephew of a former Territorial Governor, Frank Frantz, was formerly a resident of Enid, Okla., but !for two years prior to the 25th of November, 1937, was a resident of Kingfisher, Kingfisher connty, where he was holding the position of master timekeeper for the Works Progress Administration. He was unmarried, and had a cabin located near the city limits, which was his home. On the 25th day of November, 1937, which was Thanksgiving Day, he attended a football game in Kingfisher, in company with a young lady. While in attendance at the game he had two drinks. This was about the middle of the afternoon. After the game he proceeded to his camp cottage. On the way he was asked by friends to come to their home and have sandwiches that evening. He, Avith two of his friends, and the young lady, remained at his cottage until about 7 p. m., when he started in his automobile with the intention of seeing a friend on the way. The other parties had left his cabin and he was driving alone. He went by a drugstore, which was on Main street, and on U. S. Highway No. 81, for the purpose of securing a package of cigarettes. He honked and was waited on while sitting in his car. He immediately drove south on Highway No. 81 for two' blocks, and turned west on Highway No. 33 for two blocks, and turned south. When he turned south he saw the lights of a car that seemed to be following him. He stopped his car and honked, thinking that someone in the car desired to see him, and that they would drive up alongside. They did not do so, and he started his car, and had gone about 100 feet when he heard a signal and stopped, and a member of the Highway Patrol approached him and asked him, “What kind of liquor had he been drinking”, and whether he had any liquor in his car. Defendant was ordered out of his car, and his person and his car were searched by the two members of the Highway Patrol, but no intoxicating liquor of any kind was found, either on the person of defendant or in his car. One of the patrolmen got in his car, and drove with him to the jail, and he was placed therein. The charge filed in this case was the outgrowth of his arrest.

The evidence of the two patrolmen was that they had become patrolmen in June, 1937, and were stationed at Kingfisher. That they had gone on duty about 6 p. m., and had been informed by a policeman of Kingfisher that some one had told them that defendant had left the ball game intoxicated, and for them to locate him and pick him up. That they saw the chief of police, Mr. Ahern, and he informed them that defendant was sitting in his car in front of the Jones Drug Store. That they saw defendant there, but did not arrest him, as they stated, because they had no' right to do so, as he had done nothing to violate the law. However, when he started in his car as above outlined they followed him. They followed him, and came to' the conclusion that his car had weaved from one side of the street to the other, and they stopped him and arrested him under the circumstances above outlined.

They further testified that in their opinion he was under the influence of intoxicating liquor at the time of his arrest; that he staggered and talked like one that was under the influence of liquor, and they considered it unsafe for him to drive a car.

When defendant was placed in jail he requested that a doctor, whom he knew, be called to see him. This request was not granted, but a member of the Highway Patrol, who- had arrested him, called another doctor, whom they had been directed to call in cases of this character.

This doctor testified that he saw defendant and smelled liquor on his breath, and that in his opinion he was under the influence of intoxicating liquor. That defendant was talking and acting like a man who was under tbe influence of liquor, and that be was of tbe opinion that be was. ■

Tbe jailer, who saw defendant, testified to about tbe same state of facts.

Tbe defendant, testifying in bis own bebalf, admitted taking two drinks about tbe middle of tbe afternoon. He denied that be bad taken any other liquor, and denied that be was under tbe influence of intoxicating liquor. He testified that be bad never before been arrested or convicted of any crime. He also testified that bis car did not weave in any way, and that tbe only cause for going out olf its natural course was that he lighted a cigarette which be bad bought at tbe drugstore. He also testified that be at no time drove over 15 or 20 miles an hour, and tbe highway patrolmen corroborated this statement. He at no time violated any highway or traffic law.

The young lady who accompanied him to tbe football gave testified as a witness for defendant. She was with him until about 7 p. m., just before be was arrested, when she left and accompanied her mother to a Thanksgiving dinner at her grandfather’s. She testified that defendant was not under the influence of intoxicating liquor when be drove from tbe football game, and when she left him about 7 p. m. That the only drinking she saw was when be took the two drinks between “halves” at tbe football game.

Tbe above statement fairly states tbe evidence as shown by tbe record and without going into too' much detail.

It is contended by defendant that under tbe above facts tbe defendant was wrongfully convicted:

First. That the evidence was procured in violation of defendant’s constitutional rights, and upon an improper and unlawful search and seizure of defendant.

Second. By reason o!f certain improper and incompetent questions of the county attorney, and the introduction of certain incompetent evidence.

Third. That the verdict of the jury, the judgment and sentence of the court was excessive, and was given and imposed as the result of passion and prejudice on the part of the jury.

These assignments of error may well be considered together.

During the trial of this case, and while defendant was on the witness stand, he was asked by the county attorney, “If he had ever been warned” by an officer. Counsel for defendant objected to this question, and his objection was overruled. The county attorney again asked the defendant it he had ever been warned by an officer, to which defendant replied, “Warned about what?” The county attorney said, “About some possible violation”. At this juncture the trial court said: “I don’t think you better proceed any further with that.” The county attorney then asked the witness, “And you testified you have never been convicted of a crime?” The defendant replied he had so testified, and then the county attorney asked, “I will ask you if after you were arrested, you didn’t go down to the justice of the peace court, in the preliminary examination and plead guilty?” This question was highly improper and incompetent. It was objected to- by counsel for defendant, and after a hearing at the judge’s bench, and out of the hearing of the jury, the objection was sustained by the court, and counsel for defendant made a motion to grant defendant a mistrial. This motion was overruled, and at the request of counsel the court instructed the jury that the question propounded by the county attorney with reference to proceedings had on arraignment in the justice court was withdrawn from their consideration, and that they were directed not to consider the same or permit it to enter into their deliberations. Under ordinary circumstances the sustaining of the objection to the above question, and directing the jury not to consider same, would be sufficient reason for a refusal to reverse the judgment of the court and jury. We have so held. Haithcock v. State, 63 Okla. Cr. 276, 74 P. 2d 641; Hooper v. State, 7 Okla. Cr. 43, 121 P. 1087; Coleman v. State, 6 Okla. Cr. 252, 253, 118 P. 594; Ray v. State, 35 Okla. Cr. 322, 250 P. 438. But in construing this proposition it occurs to us that the question should be viewed in the light and circumstances of each individual case. In a case where the evidence was convincing and certain it might not constitute error; in a case where the evidence was not only conflicting but doubtful, this question might have a great influence with the jury when asked in their presence. It is provided by section 2961, Okla. St. 1931, O. S. A., title 22, § 517, as follows:

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

Under this statute there is no question but that a defendant has the right to withdraw any plea of guilty he may have entered and enter a plea of not guilty prior to Ms trial. In construing this statute this court has held that when the plea of guilty is withdrawn and a plea of not guilty entered, it is error to permit proof at the trial of the prior entering of the plea of guilty, where it was withdrawn.

In the case of Heath v. State, 23 Okla. Cr. 382, 214 P. 1091, 1093, in an opinion by Judge Doyle, the court said:

“Upon a plea of guilty, no trial upon tbe question of tbe defendant’s guilt can be bad. His plea stands in tbe place of tbe verdict of a jury finding bim guilty, and for this reason we think that a withdrawn plea of guilty, for wbicb, by authority of law and of tbe court, a plea off not guilty is substituted, would not be admissible in evidence against tbe defendant as a confession nor as an admission against interest. In our opinion the rule supported by reason and authority is that a withdrawn plea of guilty, for wbicb a plea of not guilty is substituted by authority of court, is not admissible in evidence against tbe defendant.”

In tbe above case tbe plea of guilty was entered in tbe minutes of tbe court clerk’s office. Here it was at the preliminary examination. Tbe only difference in tbe Heath Case and tbe case at bar is that tbe trial court permitted tbe evidence to go bo tbe jury, and here tbe court sustained an objection to' tbe same and directed the jury not to consider tbe same. There is some conflict off authority ¡on tbe proposition of the admission of evidence of this character, but tbe great weight of authority and tbe reason wbicb we deem best is, that such evidence is not admissible. In those cases supporting tbe minority rule there has generally been a strong dissenting opinion. It is ¡our desire to call attention to a few of those cases:

In tbe case of Kercheval v. United States, 274 U. S. 220, 47 S. Ct. 582, 583, 71 L. Ed. 1009, this question was presented to tbe Supreme Court of tbe United States. Justice Butler delivered tbe opinion of tbe court, saying:

“Other decisions support tbe petitioner’s contention that a plea of guilty withdrawn by leave off court is not admissible on the trial of tbe issue arising on tbe substituted plea of not guilty. Heim v. United States, 47 App. D. C. 485, L. R. A. 1918E, 87; State v. Meyers, 99 Mo. 107, 119, 12 S. W. 516; People v. Ryan, 82 Cal. 617, 28 P. 121; Heath v. State [23 Okla. Cr. 382], 214 P. 1091. And see White v. State, 51 Ga. [285] 286, 289 [290]; Green v. State, 40 Fla. 474, 478, 24 So. 537 [11 Am. Crim. Rep. 253]. We think that contention is sound. A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict off a jury it is conclusive. More is not required; the court has nothing to do' but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads he may be held bound. United States v. Bayaud (C. C.) 23 F. 721. But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence. Com. v. Crapo, 212 Mass. 209, 98 N. E. 702. The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just. Swang v. State, 2 Cold. (Tenn.) 212, 88 Am. Dec. 593; State v. Maresca, 85 Conn. 509, 83 A. 635; State v. Nicholas, 46 Mont. 470, 472, 128 P. 543; State v. Stephens, 71 Mo. 535; People v. McCrary, 41 Cal. 458, 461; State v. Coston, 113 La. 717, 720, 37 So. 619; Bishop’s New Criminal Procedure, § 747.
“The effect of the court’s order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto. Heim v. United States, supra, 493 [47 App. D. C.]. The conflict was not avoided by the court’s charge. Giving to the withdrawn plea any weight is in principle quite as inconsistent with the prior order as it would be to' hold the plea conclusive. Under the charge, if the plea was found not improperly obtained, the jury was required to give it weight unless petitioner was shown to be innocent. And, if admissible at all, such plea inevitably must be so' considered. As a practical matter, it could not be received as evidence without putting petitioner in a dilemma utterly inconsistent with the determination of the court awarding him a trial. Its introduction may have turned the scale against him. ‘The withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence under the plea of not guilty. White v. State, supra, 289 [290 (51 Ga.)]. It is beside the mark to say, as observed by the Circuit Court of Appeals, that petitioner knew better than any one whether or not he was guilty and that under the evidence a plea of guilty was a reasonable thing. These suggestions might bear upon the weight o!f admissible evidence but they have no relation to the admissibility of a withdrawn plea.
“Courts frequently permit pleas of guilty to be withdrawn and pleas of not guilty to be substituted. We have cited all the decisions, state and federal, which have come to our attention, that pass on the question here presented. The small number indicates that in this country it has not been customary to use withdrawn pleas as evidence of guilt. Counsel have cited no case, and we have found none, in which the question has been considered in English courts.
“We think the weight of reason is against the introduction in evidence of a plea of guilty withdrawn on order of court granting leave and permitting the substitution olf a plea of not guilty.
“Judgment reversed.”

Since this decision has been rendered it has been followed by almost all of the courts.

In the case of State v. Hook, 174 Minn. 590, 219 N. W. 926, 927, it is stated:

“In State v. Anderson, 173 Minn. 293, 217 N. W. 351, it was held error to introduce a plea of guilty which had been set aside, following the recent case of Kercheval v. United States, 274 U. S. 220, 47 S. Ct. 582, 71 L. Ed. 1009. The rule that a plea of guilty cannot be introduced in evidence against the accused after it has been withdrawn by permission of the court is well supported. See State v. Meyers, 99 Mo. 107, 119, 12 S. W. 516; People v. Ryan, 82 Cal. 617, 23 P. 121; Heath v. State, 23 Okla. Cr. 382, 214 P. 1091; Heim v. United States, 47 App. D. C. 485 [L. R. A. 1918E, 87]. Permitting the state to make such inquiries as were made in this case is a substantial evasion olf the doctrine of the Supreme Courtq of the United States announced in the Kercheval Case, which was the basis of our decision in the Anderson Case. There are a few cases to the contrary, but they are in the minority, and are out of harmony with the d-octrine deliberately adopted in the Anderson Case. The plea, sentence, and judgment, using the language of the court in the Kercheval Case, were set at naught by the order vacating them, and their subsequent use was in conflict with the order. We are unable to separate the statement made by the defendant to the presiding judge from the rest of the vacated judicial proceeding. It should not have been used against the defendant; and it can be said that no one familiar with courtrooms could believe that the jury did not understand that a plea of guilty had been entered.”

The iSixth Circuit Court of Appeals in the case of Pharr v. United States, 48 F. 2d 767, 770, announces the rule as follows:

“Error is assigned to the conduct of counsel for the government in interrogating appellant about a plea of nolo contendere that he had entered to the indictment but had withdrawn. Counsel first asked appellant if he had not entered a plea of guilt. Appellant answered: Won say that I pleaded guilty/ to- which counsel replied: ‘Yes, you entered the same plea that Mr. Beauchamp did.’ Appellant then said, ‘I certainly have never pleaded guilty/ whereupon counsel replied: ‘You pleaded nolo contendere, didn’t you?’ Appellant then stated he understood that was a denial of guilt, to which counsel replied, as if he were surprised or questioned the veracity of appellant: ‘You understood that the plea of nolo contendere was a denial of guilt?’ To this appellant answered: ‘A denial of guilt.’ Without having, objected to the questions, counsel for appellant at this point intervened and requested the court to withdraw the jury and enter an order of mistrial. This motion was overruled alter tbe court bad instructed tbe jury to disregard tbe questions and answers. For all practical purposes, tbe plea of nolo contendere is one of guilt. United States v. Norris, 281 U. S. 619, 50 S. Ct. 424, 74 L. Ed. 1076. To bave permitted tbe government to prove that appellant bad entered sucb a plea and withdrawn it would have been reversible error. Kercheval v. United States, 274 U. S. 220, 47 S. Ct. 582, 71 L. Ed. 1009. Although tbe questions and answers referred to were not objected to, tbe motion to discharge tbe jury was made in time to raise tbe question of error. Tbe effect of tbe examination was to bring home to tbe jury tbe equivalent of a confession of guilt. Whether a reversal is required depends on whether sucb a fixed impression was made on the minds of tbe jury as to> influence its verdict. Standing alone without further interpretative reference, it might bave been that tbe questions would not bave been prejudicial ; but both counsel for the government and the court elsewhere in tbe trial treated the plea of nolo contendere as one of guilt. Proof of Beauchamp’s plea bad been made, and tbe court, in charging tbe jury that it could not convict appellant of aiding and abetting unless it found that Beauchamp, tbe principal, bad violated tbe law, stated: ‘Presumptively Beauchamp did violate tbe law, for tbe record in this case shows that in this very case be entered a plea of guilty, or nolo contendere, and was sentenced by this court.’ Moreover, counsel for tbe government, in bis concluding argument, stated that Beauchamp, ‘indicted with’ appellant, bad ‘entered a plea * * * and served his sentence.’ These statements served to emphasize the improper conduct of counsel, and in sucb circumstances we cannot think that tbe admonition of tbe court had the effect of removing the harmful impression made by tbe inadmissible facts. Because of this misconduct on tbe part of counsel, tbe judgment must be reversed.”

Under tbe above authorities and tbe decisions therein cited, there can be no question that this question was improper. The only question is, Was tbe error harmless in view of tbe fact that the court sustained an objection to tbe question and directed the jury not to consider the same? In the case of People v. Wells, 100 Cal. 459, 34 P. 1078, 1079, the court had under consideration this identical question, and there said:

“This was an entirely unfair way to try the case; and the mischief was not averted because the court properly sustained the objection, — though we think it should have warned counsel against the course which he was taking,— and instructed the jury specially on the subject. The wrong and the harm was in the asking of the question. Of course, in trials of criminal cases, questions as to the admissibility of evidence will frequently arise about which lawyers and judges may fairly differ in opinion; and in such cases defendants must be satisfied when courts sustain their objections. But where the prosecuting attorney asks a defendant questions which he knows, and every judge and lawyer knows, to be wholly inadmissible and wrong, and where the questions are asked without the expectation of answers, and where the clear purpose is to prejudice the jury against the defendant in a vital matter by the mere asking of the questions, then a judgment against the defendant will be reversed, although objections to the questions were sustained, unless it appears that the questions could not have influenced the verdict.”

In the cases above cited this question has arisen in most cases, where the court has permitted the withdrawal of the plea of guilty after it was entered in the trial court. We have examined a number of cases which have held that evidence was admissible where the plea was entered in a justice or preliminary court, on the grounds that the plea Avas a confession. Other cases have held otherwise. This argument does not appeal to us. Taking into1 consideration the fact that our statute here involved has designated a violation thereof as a felony, St. 1931, § 10324, 47 Okla. St. Ann. § 93, many of the citizens of this state, at the time of their arrest thereunder, and even at the time of their arraignment, are not aware of the fact that they are being charged with a felony and the consequences that may arise therefrom. They often do' not procure counsel to advise them of their rights, but enter a plea of guilty upon the assumption that this is the easier way to get' rid of their arrest without publicity. When they become informed of the seriousness of the charge, they often request a change of their plea of guilty to a plea of not guilty, requiring the state to give them a trial upon the merits of the case as they have a right to do. It seems to us that under these facts and circumstances, to permit to be introduced in evidence a plea of guilty at the preliminary examination would not only be prejudicial, but would be unreasonable. And as stated in the Wells Case, supra, “The wrong and the harm was in the asking of the question.” When applied to all the facts in the case at bar, and from the verdict rendered by the jury, there cannot be much doubt that the asking of this question had its effect upon the jury. And while not deciding that in every case where a question to which an objection is sustained by the trial court and the jury is instructed not to consider the same in its deliberations, is cause for reversing the case, yet, under all the facts and circumstances in this case, we have come to the conclusion that a reversal would be in the interest of justice, rather than a modification of this judgment.

In the brief filed by the state it is stated: “We admit that under the decisions of this court it was improper for the county attorney to ask such question”, but contends that the evidence conclusively established the guilt of defendant and that he, therefore, suffered no injury by the asking of the question. It is contended that the entire record should be examined to' see if any material injury to the defendant appears, “and unless such injury appears, the error will not be grounds for reversal”. This is exactly wbat we have done, and come to the conclusion that it is best that the judgment and sentence be reversed.

We might further state that it is our judgment that it would probably have been better had the officers approached this defendant when they first saw him parked in his automobile in front of the Jones Drug Store on Highway No. 81, and at that time ascertained if the information they had obtained from the police officer was true. The chief of police, who was standing just across the street, could and should have accompanied them, and if they came to the conclusion that defendant was intoxicated to that extent, as they testified, he could have been charged with the crime of drunkenness in a public place, and could have been punished to the extent that justice would have been done. This, to our mind, would have been the better procedure, than to wait until he started his car and followed him and then charged him with the commission of a felony. He could have then been charged by the regularly constituted and elected officers of Kingfisher county, who are elected and must answer to- the people of that city and county. However, these officers are to' be commended in their effort to enforce the law Avithout fear or favor. This was soon after their appointment, and they were no doubt doing their duty as they saw fit.

Having come to' the conclusions as above stated it is unnecessary to pass upon the question presented by counsel to the violation of defendant’s constitutional right as to whether or not he was unlawfully arrested. By a reversal of this case justice can be administered as the facts justify.

We have examined the conduct of the trial of this case, and the instructions of the trial court, and will state that these instructions were in proper form and protected the rights of the defendant in every way. The term “under the infuence olf intoxicating liquor” was properly defined and defendant was given every right under the law to which he was entitled.

The judgment of the district court of Kingfisher county is reversed.

DOYLE, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    OTIS GREEN v. STATE.
    No. A-9646.
    Sept. 18, 1940.
    (105 P. 2d 795.)

      Amos T. Hall and Jesse O. Dedmon, Jr., both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an appeal from the district court of Tulsa county, wherein Otis Green was convicted, and in accordance with the verdict of the jury was sentenced to serve a term of ten years in the state penitentiary for the crime of assault with intent to kill by intentionally and wrongfully shooting one Edward Jennings, alleged to have been committed in Tulsa county on the 6th of January, 1939.

The facts established by the undisputed testimony of three witnesses for the state are as follows: The alleged crime occurred in the city of Tulsa, at 112 North Green-Avood, knoAvn as Benton’s Place, the building faces east, the front room is occupied as a cafe, the next room, kitchen, and next back a room where pokeena is played. In this room was a large table used to play pokeena, which runs north and south and long enough for twelve people to' play at the game. “Pokeena” is a game something like bingo, the only difference is in pokeena they use cards and in bingo they use numbers. The defendant had been running the game there for several months.

Edward Jennings and his wife, Estella., and several others, were playing the game, about midnight, when Estella got into' an argument with the defendant as to whether or not she had won; defendant said she ha.d not won, and pointed his finger at Edward and said, “That goes for you, too.” Jennings said, “You pull off your gun and I will fight you,” then pushed his board in, arose from the table, turned to the kitchen door and the defendant fired two or three shots at him; one took effect in the back of the head, another in the back of his arm, near the elbow. He fell to the floor unconscious and about five minutes later was removed to the Municipal Hospital in an ambulance.

The complaining witness, Jennings, in substance testified that on January 5th, after getting off work at 6 o’clock that evening, he went over to Benton’s Cafe to eat; after staying a while he went to a show with his wife; after the show he came back to Benton’s place; his wife went in and he went to a drugstore to' get some cigarets; then returned to Benton’s place, and there with his wife and others engaged as a player in the pokeena game. About midnight his wife got in some kind of argument with Otis Green as to whether or not she had won. He told his wife to' hush, but did not say anything to' Green; she hushed, and Green pointed his finger at him and says, “That goes for you, too,” and he said, “You pull off your gun and I will fight you, but did not say any more to him;” that he pushed his board in and turned to go out, and he was shot in the back of the elbow and in the back of the head; that he was opening the kitchen door when he was shot; that he did not see Green shoot him and did not know how many shots were fired; that he did not have a gun or a knife, and never had any trouble with Green before.

Estella Jennings testified that she went into Benton’s Pleasure Parlor about 9 o’clock; later her husband came in; that they were all playing pokeena; another girl said “pokeena” and she said “pokeena” too, so Otis Green started checking the cards, and he said the ten of hearts is not out, and she said, “Ilf it is not out, it is all right.” Otis kept on arguing and her husband told her to shut up and she shut up. Otis Green said to her husband, “That goes for you, too,” and shook his finger at him. Edward says, “Ilf you pull off your pistol I will fight you,” then he pushed his board in, got up, and walked away and just as he went to go• out the door Otis Green commenced shooting and shot two or three times; that her husband had his back to' him when he shot him; that everybody started running out and she went home and told her mother-in-law that Edward had got shot down.

Izóla White testified that she was at Benton’s Pleasure Parlor, playing pokeena; Edward Jennings, his wife, Estella and several others were there. Otis Green was running the game and has been running it since last spring. They were all playing pokeena. A girl, named Jean, po-keenaed. Estella Jennings said, “The ten of hearts is out, it is in my hand,” and threw her board out in the middle of the table and said “Check me down.” Otis said: “Keep your damned boards out of the middle of the table. The ten of hearts is not out because it is on my board.” Estella says: “What are you going to do about that? Don’t nobody give a damn about you.” Otis said: “I don’t give a God-damn about you.” At that time Jennings says, “Don’t anybody give a God-damn about you.” Green said: “That goes for you”, and Edward got up, pushed his board in and says: “You play with your pistol, shoot niggers, kill niggers; now kill me.” About that time Otis pulled his gun out, and Edward started towards the door. She hollered, “Otis, don’t do' that.” Edward was facing the door when Otis started shooting. The door opens in and Edward hit the facing and Otis shot once after he fell.

There was no testimony offered on the part of the defendant.

The first assignment of error argued is: “The court committed error in its failure to instruct the jury on the law of self-defense.”

Upon the record before us counsel for plaintiff in error have not properly raised the question.

Only prejudicial errors raised by exceptions reserved require a new trial, and it is only when we are satisfied that the verdict is contrary to law, or to the evidence, or that injustice has been done, that we are permitted to reverse a conviction whether or not an exception has been taken in the trial court.

The instructions given by the court submitted the issue of assault with intent to kill as defined by Penal Code, sec. 1873, 21 Okla. St. Ann. § 652, and submitted the included offense of assault with a dangerous weapon with intent to do' bodily harm, without justifiable or excusable cause, as defined by Penal Code, sec. 1870, 21 Okla. iSt. Ann. § 645.

Other instructions fully and correctly defined the degree of evidence required in order to' entitle the state to a verdict of conviction. No objections were made or exceptions taken to the instructions given by the court.

It is also urged that the court erred by refusing to give instructions requested by the defendant.

The Code of Criminal Procedure provides the method of procedure for requesting instructions, and a defendant may submit to the court written instructions with the request that they be given, and how objections and exceptions shall be reserved. Secs. 3057, 3079, 22 Okla. St. Ann. §§ 831, 856.

It has been repeatedly held by this court that it is the duty of counsel for a defendant, where he is of the opinion that additional instructions should be given, to reduce them to writing, and request that they be given. If he fails to do so a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record, and instructions of the court, that there was a failure to instruct upon some material question of law, and that the defendant has been deprived of a substantial right. Lee v. State, 67 Okla. Cr. 283, 94 P. 2d 5; Pulliam v. State, 61 Okla. Cr. 18, 65 P. 2d 426; Adams v. State, 62 Okla. Cr. 167, 70 P. 2d 821; Russell v. State, 17 Okla. Cr. 164, 194 P. 242; Williams v. State, 12 Okla. Cr. 39, 151 P. 900.

In the instant case the court was entirely correct and the jury could not have been misled by the instructions given.

Complaint is also made of alleged improper conduct of the assistant county attorney in his closing argument to the jury, in that he made frequent reference to the defendant as a “mean negro,” and stating to the jury, “Here you are dealing with a mean negro,” and it argued that it is clearly evident from the assessment of the maximum punishment, the argument of counsel was highly inflammable and calculated to arouse passion and prejudice.

The record here recites:

“Counsel for defendant: We object to that line of argument for the reason it is highly prejudicial. The Court: I will overrule the objection. The defendant at this time moves the court to admonish the jury not to consider the same. The Court: Overruled. And the defendant further at this time moves the court to declare a mistrial for the reasons assigned in the previous motion. By the Court: Overruled. Exceptions.”

Upon the record before us the question is not properly raised.

This court in Payne v. State, 21 Okla. Cr. 416, 209 P. 334, held that:

“Where the record is incomplete touching upon alleged disparaging remarks made in the closing argument, this court will presume that the trial court ruled correctly.”

Even if it were to be conceded that the remarks, were somewhat outside the pale of legitimate argument, it does not affirmatively appear that counsel abused his privilege, or that the court committed error in overruling the defendant’s objections thereto.

Finally it is insisted that the punishment imposed is excessive.

Plaintiff in error’s brief concludes as follows:

“Whether the errors complained of are sufficient to work a reversal is for the court to> decide, but we do strenuously urge that if the court decides that our argument for reversal is not well taken, justice demands that the sentence be modified and the punishment materially reduced, and we do' so pray.”

The record shows the judgment was rendered February 28, 1939. Thereupon the defendant gave notice of his intention to appeal, and asked the court to fix the time and was given 30, 10 and 5 days for a case-made. It is further shown that the defendant filed his application asking the trial judge to order a case-made at the expense of the county and in support of the same testified that he was without any money to pay for a transcript and had mo relatives or friends able to supply the necessary funds with which to perfect his appeal. Thereafter, on March 28th, the trial judge ordered the court reporter to prepare a transcript of the record proper, including a transcript of the testimony taken in the case at the expense of Tulsa county, and granted an additional extension of 30 days for making and serving the case-made.

On tbe bearing of tbe motion for a new trial, tbe record is as follows :

“Mr. Simms: Then in 1921, be was convicted of tbe crime of forgery and sentenced to 18 months. Then in 1927, be was charged with assault with intent to kill, no disposition is given of it. Then, on June 28, 1932, be was convicted of first-degree manslaughter and given a sentence olf four years in tbe State Penitentiary at McAlester. I think that about covers bis activities up to' tbe present time. The Court: Well, that does not influence this court in tbe matter. I don’t have tbe authority to cut down the sentence, even if I thought it ought to be cut down, so I won’t gO' into that matter.”

We may say in passing that courts take judicial knowledge of their own records and proceedings. In tbe case of Otis Green v. State, 54 Okla. Cr. 450, 23 P. 2d 506, tbe defendant charged with the crime of murder was convicted of manslaughter in the first degree. On appeal the conviction was affirmed.

The power of this court to modify any judgment appealed from by reducing the sentence is fixed by law, and is exercised only as a judicial act in furtherance of the ends of justice. Code of Criminal Procedure, section 3204, 22 Okla. St. Ann. § 1066; Merritt v. State, 55 Okla. Cr. 87, 25 P. 2d 340; Anthony v. State, 12 Okla. Cr. 494, 159 P. 934; Fritz v. State, 8 Okla. Cr. 342, 128 P. 170.

Before this court is authorized to modify a judgment of conviction by a reduction of the punishment imposed, it must clearly appear that the punishment imposed is excessive, or probably the result of passion and prejudice on the part of the trial jury, or else that some substantial error of law has occurred at the trial, prejudicial to the defendant in the amount of punishment imposed. Barnett v. State, 25 Okla. Cr. 230, 219 P. 726.

In our opinion the case before tis is not one warranting our interference.

While the defendant was given the maximum punishment, we find no reason in the record which would justify us in modifying the judgment by reducing the punishment imposed.

Upon consideration of the entire record, we (find no substantial error and the conclusion is reached that the defendant had a fair and impartial trial.

From what has been said, it follows that the judgment of the trial court should be affirmed. It is so ordered.

BAREFOOT and JONES, JJ., concur.


author: JONES, J.

text:
    ARCHIE LAMB v. STATE.
    No. A-9677.
    Sept. 18, 1940.
    (105 P. 2d 799.)

      Springer & Springer, of Stillwater, ¡for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., tfor defendant in error.
   JONES, J.

The defendant, Archie Lamb, was charged in the district court of Payne county with the offense of assault with intent to kill, a second or subsequent offense, was tried, convicted, and sentenced to serve ten years in the state penitentiary, and has appealed.

The information against the defendant reads as follows :

“Leon J. York, County Attorney of Payne County, State of Oklahoma, under and by virtue of the authority vested in him as County Attorney, gives this honorable court to know and be informed in the name and by the authority of the State of Oklahoma, at the July, A. D. 193'8 term of said court that at and in the county of Payne and State of Oklahoma, on the 8th day of October, 1938, one Archie Lamb, then and there being, did then and there willfully, unlawfully, feloniously and knowingly havingbeen convicted of two' (2) prior offenses punishable by imprisonment in the State Penitentiary, commit the crime of ‘Assault with intent to kill’ in the following form and manner, to wit:
“That on the 17th day of March, 1937, one Archie Lamb, prior to the filing of the information in this ease, was informed against by information in the District Court of Payne County, Oklahoma, a court of competent jurisdiction, and said information being filed in said District Court by Leon J. York, County Attorney of Payne County, Oklahoma, on the 29th day of April, 1937, charging the said Archie Lamb with the crime of ‘Operating a motor vehicle while under the influence of intoxicating liquor,’ contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma; said Archie Lamb was brought before the bar of the said District Court on the 18th day of May, 1937, the same being one of the regular judicial days of the January A. D. 1937 term of said court, he having been previously duly arraigned thereon, entered his plea of ‘not guilty’ to the crime as charged in said information. The case was thereupon duly tried by a jury, who brought in a verdict of ‘guilty’ to the crime as charged; his punishment was assessed at imprisonment in the state penitentiary at McAlester, Oklahoma, for a period of one (1) year, said defendant was thereupon sentenced by the court on the 25th day of May, 1937, and said defendant was delivered to the warden of the State Penitentiary at Mc-Alester, and said sentence was served by him.
“Thereafter, on the 22nd day of May, 1937, while the said defendant was free on bond, pending a sentence to the crime aforesaid, he was informed against in the District Court in and for Payne County, Oklahoma, a court of competent jurisdiction, by Leon J. York, County Attorney of Payne County, Oklahoma, charging the said Archie Lamb with the crime of ‘Operating a motor vehicle while under the influence of intoxicating1; liquor,’ contrary to the form of the statutes in such cases made and provided and against the peace and dignity <of the State of Oklahoma; thereafter, on the 25th day of May, 1937, the said Archie Lamb was brought before the bar of the District Court of Payne County, Oklahoma, and having been arraigned and charged, with the crime of ‘Operating a Motor Vehicle while under the influence of intoxicating liquor,’ he entered his plea of ‘guilty’ to the crime as charged in the information, and upon consideration thereof, it was decreed by the court that he be committed to and imprisoned in the state penitentiary at McAlester, Oklahoma, and confined in said penitentiary for a term of one (1) year; that the said Archie Lamb was delivered to the warden of said penitentiary and served the said sentence in accordance with the judgment of the District Court of Payne County, Oklahoma.
“That after aforesaid judgments and sentences, and prior to the filing of this information, on the 8th day of October, 1938, the said Archie Lamb did then and there violate the laws of the iState of Oklahoma for a third and subsequent time, having been previously convicted of two (2) offenses punishable by imprisonment in the state penitentiary, as aforesaid, and while the said Archie Lamb was under the influence of intoxicating liquor, and while driving at a high rate of speed, and in a reckless manner, a certain automobile upon state highway No. 40, at a point about two (2) miles south of the City of Stillwater, Payne County, Oklahoma, and in a grossly and criminally negligent manner, without due regard to- the traffic and use of the highway, and the safety of others, and with reckless disregard of his own safety and willful indifference to' the consequences liable to follow, did drive, operate, and propel said automobile in the night time on said highway at a speed in excess of that allowed by law, and while thus driving said automobile, and while under the influence of intoxicating, liquor as aforesaid, he did then and there unlawfully, willfully, wrongfully, intentionally, and feloni-ously make an assault and battery in and upon one Geraldine Gibson, by running and driving with great force and violence his said automobile into and against an automobile in which the said Geraldine Gibson was a passenger, thereby inflicting serious injuries upon the body and face and head of her, the said Geraldine Gibson, and with such force as was likely to produce the death of her the said Geraldine Gibson, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.”

The proof on behalf of the state in substance is as follows:

That on Saturday night, October 8, 1938, about 9 p. m., one George Gibson, his wife, and two children were driving along Highway No. 40 in a southerly direction; that when they arrived at a point close to a beer tavern known as Brownie’s Place, they were struck in the rear by another automobile. The impact of the collision knocked the Gibson automobile about 100 feet and off the pavement on the west side. All of the Gibson family were considerably shaken and braised by the collision; and the daughter, Geraldine, sustained severe injuries to her head.

The car which struck the Gibson car was being driven by the defendant, who also suffered a cut on the head and the loss of two teeth. The defendant was taken home by two men whose names were not brought out in the testimony, at wbicb place be was arrested a few minutes later by two highway patrolmen. A doctor who was present at the beer tavern where the collision occurred and who examined the defendant there, together with the two- highway patrolmen, the members of the sheriffs force who saw the defendant immediately after his arrest, and the family doctor of the defendant, who treated the defendant for his injuries after he was taken to the jail, all testified that the defendant was very drunk.

The proof further showed that prior to that time the defendant had been convicted twice of the offense of driving an automobile while under the influence of intoxicating liquor and was sentenced to serve a term of one year on each charge. It was further brought out in the examination of the defendant that he had been twice convicted of the offense of possession of intoxicating liquor and had pleaded guilty to being drunk in a public place on seven or eight different occasions.

In his own defense, the defendant testified that he had remained at his home, which is just a short way from where the wreck occurred on that day, with his wife who was sick; that at supper time he had gone to the beer tavern and bought four bottles of beer and some cheese sandwiches, which he and his brother-in-law had for their supper. That shortly after dark his wife suggested that he drive to where her folks live, south of Perkins, to get one oif the relatives of the defendant’s wife to come and stay with her while the defendant was at work. That he was driving down the highway in a reasonable manner behind the Gibson car when a car started to back from the position where it had been parked near the beer tavern, which caused the Gibson car to swerve to the left just as the defendant started past it, causing the defendant’s automobile to crash into the Gibson car. That the defendant was not drunk, but was addled by the blow that be received in tbe wreck, wbicb caused him to talk incoherently and to stagger when he walked.

The defendant makes three assignments of error, to wit:

(1) Error of the court in refusing to sustain the demurrer to' the information.

(2) Error of the court in giving instruction No. 13.

(3) Error of the court in giving instruction No. 10.

As to the first assignment, the defendant contends that the information is defective in that it charges an assault upon Geraldine Gibson by striking the car in which she was riding, but no causal connection is shown by the striking of the automobile in which she was riding and any injury which she may have sustained. This assignment appears to- us to be wholly without merit. Surely it is not necessary that an information set forth that particular part of the automobile which was struck by the injured person, whether it is the windshield, the gear shift, the steering wheel, or any of the many modern devices which are on the average automobile. The information sufficiently advises the defendant of the nature of the charge against him so that he may prepare his defense thereto. It alleges every element of the offense intended to be charged and identifies the offense with such particularity that he would be able to' defend himself against any subsequent prosecution for the same offense.

Instruction No. 13 reads as follows:

“Therefore, if you find and believe from the evidence in this case beyond a reasonable doubt that at and within the county of Payne and State of Oklahoma, on the 8th day of October, 1938, that the defendant, Archie Lamb, then and there being did then and there, willfully, unlawfully, wrongfully and feloniously, while driving in a reckless manner, an automobile upon State Highway No. 40, at a point about two miles south of Stillwater, in Payne county, Okla., in a grossly and criminally negligent manner, without regard to the traffic and use of the highway, and safety of others, and with willful indifference to the consequences liable to follow, did drive, operate and propel said automobile upon and against one Geraldine Gibson, and then and there and thereby wrongfully and feloni-ously make an assault and battery upon her by driving his said automobile with great force and violence into and against the automobile in which she was riding and then and thereby inflict serious injuries upon her body with such force as was likely to produce the death of her, the said Geraldine Gibson, and you further find and believe from the evidence in the case, beyond a reasonable doubt, that said Archie Lamb had, prior thereto-, been duly convicted of one or more offenses against the statutes of the State of Oklahoma, punishable by imprisonment in the state pentitentiary, as alleged in the information in this case, then, and in that event you will find the defendant, Archie Lamb, guilty of the crime of assault and battery with intent to kill, second or subsequent offense, and fix his punishment in your verdict at imprisonment in the state penitentiary for a term of not less than ten years, and so say by your verdict.”

Instruction No-. 10 reads as follows:

“You are instructed that the crime charged in the information in this case is assault and battery with intent to- kill and the included lesser offenses of assault with intent to do bodily harm. In this connection you are told that in any case where the element of an offense is the question of intent with which an act is alleged to have been done, that the law presumes that every sane person intends the natural, ordinary and probable consequences of his own voluntary acts unless the contrary appear from the evidence. If a defendant is shown by the evidence beyond a reasonable doubt to have operated and driven a motor vehicle upon the public highways at a rate of speed that is greater than is reasonable under tbe existing circumstances, having due regard to the traffic, the use of the highway and the safety of others, or operates the same in such a manner as to endanger the lives and persons of others, then he is guilty of culpable or criminal negligence, and if such negligence is the proximate cause of injury to another, in such case such criminal or culpable negligence takes the place and supplies such unlawful intent.”

The defendant makes the assertion that instruction No. 13 is erroneous, but does not point out any particular in which it is erroneous; and no' citation of authority is given to support his conclusion. This instruction is very well prepared and correctly states the law. Of course, this instruction must be read in connection with all of the other instructions, and when this instruction, together with the other instructions, are considered as a whole and ¡fairly and correctly state the law, they are sufficient.

It is insisted that instruction No. 10 is erroneous because an evil intent is a necessary element of the offense with which the defendant is charged, and that the court erred in instructing the jury as shown in instruction No. 10 that the law presumes that every sane person intends the natural, ordinary, and probable consequences of his own voluntary acts unless the contrary appears from the evidence.

In the case of Winkler v. State, 45 Okla. Cr. 322, 283 P. 591, 592, we held:

“An automobile, when propelled against a person, is a dangerous weapon. If a person operating an automobile upon the highway does so in a reckless manner, endangering the safety of pedestrians or others, and while so operating the vehicle in such manner he drives it against some person, causing death, he is guilty of a crime. Nail v. State, 33 Okla. Cr. 100, 242 P. 270. Mayse v. State, 38 Okla. Cr. 144, 259 P. 277. Brock v. State, 39 Okla. Cr. 162, 263 P. 1115. Logan v. State, 42 Okla. Cr. 1, 274 P. 39. If, while so operating an automobile in violation of law a person should injure a pedestrian or other person without causing death, and such unlawful act is the proximate cause of the injury, he is likewise guilty of a crime. If defendant is guilty of culpable negligence in passing the school truck, as it was discharging its passengers, at a dangerous speed, or without coming to a stop or having his car under control, and thus avoid injury to the school pupils, he is guilty of a crime. In such case the commission of a misdemeanor in operating an automobile in the manner forbidden by section 2, c. 16, Session Laws 1923, takes the place of and supplies the unlawful intent. 1 Bishop’s Crim. Law (8th Ed.) § 313 et seq. It then becomes a question of fact whether or not defendant at the time was guilty of culpable negligence in operating an automobile upon the highway in violation of the law.”

In Nail v. State, 33 Okla. Cr. 100, 242 P. 270, this court held:

“ ‘Culpable negligence’ is the omission to do something which a reasonable and prudent person would do, or the doing of something which such a person would not do under the circumstances surrounding the particular case.
“The same negligence, as it affects the individual and the state, is, respectively, ‘gross negligence’ and ‘criminal’ or ‘culpable negligence.’ Between criminal or culpable negligence and negligence merely there is no- principle of discrimination. It differs only in degree.”

In the Winkler Case, supra, we held that the operation of an automobile upon the highway at a rate of speed greater than is reasonable under the existing circumstances, having due regard to the traffic, the use of the highway, and the safety of pedestrians, was a misdemeanor under section 2, chapter 16, Session Laws of 1923, 47 Okla. St. Ann. § 92, and that the person operating the vehicle in that case was guilty of culpable negligence.

When this instruction is read in the light of the decision in that case, it appears to be in proper form. The statement in the instruction that in any case where an element of the offense is the question of intent with which an act is alleged to have been done, the law presumes that every sane person intends the natural, ordinary and probable consequences of his own voluntary acts unless the contrary appears from the evidence is not literally true; but in this character of case, where the state is relying for a conviction upon the fact that the defendant was committing an offense in the operation of his automobile, such statement in instruction No. 10, when read in connection with the balance of said instruction, together with the other instructions which were given, is not improper.

The defendant makes the further contention that the verdict of the jury is excessive and also1 that it was rendered by reason o!f passion or prejudice. The facts do not support this contention. The defendant appears to be a persistent violator of the law. His right to- drive an automobile should be permanently forfeited by reason of his misconduct. Under the facts herein it appears very fortunate that neither the defendant nor the occupants of the Gibson car were killed. The punishment is severe, but is fully merited by the proof.

The judgment off the district court of Payne county is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J. BAREFOOT, J.

text:
    BEN COLEMAN et al. v. STATE.
    No. A-9659.
    July 17, 1940.
    Judgment Modified on Rehearing Sept. 18, 1940.
    (104 P. 2d 1004; 105 P. 2d 431.)

      Sid White, of Oklahoma City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, J.

Defendants, Ben Coleman and Veri Leathers, were charged in Oklahoma county with the crime of tapping a pipe line. They waived a jury and were tried by the court; found guilty, and their punishment assessed at two years in the penitentiary, and they have appealed.

The information in this case charged four defendants, Jack Shaffer, Harrold E. Hicks, Veri Leathers and Ben Coleman, with the crime of tapping a pipe line on or about tbe 1st day of August, 1937, in Oklahoma county. The defendants, Jack ¡Shaffer and Harrold E. Hicks pleaded guilty to the charge and were both used as witnesses by the state against the defendants. They both testified that the defendant Jack Shaffer had a skimming plant on Crooked Oak creek.

Jack Shaffer testified that he and the other two defendants entered into an agreement where said defendants were to tap the pipe line of the Oklahoma Pipe Line Company a short' distance above the skimming plant owned by the said Jack Shaffer. That in compliance with this agreement the pipe line was tapped by drilling holes in the same and the oil was permitted to flow down the creek where it was captured by the defendant Jack Shaffer. On one occasion 800 barrels of oil were captured and the defendants Ben Coleman and Veri Leathers were paid the sum of $80 each by the said Jack Shaffer. At other times various sums ranging up to $50 were paid to each of the defendants ifor oil that was taken from the pipe lines and captured by the said Jack Shaffer.

The witness Harrold E. Hicks, who pleaded guilty and was a witness for the state, was employed by the Oklahoma Pipe Line Company as a line walker. The evidence revealed that these defendants procured certain tools for the purpose of tapping the pipe line, and that it would be done in the nighttime, and at some places where the line was covered by the water in the creek. It also appeared in evidence that efforts were made by the defendants to so open the pipes at certain times that the fact that the line had been tapped would be concealed. Wooden stobs were driven into the pipes where the line had been tapped so that they could be easily removed at night. The evidence revealed that the oil was of the value of $1.30 per barrel at the point where it was taken from the pipe line, and that it was worth, and sold for, 80 cents per barrel when recovered by the witness Jack Shaffer.

The evidence of the witnesses who were accomplices was amply corroborated by other evidence offered by the state. Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289.

The arrest of these defendants was by a member of •the Oklahoma Highway Patrol, J. H. Roberts, who was assisted by T. P. Salley, who' was a special agent of the Standard Oil Company, and who had been assigned by his company to assist in the clearing up of this crime when it was discovered by the company officials.

The witness Harrold E. Hicks was first arrested on the 13th day of September, 1938, and was placed in jail and remained there until the following Friday, September 16, 1938. While in jail he was taken by an officer of the. Highway Patrol to the Department of Public Safety, located at 10th and Broadway streets, in Oklahoma City, and there made a statement in writing which he signed and swore to, giving the details of the tapping of the pipe line as above outlined.

He testified that the statement made by him was a, voluntary statement; that he was in no way promised immunity ; that the written statements made by him and the defendant Yerl Leathers were made at the office of the Department of Public Safety, and were made before they were taken to the office of the county attorney. He said: “A. I says, Well, I am out of a job, and. this is going to be dogging me from now on, and I want to' come clear and tell the truth and take my penalty and get it over with’ ”. He signed his statement on the 14th or 15th day of September, 1938.

The defendant Veri Leathers was arrested at Fitts-town, near Ada, in Pontotoc county, and placed in the Oklahoma county jail on the 16th day of September, 1938.

The witness Harrold E. Hicks was brought there, and Avhen he confronted Coleman he told him he had made a statement, and that he, Coleman, had better tell the truth. The defendant Coleman then signed a written statement which he swore to, giving the facts as above outlined. In this statement he said: “I have made this statement of my own free and voluntary accord, without threat or ifear of violence and without promise of immunity.”

The next day, September 16, 1938, the defendant Veri Leathers was taken to the office of the Department of Public Safety, and the witness Harrold E. Hicks was present and about the same proceedings were had as when the defendant Ben Coleman made his statement. The defendant Leathers made a written statement, and said that he was making the same of his own “free and voluntary accord, without threat or fear of violence and without promise of immunity”.

The defendant Leathers took the witness stand and testified that at the time he made the statement it was not a voluntary statement, and “that they told me they were after Jack Shaffer, and if I would sign it they would turn me loose.” On cross-examination he stated that the parties who told him they would turn him loose were Roberts and .Salley. They were taken to the office of the county attorney the next day and there before a justice of the peace had their examining trial. There was no testimony that the county attorney, or any of his assistants, or any public officer of Oklahoma county ever at any time promised either of the defendants immunity if they would make any statement.

The Oklahoma Constitution, section 27, article 2, Okla. St. Ann., provides when immunity may be claimed in this state, and is as follows:

“Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws Of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may SO' testify or produce evidence.”

In the trial of this case it was contended by the defendants, who were tried together before the court, that they were “taken before the county attorney and coerced and compelled into furnishing information and making a statement of fact later to be used against them in the development and preparation of said charges.” That for this reason they were as a matter of law granted immunity under the above section of the Constitution of this state, and should be discharged.

To sustain this contention the case of Bram v. United States, 168 U. S. 582, 533, 18 S. Ct. 183, 189, 194, 42 L. Ed. 568, is relied upon, and is the only case cited in defendant’s brief. This is a noted case, and the opinion was written by Justice White prior to' his becoming Chief Justice. A strong dissenting opinion was written by Justice Brewer, and concurred in by Chief Justice Fuller, and Justice Brown. Time and space forbid a complete analysis of this case. It arose out of the murder of the captain of a boat, his wife, and a seaman, upon a boat on the high seas. The defendant, Bram, with another were taken in charge, and after being questioned by a police detective at Halifax, where the boat landed, a charge of murder was afterwards filed. The question involved was with reference to a statement made by the defendant Bram to questions propounded by the detective, while the dej fendant was under arrest and prior to the filing of the indictment. Justice White, in a lengthy opinion, reviews the decisions of tbe early English Courts, the Criminal Court of Appeals olf England, and many leading decisions from the courts of the United States with reference to the law as applied to “confessions” by parties charged with crime. Time forbids a consideration of these cases. They may be read in this opinion by those interested. Justice White, after a review of many cases, says:

“In approaching the adjudicated cases for the purpose of endeavoring to deduce from them what quantum of proof, in a case presented, is inadequate to create, by the operation of hope or fear, an involuntary condition of the mind, the difficulty encountered is that all the decided cases necessarily rest upon the state of facts which existed in the particular case, and therefore furnish no certain criterion, since the conclusion that a given state of fact was adequate to have produced an involuntary confession does not establish that the same result has been created by a different, although somewhat similar, condition of fact. Indeed, the embarrassment which comes from the varying state of fact, considered in the decided cases has given rise to the statement that there ivas no general rule of law by which the admissibility of a confession could be determined, but that the courts had left the rule to be evolved from the facts of each particular case. 2 Tayl. Ev. § 872. And, again, it has been said that so great was the perplexity resulting from an attempt to reconcile the authorities that it was manifest that not only must each case solely depend upon its own facts, but that even the legal rule to be applied was involved in obscurity and confusion. Green v. State, 88 Ga. 516, 15 S. E. 10 [30 Am. St. Rep. 167]; State v. Patterson, 73 Mo. 695, 705; State v. Matthews, 66 N. C. 106, 109.”

He does not agree in full with the above reasoning, and says:

“The first of these statements but expresses the thought that whether a confession was voluntary was primarily one of fact, and therefore every case must depend upon its own proof. The second is obviously a misconception, for, however great may be the divergence between the facts decided in previous cases and those presented in any given case, no doubt or obscurity can arise as to the rule itself, since it is found in the text of the Constitution. Much of the confusion which has resulted from the effort to deduce from the adjudged cases what would be a sufficient quantum of proof to show that a confession was or was not voluntary has arisen from a misconception of the subject to which the proof must address itself. The rule is not that, in order to render a statement admissible, the proof must be adequate to> establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient that the making of the statement was voluntary; that is to say, that, from causes which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement when but for the improper influences he would have remained silent.”

After a review of the many English and American decisions he comes to the conclusion:

“We come, then, to the American authorities. In this court the general rule that the confession must be free and voluntary — that is, not produced by inducements engendering either hope or fear — is settled by the authorities referred to at the outset. The facts in the particular cases decided in this court, and which have been referred to, manifested so clearly that the confessions were voluntary that no useful purpose can be subserved by analyzing them. In this court also it has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison or was drawn out by his questions, does not necessarily render the confession involuntary; but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether or not the statements of the prisoner were voluntary. Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202 [28 L. Ed. 262]; Sparf v. United States, 156 U. S. 51, 55, 15 S. Ct. 273 [39 L. Ed. 343, 345]. And this last rule thus by this court established is also the doctrine upheld by the state decisions.
“In the various state courts of last resort the general rule we liave just referred to, that a confession must be voluntary, is generally recognized.”

After a review of the facts he comes to the conclusion that under the circumstances and facts in that case that the statements made by the defendant, Bram, to the police detective were not voluntary and were inadmissible. As heretofore stated, the dissenting opinion of Justice Brewer just as strongly states that in his judgment the statement was voluntary, and that the evidence was properly admitted.

There are many distinguishable facts in the Bram Case and the case at bar. It is not necessary that they be set out in this opinion. The cases from this state have often held in construing the constitutional provision above quoted, that in any agreement !for immunity the witness must have testified under agreement with the prosecuting attorney, approved by the court, or must have claimed privilege which was denied. Scribner v. State, 9 Okla. Cr. 465, 132 P. 983, Ann. Cas. 1915B, 381; Rudolph v. State, 32 Okla. Cr. 265, 240 P. 761; Morrison v. State, 49 Okla. Cr. 369, 294 P. 825; McConnell v. State, 18 Okla. Cr. 688, 197 P. 521; Eden v. State, 54 Okla. Cr. 265, 21 P. 2d 775.

See the case of Mays v. State, 19 Okla. Cr. 102, 197 P. 1064, for a full discussion of the question of voluntary and involuntary statements.

The facts in the instant case clearly show that no agreement was made with the county attorney, his assistants, or any other officer of Oklahoma county, as to his having immunity by reason of any statement which he might make. The statements were made and signed and sworn to before either of the defendants was ever taken to the county attorney’s office. It is true that they were under arrest at the time, and were confined with a code-fendant, who informed them that he had made a statement telling the truth, and that they had better do likewise, and get it off their mind. This cannot be held to be sufficient to justify them in claiming immunity under the law and Constitution of this state. Ilf such was so held to be the law justice would be defeated many times, and the guilty would go unpunished. Certainly someone in authority, clothed with the responsibility of public office, and upon whom this responsibility rests, should be the one to determine when immunity should be granted under the provision of the Constitution above quoted. This, to our minds, was the clear intention of the framers of the Constitution at the time of the writing of this provision.

This court, in a late case written by the writer of this opinion, has had occasion to discuss this question in the case of Williams v. State, 65 Okla. Cr. 336, 86 P. 2d 1015. In that case the same was reversed for the reason that a police officer was permitted to testify to a conversation with the defendant while in the county jail awaiting trial, to a conversation which was practically a confession. The facts were much stronger than in the Bram Case to which reference has heretofore been made. Paragraphs 1 and 2 of the syllabus state the rule which we think governs. They are:

“1. The mere (fact that a confession is made to a police officer while the accused is under arrest in or out of prison, or is drawn out by his quéstions, does not necessarily render the confession involuntary; but as one of the circumstances such imprisonment or interrogation may be taken into account in determining whether or not the statements made by the prisoner are voluntary.
“2. A confession in order to be admissible must be free and voluntary. It must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, nor by the exertion of any improper influences. 1 Greenleaf on Evidence (15th. Ed.) sec. 219; Wharton on Criminal Evidence (9th Ed.) sec. 631; Bishop, New Crim. Proc., sec. 1217; 3 Russell on Crimes (6th Ed.) section 478.”

It will be noted that in this case the officer who- had the conversation with the defendant induced defendant to believe that if he entered a plea of guilty he would only receive a punishment of two¡ years in the penitentiary, and. that this statement was made after the officer had conferred with the county attorney from whom he claimed tO' have received this information. After this conversation was had the county attorney changed the information charging defendant with a greater crime and his punishment was assessed at 30 years in the penitentiary. Under these circumstances it was held that the evidence was inadmissible, and we think properly so.

We have devoted some time to the discussion of this proposition for the reason of its importance, and its frequent occurrence in the trial of cases in this state. May we suggest that the duly constituted officers and courts of this state should be very careful to see that the rights and liberties guaranteed to the citizens of this state, under the law and the Constitution, are properly safeguarded. The law fully provides the duties of an officer when a defendant is placed under arrest. The plain mandates of the law should be followed by the officers. This does not mean that the officer should in any way be deterred in ferreting out crime. He is to be commended for this, but it should be done in a manner prescribed by the Constitution and laws of this state.

The defendants in this case were tried before the court without the intervention of a jury. Under our practice the question of whether a statement made was voluntary or involuntary is left to the jury for their decision. It is presumed tba.t tbe court only considered that evidence which was proper and that the law of this state was properly applied. Capshaw v. State, 69 Okla. Cr. 440, 104 P. 2d 282.

Prom an examination of this record we find no error, and the judgment and sentence of the district court of Oklahoma county is therefore affirmed as to each oif these defendants.

DOYLE, P. J., and JONES, J., concur.

On Rehearing.

BAREFOOT, J.

Oral argument was presented at the rehearing of this case; and the county attorney stated that the sentence of the defendant Jack Shaffer had been suspended by the court, and he had not served any time in the penitentiary after his plea of guilty in this case. It was also shown by the record that he was not only the principal offender, hut that he received the greatest reward as a result of the tapping of the pipe line. It was further called to our attention that the defendant Jack Shaffer only received a sentence of 18 months in the penitentiary ; and at the time these defendants were sentenced, the assistant county attorney who tried the case recommended a sentence of two years, but stated: “Since the court suggested that in his own mind he felt like 18 months was enough, we have no objection to that.”

It then appears in the record:

“The Court: Of course, at the time I made that suggestion I supposed the matter was being cleaned up. 0'f •course, if they want to appeal, they ought to- have something to appeal from. Mr. White: If that is your view of it, I could not help it. I don’t think any man— The Court: You don’t want to deny the man his right to appeal? Mr. White: The man should not be penalized. The Court: I don’t think so. I thought the matter was completely washed up, and I was knocking off sis months in view of the fact the court would not be burdened with the matter any more. Now, if they want to appeal, I would not for a moment deny them that right, but they ought to be given something to appeal from. Don’t you think that is right? Mr. White: Since your Honor has asked me, I would not dictate that into- the record. No; I don’t think it is right. I don’t think any premium ought to be set on a man wlm just surrenders what he thinks is his legal rights, nor any punishment ought to be administered to him because he insists on his legal rights.”

Under the circumstances as above stated, we are oif the opinion that justice would best be served by reducing' the. sentence of each of the above-named defendants, Ben Coleman and Veri Leathers, from two' years in the penitentiary to 18 months in the penitentiary.

It is, therefore, ordered that the judgment and sentence of the district court of Oklahoma county be, and the same is hereby, modified from two years in the penitentiary to 18 months in the penitentiary, and, as so modified, is affirmed.

DOYLE, P. J., and JONES, J., concur.


text:
    WALTER COMPTON v. STATE.
    No. A-9919.
    Sept. 18, 1940.
    (105 P. 2d 793.)

      D. S. MacDonald, Jr., of Durant, for plaintiff in error.
    Bill Steger, Co. Atty., and Alan B. McPheron, Asst. Co. Atty., both of Durant, for the State.
   DOYLE, P. J.

Plaintiff in error, Walter Compton, was convicted in the district court of Bryan county on a charge of assault with a dangerous weapon with intent to do bodily harm. On June 14, 1940, his motion for new trial was overruled. The court rendered judgment and sentenced the defendant to be confined in the state penitentiary at McAlester for a term of two years. He gave notice of his intention to appeal and was granted 60 days to make and serve a case-made and was granted an additional 60 days to make and serve case-made.

Prom the judgment he appealed by filing in this court on August 15, 1940, a petition in error with a duly certified transcript of the record attached.

The record shows that on July 8th plaintiff in error filed his affidavit stating that he intends in good faith to take an appeal, and that by reason of his poverty he is without means to pay for a transcript of the testimony, including the cost of making a case-made, and praying for an order of the court that the same be furnished to him at the expense of the county. The county attorney filed a response opposing the granting, of the application. J. Knox Byrum, assigned judge, presided at the trial of the case. However, a hearing was had before Roy Paul, district judge of Bryan county on July 8th, the state appearing by Alan B. McPheron, assistant county attorney. Following the argument of counsel the application was denied.

It is further shown that after the appeal, plaintiff in error gave notice to the county attorney that he would apply to this court for an order requiring the reporter who reported the case to furnish a transcript of the testimony at the expense of the county. The application was assigned for hearing before this court. Later the hearing was reassigned for September 17th. No appearance was made by the county attorney and the case was submitted on the transcript of the record.

Section 8823, O. S. 1931, 20 Okla. St. Ann. § 111, in part is as follows:

“Provided, However, that if, before a transcript of the notes is ordered on application of the defendant or his attorney, the defendant shall present to the judge his affidavit that he intends in good faith to take an appeal in the case and that such transcript is necessary to enable him to prosecute the appeal, and that the defendant has not the means to pay for the same, the court may, at its discretion, order the transcript made at the expense of the county.”

In Young v. State, 33 Okla. Cr. 255, 243 P. 763, this court held:

“Where the defendant has been convicted, and desires to appeal, and makes a proper showing to the trial court that he is unable to- pay for a transcript of the testimony, it is the duty olf the trial court to make an order directing that this be furnished without expense to the defendant. Where such showing is made, and a transcript of the evidence is not ordered by the trial court, the defendant may file a transcript of the record in this court, and this court will, under authority of section 786, Comp. St. 1921, sec. 535, Sts. 1931, 12 Okla. St. Ann. § 959, order the testimony prepared and filed in this court.” Wooten v. State, 66 Okla. Cr. 331, 92 P. 2d 594; Hembree v. State, 53 Okla. Cr. 79, 7 P. 2d 491; Ex parte Wigger, 39 Okla. Cr. 108, 263 P. 1112; Brogdon v. State, 38 Okla. Cr. 269, 260 P. 784.

In the case of Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338, 339, we said:

“Under the Constitution and laws of this state an appeal may be taken by the defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and he is entitled to have this court review the proceedings had upon his trial and conviction when such appeal is taken according to law. Every citizen should feel and know that under our Constitution and laws there is no one so- rich and powerful as to' be above the just penalties of the law, and no one so poor and humble as to be beneath its completest protection.”

Upon examination of the record before us, our conclusion is that the plaintiff in error is entitled to have a transcript of the testimony and case-made furnished without expense to him.

It is therefore ordered that the official court reporter on the trial of this case in the district court of Bryan county prepare the case-made, including a transcript of the testimony taken at the trial, at the expense of Bryan' county, and furnish the same free of all charge to Walter Compton, plaintiff in error, herein referred to.

BABEPOOT and JONES. JJ.. concur.


author: BAREFOOT, J.

text:
    DELLIAH WILSON v. STATE.
    No. A-9681.
    Sept. 18, 1940.
    (105 P. 2d 789.)
    M. R. Tidwell, Jr., of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and N. C. Barry, Oo. Atty., Of Miami, for defendant in error.
   BAREFOOT, J.

The defendant, Delliah Wilson, was charged by indictment of a grand jury in Ottawa county with the crime of manslaughter; was tried, convicted of manslaughter in the second degree, and sentenced to* serve a term of sis months in the county jail, and pay a fine of $500, and has appealed.

It is contended by defendant for reversal of this case:

First. The court erred in overruling defendant’s request for a directed verdict, and in overruling defendant’s motion in arrest of judgment.

Second. That the court erred in giving certain instructions to the jury.

In considering the first assignment of error it is necessary to review the evidence as shown by the record.

This indictment grew out of an automobile collision on the night of June 5, 1938. The collision occurred on U. S. Highway No. 66, in Ottawa county. Alfred Daniels, his wife, mother, and baby boy, Raymond Daniels, about two years of age, had left their home late in the evening of June 5,1938, for the purpose of visiting his brother, who lived at North Center. About 10 o’clock that evening they started home. They drove south out of Richer to Connell avenue, where it intersected U. S. Highway No. 66. At this point he stopped his car for the purpose of permitting a car to- pass, and then turned west on U. S. Highway No. 66. He had driven about a quarter of a mile west on said highway, when his car was struck from the rear by an automobile driven by defendant. The right ¡front wheel of defendant’s car struck the left rear wheel of his car. His car caught fire and completely burned. His son, Raymond Daniels, approximately two years of age, was badly burned. From tlie effects of the burns he died at the hospital the next morning, as testified to' by the physician who attended him. Mr. Daniels, his wife, and his mother were all injured at the time of the collision. Mr. Daniels further testified that he was driving on the right-hand side of the road, near the north side of the pavement. He was driving a 1932 Chevrolet two-door sedan, and was going about 30 or 35 miles an hour at the time his car was struck. Another car had just passed him going east at the time he was struck. He was knocked unconscious, and did not remember anything after the car was struck. He had examined the rear of his car at the time he left his brother’s place, and the lights were burning". His wife, Elma Daniels, corroborated his evidence. Two other witnesses testified for the state: Coleman Parker and Claud Corbett.

Coleman Parker testified that he drove a beer truck out of Miami. On the night of June 5, 1938, he had been to Picher, Okla., and in coming back to Miami he followed the Alford Daniels car; that he stopped his car at U. S. Highway No. 66 to let the car of defendant pass. He testified that defendant’s car was going at a pretty good speed; in his best judgment 40 miles an hour, or more; that approximately a quarter of a mile from where he turned on U. S. Highway No. 66, defendant’s car ran into the Daniels car, which caught fire. He was behind the Wilson car at the time of the collision; that he drove to the scene, and with Mr. Corbett assisted in removing the injured from the car. He also testified that while he was following the Daniels car, the tail light was burning.

The witness Claud Corbett testified that he lived at Miami, and owned a garage; that on the night of the 5th of June, 1938, he was driving east on Highway No. 66, going to Joplin, Mo'.; that his wife was with him; that he passed tbe Daniels car and saw tbe car of defendant. It was going west and be was going east; that be was afraid defendant’s car would not bave room to pass tbe Daniels car, and be pulled oyer as far as be could to tbe side of tbe road. That defendant’s car was trayeling at a pretty good rate of speed; to tbe best of bis judgment from 30 to' 50 miles per bour; that just as be passed tbe cars be looked back through bis window and saw defendant’s car run into tbe back of tbe Daniels automobile, and tbe Daniels car burst into flames. He immediately turned around and drove back to tbe scene and helped to assist tbe injured. He first saw Mrs. Daniels, and then saw the injured baby on tbe floorboard of tbe car, with its clothing on fire. He picked the baby up, put out the fire, and handed it to1 bis wife. He then assisted tbe others. He saw tbe defendant, Delliah Wilson, lying on tbe pavement. He and Coleman Parker attempted to load her in Parker’s truck. He bad a conversation with her at that time. He testified:

“Q. .State that conversation to the jury? A. I asked Mrs. Wilson, if she was hurt, and if I could take her to tbe hospital; she said bell no> she wasn’t in the damned wreck, and I left her alone. Q. Did she state where she wanted to' go ? A. And I went back and asked her to Jack Boystun’s. Q. That is tbe night club out north of Commerce? A. That is where be is, and I don’t know whether she wanted me to take her to bis bouse or to that club.”

He also testified that the Wilson car crossed tbe center line four or five times before it got to him.

Dr. W. G-. Chestnut testified as to' tbe injuries caused by tbe bums upon the body of tbe child, Raymond Daniels, and of its death on tbe following morning by reason of tbe injuries received.

Manslaughter in tbe second degree is defined by section 2228, Okla. Sts., 21 Okla. St. Ann., § 716, as follows:

“Every killing of one human being by tbe act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”
In construing this statute this court has defined culpable negligence as the omission to do something which a reasonable and prudent person would do, or the doing of something which such a person would not do under the circumstances surrounding the particular case. Nail v. State, 33 Okla. Cr. 100, 242 P. 270; Sweet v. State, 68 Okla. Cr. 44, 95 P. 2d 242. In the case of Nail v. State, supra, this court has fully discussed the question of culpable negligence and has drawn the distinction between that term and the general term negligence, saying [33 Okla. Cr. 100, 242 P. 271] :
“The same negligence, as its affects the individual and the state, is, respectively, ‘gross negligence’ and ‘criminal’ or ‘culpable negligence.’ Between criminal or culpable negligence and negligence merely there is no principle of discrimination. It differs only in degree.
“The driving of an automobile upon the highway, with a degree of carelessness amounting to a culpable disregard Of the rights and safety of others, and thereby causing the death of another, establishes the crime of manslaughter in the second degree.
“Where a person, by culpable negligence in the operation of an automobile upon the highway by driving at an excessive speed, without regard for the safety of others, causes the death of another, it is not a defense that after he discovers the other person in danger caused by his own acts, he then did everything in his power to prevent injury to such other person. * * *
“There must be negligence rising to the degree of criminal or culpable negligence. The culpability of a defendant is a question of fact for the jury, and the test is: Do the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and did said acts cause the death of deceased? If so, it establishes a case of criminal negligence.” Clark v. State, 27 Okla. Cr. 11, 224 P. 738; Freeman v. State, 69 Okla. Cr. 64, 101 P. 2d 653; Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412.

Defendant, in her brief filed in this case, does not cite a single authority to support her contention, but says:

"We have read practically every case of this nature that has been passed upon by this court and in every one the defendant was flagrantly driving at a high rate of speed and under the influence of intoxicating liquor.”

It is true that in many cases decided by this court, and where the driving of an automobile was involved, there was proof of intoxication, or that the parties involved had been drinking intoxicating liquors. In other cases there was no proof of the person involved having been under the influence of intoxicating liquors. Ansley v. State, 44 Okla. Cr. 382, 281 P. 160; Sprouse v. State, 52 Okla. Cr. 184, 3 P. 2d 918; Herndon v. State, 38 Okla. Cr. 338, 261 P. 378; Smith v. State, 46 Okla. 160, 287 P. 1103.

It may, however, be stated, that a violation of this statute does not depend on one being under the influence of intoxicating liquor at the time of its violation. One may be guilty of culpable and criminal negligence regardless of the fact as to whether he was drinking or not. An automobile in the hands of a person who handles the same in a reckless and careless manner, and in an utter disregard of the lives of others, is just as guilty under the statute as one who handles it while in an intoxicated condition. The degree of punishment may be different, but the guilt and responsibility is just the same.

The evidence in this case reveals that this defendant was not driving her automobile, as provided by the statute, at a careful and prudent rate of speed, such as would be reasonable and proper, and having due regard to the traffic and condition of the road, and in such a manner and under such control that if danger appeared she could bring it to a stop within the assured clear distance ahead. Session Laws 1933, chapter 113, § 14, 47 Okla. ,St. Ann., § 92. The Supreme Court of this state has had occasion to construe this statute as applied to civil liability. Kurn v. Jones, 187 Okla. 93, 101 P. 2d 242; Miller v. Dobbs, 180 Okla. 576, 71 P. 2d 737; Vammen v. Kinsey, 181 Okla. 92, 72 P. 2d 497; Smith v. Clark, 125 Okla. 18, 256 P. 36; McGilvray v. Spaulding, 181 Okla. 570, 75 P. 2d 430.

The car in which the deceased child was riding was being driven by his father at a reasonable rate of speed. He was on the proper side of the road, and the lights on the rear of his car were burning. His first knowledge of danger was when he was struck by the car driven by def endant.

Defendant, according to' the evidence, was driving at a fast rate of speed, estimated up to 50 miles an hour. She could see the lights of the car of the witness coming toward her, and according to the testimony of the witness Claud Corbett, he did not think she would have room to- pass, and he pulled his car as far to1 the right as he could and to the edge of the pavement. The defendant, seeing her perilous position, and not having the car under proper control, drove into the back end of the Daniels car, and the child, Raymond Daniels, was killed, as shown by the evidence. If a gun is in the hands of a careless and reckless person, and he handles it in a careless and reckless manner, there can be no question of his criminal responsibility for his culpable act in the handling of the gun. While an automobile may not be a deadly and dangerous instrument in the hands of a careful and prudent person, yet when in the hands of one who handles it in a careless and reckless manner, without regard to the rights of others, it becomes a dangerous instrumentality. The great number of high-powered automobiles upon the streets and highways of this state demand a respect for the rights of others, and a greater responsibility for those who drive them. It is t»0' late to cry “accident” aifter one has been guilty of culpable and criminal negligence and others have been injured or hilled. The time to think of this is before the collision occurs. Many citizens of this state will, no doubt, be prosecuted in the future, and be convicted, who had no intention of injuring or killing anyone. Why not “slow down” and “look and listen” before it is too late.

To convict one of manslaughter in the second degree, it is not necessary to show an intent to kill, but it is sufficient to show an unlawful killing. Franklin v. State, 9 Okla. Cr. 178, 131 P. 183.

We have examined the instructions given by the court in this case. They were fair and were more favorable to defendant than she was entitled to under the law. The court virtually required the jury to find defendant guilty of a misdemeanor before she could be convicted. If the crime had been committed while in the commission of a misdemeanor, she would have been guilty of manslaughter in the first degree under the statute. This was not necessary to be convicted of manslaughter in the second degree. It was only necessary to find her guilty off “culpable negligence,” which the jury did, and assessed her punishment at a fine of $500 and six months in jail.

Under the decisions of this court, the defendant cannot complain of an instruction which was more favorable to her than that to which she was entitled.

The judgment of the district court of Ottawa county is hereby affirmed.

DOYLE, P. J., and JONES, J., concur.