text:
    C. M. LITCHFIELD v. STATE.
    No. A-1338.
    Opinion Filed September 30, 1912.
    (126 Pac. 707.)
    1. APPEAL — Discretion of Trial "'Court — Continuance, (a) An application for a. continuance upon tlie ground of absent witnesses is addressed to the sound discretion of the trial court, and, unless an abuse of this discretion appears upon an examination of the entire record, a judgment of conviction will not be reversed upon appeal.
    (b) As a general rule, a continuance should not be granted to enable a defendant to obtain cumulative evidence.
    (c) Although an application for a continuance may appear to be good upon its face, yet if upon the trial the record discloses the fact that the testimony asked for would be cumulative, or that such testimony would probably not influence the action of the jury in finding a verdict, a conviction will not be reversed upon appeal.
    2. EVIDENCE — Weight and Sufficiency — Venue. If there is no ' evidence in the record of venue, a conviction will be reversed.
    3. WITNESSES — Impeachment—Character—Competency of Evidence. The truthfulness of a witness cannot be impeached by proof of general bad character for morality, or by proof of specific acts tending to prove a want of morality.
    4. HOMICIDE — Justification—Defense of Another, (a) Where the defense is that the defendant killed the deceased for the purpose of preventing the deceased from committing the crime of rape upon the daughter of the defendant, it is improper to instruct the jury that they may consider the previous bad character of such daughter.
    (b) It matters not what the previous reputation of his daughter may be, a father has the right to defend her against an assault with intent to rape, and he may do this immediately and with the most effective means at his command; and, if he kills her assailant, the law will hold him guiltless, even though it may afterwards turn out that he might have prevented the offense by the use of some other means, provided only that the father acts in good faith, and upon reasonable appearances of imminent danger to his daughter.
    5. SAME — Justification—Revenge. What is known as the “higher law” is derived from the old Jewish law, and has no place in the jurisprudence of Oklahoma. No person has a right in this state to take the law in his own hands and avenge a real or fancied wrong by the use of personal violence. The rights given by our statutes are defensive, and are never aggressive. They may be exercised for prevention alone, and can never justify I^hat which is done for vengeance only,, and, if a father, husband, or brother kills a man merely as a matter of revenge for an insult done to Ms daughter, wife, or sister, he will be guilty of murder or manslaughter, according to the circumstances attending the killing.
    ■6. SAME — Instructions—Insanity of Accused, (a) Where there is any evidence in a case upon which the jury might base a reasonable doubt as to the guilt of a defendant upon the ground of insanity, the court should instruct the jury upon this issue.
    (b) The case of Adair v. State, 6 Okla. Or. 284, 118 Pac. 416, cited and reaffirmed upon the question of what instructions should be given where the plea of insanity is raised.
    (c) The destruction of the domestic relations or the loss of virtue by a female relative constitute a most prolific source of insanity, and it is for the jury to determine when this issue is presented in each ease, upon proper instructions from the court, the good faith of this defense, and as to whether the evidence sustains the issue.
    (Syllabus by the Court.)

      Appeal from District Court, Garvin County; R. McMillan, Judge.

    C. M. Litchfield was convicted of manslaughter in the first degree, and brings error.
    Reversed and remanded.
    The following is a condensed statement of the material testimony in the case:
    Dr. E. E. Norvell testified for the state: That he resided at Wynnewood, Okla., and ivas a physician. That on the 19th day of July, 1910, he was called to s'ee the deceased at the sanitarium at Wynnewood. That he found three wounds in his body — one wound through the abdomen, one in his breast, and another through his elbow. That the wound through the abdomen was necessarily fatal. That deceased died next day from the effects of his wound. That deceased was constantly apprehending death. That witness informed deceased that, if he had anything to say, he had better say it. Deceased replied: “I haven’t got anything to say. It is only a mistake.”
    Mary Collins testified: That she resided at Roff, and was the mother of deceased. That on the morning after the shooting, and before deceased died, she asked deceased:
    “ ‘Will how did this happen?’ He says: ‘Well, I was standing out at the lake. Willie' Litchfield was talking very loud, drinking; that some one shot him; that he looked around — it was-Litch.’ ‘Well/ I says, ‘what did you do?’ Threw up his hands, and run toward him, and begged him not to shoot any more. I says, ‘What did the girl do ?’ ‘She fell on her knees, and begged him not to shoot me any more, for I wasn’t to blame. He was talking to this girl — she was to him- — about Dean Blakney; that she was pregnant, and wanted advice and money to get away with it,'- but she charged Mr. Blakney with it. She had this talk to me.’ He turned his head on the bed, and says, ‘He stole my life; he stole my life.’ ”
    Witness also testified that the deceased informed her that he was not armed.
    Mattie Collins testified: That she resided at Wynnewood, and was the wife of the deceased. That she saw him after he was shot. That about 10 or 12 o’clock that night he was conscious of approaching death. He said to her: “If I ever get over this, I certainly will be a better man; but I can’t because I am going to die.” Witness heard deceased tell his mother that Litchfield shot him. The state then rested its case.
    Willie Davis testified for appellant: That she was a married woman. That she married on the preceding 25th day of December. That her maiden name was Willie Litchfield. That she was sixteen years old on the 12th day of the preceding July. That she was the daughter of appellant. That she was acquainted with the deceased. He was a blacksmith by occupation. That deceased was about 27 years old. That witness had frequently visited the home of deceased, and was acquainted with his wife. That deceased had two children. That appellant kept a restaurant in the town of Wynnewood. That witness and the deceased were lovers at the time of his death. This had been going on for about four months. That deceased frequently took witness riding in his automobile both during the day and at night, and expressed for her the warmest love and devotion, and told her he was going to get rid of his wife, and that he would then marry witness, and that by his attentions and profession of love he gained the affections of witness, and finally induced her to have sexual intercourse with him. That as a result of this sexual intercourse with deceased, witness became pregnant. That, when witness found she was pregnant, she informed deceased of this fact. That deceased advised her to see a doctor, and recommended that she consult Dr. Bailey. To this witness objected. Deceased then told witness he would see the doctor himself. That on the morning of the homicide witness was downtown with her sister when she saw deceased at the Commercial Hotel, and deceased called her, and said he wanted to see her. Witness then went to her father’s cafe and deceased came there. That witness was concerned about her condition. Deceased informed her he would see her that afternoon; that they would go out in his automobile, and, to keep down suspicion, he would take the married sister of witness and her husband along. That deceased asked the brother-in-law of witness and her sister to go driving with them. That, after dinner, the brother-in-law of witness, George Waller, drove the automobile of deceased around to the home of witness. That the witness and her sister, Ella, who was the wife of George Waller, got into the automobile. That, after leaving the home of witness and going several blocks, they found deceased standing on the corner. He got into the automobile, sitting on the front seat with her brother-in-law. In the automobile there was a sack with some tin-top and ice in it. After getting into the automobile, deceased took a bottle of whisky and a six-shooter out of his pockets, and placed them behind him. That, at the request of deceased, witness took a drink of whisky. That at this time witness was perfectly sober. That they drove the automobile out to the lake. They drove the automobile into an open spot where they stopped, and they all got out of the car. Deceased took the sack with the tin-top and ice in it, and they all sat down by a large tree. At this time witness had begun to feel the effects of the whisky she had been drinking, and asked for some water. Deceased requested the brother-in-law and sister of witness to .go and get some water, and they started toward the lake. Deceased then placed his arms around witness, and kissed her, and lifted her off of the ground, and said he loved her, and they both drank beer together. That after they were through drinking the beer deceased proposed intercourse with witness, to which witness did not give a definite answer. That witness and deceased then scuffled around, and he pushed her back against a tree. That just then-appellant came up. That -before this deceased had laid his gun about three feet from them on the ground. That she was pushed to the ground and had raised up, and, as she raised up, the deceased pushed her to one side. That just as this was done she saw the smoke from the pistol in her father’s hands. That witness at this time was so excited and intoxicated she does not remember hearing the shot of the pistol.
    Ella Waller testified for the appellant: That she was a sister of the witness Willie. Davis. That she was a married woman, and was the wife of George Waller. Her testimony corroborated that of Willie Davis as to what occurred when she was present.
    Dr. H. C. Bailey testified in behalf of appellant: That some days before the killing the deceased came to the office of witness, and said, “Bailey, I'think I am in trouble, and I am going to need some help from you.” Witness asked deceased what his trouble was, and deceased replied, “You know what the trouble is, and I am going to need some help.” That Witness said: “Maybe it is not so bad. Let’s wait awhile and let it aloneand finally put the deceased off in this way.
    Andrew Finney testified for appellant that he was a farmer. That on the morning after the homicide, while looking for some hogs, he found a pistol lying on the ground at the place where the-homicide had occurred.
    Dr. W. E. Settle testified for appellant: .That a month or two before the killing he went to deceased, and told him he had better look out; that he was on dangerous ground; that Mr. Litchfield was a dangerous man, and that deceased did not know what he would do some time. Deceased said everything was all right; that Litchfield was one of his best friends, and would trust him anywhere with his girls. Witness then warned the deceased that people were talking, about him and the girls; that he had better be careful; that he could not always tell what a man would do under those circumstances. On cross-examination, this witness testified that the reason why he warned deceased was because the general rumor was that the deceased was too intimate with the girls, and pretty nearly everybody thought it.
    George Whittaker testified for appellant that about two months before the killing deceased was talking with witness about the daughters of appellant. Witness told deceased that, if he did not mind, he would be getting into trouble; that he was carrying the girls around in his automobile, and he had better quit it.
    The assistant county attorney of Garvin county and the sheriff both testified that they examined the place where the homicide occurred, and they saw near the root of a tree heel prints in the ground about one or one and one-lralf inches deep which appeared to have been made by a lady’s high-heeled shoe or slipper, and nearby they found a sack with several bottles of tin-top in it, and on the sack was blood.
    R. T. Norman testified for appellant: That on Friday morning before the homicide witness met the deceased, and while talking with him Willie Litchfield came by, and deceased said, “Where was you last night when the whistle blowed?” and she said, “You know very well -where I was.” They both laughed, and she went on, and witness said to deceased, “Bill, I wouldn’t go out with this girl.” And deceased replied, “The girl is going wrong, and there will be a killing over it, and I never intend to go out with her again.”
    Appellant testified in his own behalf: That he was engaged in the restaurant business in the city of Wynnewood. That up to the day of the homicide he and the deceased were the best of friends. That on the morning of the homicide the son of appellant received an injury to his eye. That appellant went home and found that his daughters were not there. That, upon inquiry, appellant learned his daughters had gone off in an automobile with deceased. Appellant then got a horse' and buggy and drove out to the lake. He had been informed that the automobile had gone to the lake. -That when appellant got near the lake he found the automobile there, but no one was in it. Appellant then jumped out of his buggy, and called his daughters, but received no response. Appellant then went about ISO yards from the automobile into the brush and briars, and went into a little draw. Appellant then heard a person's voice, but could not see anything. He thought he recognized his daughter’s voice. She appeared to be pleading and crying. Appellant then started to run in the direction from which the sound came. He next saw the back of a man’s shoulders. He ran up to within a few feet of where the man was. He saw deceased holding his daughter. As he went up, deceased threw the girl away from him, and made a grab for his six-shooter, which was lying on the ground two or three feet from him. Appellant then testified as follows:
    "Q. Did you know whether or not he got hold of it? A. Yes, sir. Q. Did he? A. Yes, sir; he got it. Q. Mr. Litchfield, state how close you were to him in your opinion when you fired the first shot? A. I guess I was in four or five feet of him. Q. How many shots did you fire ? A. I fired two. Q. Now, after you fired the first shot, did he do anything? A. After I fired the first shot, he raised and the tree was to his left — was to his left' — he raised and as he raised — as he came up, why I shot him again, and he fell backward, and come up around the tree on the opposite side to me — over to my right. Q. Then what did he do? A. He said to me — he says, ‘You have killed me.’ He says, T would ask you to do something for me, but you can’t,’ and he turned and went out in a westward direction, walking fairly well. I was watching him. Q. Do you know what he did with the pistol? A. No, sir; I don’t know. He didn’t have the pistol when he went off. * * * Q. What was your condition of mind at the time you went out there to the tree and found your daughter? A. If I had any, I don’t recollect it. Q. Why do you say that you didn’t have any mind? A. Well, sir, it is something that I can’t express. I have no way of expressing it at all. Q. Well, state what your feelings were? A. My feelings was — I was just in a state of — I was almost unconscious. I was in as bad a fix as I could be. Q. Why? A. Well, sir, when I saw what I'saw and the condition of things was in, why I just —I just lost all presence of mind. I would have done anything.”
    On cross-examination appellant testified as follows:
    “A. I found him trying to have intercourse with my daughter, and by the time I saw the condition of things as it was, why he was in a position to get hold of arms, and so it all happened about the same time. I come up on Mr. Collins, and he was trying to have sexual intercourse with my girl, with my daughter, and had her backed up against a tree — Q. Did you hear what she was saying? A. I couldn’t understand. Q. Did you understand anything she said? A. No, sir; I didn’t. Not her words. Q. Did you understand anything he said? A. No, sir; he never said anything to me. He never said anything to me only what he said after he come up around the .tree after the shooting. Q. How do you know he was trying to have intercourse with her? A. I could see what he was doing. He was making every effort. He had his arms around her, and had her backed right up against the tree, and he was right in front of her. Q. He didn’t have her clothes up, did he? A. He was making an attempt in this way. He had his arm around her, and he was in a stooped position. His head was lower down than hers. I caught the glimpse of his head; and the first time I saw his face it was over her left shoulder. He was stooping down, you see. He seemed to be in a stooped position in front of her.”
    Clif Cunningham testified in behalf of appellant that witness was acquainted with deceased, and had a conversation with him on the morning of the day of the homicide. Witness then testified as follows:
    “Q. Anything further said up there? A. Yes, sir, Q. What was it? A. Well, we were talking about these friends. It came up, and I was pretty well satisfied about who they were, and I asked him and he told me that it was the Litchfield girls, and I told him, I says, ‘Bill, if I was you, I would stop that. I wouldn’t go any further with that.’ I says, ‘Litchfield is a man that will kill you if he catches you at such as that.’ And he laughed and says, ‘Well,’ he says, ‘when it comes to that — why,’ he says, ‘Old Betsy makes me equal to any of them.’ And he patted himself there, and it looked like the print of a gun there.. I don’t know what it was.”
    In rebuttal the state proved by the wife of the deceased that the pistol found at the scene of the homicide was not the property of deceased. It was also proven that the general reputation of Willie Davis, nee Litchfield, for truth and immorality, was bad, and many specific instances in which she had acted indiscreetly and in a manner indicating a want of virtue were admitted in evidence, and that she had frequently been seen riding in an automobile with deceased at night, to all of which appellant objected.

      Carr & Field and Blanton & Andrews, for appellant.

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

(after stating the facts as above). First. Appellant complains that the action of the trial court in overruling the motion for a continuance was erroneous. It has always been held that a motion for a continuance upon the ground of absent witnesses is addressed to the sound discretion of the trial court; and, unless an abuse of this discretion appears upon an examination of th„e entire record, a judgment of conviction will not be reversed upon appeal. In this case every fact that appellant desired to prove by the absent witness, George Waller, was proven by other witnesses upon the trial of his case. In the case of John Bethel v. State, ante, 126 Pac. 698, decided at this term of the court, Judge Armstrong, speaking for the court, said:

“When a motion for continuance is interposed upon the ground of the absence of material witnesses, and although on its face such motion may contain good grounds for a continuance, if upon the trial the record discloses the fact that the testimony of the witnesses asked for would be cumulative, this court, as a general rule, will not interfere with the order of the trial court overruling such motion.”

As the testimony of George Waller for which this - continuance was sought was merely cumulative, and as neither the motion for a continuance or the trial disclosed any circumstances or facts which would take the case out of the general rule that a continuance should not be granted to enable the defendant to obtain cumulative testimony, unless it appears from the entire testimony in a case that the testimony for which a continuance was sought was both material and that it would probably have resulted in a different verdict, a conviction should not be set aside because the application for a continuance was not granted. We find there was no error in the action of the trial court in overruling the motion for a continuance.

Second. We do not find in the record any evidence that the lake at which the fatal difficulty occurred was in Garvin county. It is true the evidence shows that the deceased died at Wynne wood, and it is also true that we take judicial notice of the fact that Wynnewood is in Garvin county. The place at which the mortal wound was inflicted was the place which fixed the venue, and it is immaterial as to where the deceased may have died. For a full discussion and citation of authorities on this subject, see Loyd v. State, 6 Okla. Cr. 76, 116 Pac. 959. While it is true that it is not necessary to prove venue beyond a reasonable doubt, yet, if there is no evidence in the record of venue, a conviction must be reversed. See Brunson v. State, 4 Okla. Cr. 467, 111 Pac. 988.

Third. Appellant complains that incompetent, immaterial, and injurious testimony was improperly admitted against him in the trial court. There are objections in the record to the testimony of a number of witnesses for the state upon this ground. We will present a few specimens of this kind of evidence which was admitted against appellant.

W. J. Courtney testified for the state as follows:

“Q. Do you know Willie Litchfield? A. Yes, sir. Q. Do you know her general reputation for truth or immorality in the neighborhood in which she lived? (To which the defendant objects for the reason that the same is not in proper form of question, which objection is by the court overruled, to which action of the court the defendant excepts, and which exception is by the court allowed.) Q. Answer the question, Mr. Courtney; do you know? A. Well, now, I want to ask a question before I answer that question. Shall that be from what I have heard? Q. Yes, sir. The Court: Answer yes or no. A. Yes, sir. Q. From what people say do you know her general reputation in that community for truth or immorality? Answer the question? A. Yes, sir. O. Is it good or bad? A. It is bad.”

. Leonard Yules testified for the state that he was acquainted with Will Collins, the deceased, and Willie Litchfield; that he lived near Wynnewood; that he saw the deceased and Willie Litchfield out in an automobile. He then testified as follows:

“Q. What time of the day or night did you see them? A. Why, it was something like 8 o’clock at night. Q. Now, explain to the jury how you happened to see them? A. Well, they was stuck down there in the automobile, and I went down and watched them pull out. Q. Well, how did you know they was stuck? A. I could tell from the racket they was making down there. Q. What kind of a racket was they making? A. Well, the automobile — you could tell by the way the noise was. Q. When you got down there, did you see Willie Litchfield? A. Yes, sir. Q. I will ask you if when the automobile backed up if anything happened to Willie’s dress? A. Yes, sir. Mr. Blan-ton: Objected to because it is proving specific instances, and is not the proper way to attack a witness, and immaterial as to anything else. (Which objection is by the court overruled, to which action of the court the defendant excepts, and which exception is by the court allowed. Q. Answer the question. A. Yes, sir. Q. What was it? (Same objection. Overruled. Defendant excepts.)' A. The tire run over it. Q. Were you on the same side of the automobile that she was? A. Yes, sir. Q Now, what did she say? (Same objection. Overruled. Defendant excepts.) A. She said — I don’t know just exactly. She said, ‘Damn an old skirt,’ something like that.”

J. B. Jackson testified in behalf of the state that he was acquainted with Willie Litchfield. He was then asked the following question:

“Q. I will ask you,'Mr. Jackson, if you are acquainted with her general reputation in the community in which she lives for truth or immorality? Mr. Carr: Objected to as not the proper form, and not rebuttal. (Objection overruled. Exception by defendant.) Mr. Blanton: We would like for the record to show that we insist the proper question is truth and veracity. Q. Are you acquainted with her general reputation in that community lor truth or immorality? The Court: Now, this is one of the sort of questions you must answer by saying yes or no. Now, answer it. Q. That is what people generally say — is the general reputation, Mr. Jackson? A. Yes; I presume so. Q. Is it good or bad? A. Not so good.”

Dr. E. E. Norvell testified on behalf of the state that he knew deceased, Will Collins, and had been acquainted with Willie Litchfield for about five years. He was then asked the following questions:

“Q. Dr. Norvell, I will ask you if you are acquainted with her general reputation in the community in which she lives for truth or immorality? A. Yes, sir. Q. Is that reputation good or bad? A. Bad. * * * Q. Did- you ever hear anybody say anything about her before this trouble, before this 19th of July? A. Yes, sir; I have heard my wife speak about her. My wife asked me if I knew anything about what kind of girl she was, and that she had heard so and so at the club. Q. What did she say she had heard at the club? A. She said she heard she was riding around in automobiles with married men. Q. What married men? A. Well, Will Collins for one.”

No authorities were cited in the brief for the state, neithei was any attempt made in oral argument to support the ruling of the court in admitting this evidence. As- we understand the law, the rule is that specific acts cannot be proven for the purpose of impeaching the reputation of a witness for truthfulness. If this were permitted, it would result in a confusion of issues before a jury, and in indefinitely prolonging a trial, because each specific act would be made a separate issue, and there would be no limit which could be placed upon the introduction of such issues into a trial. This question has been passed upon by this court favorably to the contention of appellant in the case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, and has been uniformly followed since and has been expressly reaffirmed in the case of Wallace Porter v. State, ante, 126 Pac. 699, decided at the present term. That a witness can be impeached by proving his general reputation for morality is a novel proposition to this court. It is true that it is permitted in the courts of Arkansas, but this is on account of a special statute to that effect in that state. As the laws of Arkansas weje in force in Indian Territory prior to statehood, we are satisfied that the trial court followed the Arkansas rule which is required by the statute above referred to; but this statute has no force in the courts of Oklahoma. It is a matter of general knowledge and of which this court takes judicial notice that men of the highest reputation for truth are often very lax in their ideas and habits with reference to virtue and morality. This is to be deplored, but it is nevertheless true. We must deal with humanity as it is, and not as we think it should be. It would, therefore, be exceedingly unjust to establish a rule which would allow many of the most truthful men of the state to have their veracity called in question by proof of their reputation for morality. If this is true as to men, why should not the same rule apply to women? We are not willing to establish a double standard in Oklahoma in favor of men and against womanhood. This court will extend to the prodigal daughter every right and every protection which is afforded the prodigal son. It is a false and vicious standard of morals which opens every door and bids welcome to the prodigal son, but closes every door except that of the grave to the prodigal daughter. We believe that, if any differences are made between men and women, they should be in favor of womanhood. In ninety-nine out of every hundred cases where a girl goes wrong it is owing to the temptation and villainy of'some man, and that, too, in the sacred name of love. The record in this case is a fair illustration of this, for the testimony shows that it was by professions of love, promises of marriage, automobile rides, and gifts that the deceased accomplished his purpose with Willie Litchfield, and destroyed her reputation for morality. It would be a parody on law and a libel on justice to condemn her for his protection on account of what he had induced her to do and the bad reputation she had thereby gained. We believe that it would be unauthorized by law and contrary to reason and human experience to hold that the evidence objected to was competent. The objections to all of this testimony should have been sustained by the trial court. It was not only illegal, but it was also highly injurious to appellant.

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

“You are instructed that there was evidence introduced as to the general reputation of the said Willie Litchfield, but you are instructed that all the evidence offered by the state as to her general reputation for truth and. immorality is admitted solely for the purpose of impeaching her and affecting her credibility as a witness, but it is not introduced for the purpose of showing the defendant.Litchfield’s guilt of the crime charged against him, unless you find that he knew of her reputation and of the immoral acts upon her part.”

To this instruction the defendant then and there excepted. That the state had the right to impeach the credibility of the witness Willie Litchfield by evidence that her general reputation in the community in which she resided for truthfulness was bad cannot be disputed, but this could not be done by proof of her general reputation for immorality. The error in admitting this class of evidence was intensified by the instruction given, because in it the jury were expressly told that, if they found that the general reputation of Willie Litchfield in the community in which she resided for immorality was bad and that appellant knew it, they might consider this for the purpose of showing the guilt of appellant of the crime charged against him. Leaving out the question of immorality altogether, the jury should never consider the bad reputation of a witness offered by a defendant for truthfulness as evidence of his guilt. In this case the appellant did not claim that he killed the deceased on account of the previous seduction of his daughter. Neither did he offer evidence of the character of his daughter as a circumstance of mitigation. If this had been done, an entirely different question would be presented, which it would be useless for us to discuss now. Therefore from any standpoint her previous, character or conduct was immaterial. One of the defenses was that the deceased was attempting to rape the daughter of appellant; and that, even if appellant was in a frame of mind t® make him legally responsible, the killing occurred to prevent the commission of this crime. So the instruction given and excepted to was not applicable to the testimony in the case, and was bad from every standpoint. Even if it were conceded that Willie Litchfield was a girl of bad reputation for morality, this would be no justification to deceased to get her into, a drunken condition that he might have sexual intercourse with her. This would constitute rape upon his part; and, if the defendant fired the fatal shot to prevent the commission of this crime, no matter what her reputation may have been, he would be justifiable under our statute. No matter how bad the previous reputation of Willie Litchfield may have been, they were both still human beings, and she was his daughter. If a daughter is too weak to protect herself, upon what ground of reason, justice, humanity, or law can it be contended that the strong arm of her father may not be interposed in her defense?

As was said by Chief Justice Lumpkin in Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630:

“What is the annihilation of houses or chattels by fire and fagot, compared with the destruction of female innocence — robbing woman of that priceless jewel which leaves her a blasted ruin, with the mournful, motto inscribed on its portals, ‘Thy glory is departed?1 Our sacked habitations may be rebuilt; but who shall repair this moral desolation? How many has it sent suddenly with unbearable sorrow, to their graves ? In what has society a deeper concern than in the protection of female purity and the marriage relation? The wife cannot surrender herself to another. It is treason against the conjugal rights. Dirty dollars will not compensate for a breach of the nuptial vow. And, if the wife is too weak to save herself, is it not the privilege of the jury to say whether the strong arm of her husband may not interpose to shield and defend her from pollution?”

This statement of the right of the husband, to act in defense of his wife applies with equal force to the right of the father' to act in defense of his daughter. The father who could witness the debauchery of his daughter and not rush to her assistance would be a base counterfeit upon true manhood’s coin. Humanity, reason, justice, and the statutes of Oklahoma all give to him the right and make it his’' duty to act in her defense immediately and with the most effective means at his command. He is not required to take out pencil and paper and figure as to whether he could prevent the commission of the crime by a resort to some other means than the instant killing of her assailant. All that the law requires is that he should act in good faith and upon reasonable appearances of imminent danger to her, and the law will hold him guiltless, even though it may afterwards turn out that he might have saved her by pursuing some other course. The right of a father to defend his daughter is founded upon the law of nature, and is not and cannot be superseded by any law of society. This is an inalienable right recognized in and protected by the Declaration of Independence. This right is limited to defense against present danger, and does not include vengeance for a past injury. The law does not make men, but it is made by men and for men. It would be a gross perversion of power and duty for this court to so construe the law as to judge men by an angelic standard. It is our duty to make due allowance for the weakness of human nature upon one hand and to respond to its highest hopes and noblest inspirations upon the other. In this manner only can we aid in securing the administration of justice in its purity in Oklahoma.

Fifth. Section 3290, Comp. Laws 1909, is as follows:

“Homicide is also justifiable when committed by any person in either of the following cases: (1)' When resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is; or (2) when committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or, (3) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace.”

Under this statute, a father would be justified in killing the man who would attempt to kill his daughter. How, then, can it be said that the statute does not also give him the right to kill to prevent the rape of his daughter? Which is worse, to kill the body and let the soul live, or to kill the soul and let the body live? One is physical pain and death, the other is moral desolation and spiritual assassination. For a discussion of the enormity of the crime of rape and seduction, see Hast v. Territory, 5 Okla. Cr. 181, 114 Pac. 261.

This statute does not go as far as the old law of the Jews went. The statute justifies a homicide when committed by a private person to prevent the commission of a felony. The old law of the Jews justified a homicide when committed by a private person as a punishment for a felony already committed. Under our statute, the state alone punishes for crimes already committed, while under the old law of the Jews the next of kin to the person injured had the right to inflict the punishment. The case of Shechem, the Hivite, illustrates this rule. Shechem defiled Dinah, the daughter of Jacob. When Jacob learned what had been done, he held his peace until his sons, who were then absent, returned home, and, when informed by their father of what had taken place, Simeon and .Levi, the brothers of Dinah, slew Shechem, his family and all of his household, and spoiled all that was in his city and house. When Jacob complained that the Canaanites and Perizzites were many and that they would rise up and destroy Jacob and his household, Simeon and Levi replied, “Should he deal with our sister as with an harlot?” For a full account of this entire transaction, see the thirty-fourth chapter of the Book of Genesis. While it is true that Levi after this was called the “man of blood,” yet it was ordained by God that all of the priests who were permitted to enter the holy of holies, the sanctum sanctorum of the temple, and there wait upon the altar of the Lord came from the tribe of Levi. What is known as the “higher law” in cases of this kind grew out of the old law of the Jews, but the conditions to which the ancient laws of the Jews were applicable have long since passed away, arid neither these laws nor what is known as the “higher law” are applicable to or would be justified by the conditions which exist among us to-day, because we have orderly proceedings in courts of justice for the punishment by the state of all crimes committed. There is, therefore, neither legal excuse nor justi.fication for any person attempting to take the law into his own hands, and inflict punishment for and thereby avenge the commission of any crime, it matters not how serious it may be. While every person has the lawful right to defend against what appears to him, judging from his standpoint, to be imminent danger to himself or to any member of his family of the commission of a felony upon or to do some great bodily injury to such person, even to the extent of taking the life of the aggressor, yet, if the commission of such felony or great bodily injury is complete, no man has the.right under our law to kill or in any manner injure the person who did such wrong. In other words, the rights given by our statutes and which may be exercised by private persons are always defensive and are never aggressive. They rnay be exercised for prevention alone and never can justify that which is done for vengeance only.

In every case of this sort these distinctions should be clearly drawn in the instructions to the jury. In this case the jury should have been informed that if the appellant acted in good faith and upon reasonable ground, viewed from his standpoint, to apprehend that there was imminent danger that a felony was about to be committed upon his daughter by the deceased, and appellant fired the fatal shot to prevent the commission of such offense, then the appellant would be justified in doing so, and the jury should acquit him if they so found or entertained a reasonable doubt on this subject. This instruction should not have been hampered or limited in any manner, except that the converse of the proposition should have been submitted to the jury, namely, that if they found from the evidence beyond a reasonable doubt that appellant, viewing the circumstances of the case from his standpoint, did not have reasonable ground to apprehend that there was imminent danger of such offense being committed upon his daughter when he fired the fatal shot, and did not then in good faith so believe, then and in that event they should find him guilty of murder or manslaughter as defined in other portions of the instructions, and of that offense of which they had no reasonable doubt. This was the pivotal point in the case, and the instructions should have been so clear as not to need explanation and as to be readily within the comprehension of men who are not educated in the law, such as jurors ordinarily are.

Sixth. In this case an instruction was requested by appellant upon the subject of insanity. The instruction as requested by appellant was properly refused by the court because it was not a correct statement of the law. But, the lhatter having been called to the attention of the court, it should have given the jury a proper instruction on this subject, if, in the opinion of the court, it was applicable to the testimony in the case. See Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760, 101 Pac. 111. As to what would be a correct instruction upon the subject of insanity, it matters not what may have been its cause, see Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416. In this opinion Judge Doyle carefully considered our statutes on this subject, and we think that the conclusions reached and stated are absolutely fortified by the authorities, and are supported with unanswerable logic. This opinion does not grow out of an immature impulse, but it is the result of the lifetime investigations and reflections of all of the members of this court. It may therefore be accepted as a precedent to be followed in the future in the matter of preparing instructions upon the subject of insanity. So the only question is as to whether or not the testimony in the record is such as to present this issue. While the testimony upon this question is by no means strong, yet we cannot say that it might not be the basis in the minds of the jurors of a reasonable doubt as to the sanity of appellant, and we can well see how upon a second trial counsel for appellant may strengthen their case in this respect. Insanity is one of the most mysterious diseases to which human beings are subject. It has its origin from a thousand different causes. Sometimes it results from intense religious excitement. At other times it grows out of sickness or a personal injury. It may be hereditary, and often cannot be explained. The records in such cases show that grief, sorrow, or shame resulting from the disruption of domestic relations or loss of virtue by a female relative constitute a most prolific source of insanity. We cannot imagine a more grievous affliction that can befall a father than to witness an attempt to debauch his daughter. What could be more highly calculated to cause the trees and stones to call to him, “Shame! shame! shame!” and to light the fires of hell in his heart, and make them blaze in his veins and cause his reason to reel and stagger on its throne? To every true father his daughter is the core of his heart, the pride, the joy, and the inspiration of his life. He would willingly die a thousand deaths to save her from shame. Her dishonor poisons all of the sources of his happiness, and renders life a burden, a nightmare, a curse, and a disgrace. Nothing is more sacred than tire virtue of our gilds. It is above everything else on earth. Human life cannot he compared in value to it. Destroy this, and a greater injury will be inflicted upon society than would result from the combined effects of war, pestilence, and famine. The records shows that unbearable grief and shame caused by the destruction of the virtue of a female member of a family has driven many a father, husband, and brother into insanity and the grave. This is not a branch of the “higher law.” Voluntary intoxication is neither a defense nor a mitigation for the commission of crime, but an act by one who is suffering from delirium tremens which is a result of intoxication is not punishable by law. Why ? Because delirium tremens is involuntary, and is recognized by all authorities as a species of insanity. If a man kills another as a matter of revenge or anger on account of some insult or injury done to a female relative, such killing will not be justifiable or excusable, but will be either murder or manslaughter, according to the circumstances under which it was committed. But, if a man kills another while insane, the killing is excusable, although the insanity máy have been the result of grief, shame, or shock caused by an insult or injury to a female relative of the party doing the killing. In other words, it matters not what the cause of the insanity may be. If such insanity exists, it is a complete defense to the commission of crime. The issue of insanity when applicable to the evidence should be submitted to the jury, and they alone should be the judges as to the good faith of this defense. Every defense is liable to be abused, but this is no reason why any legal defense should not be submitted to a jury.

For the errors hereinbefore pointed out, the judgment of the lower court is reversed, and the cause remanded for proceedings in harmony with this opinion.

ARMSTRONG and DOYLE, JJ., concur.


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    WM. F. HAZELTON v. STATE.
    No. A-1261.
    Opinion Filed October 5, 1912.
    (126 Pac. 783.)
    1. TRIAL — Time for Trial — Amendment of Information. Where an information in a misdemeanor case has been materially altered by an amendment after the case has been called for trial and both parties have announced ready for trial, if the defendant demands it, he should be given time in which to plead to such amended information.
    2. INDICTMENT AND INFORMATION — Amendment — Verification. Where an information in a misdemeanor ease has been amended by interlineations written therein after such information was verified, and if such interlineations and amendment's contain new and material allegations, such information so amended should be reverified; and it is error to force a defendant into trial upon such amended information without a verification thereof.
    (Syllabus by the Court.)

      Appeal from Grant County Court; J. W. Bird, Judge.

    William F. Hazelton was convicted of violating the prohibitory law, and his punishment assessed at a fine of $50 and 30 days’ confinement in the county jail, and he appeals.
    Reversed and remanded.
    /. B. Drennan, for appellant.

      B. G. Spilman, Asst. Atty. Gem, for the State.
   FURMAN, P. J.

The original information was sworn. to and filed on the 14th day of February, 1911. It charged “that on the 11th day of February, A. D. 1911, in said county of Grant and state of Oklahoma, one William F. Hazelton did then and there unlawfully sell to I. L. Grounds certain fermented liquors, to wit, two bottles of Silver Top.” Appellant was arrested and gave bond. On the 11th day of April, 1911, this case came on for trial in open court, and after both sides had announced ready for trial, and the jury was in the box, the court permitted the' county attorney to amend the original information. This amendment was not embodied in the form of a new information, but the words “and malt” were written in the original information by the county attorney between the word “fermented” and the word “liquor.” There was no verification of this amendment, but the information stood upon the verification made on the 14th day of February, 1911, to all of which appellant objected and excepted. Appellant then demanded that he be granted 24 hours in which to plead to the amended information. This demand was refused by the court, and the defendant was required to plead immediately. Defendant declined to plead, still demanding his right to have time to plead to the amended' information. The court thereupon entered a plea of not guilty for the defendant and immediately forced him into trial, to which the defendant excepted.

As to the right of the court to permit the information to be amended, either as to matter of substance or form, there can be no question. See Lancaster v. State, 2 Okla. Cr. 681, 103 Pac. 1065. This case has been uniformly followed since. The last expression of this court is found in the case of Rollen v. State, ante, 125 Pac. 1087. But this is not the question upon which the decision of this case turns. ' If the amendment changed the substance of the information, and thereby placed the appellant at a disadvantage, upon every principle of reason and justice, he had a right to have time to meet the additional charge contained imthe amended information. This question came up in the case of Paul Smith v. State, 4 Okla. Cr. 328, 111 Pac. 960, 140 Am. St. Rep. 688. In that case the information charged the defendant with the sale of liquor, but did not allege to whom the sale was made, or that the name of such person was unknown to the prosecution. ' The defendant demurred to the information upon this ground. Thereupon the county attorney amended the information by stating the name of the purchaser. The defendant then demanded time to prepare to meet the charge contained in the amended information. This was refused by the court, and he was immediately forced into trial, to which defendant excepted. He was convicted, and he appealed to this court. The judgment of the lower court was reversed, because the appellant was not given an opportunity to prepare to defend himself against the additional charge contained in the amended information. Upon the trial of this cause, the question before the jury was as to whether or not the two bottles of Silver Top sold by appellant was malt liquor. The evidence upon this subject was not as clear as it might have been; but, be that as it may, this was the material question upon the trial. It therefore cannot be denied that the amendment made to the information introduced a new and material question in the case. To hold that this can be done just as the trial has begun, and not allow the defendant any time for preparation, would be unjust and a violation of the statute itself.

There is another question in this case. Our statute requires that all informations in misdemeanor cases must be verified by the oath of some person. When permission was given the county attorney to amend the information, the better practice would have been for him to prepare a new information, adding the new charge, and file it as a substitute for the original information in the case. But he did not do this. He merely interlined the old information; and, as this interlineation contained a material and additional allegation, the information- should have been reverified, as amended, before placing appellant upon trial. _ This was not done. The verification of an information is for the protection and benefit of the defendant. He may waive it if he sees fit; but, where the defendant objects to being placed upon trial on an amended information which contains additional material allegations, it is error for the court to proceed with the trial in misdemeanor cases until such amended information has been verified.

The errors committed cannot be held to be harmless, because they deprived appellant of material rights, to his injury.

Reversed and remanded.

ARMSTRONG and DOYLE, JJ, concur.


text:
    HARRY HAMLIN v. STATE.
    No. A-1155.
    Opinion Filed October 5, 1912.
    (126 Pac. 704.)
    1. COURTS — Jurisdiction—Maiming—Justice of the Peace. A justice of the peace has no jurisdiction to try a person charged with maiming, except as an examining court.
    2. TRIAL — Former Jeopardy — Conviction Before Justice of the Peace. A plea of,former conviction, filed in a felony ease in the district court, based upon a conviction for the same offense in a justice of the peace court, is bad upon its face, and should be stricken out.
    (Syllabus by the Court.)

      Appeal from District Court, :Muskogee County; John H. King, Judge.

    Harry Hamlin was convicted of maiming, and his punishment assessed at confinement in the county jail for one year and a fine of $500, and he appeals.
    Affirmed.

      Theo. B. Lipscomb, for appellant.

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

When this case was called for trial, appellant entered the following plea of former conviction:

“The defendant "pleads that he has already been convicted of the offense charged in this indictment by the judgment of the court of Porter township, to wit, by W. S. Wolfenberger, justice of the peace for Porter township, in Muskogee county, state of Oklahoma, by its judgment rendered at the office of said W. S. Wolfenberger, justice of the peace for Porter township, in Muskogee county, state of Oklahoma, on the 19th day of May, 1910.”

This plea was bad upon its face. The information charged the crime of maiming, which is a felony, punishable by imprisonment in the state prison not exceeding seven years, or by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $1,000, or by both such fine and imprisonment. The justice of the peace had no jurisdiction to try this case, except as an examining court, and any pretended judgment which .he might have entered was a nullity, and is not a bar to this prosecution. See Boswell v. State, 20 Fla. 869; Mikels v. State, 50 Tenn. 321; Henkel v. State, 27 Tex. App. 510, 11 S. W. 671; Norton v. State, 14 Tex. 387. The court, therefore, did not err in overruling appellant’s plea of former conviction.

When a plea of former' conviction is clearly bad upon its face, it should be stricken out, without wasting any time in its ■consideration. We have read the evidence, and examined the instructions given by the court, and those requested and refused, and fail to find any error therein which \yotild warrant us in disturbing this verdict. We think that the evidence sustains the verdict.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    ROY KENT v. STATE.
    No. A-1149.
    Opinion Filed October 5, 1912.
    (126 Pac. 1040.)
    1. HOMICIDE — Instructions—Grade or Degree of Offense. In. a prosecution for murder, the court should submit the ease to the jury, for consideration upon every degree of homicide which the evidence in any reasonable view, of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not.
    2. SAME — Instructions—-Grade or Degree of Offense — “Murder,” “Premeditated Design,” “Excusable Homicide,” “Culpable Negligence,” “Manslaughter in the First Degree,” “Manslaughter in the Second Degree.” See opinion for approved instructions submitting the issue of murder, manslaughter in the first degree, and of manslaughter in the second degree.
    3. TKIAL — Former Jeopardy — Discharge of Jury. The discharge of a jury in a criminal case without the consent of the defendant because the jurors are unable to agree will not sustain a plea of former jeopardy on a subsequent trial.
    4. SAME — Deliberation of Jury — Discharge Before Verdict. Section 6867 (Comp. Laws 1909), Procedure Criminal, provides: “Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satisfactorily appear that there is no reasonable probability that the jury can agree.”
    Under the statute, the length of time the jury should be required to deliberate and the probability of an agreement must be determined by the court from the facts and circumstances of the particular case and the court’s discretion will be conclusive, unless it has abused its discretion in that regard.
    5. HOMICIDE — Evidence—Sufficiency. Evidence held to sustain a conviction of manslaughter in the first degree.
    (Syllabus by the Court.)

      Appeal from Superior Court, Pittsburg County; P. D. Brezver, Judge.

    Roy Kent was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      Geo. M. Porter, W. H. Fuller, and Guy A. Curry, for plaintiff in error.

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

The plaintiff in error, Roy Kent, hereinafter referred to as the defendant, was informed against for the murder of Charles Hodge, and was convicted of manslaughter in the first degree.

The information was filed in the superior court of Pittsburg county, June 2, 1910. Upon arraignment the defendant entered a plea of not guilty. June 23d the case came on for trial, and a jury was impaneled and sworn to try the case, June 24th. The cause was submitted to the jury. June 25th the jury reported in open court that it could not agree. Whereupon the jury was by the court discharged from further consideration of the case. Thereafter, on the-15th day of February, 1911, the case was again called for trial. The defendant entered a plea of former jeopardy. To this plea the state interposed a demurrer that was sustained, and the trial proceeded on a plea of not guilty.

The salient facts as shown by the evidence, briefly stated, are as follows:

On February 26, 1910, in the town of Quinton, Pittsburg county, the defendant shot and killed Charles Hodge. The defendant had known deceased for several years, and during that day the defendant and deceased had been drinking together. The evidence tended to prove, and it was assumed during the trial, that deceased was a peace officer. About 5 o'clock in the afternoon deceased arrested John Sanders, and, upon being searched after his arrest, whisky was found upon him. At the time, or immediately after, Sanders’ arrest, the defendant said to deceased that he wanted to talk to him. Deceased said to the defendant: “Go on away. I ain’t got time to fool with you.” Deceased and Sanders, at Sanders’ request, went to the house of one Honea, near the home of the defendant, for the purpose of securing Honea on Sanders’ bond. As they went to Honea’s house, they passed the house where the defendant lived, and Sanders saw the defendant going into his house. They went to Honea’s house and stayed there only a few minutes. Deceased, Sanders, and Honea started from Plonea’s house in a northwesterly direction. The defendant was seen standing near a tree at the northwest corner of Honea’s yard with a Winchester in his hands. As they walked northwest, the defendant walked northwest and came close to Honea, Sanders, and the deceased about the middle of the street. The defendant said to them, “What are you doing?” or “Where are you going?” The three men (Sanders, Honea, and deceased) at practically the same time said, “Don’t shoot,” and without other words the defendant discharged a Winchester rifle, the bullet entering the body of the deceased two or three inches to the right and below the left nipple, killing him almost instantly. One witness heard the remark, “God damn you,” and the deceased turned and the gun was fired. This witness further testified that the defendant held the gun in- a “right hip shot” position. After the defendant shot deceased, and deceased had staggered and fallen, defendant continued to hold the gun in about the same position, pointed in the direction of the other men. Honea said to him: “You have done enough. Don’t do any more.” The defendant turned the muzzle of the gun towards Sanders, and said to him, “Get in the house,” or “Go in the house.” The defendant, after standing there a few minutes, went south from his house, and stayed in the woods until about 8 o’clock, that night, when he returned to his house. He then went to his uncle’s house, from there to Wilburton, from Wilburton to Red Oak, where he was arrested on the evening of February 27th, about 6 o’clock. The defendant’s only defense was that the gun was accidentally discharged; that he and deceased were friends; that the reason for having the gun with him at the time of the homicide was that he had negotiated for its sale to his uncle, and on this particular day he was needing money to pay certain men working for him, and was taking the gun to his uncle’s.

The jury found the defendant guilty of manslaughter in the first degree, and assessed his punishment at imprisonment in the penitentiary for nine years. March 1, 1911, a motion for a new trial was overruled and judgment and sentence was entered in accordance with the verdict. From this judgment the defendant prosecuted an appeal by filing in this court on May 15, 1911, his petition in error with case-made. The petition contains numerous assignments of error, about one-half of which are abandoned in the brief, and only one of the assignments argued is supported by citation of authority.

The first assignment of error is “that the verdict is contrary to and unsupported by the law and by the evidence.” It is contended under this assignment that manslaughter in the second degree is the only offense of which the defendant could have been convicted under the evidence. We think the evidence in the case tended strongly to prove that the killing was premeditated and deliberate, and was amply sufficient to support a verdict for murder with the extreme penalty. Fortunately for the defendant, the jury in mercy, or in a mistaken view of the law, or the facts, found him guilty of manslaughter in the first degree. This the jury had a right to do.

The same question is raised in several assignments of error, based upon exceptions taken to the instructions given by the court. The trial judge with unusual ability and care instructed the jury. The charge contains eighteen instructions. The court instructed the jury as to the crime charged and the plea entered, and then gave the instructions excepted to as follows:

“No. 2. The court instructs you as the law applicable to this case the following: Homicide is the killing of one human being by another, and is murder when perpetrated without authority of law, and with premeditated design to effect the death of the person killed. In order to constitute murder under this clause of the statute, it is essential that the homicide be committed with the premeditated' design on the part of the accused to unlawfully take the life of the person slain, or some other person, and, in order that you may fully understand the legal meaning of the words ‘premeditated design’ as used in this connection, I charge you that, the unlawful killing being established to your satisfaction beyond a reasonable doubt, then, to determine the grade of the homicide, it becomes necessary for you to inquire into the condition of the mind of the party killing, and in reaching this conclusion the important questions to be considered are: Do the facts and circumstances in the case, at the time of the killing, and before and immediately after that time, having connection with or relation to it, furnish satisfactory evidence of a deliberate mind on the part of the person killing to do the killing at the time he does the act that results in the killing; and do these facts and circumstances show a formed design on the part of the person killing to take the life of the person slain or of some other person? If they do, then the killing will be premeditated design, and will be murder. Premeditated design includes malice aforethought, and accordingly the jury must be satisfied from the evidence, beyond a reasonable doubt, that the killing was the consummation of a previously formed design to take the life of the person killed or of some other person, and that the design to kill was formed deliberately, with a deliberate mind; that is, at a time when the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done. There is, however, no definite space of time necessary to intervene between the formed design to kill and the actual killing. A single moment of time may be sufficient; all that is required being that the mind be cool and deliberate in forming its purpose, and that the design to kill is formed, and the design to effect death is inferred from the fact of the killing, unless the circumstances raise a reasonable doubt as to whether such design existed. When the evidence satisfies your mind beyond a reasonable doubt that the killing was the result of a previously formed design by the defendant to kill the deceased, or some other person, and that the design was formed when the mind was calm and deliberate and capable of contemplating the consequences of the act proposed to be done by him, and such killing is further shown to have been unlawful, and done with malice and premeditated design, then the homicide is murder, and your verdict should be rendered accordingly. To warrant a conviction for murder, the jury must be satisfied by the evidence beyond a reasonable doubt that the defendant, before the act, deliberately formed the design with a calm and deliberate mind to kill the deceased or some other person, and that he proceeded in accordance with that design to the infliction of the death wound. The act must not result from a mere sudden, rash, inconsiderate impulse, passion or excitement, however unjustifiable and unwarranted it may be. Now, if you believe from the evidence beyond a reasonable doubt that the defendant, as charged in the information, in Pittsburg county, Okla., with premeditated design, as hereinbefore explained to you, with a gun, same being a deadly weapon, or instrument well calculated and likely to produce death by the manner in which it was used, with a sedate and deliberate mind, and formed design to kill, did unlawfully shoot and thereby kill the said Charles Plodge, hereinafter referred to as the deceased, you will find the defendant guilty of murder, and so state in your verdict, affixing the penalty therefor; that penalty being death or imprisonment in the state penitentiary at hard labor for life:

“(Defendant excepts to instruction No. 2 in open court. Exceptions allowed. P. D. Brewer, Judge.)

“No. 3. You are further instructed in this case that the defendant, having pleaded he is not guilty, admits the killing, but claims he is excusable therefor because he says the shooting that caused the death of the deceased was unintentional, accidental, and a mere misadventure, and happened under such circumstances as to render him excusable therefor under the law. It therefore becomes necessary that you be instructed on this phase of the case, and that you be informed under what circumstances homicide is excusable under the law of Oklahoma, and also that you be instructed as to manslaughter in both the first and second degrees, both of which are criminal degrees of homicide, and are included in and may be considered under an information charging murder.

“(Defendant excepts to No. 3. Exceptions allowed. P. D. Brewer, Judge.)

“No. 4. Homicide is excusable when committed by accident and misfortune in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.

“No. 5. Manslaughter in the first degree is defined as follows : When a homicide is perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor, or when perpetrated without a design to effect death, and 'in a heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon, unless it is committed under such circumstances as to constitute excusable or justifiable homicide. Under the circumstances and evidence in this case a charge on justifiable homicide is unnecessary.

“(Defendant excepts to No. 5. Exception allowed. P. D. Brewer, Judge.)

“No. 6. You are further instructed that under the laws of Oklahoma it is unlawful for any person to point any pistol or any other deadly weapon, whether loaded or not, at any other person or persons, either in anger or otherwise, and that any person guilty of so doing would be guilty of a misdemeanor under the law. You are further instructed that the law of Oklahoma is that every person who willfully assists any prisoner in escaping or attempting to escape from the custody of any officer or person having the lawful charge of such prisoner under any process of law, or under any lawful arrest, is guilty of a misdemeanor.

“(Defendant excepts to No. 6. Exception allowed. P. D. Brewer, Judge.)

“No. 7. You are further instructed that if you believe from the evidence and circumstances in the case beyond a reasonable doubt that the defendant killed said deceased, and that the killing was unlawful, and was not excusable homicide, as herein explained to }rou, but you have under the evidence and circumstances in the case a reasonable doubt as to whether the defendant is guilty of murder, as herein defined to you, then it would be necessary for you to consider whether or not the defendant is guilty of manslaughter in either the first or second degree, as herein defined to you, both of which are lower degrees of homicide, and which are included in and may be considered under an information charging murder. To constitute manslaughter in the first degree, as herein defined to you, it is essential that the homicide be committed by the accused, that the killing be unlawful; that is, that it was not justifiable or excusable under the law. If the killing be purposely and unlawfully done, without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, or while the person doing the killing was engaged in the commission of a misdemeanor, then, under such circumstances, the homicide would be manslaughter in the first degree. You are further instructed that if, under all the evidence and circumstances in the case you have a reasonable doubt as to whether or not the defendant is guilty of murder, the defendant is entitled to the benefit of that doubt, and you cannot convict him of murder, but if from all the evidence and circumstances in the case you believe beyond a reasonable doubt that the defendant killed said deceased, as alleged in the information, in Pittsburg county, Okla., and that the killing was unlawful, and purposely done, as alleged in the information, by the defendant, without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, or while the defendant was engaged in the commission of a misdemeanor, and under such circumstances as not to be excusable under the law, as herein given to you, then the defendant would be guilty of manslaughter in the first degree, and you should so find, and you may assess the punishment therefor, should you find him guilty of manslaughter in the first degree; that punishmént being imprisonment in the state penitentiary for any definite period of time not less than four years.

“(Defendant excepts to No. 7. Exception allowed. P. D. Brewer, Judge.)

“No. 8. The court further instructs you that if you believe from the evidence and circumstances in the case beyond a reasonable doubt that the defendant killed deceased, as alleged in the information, and that the killing was unlawful, and was not excusable homicide, as herein explained to you, but you have under the evidence and the circumstances a reasonable doubt as to whether the defendant is guilty of murder or manslaughter in the first degree, as herein defined to you, then it would be necessary for you to consider whether or not the defendant is guilty of manslaughter in the second degree, as herein defined to you, and which is a lower degree of homicide than the other two degrees, and which is included in and may be considered under an information charging murder. *

“(Defendant excepts to No. 8. Exceptions allowed. P. D. Brewer, Judge.)

“No. 9. Homicide is manslaughter in the second degree when caused by the act, procurement, or culpable negligence of another, which, under the law, is not murder or manslaughter in the first degree, nor excusable nor justifiable homicide.

“(Defendant excepts to No. 9. Exceptions allowed. P. D. Brewer, Judge.)

“No. 10. Culpable negligence is the want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions, and you are instructed that a person handling a deadly weapon will be required under the law to use a higher degree of care and circumspection than if using an instrument ordinarily harmless.

“(Defendant excepts to No. 10. Exceptions allowed. P. D. Brewer, Judge.)

“No. 11. To constitute manslaughter in the second degree, as herein defined to you, it is essential that the nomicide be committed by the accused; that the killing be unlawful that is, that it was not justifiable or excusable under the law; if the killing be purposely and unlawfully done without a design to effect death, but by the act, procurement or culpable negligence of another, which, under the law as herein given to you, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, then, under such circumstances, the homicide would be manslaughter in the second degree. On this phase the court instructs you that, if under all the evidence and circumstances you have a reasonable doubt as to whether or not the defendant is guilty of murder or of manslaughter in the first degree, then the defendant is entitled to the benefit of that doubt, and you cannot convict him of either of those degrees of homicide. But if from all the evidence and circumstances in the case you believe, beyond a reasonable doubt, that the defendant killed the said deceased, as alleged in the information, in Pittsburg county, Okla., and that the killing was unlawful and purposely done, as alleged in the information, without a design to effect death, but by the act, procurement, or culpable negligence of the defendant, which, under the provisions of the law, and these instructions, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, and was not done by accident or misfortune, in the doing of a lawful act by lawful means, with usual and ordinary caution, and without any criminal intent, then the defendant would be guilty of manslaughter in the second degree, and you should so find, and, if you find the defendant guilty of manslaughter in the second degree, you may assess the punishment therefor, that being imprisonment in the .state penitentiary for not more than four years and not less than two years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both fine aird imprisonment.

“(Defendant excepts to No. 11. Exception allowed. P. D. Brewer, Judge.)

“No. 12. You are instructed that if you entertain in your minds a doubt, reasonable as in these instructions defined, as to whether or not the killing of deceased was accidental or occasioned by misfortune in the doing of a lawful act by lawful means with usual and ordinary care and caution and without any unlawful intent, then it is your duty to resolve said doubt in favor of the defendant, and return a verdict of not guilty.

“(Given. P. D. Brewer, Judge.)”

The evidence in the case presented the question of whether the homicide was perpetrated without a design to effect death by the defendant while engaged in the commission of a misdemeanor; that is, pointing a deadly weapon, whether loaded or not, at any other person or persons. The evidence also tends to show that the defendant was guilty of certain conduct that might legitimately be construed as an attempt to assist the prisoner, Sanders, in escaping from the custody of the deceased as an officer. It was the duty of the court to instruct the jury upon manslaughter in the first degree, for the reason that the evidence presented such issue. Section 682-9 (Comp. Laws 1909), Procedure Criminal, provides that:

“When it appears that a defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degree only.”

Section 6826 provides:

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

Under this section, the jury are the sole judges -as to questions of fact; and by section 6829 it is provided,'in effect, 'that a jury can only find a defendant guilty of that degree of crime of which they entertain no reasonable doubt. In the case of Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622, this court held:

“In a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not. It is the duty of the court to say as a matter of law if there is any evidénce that would tend to reduce the degree of the offense to manslaughter in the second degree.”

The several assignments of error based upon the rulings of the court in .the admission and exclusion of testimony are without merit.

The remaining assignment of error insisted upon is that the court erred in sustaining the demurrer to the plea of former jeopardy on the part of plaintiff in error. Conceding that the question was regularly raised on the trial, it was properly overruled. The plea was based upon the theory that by the discharge of the jury upon the first trial without the consent of the defendant he was entitled to be then acquitted, and therefore could not be legally put upon trial a second time. The jury in the former trial retired to deliberate on June 24, 1910. They were returned into court June 25, 1910, at which time the jury was discharged for the reason that it was unable to agree. ' The record as to the former trial shows:

“And now the state is present by T. R. Dean, county attorney, and the defendant present in his own proper person and represented by counsel, Geo. M. Porter, Esq., and Guy A. Curry, Esq., and now comes the jury heretofore impaneled and sworn for the trial of said cause, and, after many hours’ deliberation, they report into court, and each juror, having been interrogated by the court, answers that in his individual judgment it would be impossible for the jury to ever arrive at a verdict in this case, and the court, after considering the matter, believes it would be impossible for this jury to ever return a verdict, and therefore. it is ordered by the court that a mistrial be declared in this case, and that the jury be discharged from further consideration of this cause, and the defendant remain in the custody of the sheriff.”

The question, for what causes the jury in criminal trials may be discharged before returning a verdict, the defendant not consenting, without the trial resulting as jeopardy in bar of another trial, has .never been passed upon by this court. By the common law and by our statute it is contemplated that the jury shall not be discharged until a verdict is rendered and returned into court. But it needs no reasoning to show that this theory of the law cannot always be carried into effect without defeating the ends of justice. It is the settled doctrine of American law that, without the consent of the defendant, the court has the power to discharge a jury before verdict “from manifest necessity,” and to hold the defendant for another trial. The prevailing rule is that when, after a reasonable confinement, the jury avow an utter inability to agree in respect to their verdict, the court in the exercise of a sound discretion may discharge them, and that such discharge will not operate as a bar to further prosecution; and it is further held that the necessity for the discharge of the jury, whatever it may be, must appear upon the record, and it must be adjudged by the court that such necessity existed for the discharge of the jury. Thompson v. U. S., 155 U. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146; United States v. Perez, 9 Wheat. 579, 6 L. Ed. 165; Kelly v. U. S., (C. C.) 27 Fed. 616; U. S. v. Bigelow, 3 Mackey (D. C.) 393; Smith v. State, 22 Tex. App. 196, 2 S. W. 542; State v. Pierce, 77 Iowa, 245, 42 N. W. 181; Stocks v. State, 91 Ga. 831, 18 S. E. 847; Commonwealth v. Bowden, 9 Mass. 494; Anderson v. State, 86 Md. 479, 38 Atl. 937; State v. Arthur, 32 Mo. App. 24; Dreyer v. People, 188 Ill. 40, 58 N. E. 620, 59 N. E. 424, 58 L. R. A. 869; State v. Hagar, 61 Kan. 504, 59 Pac. 1080, 48 L. R. A. 254; 12 Cyc. 273, par. 14, and citations. These rules have been further relaxed by the following provision of our Criminal Procedure Act (section 6867, Comp. Laws 1909) :

“Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and 'rendered it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satis-factorify appear that there is no reasonable probability that the jury can agree.”

Authority to discharge the jury without the consent of the defendant exists under the statute if, “at the expiration of such time as the court deems proper, it satisfactorily appear that there is no reasonable probability that the jury can agree.” The questions whether they have been so kept together and whether there is no reasonable probability that they can agree are judicial questions. As such, they cannot be arbitrarily or capriciously determined by the court. The length of time a jury should be kept together, and the probability of an agreement, xmust be determined by the court from the facts and circumstances' of the particular case, and the court’s discretion will be conclusive unless it has abused its discretion in that regard. In Dreyer v. People, supra, it is well said:

“Every judge who has presided over criminal trials knows that cases are often submitted to juries upon which intelligent men cannot honestly avoid disagreement on the question of guilt or innocence. To compel consent to a verdict under such circumstances, under penalty of being confined for days, weeks, or possibly months, would shock the sense of justice, and often result in dishonest and unjust acquittals or convictions.”

There are other assignments of error, but no one of them requires notice. From a careful examination of the record, we do not find that any error was committed to the prejudice of the defendant.

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

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