author: MATSON J.

text:
    HARRY NEWBY v. STATE.
    No. A-3160.
    Opinion Filed March 15, 1920.
    (188 Pac. 124.)
    (Syllabus.)
    1. HOMICIDE — Degrees—Duty to Instruct. Where there is slight evidence which tends to reduce the degree of the homicide from miurder to manslaughter in either of its degrees, the trial court should give the defendant the benefit of any idoubt which the evidence may suggest, and instruct the jury upon the law of each degree which the evidence tends to prove.
    2. TRIAL — Duty to Instruct — Evidence to Support. The trial court is not required, however, to delve into the realms of conjecture or speculation in order to instruct upon some chimerical theory of the law of the case not reasonably supported by the evidence.
    3. HOMICIDE — Murder—Refusal to Instruct on Manslaughter. The refusal to give manslaughter instructions in a prosecution for murder is not error, if there is no evidence tending to reduce the degree of the crime from murder to manslaughter in either degree.
    4. TRIAL — Custody of Jury in Officer Who Was -State Witndss — Necessity for Injury. Where a deputy sheriff, who was a witness for the state in rebuttal, was duly sworn and placed in charge of the jury, together with another duly sworn bailiff, during a recess in the trial, without objection being made by the defendant, and there is no showing that the said bailiff communicated with any mjember or members of the jury concerning the case, or permitted others to do so, or that the jury was in any way tampered with or subjected to any improper influences during said recess, the judgment of conviction will not be reversed on such ground.
    5. APPEAL AND ERROR — Discretion of Court — New Trial for Newly Discovered Evidence. Motions for a new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court, and there must be a showing of manifest abuse of such discretion before the judgment will be reversed on this ground.

      Appeal from, District Court, Delaware County; John H. Pitchford, Judge.

    Harry Newberry was convicted of murder and sentenced to life imprisonment, and he appeals.
    Affirmed.
    This an appeal from the district court of Delaware county in an action commenced in said court on the 19th day of March, 1917, by information duly filed by the county attorney of said county, charging the defendant with the murder of one Ben Price by shooting him with a 45 Colt's • revolving pistol on the 18th of December, 1916. Death resulted from a bullet wound in the head, Which entered near the left temple and had its exit above the right ear.
    The killing occurred on a public street in the town of Jay, said county, between the hours of 8 and 9 o’clock at night. The state introduced witnesses who testified that on said day the defendant had driven in an automobile to the town of Southwest City with his brother, Teenie Newby, and two young ladies, one of whom was the .sister of the deceased. After shopping some in Southwest City they returned to their homes in Jay, traveling by automobile, which was owned by the defendant. The evidence also discloses that the defendant had been drinking some, a fact which he admits, but testifies himself that he was in full possession of his mental faculties and knew everything that occurred prior to and at the time of the alleged homicide.
    According to the state’s witnesses, the defendant was seen a short time prior to the commission of the homicide carrying some whisky in quart bottles in his pockets, also an open knife, the blade of which was protruding from his coat pocket on the left side, and in addition he was armed with a 45 Colt’s revolving pistol. The state introduced two witnesses, full-bloood Indians, who testified through an interpreter that they were eyewitnesses to the killing,' standing a short distance away with a lighted lantern at hand, and that the defendant shot the deceased with a pistol; that they were qüarreling; that the deceased at the timé said to the defendant, “Don’t”; and after the defendant had shot deceased and deceased had fallen to the ground the defendant ran away from the scene and made no effort to ascertain the result of the shot.
    If the witnesses for the state are to be believed, the killing was a willful, deliberate, and malicious one, and constituted, under the statutes of this state, the crime of murder.
    The defendant, however, took the witness stand in his. own behalf and admitted that he had on that evening a 45 Colt’s pistol, but stated that the deceased wanted to look at it, and that just a short time before the shot was fired the defendant handed the pistol to the deceased, and the deceased after taking it into his hands wanted to fire it, but that the defendant told him not to do it as it would cause them trouble; that “somebody was getting sore about shooting around at night”; that thereupon the defendant asked deceased to return the pistol; that defendant was walking slightly behind the deceased but close to him, and that the boy apparently started to hand the defendant the pistol and it became discharged some way unknown to the defendant; that it was purely accidental; that he (defendant) did not shoot the deceased or have hold of the gun at the time it was discharged; that after deceased fell the defendant became very much distressed and excited over what had happened, and walked up to deceased and spoke to him and undertook to pick him up; that deceased was making some kind of distressing ljoise, and that defendant became confused and excited to such an extent that he did not remember what happened after that; but that he (defendant) finally made up his mind what he ought to do after having picked up the pistol when he started to leave the body of the deceased; and that he took the pistol to the home of deceased’s parents and stated to members of the family of the deceased who were assembled at the home, after leaving the pistol there, “This is the gun Ben killed himself with.”
    In order that a more definite understanding may be obtained of exactly what occurred at the precise time of the shooting, the following excerpts from the testimony of eyewitnesses is incorporated herein. Blossom James testified in part:
    “Q. Which side of town is the doctor’s drug store on? A. North. Q. Did you see Hjarry Newby that night? A. Yes, sir. Q. Did you see Ben Price also? A. Yes, sir; I saw him too. Q. Where were they? A. They were standing near a telephone pole. Q. Where is that from Dr. Marsh-man’s drug store? A. It is west. Q. How far from the drug store? Indicate by pointing out the- distance. A. About 17 feet. Q. What did you see take place there? I will ask you if the shot was fired while you were there at the drug store. A. Yes, sir; we were close to the drug store. Q. Who fired the shot? * * * A. Harry Newby fired the shot. Q, What happened? A. He fell down at the report of the gun. Q. Who fell? A. Ben Price. Q. How far was Harry Newby from Ben Price when the shot was fired? A. About the distance of the length of a broom. Q. State to the jury all that you saw and heard of this transaction? A. I didn’t know, only just Harry Newby run and went down towards the ’barn and down the road leading towards the schoolhouse. Q. How were they standing when the shot was fired, Harry Newby and Ben Price? A. Newby was on that side (indicating) and Ben was on this side (indicating). Q. 'State the direction that Newby was from Ben Price. A. He was a little bit south. Q. You say a little south — south and what other direction — do you know what is north and south and east and west? A. Yes, sir. Q. Which way is south? Indicate by pointing. A. Back that way (indicating). Q. Which way is west? A. That way (indicating). Q. Now indicate by pointing at some object where Ben Price was and where Harry Newby was when the shot was fired. A. One was east a little. Q. Which one was east? A. Ben Price. Q. How did you come to be down there at Dr. Marshman’s store? A. My father was sick, and we were sent there for medicine. My mother sent me. Q. Where did you go from the store, where did you come from to the store when you came to town? A. We came from home, where we live. Q. After you came to town, state where the last place you were before you came down to the drug store. A. I had been at Charley Bowles’ store. Q. Did you leave Charley Bowles’ store and come direct to the drug store, or did you wait on the road or go any other place? A. We went directly from Bowles’ store down to the drug store and hadn’t been long there when the shooting occurred. Q. State what was said or what you heard before the shooting occurred, or at any time between Harry Newby and Ben Price, if you heard anything. A. Harry Newby cursed him. Q. Cur,sed who? A. Ben Price. Q. Could you understand what was said? A. I didn’t understand very much of it. I can’t understand but very little English. Q. Where did you go after the shooting occurred? A. We were standing out there in front of the drug store. Q. Did .you go any place then immediately after the shot was fired? O. We stayed there in front of the store directly after the shot was fired. Q. Who was there with you, Blossom? A. John Horsefly. Q. Who was the first person you saw after the shooting? A. I saw John Horsefly the first one after the shooting. Q. Who next did you see? A. His brother. Who is his brother? That man over there (indicating). Q. Do you mean Teenie Newby? A. Yes, sir. Q. Where was Teenie Newby? A. He was there a little bit south of them. Q. How long was that after the shooting? A. Quite little bit afterwards. That is about all I know. Q. Did you see George Roberts ? A. Yes, sir. We went after him. Q. Who went after him? A. John. Q. John who? A. John Horsefly. Q. How long was that after the shooting? A. Right away afterwards. Q. When you saw George Roberts, was that before you saw Teenie Newby or afterwards? A. I think I saw Teenie Newby first. Q. You saw Teenie', Newby before you saw George Roberts? A. Yes, sir. Q. How long was that after the shooting? A. Quite a little bit. Q. What was the first thing Harry Newby did after the shooting took place? After he fell Harry Newby run down towards the barn and run towards the schoolhouse. Q. After who fell? A. Ben Price. Q. Did Harry Newby stop and go to Ben Price after he fell and before he ran? A. No, sir; he run right away. Q. Did you see Harry New-by any more after that? A. Yes, sir; I saw him when the folks were going down afterwards. Q. Did Harry Newby say anything at the time of .the shooting? A. No, sir. Q. Did he say anything after the shot? A. No, sir. Q. Did Ben Price say anything before the shot? A. He said, ‘Don’t.’ Q. Did he make any noise at the time of the shot or immediately afterwards? A. He hollered when he was shot. Q. Did you have anything with you there? A. Yes, sin. Q. What was it? A. I had a lantern. Q. Was it lighted? A. Yes, sir. Q. Did you see Harry Newby shoot the pistol himself? A. Yes, sir; I saw him shoot. Q. Did you hear Ben Price say anything else? A. That is all I know, is hearing him say, ‘Don’t.’ Q. Do you know how Harry Newby had hold of the pistol? A. Yes, sir. Q. Take this pistol and show the best you can the position he was holding it? A. He had it pointed towards Ben (indicating) and shot.”
    John Horsefly testified substantially the same as Blossom James as to matters and events leading up to and surrounding the alleged homicide.
    The defendant testified concerning what occurred at the time of the shooting as follows:
    “Q. Who had the whisky? A. I had it when we went in the house. Q. Where did Bill Blackburn go? A. He went back in the house. Q. Where did Teenie Newby go? A. Well, I couldn’t swear where Teenie went, because I didn’t see him. I left him there. I and Ben started towards the barn and I left him standing there at the porch. Of course I had an idea where he was going when he refused to go to the dance. Q. Did you ask him to go to the dance with you? A. I asked him if he was going and he.said he wasn’t. Ben then spoke up and asked him to go along. Q. Where did you and Ben Price go? A. We went down towards the barn. Q. Well, what happened? A. Well, we started off when we left Teenie there. I never asked Ben no questions. We started off. Ben was on my right side walking along by me and I was on the outside of the sidewalk. We walked down the road and was talking about something. I said, ‘Did Dynie ride my horse very hard ?’ and he said, ‘No;’ he didn’t think he did. I said, ‘Was he sweating any?’ and he said, ‘Yes; he was sweating a little bit in the flanks;’ and we just walked on down the street. So we got down to Marshman’s and Ben asked me — he seen, I suppose that I had a gun on — and he asked me for it, and I let him have the gun. So he asked me to let him ,shoot the gun, and I told him, ‘No; don’t shoot’; we would get into it. They had been kicking about that shooting around over town, and I told him better not shoot. So he cocks the gun a time or two; I could hear it clicking; and so — when I handed him the gun I don’t know whether I pulled off one of my gloves, but anyway I had something in my hand and was monkeying with it, whatever it was, and I and Ben was only just a little ways apart, and when I handed him my gun and whatever this was in my hand I was monkeying with and had fell a little behind him, and when he asked me to let him shoot and I said ‘No,’ he just said ‘Here,’ and I thought was handing me back the gun, and I just reached out with my right hand to get the gun, and never took my eyes off of what I was monkeying with —I don’t know which hand or anything of the kind he had the gun in — and as I reached my hand out when he said ‘Here,’ when I turned my head to see what was the reason I didn’t get hold of the gun or feel anything, just as I turned my head the gun went off and Ben fell. I never had yet touched the gun. I run around in front’of him and jumped down on my knees and grabbed him by the head and called him four or five times. H'e didn’t answer, but he was kind of struggling and I tried to pick him up, or rather did pick him up, and I couldn’t get him to answer and I laid him down, and he was struggling so and I looked in his face anjd just got scared, and I just grabbed my gun, which was laying by his left hand, and started to run, and I run down in front of Dan Price’s livery barn and run out a little ways, and after I had gone a little ways I come to myself — got over my excitement a little — and then went up by my house and thought I would unlock the door and throw the gun in the house; and I was so nervous and scared I couldn’t get the key in the keyhole, and it was dark, and I just turned and run up to Dan Price’s and laid the gun down on the washstand and told Mrs. Price, ‘This is the gun the boy shot himself with.’ * * * Q. Mr. New-by, did you kill this boy or shoot him as these Indians, this man John Horsefly and Bossom James, say you did? A. No, sir; I did not. Q. Did you have anything to do with killing the boy whatever? A. Not a thing in the world. The boy’s life was merely an accident, I suppose — the boy’s death.
    “Cross-Examination.
    “Q. Did you ask Ben Price to go out with you that night? A. No, sir; I did not. Q. Did you ask him to go any place with you after you got out? A. No, sir; I did not. I never asked him to go. He stated there to Teenie, ‘Come and go with us to the dance’; and my calculation was for Ben to ride behind me on the horse if he was going. Q. Where? A. To Bill Buzzard’s. Q. Was there a dance there. A. They told me there was going to be one. Q. Who told you? A. Mrs. Johnson told me the day before. Q. Isn’t it a fact that there was no dance there at all ? A. I don’t know. I was in jail that night and I didn’t go. Q. Don’t you know that there was not going to be a dance there? A. I don’t know. They told me there was. That is all I know. Q. Wasn’t you drinking pretty heavy that night? A. Not very heavy. Q. Did you know what you were doing? A. Sure I did. Q. You knew everything that you were doing? A. Yes, sir; I did. Q. Did you have a knife in the front of your coat? A. No; I never had no knife in front of my coat that I know of. The best I have any recollection of my knife I left it at my house where I had been vulcanizing inner tubes. Q. Did you have a quart bottle of whisky in each pocket? A. No, sir; I did not. Q. Did you have a quart bottle in each pocket? A. Mo, sir. I just had one bottle, and I had it in my right coat pocket with about that much (indicating) whisky in it. Q. You say you were not drunk? A. I. say I wasn’t drunk enough not to know what I was doing all right. Q. You say you and Ben Price were walking along by yourselves — anybody else around there at all when the killing occurred? A. No, sir. Q. That is what you say, is' it? A. Yes, sir; that is what I say. Q. Did your hand touch that gun? A. No, sir; it did not.”
    The defendant requested the following instructions:
    “You are instructed that, while the information in this case charges the defendant with the commission of the crime of murder, it also contains and includes a charge of manslaughter in the first degree. Manslaughter is the unlawful killing of a human being without malice, either express or implied, and without deliberation. In this state homicide is manslaughter in the first degree when perpetrated without a design to effect death and in the heat of passion,, but in a cruel and unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute justifiable homicide.
    “Refused. John H. Pitciiford, Judge.

    “Defendant excepts.”
    “From the definition given you will perceive that the characteristic distinction between murder and manslaughter is the existence of malice, either express or implied; and it therefore becomes necessary, in every case of homicide, to ascertain' the nature of legal malice, and what evidence is requisite to establish its existence. The rule is that the implication of malice arises .in every case of intentional homicide, and the fact of killing being first proved by satisfactory evidence, all the circumstances of accident, necessity, or infirmity are to be established by the party charged, unless they arise out of the evidence produced against him to prove the homicide; and where the fact of killing is so proved, and there are no circumstances disclosing or tending to show justification or excuse, then there is nothing to rebut the natural presumption of malice. This rule is founded on the plain' and obvious principle that a person must be presumed to intend that which he voluntarily and willfully does, and that he must intend all the natural, probable, and usual consequences of his own acts.
    “Refused. John H. Pitchford, Judge.

    “Defendant excepts.”
    “If, after a careful and dispassionate consideration of all the evidence in the case there should rest upon your minds a reasonable doubt of the guilt of the defendant of the crime of murder, as explained in these instructions, then you will consider whether he is, under the evidence, guilty of manslaughter in the first degree; and if there should so rest upon your minds a reasonable doubt of his guilt of murder, but you find from the evidence, beyond a reasonable doubt, that the defendant is guilty of the crime of manslaughter in the first degree, as defined and explained herein, you will so say by your verdict, and in that event you will assess his punishment by imprisonment in the penitentiary for any length of time not less than four years and it may be for his natural life, that is, for any length of time from four years up to his natural life.
    “Refused. John H. Pitchford, Judge.

    “Defendant éxcepts.”
    “You are also further instructed that, although charged with murder, the crime of manslaughter in the second degree is included in the charge, and you are instructed that manslaughter in the second degree is defined as follows: Any killing of one human being by the act, pro-' curement, or culpable negligence of another, which, under these instructions, is not murder, nor manslaughter in the first degree, nor excusable or justifiable homicide, is manslaughter in the second degree.
    “If after reviewing all the evidence in this case you find beyond a reasonable doubt that the deceased met his death at the hands of the defendant by reason of the act or culpable negligence of the defendant, and not with premeditated design, or if after reviewing the evidence there rests upon your minds a reasonable doubt as to whether or not there was any premeditated design, and if after reviewing the evidence you cannot say that the deceased met his death at the hands of the defendant in the heat of passion or in a cruel and unusual manner, then you will find defendant guilty of manslaughter in the second degree, in which case you will fix his punishment by imprisonment in the penitentiary not more than four years and not less than two years, or by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $1,000 or both such fine and imprisonment.
    “Refused. John H. Pitchford, Judge.

    “Defendant excepts.”
    “You are instructed that when a defendant is being prosecuted for murder he is not required to reasonably account for all the facts and circumstances, together with all the direct evidence in the case relied upon by the state to secure a conviction, upon some theory consistent with his innocence. If there is a reasonable doubt as to his guilt, without explaining any fact or circumstances relied upon by the state, he should be acquitted; or, if the explanation of one or more facts raises a reasonable doubt as to his guilt, he must be acquitted, without explaining all the facts and circumstances relied upon by the state.
    “Refused. John H. Pitchford, Judge.

    “Defendant excepts.”
    The trial court, of its own motion, gave ten separate instructions submitting the case upon the issue that the defendant was either guilty of murder alone under the evidence adduced by the state or was entitled to an acquittal if the jury .believed his defense to be true, or if said defense raised a reasonable doubt in their minds of his guilt of murder. Instruction No. 8 given by the court covers the theory of the defense interposed from the viewpoint of the trial court, and is as follows:
    “You are instructed that if you believe and find from the evidence in the case, beyond a reasonable doubt, that the defendant, on the occasion mentioned in evidence, fired the shot which killed the deceased in the manner and form as charged in the information and as before explained in these instructions, then he would be guilty of murder as charged, and you should so say by your verdict. On the other hand, you are instructed that the defendant pleads as a defense that the deceased came to his death by the accidental discharge of the pistol by the deceased, or when said pistol was not in the hands of the defendant; and if you believe that the killing was a result of the accidental discharge of the pistol by the deceased, or by the discharge of said pistol when same was not in the hands of the defendant, then and in that event your verdict should be one of acquittal; or if the evidence on the proposition as to whether the defendant fired said shot raises in your minds a reasonable doubt of his guilt, as herein explained, it would be your duty to give him the benefit of the-doubt and acquit him.”

      Ad V. Cow edge and E. B. Hunt, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON J.

(after stating the facts as above). Counsel rely almost entirely for a reversal of this judgment upon the ground that it was error under the issues in this case for the trial court to fail and refuse to instruct the jury on the law relative to manslaughter in the first and second degrees, as requested by counsel, to which action proper exception was taken at the time,' and again urged as error in the motion for new trial and in the petition in error filed in this court.

Counsel for the defendant upon this proposition rely upon the decisions of this court, which hold:

“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 defendant or not.” Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040; Steeley v. State, 17 Okla. Cr. 252, 187 Pac. 821.

Upon the oral argument it was urged that the peculiar circumstances under which the- deceased met death were so surrounded in mystery and uncertainty that it was possible, if not clearly probable, that the defendant, either in the heat of passion or else by his own culpable negligence in the handling of the pistol at the time of its discharge, may have not been entirely blameless but guilty of either manslaughter in the first or second degree, and that instructions along the lines requested should have been given.

As heretofore repeatedly held, we deem the law to be that, if there is even .slight evidence which tends to reduce the degree of the homicide from murder to manslaughter in either of its degrees, the trial court should give the defendant the benefit of any doubt which the evidence may suggest, and instruct upon such lower degrees. However, the court is not required to delve into the realms of conjecture or speculation in order to instruct upon some theory of the case not reasonably supported by the evidence.

Section 5902, Revised Laws 1910, provides:

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

The evidence in this case on the part of the state, if believed, proved the defendant guilty of murder. There was nothing in the state’s evidence that tended to reduce the degree of the homicide to manslaughter, and the defendant made no effort to justify or excuse the killing. In fact, he denied having killed the deceased at all. According to the defendant’s testimony the deceased killed himself, whether purposely or accidentally the defendant does not know; 'but the defendant is certain that he himself had nothing whatever to do with the killing. The issues presented, therefore, were clear-cut and permit of no middle ground. Either the defendant killed the deceased in the manner testified to by the state’s witnesses, or else the deceased met his death at his own hands without any fault or criminal culpable negligence on the part of the defendant. The decisions of this court relied upon by the defendant’s counsel, therefore, are not controlling in this case, but this case is determined by other decisions of this court holding as follows:

“The refusal to give manslaughter instructions is not error if there is no evidence to reduce the degree of the crime from murder to manslaughter.” Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 44; Morris v. State, 4 Okla. Cr. 233, 111 Pac. 1096; Hopkins v. State, 4 Okla. Cr. 194, 108 Pac. 420, 111 Pac. 947; Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Robinson v. Territory, 16 Okla. 241, 85 Pac. 451; Regnier v. Territory, 15 Okla. 652, 82 Pac. 509.

Further, in the case of Sayers et al. v. State, 10 Okla. Cr. 233, 135 Pac. 1073, it is held:.

“When a defendant, who has the right of election as to several defenses, takes the stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one.”

Applying the law contained in the decisions of the Supreme 'Court of the territory of Oklahoma and of this court in the cases last above quoted to the facts of this case, we find no prejudicial error in the refusal of the trial court to submit to the jury the question of the defendant’s guilt either of manslaughter in the first or second degree.

It is also contended that the trial court erred in placing one Mat Francis, a deputy sheriff, as a bailiff in charge of the jury after he had testified as a state’s witness. The record shows that Mat Francis testified as a witness for the state on rebuttal, and it is further disclosed by the record that' before the argument had 'been concluded in the cause the jury was placed in charge of two sworn bailiffs, to wit, Tom Ballard and Mat Francis, to be kept together under proper instructions of the court during the adjournment of the trial from Saturday evening until the trial was resumed the following Monday morning.

Counsel for the defendant at the time interposed no objection to the said Mat Francis being placed in charge of the jury in conjunction with the other sworn bailiff, Tom Ballard, during said recess of the court. It was not until after the verdict had been returned that defendant for the first time urged this as an alleged error prejudicial to his substantial rights. It is not contended that the jury, by reason of the fact that Mat Francis was one of the sworn bailiffs placed in charge of it, was in any way tampered with or subjected to any improper influences. In fact, it is stated in the brief filed in behalf of the defendant that “no charge is made that this bailiff made any improper, suggestions to the jury”; that the objection is based solely on the ground that he was permitted “to associate with the jury” in the capacity of a bailiff during the recess.

In the absence of any showing that the said bailiff in any manner communicated with any member or members of the jury concerning the case, or permitted others to do so, and in view of the fact that the defendant made no objection to his serving in this capacity until after the verdict was returned, and in view of the further fact that it is provided in section 6005, Revised Laws 1910, that no judgment of conviction shall be reversed as to any error of procedure unless after an examination of the entire record it appears that the error .complained of has probably resulted in a miscarriage of justice,, or constitutes a substantial violation of a constitutional or statutory right, we are impelled to the conclusion that this assignment of error, under the circumstances presented, is without prejudice to the substantial rights of the defendant.

It is also contended that the court erred in overruling the supplemental motion for a new trial on the ground of newly discovered evidence. We consider this assignment of error without substantial merit, as the evidence, if produced, would be cumulative and in the nature of impeachment of witnesses for the state, who were attempted to be impeached along the same lines 'by other witnesses introduced at the trial. It is not clear that the alleged newly discovered evidence would produce a different result if another trial should be had, and as this was a matter addressed to the discretion of the trial court, and as no manifest abuse of discretion appears, the judgment will not ho reversed on this .ground.

Defendant was repre' ented in the court ‘below by counsel who left no stone unturned in their efforts to get before the jury the defendant’s theory of defense, and to break down where possible the credibility of the evidence of the state’s witnesses. An able brief has been filed in his behalf in this court, and his cause was earnestly presented in an oral argument.

After a full consideration of all the points urged by counsel for defendant and assigned and relied upon as reasons for reversal of this judgment, we conclude that none of the errors complained of were of such a fundamental character or so prejudicial as to deprive the accused of that fair and impartial trial which is guaranteco to him under the Constitution and laws of this state. ’

The judgment is therefore affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    ZACK NOEL v. STATE.
    No. A-3523.
    Opinion Filed March. 22, 1920.
    (188 Pac. 688.)
    (Syllabus.)
    jl. JUDGMENT AND SENTENCE — Death Penalty — Time for Execration. Our statutes provide that' the punishment of death must be inflicted by electrocution, that the penitentiary shall be the place of execution, and that, when judgment of deatn is rendered, the judge must sign a warrant duly attested, under the seal of the court, stating the conviction and judgment, and appointing a day on which the judgment is to be executed, which must be not less than 60 nor more than 90 days Irom the time of the judgment (chapter 113, Sess. Laws 1913). In this ease the day designated in the judgment and fixed in the warrant for the execution was only 56 days subsequent to the judgment. Held, that the death warrant was’ therefore yoid.
    2. SAME — Compliance of Sentence with Statute. The judgment and sentence in a capital conviction ought to show by its recitals that all the requirements of the statute have been complied with, and where the jury find the defendant guilty of murder and assess the death penalty, the judgment should contain such verdict, or recite the fact that defendant was convicted of murder by the verdict of a jury assessing the death penalty.
    3. CRIMINAL LAW — Witnesses—Time to Prepare for Trial-Rights of Accused. It is the constitutional right of every person charged with crime to have compulsory process for obtaining witnesses in his behalf, and this involves the time reasonably necessary to prepare for trial, and where in a capital case the record shows that only two days intervened between defendant’s arraignment and his trial, and that his attorney had only been appointed by the court to defend him two days before the trial, heljd, that the defendant was not allowed the time reasonably necessary to prepare for trial, or to enable him to secure the attendance of his witnesses.
    4. ATTORNEY AND CLIENT — Duty of Counsel to Appeal From Death Sentence. The right of appeal is a constitutional right, and counsel appointed by the court to defend an indigent defendant fails to fulfill his duty as an attorney when he neglects ' to take an appeal from a judgment and sentence of death.
    5. APPEAL AND ERROR — Perfecting Appeal — Duty of Court to Direct Appointed Counsel to Appeal Death Sentence and to Order Transcript. It is the duty of courts in the administration of criminal law to see that the accused shall have the benefit of every right which the law secures to him upon his trial, and in a capital case, where the defendant by reason of his poverty is unable to employ counsel, and the court appoints counsel to defend him, and the trial results in a judgment and sentence of death, the court should direct such counsel to appeal the case, and to this end it is the duty of the court to order the court clerk to furnish a duly certified transcript of the record, and to order the court reporter to furnish a transcript of the testimony without expense to the defendant.

      Appeal from District Court, Cherokee County; E. B. Arnold, Judge.

      Zack Noel was convicted of murder and sentenced to death, and he appeals.
    Reversed, and cause remanded, with directions.
   DOYLE, P. J.

This appeal is from a judgment-of conviction for murder and sentence of death. The judgment reads as follows:

“Be it remembered that on this the 13th day of February, 1919, being one of the days of the regular February, 1919, term of the district court within and for Cherokee county, Oklahoma, there being present and presiding the Honorable E. B. Arnold, district judge, and there being also present J. B.' Weaver, court clerk, C. W. Saunders, sheriff, and H. M. Vance, county attorney, and public proclamation of the opening of said court having been made, and said court being regularly and duly in session, the following, among other proceedings, were had, to wit:
“The defendant above named, Zack Noel, being personally present in open court and attended by his counsel, and having been legally presented by information by the county attorney and arraigned, and having pleaded not guilty to the crime of murder, charged in said information, and having been then and there in said court duly and legally tried and convicted of said crime, and upon being asked by the court whether he had any legal cause to show why the judgment and sentence should not be pronounced against him, and giving no good reason in bar therefor, and none appearing to the court:
“It is therefore ordered, adjudged, and decreed by the court that the said Zack Noel be punished by death for said crime by him committed, ■ said judgment to be executed within the walls of the state penitentiary at McAl-ester, in the state of Oklahoma, on the 10th day of April, 1919.
“It is further ordered that the sheriff of Cherokee county, Oklahoma, transport the said defendant, Zack Noel, to the .said penitentiary at McAlester, Oklahoma, and deliver the said Zack Noel to the warden of said penitentiary within ten days from this date, for execution in accordance with this judgment, and that said sheriff make due return of his proceedings hereunder as required by law.
“It is further ordered thát the warden of said penitentiary do confine and detain the said defendant Zack Noel, in said penitentiary until the 10th day of April, 1919, and on said date execute this judgment by inflicting death by electrocution in the manner provided by law upon the said defendant, Zack Noel, and make due return and report of hi.s proceedings to this court, as required by law.
“Done in open court at T'ahlequah, Oklahoma, Cherokee county, this the 13th day of February 1919.
“E. B. Arnold, Judge of swid Court.”

This appeal was taken by filing in this court on April 9, 1919, a petition in error with a transcript of a part oi the record attached thereto.

The court clerk of Cherokee county certifies that the foregoing is a full, true, and correct copy of the original judgment in the case of State of Oklahoma v. Zack Noel. A duly certified copy of the death warrant, which conforms to the judgment and sentence, is attached thereto. The plaintiff in error was sentenced under the provisions of chapater 113, Session Laws 1913, entitled:

“An act prescribing death by electrocution for offenses punishable by death, and relating to procedure in the execution of the death sentence.”

■Section 1 reads:

“The punishment of death must be inflicted by electrocution.”

Section 2 reads:

“When judgment of death is rendered, the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment and appointing a day on which the judgment is to be executed, which must be not less than sixty nor more than ninety days from the' time of the judgment and must direct the sheriff to deliver the defendant within ten days from the time of judgment to the warden of the state prison at McAlester, in this state, for execution.”

It appears from the judgment in this case, that the court, in fixing the date of the defendant’s execution, appointed a day within 60 days from the time of the judgment. It will be observed that the statute above quoted requires the court to appoint a day for the execution not less than 60 nor more than 90 days from the judgment, and the judgment in this case shows that the date of execution is fixed on the fifty-sixth day from the time of the judgment. Thus it appears that the trial court improperly sentenced the defendant to be executed within the minimum time .prescribed by the statute. We have examined all the cases accessible bearing upon the question presented, but find none directly in point. In the case of Lowenberg v. People, 27 N. Y. 336, the prisoner was convicted of murder in the first degree and sentenced under the act of April 14, 1860 (Laws 1860, c. 410), to suffer death. The court fixed a day for the execution 13% months from the date of the judgment. By section 4 of said act it was provided :

“When- any person shall be convicted of any crime punishable with death, and sentenced to suffer such punishment, he shall at the same time, be sentenced to confinement at hard labor in the state prison until such punishment of death shall be inflicted.”

Section 5 declared:

“No person so sentenced or imprisoned shall be executed in pursuance of such sentence within one year from the day on which such sentence of death shall be passed, nor until the whole record of the proceedings shall be certified 'by the clerk of the court in which the conviction was had, under the seal thereof, to the Governor of the state, nor until a warrant shall be issued by the Governor under the great seal of the state, directed to the sheriff of the county in which the said prison may be situated, commanding the said sentence of death to be carried into execution.”

In the opinion written by Balcom, J., it is said:

“The Supreme Court could not lawfully affirm this judgment. Its duty was to reverse it. * * * My conclusion, is, as the only error the 'Court of Sessions committed was in giving a wrong judgment, in part, against the prisoner, no new trial can be legally granted, and that the judgment must be wholly reversed, and the prisoner discharged.”

All the judges concurred that the judgment was erroneous in fixing the date of execution; but the Chief Justice and four of the justices were for affirmance upon this ground:

“So much of the sentence as fixed the day of execution was absolutely void. The day so fixed being more than a year subsequent to the sentence, the ’ Governor, but for the stay of proceedings upon the entire judgment, might have directed the execution to take place on any day after the expiration of a year. The convict having procured a stay of proceedings until the day of execution had passed, the error had, by his own act, become wholly immaterial, and he could not require the Supreme Court to reverse a judgment otherwise unobjectionable, on account of a separable addition thereto, void in itself, and which the lapse of time had rendered wholly nugatory.”

In Christian v. Commonwealth, 5 Metc. 530, the Supreme Judicial Court of Massachusetts laid down the following rules, namely:

“When a judgment in a criminal case is entire, and a writ of error is brought to reverse it, though it is erroneous in part only, it must be wholly reversed. The court, after reversing a judment in a criminal case, cannot enter such judgment as the court below ought to have entered, nor remit the ca,se to the court below for a new judgment.”

These rules were approved by Bronson, C. J., in People v. Taylor, 3 Denio, 91.

It will be observed that in the Lowenberg Case the time fixed for the execution was an extension of the time fixed by the statute. As a general rule an extension of time within which the execution may take place after the sentence of death is a mitigation, and not an increase of punishment. In this case the court fixed the date of execution within the minimum time prescribed by the statute.

We think it is well .settled that a judgment of conviction and sentence must conform to the punishment prescribed and be enforced in comformity with the statute, and that jurisdiction to render the particular judgment and sentence imposed is as essential to its validity as jurisdiction of the person and the cause. Ex parte McClure, 6 Okla. Cr. 241, 118 Pac. 591.

The sentence is the final determination of the trial court in a criminal cause, and is the order of the court, made in the presence of the defendant and his counsel, pronouncing the judgment and ordering the same to be carried into execution in the manner prescribed by law. Here the record shows that the court had jurisdiction over the defendant and over the offense and its punishment, but in the exercise of its power the court committed a manifest error in fixing the date of the defendant’s execution within the minimum time prescribed by the statute, and for this reason the court did not have jurisdiction to sentence the defendant to suffer the punishment of death on the date fixed in the judgment, and in the death warrant issued thereon, and for this reason the order fixing the date of defendant’s execution is void. It necessarily follows that the death warrant issued thereon was absolutely void. We may remark here that, while no objection appears to have been taken to the judgment and sentence, there is another defect manifest. The judgment and sentence in a capital conviction ought to show by its recitals that all the requirements of the statute have been complied with. The Penal Code (section 2319, Eev. Laws) requires the jury to fix the punishment for murder, and authorizes the penalty of death at the discretion of the jury; and, if they find the defendant guilty of murder, they must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor; this, in order that the defendant may not be sentenced to suffer death, except in the discretion of the jury, and when a plea of not guilty is entered to an indictment or information charging murder, the extreme penalty can be adjudged only upon a verdict of the jury fixing the punishment of death, “but upon a plea of guilty the court shall determine the same.” Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736. The judgment in this case does not recite the fact that the defendant was convicted of murder by the verdict of a jury assessing the death penalty.

This is sufficient to dispose of the appeal, and, as the day fixed for the execution of the sentence of death has passed, owing to the pendency of this appeal, the proper’ practice would be to remand the case to .the trial court in order that the proper judgment and sentence might be pronounced and entered, if the erroneous judgment were the only error to be found in the record. However, on the record before us, we are convinced that the .defendant should be awarded a new trial. An inspection of the record discloses that the defendant was arraigned on the 3d day of February; at that time, it having been made to appear that the defendant was destitute of means to employ counsel, the court appointed counsel to defend him; that on the sixth day of February, 1919, the defendant entered his plea of not guilty and a jury was impaneled and sworn to try the case;that on the same day the jury returned their verdict of guilty of murder and assessing the punishment of death. In the motion for a new trial the first ground is:

“Irregularity in the proceedings of the court in forcing the defendant into trial without first giving him an opportunity to have his witnesses appear in his defense after subpoenas had been duly issued ánd before a return was had thereon, all of said witnesses being within 50 miles of the court and in the state of Oklahoma, whereby this defendant was prevented from having a fair and impartial trial.”

Every person charged with crime is entitled to a fair trial according to the due and orderly course of the law. The right of every person charged with crime to have compulsory process for obtaining witnesses in his own beha-f is guaranteed by the Constitution (section 20, Bill of Rights) ; and this involves, as a matter of. course, the time reasonably necessary to prepare for trial and to find and produce testimony in his defense. It is not, however, a matter of which the defendant can complain that the trial is speedy, if he has had time for preparation and is ready for his defense. Continuances ought always to be granted, when from the showing made, justice requires it; this to enable the defendant to procure all legal and competent evidence necessary for the fair presentation of his defense, if he has used due diligence to obtain the same.

In the case of Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464, it is said:

“It is the right of every person accused of crime to have a fair trial and compulsory process to compel the attendance of his witnesses, and this involves as a matter of course, the time reasonably necessary to prepare for trial. The statute prescribes that civil cases in the district court shall not stand for trial until 10 days after the issues are made up, and no felony case should be set over the objection of the defendant within 10 days after his plea is entered.”

From the instructions of the court it appears that circumstantial evidence alone was relied upon for a conviction. It may be inferred from the record that the testimony of the defendant as a witness in his own behalf was the only evidence supporting the defense made. The record shows that only two days intervened between the defndant’s arraignment and his trial, and that his attorney had only been appointed by the court to defend him two days before the trial. On the record before us there can be no doubt that the defendant was not allowed the time reasonably necessary to prepare for trial or to enable him to secure the attendance of his witnesses.

The other grounds in the motion for' new trial, and which are assigned as error in the petition, are in effect that the verdict of the jury is contrary to both the law and the evidence; that the court erred.in admitting incompetent evidence over the objection of the defendant; newly discovered evidence material for the defendant, which could not with reasonable diligence have been discovered and produced at the trial. There is no bill of exceptions nor transcript of the testimony attached to the record; consequently the other errors assigned cannot be considered.

In granting a new trial in this case we cannot forbear mentioning the |act that this appeal was not taken by counsel appointed by the court to defend the defendant in the trial of the case, and as the result of -his failure to appeal this case this appeal was not taken until the last day that an appeal could stay the execution of the sentence of death. The transcript of the record was received on that day through the mail, and there not being sufficient time to notify, in the formal way, the warden that a stay of execution had been granted, the writer of this opinion called and notified the warden by telephone that for the reasons here stated the death warrant was absolutely void, and that an order had been entered and issued-by this court staying the execution of the sentence. We will take this occasion to say that no state has a better system of procedure safeguarding every right of a person charged with a criminal offense than has our state. It is the constitutional right of a person put upon trial for a criminal offense to be represented by counsel. Our statute provides that in all criminal cases the defendant must be informed ,by the court that it is his right to have counsel before being arraigned, and he must be asked if he desires the aid of counsel. If he desires, and is unable to employ counsel, the court must appoint counsel to defend him. It is further provided that the court shall in .such cases allow and direct to be paid by the county in which said trial is had a reasonable and just compensation to the attorney or attorneys so assigned for such services as they may render.

The right of appeal is a constitutional right, and counsel appointed by the court to defend an indigent defendant fails to fulfill his duty as ah attorney when he neglects or refuses to take an appeal in the case from a judgment and sentence of death. Counsel appointed by the court notified this court, before this appeal was taken, that the case had been appealed to this court through the Governor. We presume that counsel had in mind the provisions of our Code which provide as follows:

“The judge of a court at which a conviction requiring a judgment of death is had must, immediately after the conviction, transmit to the Governor, by mail or otherwise, a statement of the conviction and judgment, and of the testimony given at the trial.” Section 5968, Rev. Laws 1910.
“The Governor may thereupon require the opinion of the judges of the Criminal Court of Appeals, or any of them, upon the statement so furnished.” Section 5969, Rev. Laws 1910.

It is well settled that the latter provision contemplates that an advisory opinion of the judges may be given to the Governor, when an appeal has not been taken from a judgment and sentence of death. The proposition then presented would be: Has there been an observation of all the formalities of law essential to the taking of human life ? and has the trial, conviction and sentence of death been in accordance with the law of the land? Opinion of the Judges, 6 Okla. Cr. 210, 118 Pac. 156. There was no record or transcript of the testimony in the case transmitted by the Governor to this court; it thus appears that the defendant was denied even the benefit of this safeguard. However, the duty was upon the defendant’s counsel to take an appeal according to law.

It is the duty of trial courts in the administration of criminal law to see that the accused, however guilty he may be, shall have a trial in accordance with the rules of law, and this duty is emphasized in a capital case,'and in such cases where the defendant, by reason of his poverty, is unable to employ counsel, and the court appoints counsel to defend him, and the trial results in a judgment and sentence of death, and the defendant desires to appeal, the trial court should direct such counsel to perfect an appeal, and to this end it i,s the duty of the trial court to order the court clerk to furnish a duly certified transcript of the record, and to order the court reporter to furnish a transcript of the testimony without expense to the defendant.

■Section 6 of our Bill of Rights reads:

“The courts of justice of the state shall be open to every person and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without -sale, denial, delay, or prejudice.”

In Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823, it is said:

“It is a violation of both the letter and spirit of this provision of the Constitution to require any man to pay any cost of court if he is a pauper and without the means of doing so, and to deny him the issuance of such process or the services of an officer when he is unable to pay for the same. In other words, justice in Oklahoma is the right of the poor as well as the luxury of the rich.”

In the case of Hutchins v. State, 13 Okla. Cr. 717, 167 Pac. 338, it is held that:

“Where the defendant has 'been convicted and desires to appeal, upon a proper showing made to the trial court that he is unable to pay the court reporter for a transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the trial court to make an order directing that this be done without expense to the defendant.”

And further held:

“On appeal by transcript from a conviction for murder, it appearing from the record that the plaintiff in error was denied his constitutional and statutory right to perfect an appeal by case-made as a poor person, by reason of the refusal of the court to order the court reporter to furnish him with a transcript of the proceedings, and of the testimony taken upon the trial, the judgment is reversed, and a new trial awarded.”

In the opinion it is 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 none so poor and humble as to be beneath its complete protection.”

The most solemn and momentous duty courts are called upon to perform in the administration of the criminal law is to inflict the death penalty, and it should be inflicted only in extreme cases, when no other punishment will vindicate the law and protect society against the totally depraved. How eareful, then, should we be in reviewing a capital conviction, before we lend our sanction to the taking away of that which, when taken away, we cannot restore. In such cases we must be satisfied that the defendant has been awarded a fair and impartial trial in accordance with the rules of law.

For the errors we have pointed out, the judgment herein is reversed, and the cause remanded with directions that additional and other counsel be appointed for the defendant, and for further proceedings in accordance with the views herein expressed.

The warden of the penitentiary will surrender the defendant to the sheriff of Cherokee county, who will hold him in custody until he shall be discharged, or his custody changed by due course of law.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    J. D. LEACH v. STATE.
    No. A-3260
    Opinion Filed March 23, 1920.
    (188 Pac. 118.)
    (Syllabus.)
    1. CONSTITUTIONAL LAW — Construction—Harmonizing Provisions. No one clause of the Constitution should be construed by itself, and to the exclusion of other portions of the same instrument; but all portions of the Constitution relating to the same question should be construed together, andn as far as possible, harmonized with each other.
    2. CONSTITUTIONAL LAW— Statutes — Presumption of Validity. It is well established that no enactment of the Legislature should be held to he in contravention of the Constitution, unless its uneonstitutionality is made to appear beyond any reasonable doubt.
    3. STATUTES — Constitutionality of Gambling Nuisance Statute. For reasons holding chapter 26, Session Laws 1916, a valid and constitutional enactment, and not a fraud upon the power of the referendum reserved to the people in article 5, Constitution, see body of opinion.

      Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. •
    J. D. Leach was convicted of the crime of maintaining a public nuisance, and his punishment fixed at a fine of $500. Motion in arrest of judgment overruled, and he appeals.
    Affirmed.
    On November 23, 1917, in the district court of Oklahoma county, information was duly filed giving the court to know and be informed that John D. Leach, plaintiff in error, defendant below, did on May 5, 1917, and up to and including September 14, 1917, in Oklahoma county, state of Oklahoma—
    “feloniously keep, maintain, and manage the rooms on the second floor of the building located, described and designated as 219 North Broadway, * * * in Oklahoma City, Oklahoma county, and .state of Oklahoma, in which said room and place, during the above-described period, there was opened, conducted, and carried on certain gambling games, to wit, poker and other gambling games played with cards for money, checks, credits, and other representations of value, * * * and that during said period of time, at said above-described place, so kept, managed, and maintained by the said J. D. Leach, numerous persons did congregate and resort to play at said games, and did play at said games for money, * * * all to the common nuisance of the public, and contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.”
    The statute referred to is set forth in chapter 26, Session Laws 1916, page 54, and is entitled:
    “An act relating to gambling; providing penalties for running slot machines; providing civil penalties against owners of premises permitting same to be used in violation of this act; declaring places where persons congregate to play at'games prohibited in section 1, a public nuisance -; providing penalties against peace officers for gambling or encouraging gambling; prescribing the duties of peace officers relating to the enforcement of this act, and prescribing penalties for the violation thereof; repealing sections 2498, 2499 and 2507 of the Revised Laws of Oklahoma 1910; and declaring an emergency.”
    Section 1 of the act provides:
    “Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or percentage, or any gambling game played with dice, cards or any device, for money, checks, credits, or any representatives of value, or who either as owner or employe, whether for hire or not, deals for those engaged in any such game, shall be guilty of a felony and upon conviction thereof, shall be punished by a fine of not less than five hundred dollars, nor more than two thousand dollars, and by imprisonment in the state penitentiary for a term of not less than one year nor more than ten years.”
    The information was predicated on section 6 of the act, which reads:
    “Any house, room or place where any of the games prohibited in section 1 of this act are opened, conducted or carried on, or where persons congregate to play at any such games is a public nuisance and the keeper and managers of any such nuisance, and persons aiding or assisting any such keepers or managers in keeping or managing any such nuisance shall be guilty of a felony and upon conviction, shall be punished by a fine of not less than five hundred dollars nor more than ten thousand dollars or by imprisonment in the state penitentiary for a term of not less than one year nor more than ten years.”
    ■On January 14, 1918, defendant appeared and moved to quash the information because he says in effect: That the same is drawn under and the prosecution thereof is predicated on chapter 26, Session Laws of Oklahoma 1916, which he says was not in force at the time of the filing of the information, nor is the same or any part thereof in force at this time as a valid and subsisting law of this state for certain reasons set forth in his said motion to quash; and prayed that said motion be .sustained and that he be discharged. This motion was overruled and exceptions saved. On the same day he demurred to the information, which was overruled, and exceptions saved. There was a plea of not guilty, and trial to a jury, and a verdict of guilty “as charged in the information,” and his fine was assessed at $500. Then was filed a motion in arrest of judgment, which was overruled, and exceptions saved, and defendant brings the case here.

      Turner & McAdams, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for. the State.
   MATSON, J.

(after stating the facts as above). For reversal, appellant contends that such part of the act, for the alleged violation of which he was convicted (chapter 26, Session Laws Oklahoma 1916), was not in force at the time of the filing of said information.

On April 4, 1893, there was approved the genera1 act on the subject of “gaming” set forth in General Statutes of Oklahoma 1893, § 2519 et seq. With the exception of sections 2531, 2532, 2533, and 2534, and sections 2536 and 2537, which were dropped, this act was carried into the trevision of 1910 and is set forth in section 2498 et seq., Rte- ■ vised Lawsl910, with a few slight and immaterial changes in the verbiage. As thus enacted the law denouncing “gaming” contained no provisions declaring the place where gaming is carried on to be a nuisance or the keeping or managing thereof a felony.

Then there was passed a general law upon the subject of “gaming,” approved April 14, 1913 (Session Laws Oklahoma 1913, page 281), entitled:

“An act to amend sections 2519, 2520 and 2528 of the General Statutes of 1893 of the state of Oklahoma, relating to gambling; and providing penalties or running slot machines; and providing for civil penalty against owners of premises permitting same to be used in violation of section one of this act.”

Amending section 2519, the first section of this act, in effect, provides that every person who opens, causes to be opened or conducts or carries on “any gambling game * * * played with any device for money” or “any representative of value,” or who deals for any of those engaged in. any of such games shall be guilty of a felony and upon conviction shall be fined not less than $500 nor more than $2,000 and imprisoned in the penitentiary for not less than one year nor more than ten.

Amending section 2520, section 2 of said act provides that every person who bets at any of said games or “at any game whatsoever, for money,. * * *or other representatives, * * *shall be guilty of a misdemeanor, * * * punishable by a fine of not Ifess than $25 nor more than $100, or by imprisonment in the county jail for * * * for not less than one day nor more than thirty days, or by both.”

Amending section 2528, section 3 of said act makes it the duty of the magistrate to whom anything is delivered suitable for use in gambling and used in violation of the act, either before or after the accused is examined by him, to determine the character of the thing delivered, and if he finds that it was used or intended to be used by the accused or others in violation of the act, commands him to deliver to the sheriff to await the order of the district court: Provided, etc.

By way of new and additional legislation, section 4, in effect, provides 'that any person who sets up, operates, or conducts in or about his place of business, any slot machine for the purpose of having it played by others for money or any representative of value shall be guilty of a misdemeanor punishable by a fine of not less than $25 nor more than $100, or by imprisonment in the county jail not more than thirty days, or by both such fine and imprisonment.

Also, by way of new and additional legislation, section 5, in effect, provides, that it shall be unlawful for the owner of any real estate, to use, rent, or lease or permit it to be used for the purposes of violating section 1 of the act, and that any person who shall violate the provisions of section 5 shall be liable to a penalty of not less than $1,000 to be recovered at the suit of the state; also that the penalty so recovered shall be a lien on the property so used and providing for its sale, etc.: Provided, etc.

> Also, as new and additional legislation, section 6, in effect, provides that any owner, proprietor, or'person in charge of any cigar stand or place where articles are kept for sale, who shall suffer, allow, or permit any person to play dice or any other game or device of chance at or in such cigar stand or place, shall be guilty of a misdemeanor punishable by a fine of not less than $25 nor more than $100.

The people by proper petition, filed in due time with the secretary of state, demanded the referendum on the act approved April 14, 1913, whereupon the Governor issued his proclamation calling an election upon said petition, being state question No. 62, to be held August 4, 1914, which was done, and the validity of said election being subsequently assailed, it was held by the Supreme Court to have been invalid in Ex parte Smith, 49 Okla. 716, 154 Pac. 521, for the reason that there was not a substantial compliance with the law regulating elections under the initiative and referendum in submitting said question to the people. In said opinion it was further held:

“The filing of a petition referring to the people an act passed 'by the Legislature suspends the operation thereof until the same shall have been approved by a majority of the votes cast at an election held thereon.”

Before any subsequent .submission was ever made of state question No. 62 (the reference on the act relating to gambling approved April 14, 1913), the Legislature again met in session and passed an act, declaring an emergency, approved January 29, 1916 (chapter 26, Session Laws 1916, page 54), entitled:

“An act relating to gambling; providing penalties for running slot machines; providing civil penalties against owners of premises permitting same to be used in violation of this act; declaring places where persons congregate to play at games prohibited in section 1, a public nuisance; providing penalties against peace 'officers for gambling or encouraging .gambling; prescribing the duty of peace officers relating to the enforcement of this act, and prescribing penalties for the violation thereof ; repealing sections 2498, 2499 and 2507 of the Eevised Laws of Oklahoma 1910; and declaring an emergency.”

Section 1 of this act is a re-enactment, in haec verba, of section 1 of the act approved April 14, 1913 (Session Laws of Oklahoma 1913, page 281), referred to the people as stated. Section 2 of this act is a re-enactment of section 2 of the act approved April 14, 1913, with the exception that the first word in the section is changed from “every” to “any,” and “is punishable” is changed to “upon conviction thereof shall be punished,” and the word “dollars” inserted in the next line. In section 3 of this act after the word “magistrate” is inserted “or justice of the peace,” and in the fourth line, instead of “pursuant to the foregoing section,” is inserted “as provided by law,” and later in the proviso to this section is inserted “of the.” Section 4 of the act of April 14, 1913, is re-enacted by section 4 of this act, in Irnéc verba, except the proviso at the end of the section, which is dropped.

Section 5 of this act re-enacts, in haec verba, section 5 of the act of April 14, 1913, except that “to be” is substituted for the word “so” in the tenth line, “county clerk” is substituted for “register” in the thirteenth, and in the ninteenth line, after “administrator,” is inserted “appointed by a court of competent jurisdiction.”

Section 6 of this act, upon which the prosecution is based, is a new section. Section 7 of this act is a re-enactment of section 6 of the act of April 14, 1913, and sections from 8 to 15, both inclusive, of the act of January-29, 1916, are new.

Counsel for appellant contends that the Legislature, by the act of January 29, 1916 (chapter 26, Session Laws 1916, page'54), on which this prosecution is based, intended to repeal the act of April 14, 1913, by re-enacting the same with additional new sections, thus substituting the latter for the former act, and by this means defeating the referendum.

By chapter 26, Session Laws 1916, sections 2498, 2499, and 2507 of the Revised Laws of Oklahoma 1910, were expressly repealed. These were the identical sections attempted to be amended by the act of April 14, 1913, and as the .Legislature of 1916 expressly repealed these sections, it left nothing for the act of 1913, which had been suspended by the referendum, to operate upon, ,so that as to those particular sections the effect of the enactment of chapter 26, Session Laws 1916, was to defeat and render inoperative for all future time, if said act be held to be constitutional, the referendum demanded upon said act of April 14, 1913. This conclusion may also apply with equal force to those sections of the act of April 14, 1913, which were new legislation, and which were afterwards incorporated in substance in the act of 1916 (chapter 26, supra).

To state succinctly the contention of counsel for appellant, it is this:

“The effect of the action of the Legislature1 in passing chapter 26, Session Laws 1916, if sustained, would be to take the act referred away from the people before they had a chance to vote on it, and put it in force as part of the substituted act, irrespective of the wishes of the people, thereby working a fraud upon the referendum and in effect nullifying the right of the referendum reserved to the people in sections 1, 2, 3, and 4 of article 5 of the Constitution, as to so much of said act afterwards incorporated in the act of 1916 passed with the emergency.”

Section 1 of article 5, Constitution, provides:

“The legislative authority of the state shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.”

Section 2, Id., after making provision as to the right of legal voters to propose legislation by the initiative, states:

“The second power of the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by petition signed by five per centum of the legal voters or by the Legislature as other bills are enacted.”

Section 3, Id., in part provides:

“The veto power of the Governor shall not extend to measures voted on by the people. * * * Any measure referred to the people by the initiative shall take effect and be in force when it shall have been approved by a majority of the votes cast in such election. Any measure referred to the people by the referendum shall take effect and be in force when it shall,have been approved by a majority of the votes cast thereon and not otherwise.”

Section 4, Id., provides:

“The referendum may be demanded by the people against one or more items, sections, or parts of any act of the Legislature in the same manner .in which such power may be exercised against a complete act. The filing of a referendum petition against one or more items, sections, or parts of an act shall not delay the remainder of such act from becoming operative.”

Section 6, Id., provides:

• “Any measure rejected by the people, through the powers of the initiative and referendum, cannot be again proposed by the initiative within three years thereafter by less than twenty-five per centum of the legal voters.”

Section 7, Id., provides:

“The reservation of the powers of the initiative and referendum in this article shall not deprive the Legislature of the right to repeal any law, or propose or pass any measure, which may be consistent with the Constitution of the state and the Constitution of the United States.”

Construing sections 1, 2, and 3 of article 5, supra, counsel for appellant contend that as to initiative measures the same become effective if approved by a majority of the votes cast at the election, but that in treating of the referendum the framers of the Constitution did not stop at merely prescribing the condition precedent as to when a legislative act referred should take effect, but went further and provided an additional safeguard around the reserved right that such an act should not take effect until approved by a majority of the votes cast thereon, and not otherwise.

It is contended further in this connection that the words “and not otherwise” must be given some force and. effect in addition to the condition precedent prescribed by the word “when,” and that it means that the act shall not take effect in any other way or ways or under any other circumstances than upon the performance of the condition precedent, which plainly means that it .shall not take effect by a subsequent act of the Legislature, as here attempted. In other words, when' the Constitution prescribes a condition precedent which, when performed, the act shall take effect, and adds “and not otherwise,” it designates a circumstance which, when it happens, the act takes effect by operation of law, and, when it adds “and not otherwise,” it means that the act shall take effect and be in force upon the happening of no other circumstance than the circumstance specified in the context.

Counsel also contend:

“This excludes the idea that, pending action by a vote of the people upon the act referred, the Legislature can (by action here taken) in effect take away from the people and put it in force and effect themselves, for the reason that such action would be putting it in force and effect otherwise than by a majority vote of the people upon the referendum.”

Further, counsel contend that section 7 of article 5 cannot be construed to give the Legislature the right to pass the legislation assailed, for the reason that, if the present act should be upheld, it would nullify that part of the Constitution reserving the referendum to the people, and the Legislature had no right to pass the 1916 act, because, under section 7 of article 5, said section only confers the right where the measure is consistent with the Constitution of the state, and being inconsistent with the spirit of that part of the Constitution reserving to the people the referendum, it was not a proper subject of legislation and must fail.

The brief filed by counsel in behalf of appellant contains a very able and learned discussion of the questions involved, and as the question presented is one' of first impression in this jurisdiction, a careful consideration has been given to the authorities cited both by counsel for appellant and by the Attorney General.

It is a familiar rule of constitutional construction that—

“Nib one clause of the Constitution should be construed by itself, and to the exclusion of the other portions of the same instrument; but all portions of the Constitution, relating to the same question, should be construed together, and, as far as passible, harmonized with each other.” Anderson v. State, 7 Okla. Cr. 135, 123 Pac. 444.

It is also well established that no enactment of the Legislature should be held to be in contravention of the Constitution, unless its unconstitutionality is made to appear beyond any reasonable doubt. McCord v. State, 2 Okla. Cr. 215, 101 Pac. 280; State v. Coyle et al., 7 Okla. Cr. 50, 122 Pac. 243.

Bearing in mind the foregoing familiar rules of construction, attention is directed at this time to section 36, article 5, Constitution, which provides:

“The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant or authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other .subject or subjects whatsoever.”

In State ex rel. Caldwell v. Hooker, County Judge, 22 Okla. 712, 98 Pac. 964, the Supreme Court of this state held:

“A restriction or limitation upon the power of the Legislature, upon any subject of legislation, will not be presumed or implied, unless from the entire instrument it clearly appears that it was so intended.”

In the body of the opinion it is said:

“The power being reserved to the people to propose lawis and amendments to the Constitution, and to enact or reject the same at the polls, independent of the Legislature, and also to approve or reject any of its acts, at the same 'time it being stipulated that the reservation of such power should not deprive the Legislature of the right to repeal any such law, or to propose or pass any measure which otherwise might be consistent with the Constitution of the state and of the United States, to avoid all those perplexing constitutional questions which have arisen in other states relative to restrictions by implication of legislative power is an additional reason for inducing the ingrafting of the provision contained in section 36, art. ’5 (Bunn’s Ed. § 109), supra.

While it is not expressly held in the case of State ex rel. Caldwell v. Hooker, supra, that section 7 of article 5, Constitution, construed in connection with section 36 of the same article, grants absolute power and authority to the Legislature to act upon any legitimate subject of legislation, without restriction imposed by the reserved powers of the referendum, the language in said opinion above quoted can have no other meaning. Section 7 of article 5 expressly states that the reserved powers of the initiative and referendum shall not deprive the Legislature of the right to repeal any law, propose or pass any measure, which may be consistent with the Constitution of the state and of the United States. In the case of State ex rel. Caldwell v. Hooker, supra, the Supreme Court said that this means “which may be otherwise consistent” with the Constitution of the state and the ‘Constitution of the United States, thereby in effect saying that no act of the Legislature otherwise constitutional should be set aside because in contravention of the powers reserved to the people by the referendum.

Section 3 of article 5 also provides:

“All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference.”

It is to be presumed that the framers of the Constitution acted advisedly when they placed the foregoing provision in the Constitution. The purpose of this provision was evidently to require an election to be held upon the referred measures prior to the regular meeting of the next general legislative assembly. Either the Governor or the Legislature must order a special election for the express purpose of voting on referred measures, and where no special election is called, then the Governor must submit the measure at the next election throughout the state. Provision having been made for elections throughout the state between the convening of the regular biennial sessions of each Legislature, the requirement of section 3, article 5, as to the submission of referred measures, would necessitate some action upon such measures between the time of the adjournment of the session of the Legislature which passes the act upon which the referendum is demanded and the convening of the next succeeding Legislature. This was an additional reason, perhaps, for leaving untrammeled, by the provisions of the initiative and referendum, the power of the Legislature subsequently to propose and pass legislation otherwise consistent with the Constitution of the state and the Constitution of the United ¡States.

At a general primary election held throughout the state in August, 1914, the gambling act passed by the Legislature of 1913 was submitted to popular vote in the manner required by law, and although this election was held to be invalid in Ex parte Smith, supra, a great majority of the voters voting on the question voted to approve the law, so that it was not by reason of the failure of the act to receive the requisite number of votes that impelled the Supreme Court to hold the act inoperative, but upon other grounds which appeared sufficient to the court at that time to hold that the provisions of the statutes relative to the submission of referred measures had not been substantially complied with.

All these matters were before the Legislature when the Governor convened the extraordinary session in February, 1916, and specifically submitted to such Legislature the question of appropriate legislation along the lines contained in the act of April, 1913, which had failed of approval by the people for the reasons heretofore stated. In presenting the argument that to hold the act here under consideration as valid and constitutional legislation a fraud would be perpetrated upon the people, counsel for appellant rely upon the case of In re Megnella, 133 Minn. 98, 157 N. W. 991, wherein the Supreme Court of Minnesota in construing the authority of a legislative body, to wit, a city counsel, under a charter granted to said city by the Legislature of such state, held in substance that where the charter provides for the referendum, and states (referring to an ordinance) : “It shall be suspended• from going into operation; if not repealed by the council, it is to be submitted to a vote of the electors, * * * and be operative only if it receive a majority vote” — that while the ordinance was being regularly submitted to the people, and the council could not repeal and re-enact the .same law during such period.

If it be conceded that the decision in Re Megnella is sound, it only holds that the power of the legislative body to subsequently put into effect the same law is a fraud upon the people, when the same law is - re-enacted during the period of time a reference is pending against it. The provisions of section 3 of article 5 of the Constitution of this state, heretofore quoted, with reference to holding elections on referred measures, in our opinion form the basis for determining the period of time in which the Legislature is without authority to repeal or re-enact a measure regularly before the people for approval or rejection, which period is necessarily from the date of filing a valid petition for reference to the date the referendum vote is had. This indeed is the most liberal view for the appellant that could be taken of our constitutional provisions. Otherwise, the Governor, by failing or refusal to .submit the question at the next general election, could work a fraud upon the people and the Legislature (1) by depriving the people of an opportunity to approve or reject the law; (2) by forever depriving the Legislature of the right to subsequently enact appropriate legislation upon the same subject.

Considering, then, all the constitutional provisions relating to the subject under consideration, it is apparent that by reserving the power to initiate and refer legislation the people never intended to' deprive a Legislature which met subsequent to an election held throughout the state, at which referred measures passed by a previous Legislature are required to be submitted to popular vote, of the powers which such a Legislature would ordinarily have possessed, had not the reserved powers of the initiative and referendum been placed in the Constitution. After the date at which an election is held on a referred measure, although such election be held to be invalid, a subsequent Legislature was authorized to consider the act referred as having .been rejected, and to propose and pass appropriate legislation upon the same subject, without deprivation by reason of anything contained in the initiative and referendum provisions of the Constitution, and if the Legislature does so by a law declaring an emergency, which is appropriate and necessary for the immediate preservation of the public peace, health, or safety, no referendum may be had upon such an act. The people must resort to the initiative, either by passing in that way subsequent inconsistent legislation on the same subject, or by an amendment to the Constitution itself. To otherwise construe the Constitution, no force and effect whatever could be given to sections 7 and 36, article 5, swpra.

In order, therefore, to give force and effect to all portions of the Constitution relating to this question, and construing the same together, it cannot be held that the words “and not otherwise,” contained in section 3, article 5, are to be considered by themselves and as a limitation upon' subsequent legislative action upon the same subject contained in a referred measure, after there has been a submission of such referred measure and a vote of the people taken thereon. To sustain the contention advanced by counsel for appellant that the passage of the act of 1916 (chapter 26, Session Laws 1916) was a fraud upon the referendum would be to give force and effect by implication to the words “and not otherwise,” contained in section 3, article 5, Constitution, not clearly intended from the context of other sections of the same article bearing on the same question, a construction not permissible under the well-established rule heretofore announced; a contruction condemned by the most eminent authorities on constitutional law; a construction which, if followed, would work a plain fraud upon the people and upon the Legislature.

For the reasons stated, therefore, the conclusion is reached that chapter 26, Session Laws of Oklahoma of 1916, relating to gambling, is a constitutional enactment, and was in full force and effect at the time this prosecution was commenced, and that the trial court did not err in overruling the motion to set aside the information and the motion in arrest of judgment’

The judgment of conviction is affirmed.

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