author: FURMAN, P. J.

text:
    CHAS. H. KOOZER v. STATE.
    No. A-888.
    Opinion Filed May 16, 1912.
    (123 Pac. 554.)
    1. APPEAL — Harmless Error. A defendant upon trial for Ms life or liberty should be protected in the full enjoyment of every material right given him by law, but it is also true that the interests of society and the rights of other persons should also be carefully guarded and protected in the trial of every criminal case.
    2. SAME. Where the record shows that a defendant has been fairly tried and the evidence sustains his conviction, a new trial will not be granted upon any error or technicality, unless it appears from the record that the defendant was deprived of some material right and suffered injury thereby.
    3. APPEAL — Presumption as to Effect of Error. The doctrine that error in the trial of a criminal ease presumes injury is not recognized in Oklahoma. On the contrary, the presumption is that all proceedings in a court of record are regular, and, before a conviction will be reversed, the burden is upon appellant to show two things: First, that error was committed- upon his trial; second, that this error materially contributed to his conviction and deprived him of a legal right.
    4. HOMICIDE — Justification — Self-Defense. Where a defendant without real or apparent necessity voluntarily enters into a mutual combat with another, in which he takes the life of his antagonist, such killing will not be in self-defense, but the defendant will be guilty of either murder or manslaughter, according to the circumstances and nature of such combat.
    5. SAME. Where a defendant has sought or provoked a difficulty with the deceased, in order that he might have an opportunity or pretext for killing or inflicting serious bodily injury upon him, and in such combat does kill the deceased, the defendant is guilty of murder, it matters not how har'd pressed he may have been in the conflict, unless after such provocation had been given, and before the fatal blow was struck or shot was fired, it appears from the evidence that the defendant abandoned such intention and in good faith sought to withdraw from the conflict. If this appears from the evidence, then the defendant’s right of self-defense would revive, and he would have the same right to defend himself as though he had not furnished such provocation.
    6. SAME. Where a defendant seeks or provokes a difficulty without any intention of killing or doing serious bodily injury to the deceased, and a conflict ensues, and the defendant, being hard pressed, kills the deceased, then appellant will be guilty of manslaughter, unless before the fatal blow was struck or shot was the defendant in syllabus 5.
    HOMICIDE — Murder—Intent. No man can his own wrong and plead as a defense for taking human life a necessity which arose from his own intentional wrongdoing. The line of demarcation between murder and manslaughter is the character of the intention with which the defendant seeks, occasions, or provokes a fatal difficulty, and this intention is to be gathered from the facts and circumstances in evidence.
    (Syllabus by the Court.)

      Appeal from District Court, McCurtain County; D. A. Richardson, Judge.

    Chas. H. Koozer was convicted of manslaughter in the first degree and his punishment was assessed by the jury at imprisonment in the penitentiary for years,
    Affirmed.

      Tom W. Neal and Hosey & Leggett, for appellant.

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

In their brief in this case counsel for appellant the guilt or innocence of their client. They have, however, displayed great ability in presenting every conceivable technical objection that could have been made to each step taken during the trial of the case. If the ability of counsel for appellant to make a technical defense was the turning point in this case, then beyond all question a new trial should be granted. The members of this court have themselves had some experience in the trial of criminal cases, and we are of the opinion that in a closely contested murder case, such as this was, it is almost impossible for the fairest, most patient and learned trial judge to prevent able and experienced attorneys for a defendant from injecting errors of greater or less importance into the record during the trial. We believe that a defendant upon trial for his life or liberty should be protected in the full enjoyment of every material right given him by law, but we also believe that the interests and rights of society should also be protected in the trial of criminal cases. Men who are disposed to trample upon the law and the rights of others must be taught that the time has passed in this state, never to return, when they can escape punishment for offenses committed, upon a mere technical defense.

It is for these reasons that we have repeatedly announced that the commission of error in the trial of a criminal case will not be ground for the reversal of a conviction, unless it appears from the record that the defendant was deprived of some material right thereby; and that, where a defendant has been fairly tried and his guilt is clearly established, we will not reverse a conviction, unless it appears from the record that the defendant has been deprived of some material right to his injury. See Byers v. Territory, 1 Okla. Cr. 677, 100 Pac. 261, 103 Pac. 532, and all other cases decided since.

We have carefully read appellant’s brief, covering 53 pages, and have examined the record, covering 385 pages, and we fail to find that any material error against appellant was committed upon the trial of this cause. - Many of the questions presented by counsel for appellant have been passed upon by this court; others are without merit. While we have carefully examined all of the questions presented by counsel for appellant, we will confine our discussion to one question, where error was committed, not against, but in favor of, appellant.

In paragraph 11 the court instructed the jury as follows:

“The court instructs the jury that no abusive words or opprobrious epithets used by one person toward another will justify an assault or constitute an act of aggression so as to deprive the one using them of the right of self-defense, unless they are used for the purpose of provoking or bringing on a difficulty. If, however, abusive words or opprobrious epithets are applied by one person to another in his presence for the purpose of provoking the other into assaulting the one using such words, and thus furnishing a pretext to the one using such words or epithets for using force or violence upon the other, and a difficulty thereupon ensues, then the person so seeking the difficulty cannot avail himself of the plea of self-defense. And if you believe from the evidence that the deceased, Parks Caban ess, assaulted the defendant with an ax, but further believe and find from the evidence in this case beyond a reasonable doubt that immediately prior thereto the defendant had applied abusive words or an opprobrious epithet to the deceased, then it is for you to determine, under all the facts and circumstances in evidence before you, whether or not the defendant in so.doing was seeking to provoke a difficulty with the deceased. If you find and believe ftom the evidence in this case beyond a reasonable doubt that the defendant applied such epithets to the deceased for the purpose of inducing the deceased to enter into a combat with the defendant, and a combat thereupon ensued, then the defendant could not plead the law of self-defense so long as the defendant had not abandoned that combat. If, however, you fail to find from the evidence in this case beyond a reasonable doubt that the defendant applied such epithets to the deceased for the purpose of bringing on a difficulty with the deceased, then the mere fact alone that the defendant may • have applied an opprobrious epithet to the deceased would not. deprive the defendant of the right of selfrdefense, if he was assaulted by the deceased.”

Counsel for appellant in their brief say:

“This instruction is undoubtedly erroneous, in that it instructs the jury that before they can acquit the defendant they must find, beyond a reasonable doubt, that he was assaulted and acted in his own self-defense.”

We cannot agree with the contention of counsel for appellant that this instruction required the jury to find beyond a reasonable doubt that appellant acted in his own self-defense before they could acquit him. On the contrary, we think this instruction, with the additions hereinafter suggested, is a clear and just statement of the principles of the law therein presented, and that it is applicable to the facts in this case. To prevent misapprehension from the first paragraph in this instruction, we desire to state that, although a defendant may not have any intention of provoking a difficulty with the deceased, yet if the jury should be satisfied beyond a reasonable doubt, from the language or conduct of the defendant, or from all of the facts and circumstances in evidence, that the defendant and the deceased voluntarily— that is, willfully and without real or apparent necessity' — engaged in a mutual combat knowing, or having reason to believe, that it would or might result in death or serious bodily injury to either of such parties, and death ensued from such conflict, then the survivor could not plead self-defense and would be guilty of murder; but if such a combat took place, and the defendant did not know or have reason to believe that it would or might result in death or serious bodily injury to either or both of such parties, and if the defendant without intending to kill or inflict serious bodily injury upon the deceased struck the fatal blow, then the defendant would, be guilty of manslaughter, and in either case it would be immaterial as to who struck the first blow or made the first attack. It is the law that no man can take human life upon a necessity which he wrongfully and willfully assisted to create. We have made these observations to prevent any one from being misled by what is contained in the instruction under consideration.

The court correctly instructed the jury that, where abusive words or opprobrious epithets are used by one person toward another for the purpose of provoking or bringing on a difficulty and thus furnishing a pretext for the one using such words or epithets, using force or violence upon the other, and a difficulty thereupon ensues, then the person so seeking or provoking the difficulty cannot avail himself of the plea of self-defense. The court instructed the jury that they must find from the evidence beyond a reasonable doubt that the defendant so sought and provoked a difficulty with the deceased before they could convict him. The greatest defect in this instruction is that it should have gone further and told the jury that, if they found from the evidence beyond a reasonable doubt that the appellant used such insulting language to the deceased for the purpose of provoking him into a difficulty and furnishing the appellant a pretext for killing or doing him serious bodily injury, and that thereby a combat ensued in which the appellant killed the deceased, then the appellant would be guilty of murder; but if appellant used such language toward the deceased for the purpose of bringing on a difficulty without any intention on the part of appellant to kill the deceased or do him serious bodily injury, then the appellant would be guilty of manslaughter. But this was an error which inured to the benefit of appellant, and of which he therefore cannot be heard to complain.

We desire to emphasize the fact that, in all trials for murder in which the doctrine of provoking the combat arises, the court should always clearly instruct the jury that if they are satisfied from the evidence beyond a reasonable doubt that the defendant sought, provoked, or occasioned the difficulty with the deceased for the purpose of killing him or inflicting serious bodily injury upon him, then in all such cases such defendant is guilty of murder if he kills, the deceased in such combat, it matters not how hard! pressed he might have been himself therein, unless before the fatal blow was struck or shot was fired the defendant in good faith seeks to abandon or withdraw from such combat.

But where a defendant seeks, provokes, or occasions a difficulty with the deceased without any intention of killing or inflicting serious bodily injury upon the deceased, but merely for the purpose of afflicting personal chastisement upon him, and such combat ensues in which the defendant kills the deceased, then his offense is manslaughter.

The line of demarcation between murder and manslaughter is the character of the intention with which a defendant provokes a fatal difficulty, and this intention is to be gathered from the facts and circumstances in evidence. See Boutcher v. State, 4 Okla. Or. 576, 111 Pac. 1006.

We think that the evidence in this case would have warranted the court in submitting the case to the jury upon the theory that appellant sought and provoked this difficulty in order that he might have a pretext for killing or inflicting serious bodily injury upon the deceased; and if the jury had so found and convicted the appellant of murder with the extreme penalty, we would have sustained the verdict.

The deceased was an inoffensive old- man 65 years of age. The appellant was a strong and vigorous young man. Appellant, armed 'with a pistol, without apparent cause, became offended with the deceased and grossly insulted and followed him up and finally shot him down, claiming that deceased had attempted to assault him. If this is self-defense, then the law places a premium upon the most cowardly kind of assassination. This court is unhesitatingly of the opinion that the interests of society and the lives of law-abiding people can be best protected by hanging all such offenders.

The only errors committed in this case were those in favor of and beneficial to appellant.

The judgment of the lower court is therefore in all things affirmed.

DOYLE,- J., concurs; ARMSTRONG, J.,- not participating.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    W. D. HOYL v. STATE.
    No. A-964.
    Opinion Filed May 16, 1912.
    (123 Pac. 700.)
    INDICTMENT AND INFORMATION — G-rand Larceny — Sufficiency. An objection to the introduction of testimony, “because the indictment does not state an offense against the laws of Oklahoma,’ ’ was properly overruled, where the indictment, after stating time and venue, contains the following material averments: “W. D. 1-Ioyl did then and there unlawfully, feloniously, and by fraud and stealth * * * take, steal, and carry away * * * one full set double buggy harness, of the value of twenty-five dollars, and one buggy, of the value of fifty dollars, * * * the property of one Lem Ball, and of the aggregate value of seventy-five dollars, then and there in the possession of the said Lem Ball, the said taking, stealing, and carrying away of the said property being then and there done without the knowledge or consent of the said Lem Ball,' and against his will, and with the intent then and there existing in the mind of the said W. D. Hoyl to deprive the said Lem Ball thereof, contrary to,” etc.
    (Syllabus by the Court.)

      Appeal from District Court, Beckham County; G. A. Brown, Judge.

    ■ W. D. Hoyl was convicted of grand larceny, and appeals.
    Affirmed.

      Powers & Powers and Harrison & Leach, for plaintiff in error.

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

The plaintiff in error, W. D. Hoyl, was indicted by the grand jury at the August, 1910, term of the district court of Beckham county. The charging part of the indictment is as follows:

“W. D. Hoyl did then and there unlawfully, feloniously, and by fraud and stealth * * * take, steal, and carry away the corporeal property, to wit, one full set double buggy harness, of the value of twenty-five dollars, and one buggy, of the value of fifty dollars, the said property being then and there the property of one Lem Ball, and of the aggregate value seventy-five dollars, and then and there in the possession of the said Lem Ball, the said taking, stealing, and carrying away of the said property being then and there done without the knowledge or consent of the said Lem Ball, and against his will, and with the intent then and there existing in the mind of the said W. D. Hoyl to deprive the said Lem Ball thereof, contrary to,” etc.

Upon his trial the jury returned their verdict finding the defendant guilty of grand larceny as charged in the indictment, and fixing his punishment at imprisonment for two years in the .state prison. September 20, 1910, judgment and sentence was pronounced and entered in accordance with the verdict. Erom this judgment the defendant appeals.

The first objection to the sufficiency of the indictment was made when the first witness for the state was sworn and called to testify. Thereupon counsel for the defendant objected'to the introduction of any testimony, for the reason that the indictment does not state an offense against the laws of the state of Oklahoma, which objection was overruled and exception allowed. The first and only assignment of error presented by the brief is based upon this ruling of the court. In support of this contention counsel say:

“It will be observed that the indictment herein fails to allege that the taking was done with the felonious intent to deprive another thereof. If this is an essential element of the crime of larceny, then we contend that this is a material allegation in the indictment, and that an indictment which fails to allege such felonious intent is fatally defective in charging the crime of larceny. For the acts of the taker to constitute the crime of larceny it must be unlawful; that is, accomplished by fraud or stealth, or both. It must be without the consent of the party from whom it is taken, and must be done with a felonious intent to deprive another thereof; that is, an intent to permanently deprive another of the property. These three elements are absolutely necessary to constitute the crime of larceny.”

While the indictment is subject to criticism for redundancy and prolixity, we think it sufficiently charges the felonious intent. It was said by this court in White v. State, 4 Okla. Cr. 143, 111 Pac. 1010:,

“Motions of this kind, coming after the jury had been impaneled, are not looked upon with favor. If the indictment was defective, this matter should have been called to the attention of the trial court by proper motions before the defendant entered his plea. This is the reason why the defendant is allowed by statute one day in which to plead. If the defendant enters his plea, and waits until the introduction of the evidence to object to the sufficiency of the indictment, the objection should be overruled, if by any possible construction or intendment the indictment can be sustained.”

See, also, Edwards v. State, 5 Okla. Cr. 20, 113 Pac. 214. All that is necessary in this state is to allege the facts constituting the offense in ordinary and concise language, in such a manner as to enable a person of common understanding to know what is intended and the court to pronounce judgment upon the conviction according to the right of the case; and no indictment is ' insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to prejudice the substantial rights of the defendant upon the merits. Sections 6704 and 6705, Comp. Laws 1909.

We are of the opinion that the facts stated are sufficient to constitute the crime of grand larceny, and the objection as made was properly overruled.

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

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


text:
    JOHN SELSTROM v. STATE.
    No. A-1286.
    Opinion Filed May 16, 1912.
    (123 Pac. 557.)
    1. TRIAL — -Procedure—Separation of Jury — Burden of Proof. On proof of a violation of the provisions of Procedure Criminal (section 6858, Comp. Laws 1909), by permitting the jury to separate and converse with unauthorized persons after the ease is finally submitted, the defendant is entitled to the presumption that such separation has been prejudicial to him, and the burden of proof is on the prosecution to show that no injury could have resulted therefrom to the defendant.
    2. TRIAL — Separation of Jury. Where the bailiff calls a juror from the jury ro.om after the case has been finally submitted to the jury, and the juror leaves the bailiff and goes into another room, and converses with the sheriff, and his conduct and conversation during that time is unexplained, it is an abuse of discretion for the trial court to overrule the motion for a new trial.
    (Syllabus by the Court.)

      Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.

    John Selstrom was convicted of having possession of intoxicating liquor with intent to sell the same, and was on the 27th day of May, 1911, sentenced in accordance with the verdict to serve a term of 30 days in the county jail and to pay a fine of $50, and to stand committed until the fine is satisfied according to law. From the judgment and an order overruling a motion for a new trial the defendant appeals.
    Reversed.

      McGuire & Smith, for plaintiff in error.
   DOYLE, J.

The principal assignment of error alleges misconduct of the jury as set forth by the affidavit of G. C. Smith, the defendant's attorney, in support of the motion for a new trial, in substance, as follows: That after the jury had retired for deliberation in charge of its bailiff, Levy McVay, one of the jurors named Green came out of the jury room into the courtroom, and walked across to the jury box where coats and hats were hanging, and there obtained from one of the coats something which affiant is unable to say; that at the time said juror was not in charge of a bailiff. Affiant further states that after said jury had deliberated for several hours the bailiff, Levy McVay, opened the door of the jury room and called F. M. Crow, the foreman, out of the jury room and made some remark to him, which affiant was unable to hear; that said juror then went'into a room off from the courtroom, and had a conference there with an unauthorized person; that the door between the bailiff and the juror F, M. Crow was closed at the time of said conference; that after a short interval the said F. M. Crow came back from said room and entered the jury room. That there is no closet or toilet in the room to which said F. M. Crow retired. The state called the bailiff, Levy Mc-Vay, as a controverting witness, and he testified that he was the bailiff in charge of the jury; that one of the jurors inquired about his hat and went back into the courtroom after it; that he was in his sight all the time.

The transcript of his further testimony is as follows:

“Q. Was there any of the other jurors left the jury room during that deliberation? A. There was a juror that was. The sheriff came up and said it was about time for dinner, and he said, ‘Call the foreman out,’ and he asked him if they had agreed, and he told him ‘No,’ and he let him go back in. I don’t know what else was said, but they stayed in there until they brought in a verdict. They did not go to dinner. Q. Who was it he talked with. A. Mr. Crow. Q. Who did Crow talk with? A. The sheriff. Q. Did he talk with any one else? A. No, sir.”

Cross-examination:

“Q. He went into that little room? A. Yes, sir. .Q. The door was closed? A. Partially closed. Q. It was clear closed? A. I did not notice. It was not for but a moment.”

The foreman of the jury, F. M. Crow, and the sheriff, were not called to testify. On the undisputed facts we are of opinion that the court erred in refusing to grant a new trial.

It is said in the case of Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163:

“In any criminal case it is error to permit the jury to separate after the case has been submitted to them, and before they have reached a verdict. The object.intended to be gained by preventing the separation of the jury is to safeguard in every possible way the purity of the stream of justice, to prevent it from in any manner being polluted by influences other than that which are produced by the legal evidence and the law governing the case.”

Section 6858 (Comp. Taws 1909) of our Procedure Criminal provides:

“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, without food or drink, except bread .and water, unless otherwise ordered by the court, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”

Construing this section in the case of Armstrong v. State, 2 Okla. Cr. 567, 103 Pac. 658, 24 T. R. A. (N. S.) 776, it is said:

“It is our opinion that this section imperatively requires that, upon the final submission of the case to the jury, they cannot be permitted to separate, and if, after such submission, the jury separates, such separation vitiates the verdict, notwithstanding no affirmative proof of prejudice is offered. When this provision of the law is violated, the legal presumption is that it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”

In the case of Ridley v. State, 5 Okla. Cr. 522, 115 Pac. 628, it is said:

“The question presented is whether such misconduct is sufficient to require the court to set the verdict aside and grant a new trial. It is of the utmost .importance that jurors and court officials should be held to a strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no possible suspicion can attach to them of having.acted in a manner prejudicial to the accused or in his favor. If there was a disagreement between them, or if they were doubtful as to how they should proceed, they should have required the officer in charge to conduct them into court, and the necessary information would be given by the court in the presence of the parties. It will be presumed, in the absence of anything to the contrary, that the rights of the defendant were prejudiced by the action of the jury and clerk of the court in disregarding and failing to observe the requirements of the statute. Courts ■cannot be too strict in compelling a rigid and vigilant observance ■of the provisions of the statute designed to preserve inviolate the right of trial by jury and the purity of jury trials.”

Under the statute (section 6858, supra), the true rule is that upon proof of a violation of the provisions thereof, by permitting the jury to separate and converse with unauthorized persons after the final submission of the case and before a verdict, the defendant is entitled to the presumption that such misconduct has been prejudicial to him, and the burden of proof is on the- prosecution to show that the defendant has suffered no injury by reason of such misconduct. There are many instances where necessary separations may be held trivial and nonprejudicial, especially where the undisputed facts are sufficient to rebut the presumption of prejudice, but that is not this case.

While the act of the juror Green returning to the jury room was harmless, the conduct of the foreman of the jury, the bailiff, and the sheriff, whether inadvertent or otherwise, was improper, and in violation of the statute and the instructions of the court, and the defendant was entitled to the benefit of the presumption that such misconduct was prejudicial to him. AVhile these officers may have intended no wrong, and their improper acts were not prompted by evil intent, the prosecution only called the bailiff, and did not meet the burden by calling the others to testify in explanation of their misconduct.

For the reason stated, the trial court erred in overruling the motion for a new trial.

The judgment is therefore reversed and a new trial granted.

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


text:
    GEO. P. RAU v. STATE.
    No. A-1007.
    Opinion Filed May 18, 1912.
    (123 Pac. 1037.)
    1. EMBEZZLEMENT — Evidence—Sufficiency. In a prosecution for embezzlement, the evidence is held to support the verdict, and that no reversible error was committed on the trial.
    2. APPEAL — Technical Errors. Technical errors or defects which do not affect the substantial rights of the defendant are to be disregarded under the provisions of our Penal Code.
    (Syllabus by the Court.)

      Appeal from District Court, Tulsa County; L. M. Poe, Judge.

    George P. Rau was convicted of embezzlement, and appeals.
    Affirmed.

      J. R. Charlton, for plaintiff in error.

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

The plaintiff in error was tried and convicted on an information which charged that:

' “George P. Rau, in Tulsa county, and in the state of Oklahoma,' did on or about the 11th day of May, in the year of our Lord one thousand nine hundred and ten, unlawfully, feloniously, and wrongfully while being a clerk in the employ of the Missouri, Kansas & Texas Railroad Company, a corporation, and while then and there being over eighteen years of age, and not an apprentice of said company, and while as such clerk being then and there intrusted with personal property belonging to said railroad company, to wit, large sums of money, did with a fraudulent intent to appropriate to his own use and deprive the owner thereof, embezzle, secrete, and use of the said personal property of said railroad company, which was then in his charge, control and care by virtue of his said employment as such clerk, the sum of $600.00 lawful money of the United States, contrary,” etc.

Upon his trial the jury returned their verdict finding the defendant guilty as charged and fixing the penalty at imprisonment for one year in the state penitentiary. December 3, 1910, judgment and sentence was pronounced and entered in accordance with the verdict. From the judgment and an order overruling motion for- a new trial the defendant appealed by filing in this court on January 30, 1911, a petition in error with case-made.

But two questions are presented by plaintiff in error’s petition and brief. The first is “that the trial court erred in overruling the motion for a new trial upon the ground and for the reason that the verdict was-contrary to the law and evidence.” In this connection counsel say:

“One of the material allegations in the information was ‘that the defendant while then and there being over eighteen years of age,’ etc. The court in the instructions given used this language: First. ‘It must appear from the evidence that the defendant was at the time of the commission of the alleged offense over the age of eighteen years.’ ”

And counsel further say that:

“There is not one word or syllable in all the testimony in this case upon the subject of the age of the defendant.”

An examination of the record discloses that counsel’s contention is unwarranted. A transcript from the record (page 45) is as follows:

“Q. Mr. Purpus, do you know whether the defendant at the time that he went to work for you was over the age of 18 years or not? A. Yes, sir. Q. Was he or not? A. He was.”

The testimony quoted stands uncontradicted, and fully refutes the statement that the record is silent as to the age of the defendant. The defendant offered no evidence in this case.

Second. It is insisted that there is a variance between the allegations of the information and the proof, in that the information charges that the defendant was a clerk of the “Missouri, Kansas & Texas Railroad Company,-” and that the money embezzled was the property of and belonged to said railroad company, while the proof showed that the correct name of the corporation was the “Missouri, Kansas & Texas Railway Company.” The objection is purely technical. The evidence conclusively and overwhelmingly supports the verdict. Technical errors or defects which do not affect the substantial rights of the defendant are to be disregarded under the provisions of our Penal Code. Section 6701 (Comp. Laws 1909) provides:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

Section 6957 provides:

“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

Our conclusion is that the appeal in this case is wholly without merit.

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

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


author: DOYRE, J.

text:
    EARL EAKINS v. STATE.
    No. A-1428.
    Opinion Filed May 18, 1912.
    (123 Pac. 1035.)
    1. APPEAL — Record—Indictment. The original indictment and its indorsements constitute a necessary part of the record, and whatever is properly shown by them is considered as shown by the record.
    2. INDICTMENT AND INFORMATION —Objections —Mode of Raising. The authenticity of an indictment should be raised by motion to quash and set aside, or by plea in abatement, in the trial court.
    3. TRIAL — Jurisdiction—Transfer of Causes — Time for Objections. An objection to the introduction of testimony, under an indictment charging a misdemeanor, on the ground that the same was not properly certified from the district court, comes too late where the defendant has entered his plea thereto.

      i. TRIAL — Argument of Counsel — Retaliatory Remarks. Where counsel for defendant went outside of the record in an attempt to affect the credibility of the prosecuting witness, he cannot complain of the argument of the county attorney called forth in answer thereto.
    (Syllabus by the Court.)

      Appeal from Marshall County Court; J. W. Falkner, Judge.

    Earl Eakins was convicted of a violation of the prohibition law, and appeals.
    Affirmed.

      Kennamer & Coakley, for plaintiff in error.

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

The plaintiff in error was prosecuted by indictment returned by the grand jury irito the district court of Marshall county and transferred to the county court of said county, wherein he was charged with the unlawful sale of four quarts of whisky to one Jonnie Gibson. On his trial in the county court the jury returned their verdict of guilty and assessed his punishment at 30 days’ confinement in the county jail and to pay a fine of $50.-The judgment and sentence were entered in accordance with the verdict. From the judgment and an order overruling a motion for new trial, the defendant appeals.

The first assignment of error is that the court erred in overruling the defendant’s objection to the introduction of testimony under the indictment on the ground that the same was not properly certified from the district court and not properly transferred. In support of this assignment it is argued:

“The clerk of the district court certifies criminal indictment No. 193 without disclosing the name of the defendant or naming the offense with which the defendant is charged to the county court, while the record and the case-made show that the indictment found by the grand jury against the plaintiff in error charging him with the crime of selling intoxicating liquors was No. 252, and nowhere in the whole record was this indictment ever ordered transferred or certified to the county court for trial.”

There is no merit in the contention. The clerk of the district court certifies:

“That the indictment following -this certificate, being indictment No. 193, State of Oklahoma v.-, is the original and identical indictment in said cause returned into the district court of Marshall county, Oklahoma, by the grand jury on the 23d day of December, 1910,” etc.

And then follows the indictment. It is very evident that the indictment No. 193 in the district court was changed to case No. 252 in the county court. There is no reason why the indictment number in the district court should be the same as the case number in the county court.

Upon arraignment the defendant entered his plea of not guilty, and no objection was made until the first state witness was called to testify. The entering of the plea was a waiver of any irregularity in the transfer of the cause from the district court to the county court, and the objection as made presents no question for review by this court.

Error is also assigned on the action of the court in overruling the motion for a new trial on the ground that the county attorney was guilty of misconduct in his argument to the jury. An examination of the record shows that the defendant’s attorney in his argument went outside of the record in an attempt to affect the credibility of the prosecuting witness. By doing so he called forth the argument of the county attorney, which is the subject of the criticism here. Counsel' for the defendant cannot provoke the argument, and by his own misconduct bring error into the record, and then take advantage of it. It is said by this court in the case of Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264:

“Where irregularities occur during a trial which are brought about by the action of counsel for defendant, such irregularities will not ordinarily constitute ground for reversal upon appeal.”

Finding no prejudicial error in the record, it follows that the judgment of the county court of Marshall county should be, and the same is, affirmed.

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


author: EURMAN, P. J.

text:
    J. S. KIMBRELL v. STATE.
    No. A-1070.
    Opinion Filed May 18, 1912.
    1. INDICTMENT AND INFORMATION — Duplicity — Amendments. (a) An information or indictment is bad for duplicity if it charges more than one offense. DeGraff v. State, 2 Oída. Cr. 510, ' and Green v. State, 6 Oída. Cr. 311, modified.
    (b) While a duplicitous information may be amended, yet if such amendment operates as a surprise to a defendant, reasonable time must be allowed him to prepare for trial.
    2. TRIAL — Instructions—Reasonable Doubt. An instruction that if the jury finds that the defendant had in his possession intoxicating liquors with the intention of selling the same they should convict him, is erroneous in failing to tell the jury that they must so find from the evidence in the ease beyond a reasonable doubt before they can convict him.
    (Syllabus by the Court.)

      Appeal from Noble County Court; H. A. St. Clair, Judge.

    Appellant was found guilty of a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $50 and 30 days’ confinement in the county jail. Appealed.
    Rev’ersed.

      Henry S. Johnston, for appellant.

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

First. In their brief counsel for appellant complains of the action of the trial court in overruling the motion of appellant to set aside the information and overruling the demurrer to the information. The information in this case contains two counts. The first count charges the appellant with unlawfully selling one pint of whisky to one George Dailey; the second count charges the appellant with having in his possession whisky with intent to barter, sell, and give away the same. The question presented is as to whether it is permissible for an information or indictment to charge two or more separate and distinct offenses. Whatever the practice may be in other states, this question, under the Constitution and laws of Oklahoma, can have but one answer. The Constitution declares that a defendant “shall be informed of the nature and cause of the accusation against him and have a copy thereof.” See Williams’ Const, of Okla., sec. 20, art. 2. This evidently contemplates that an information or indictment shall include but one accusation.

Section 6699, Comp. Laws 1909, is as follows:

“The indictment must charge but one offense, but where the same acts constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.”

It is true that in the case of DeGraff v. State, 2 Okla. Cr. 540, this court expressed the opinion that where an information or indictment charged more than one offense the state might elect the count upon which the trial should proceed; but upon more mature reflection we are satisfied that we were wrong in saying that this could be done. If it is permissible to incorporate more than one offense in the same indictment or information, then an indefinite number of offenses might be so incorporated, and when the cause was reached for trial the state might dismiss all of the counts in the indictment or information except as to one offense. The purpose of the Constitution is that a defendant shall be informed as to the specific offense for which,he is to be tried, in order that he may prepare for trial. It would be a violation of the letter and spirit of our Constitution, and also of our statute, to inform a defendant of a number of different offenses and require him to prepare for trial on all of them. This would give to the state the right to elect, when the- trial began, which count would be pressed against the defendant. This would be a regular ambuscade and would be a mockery on justice. We are of the opinion that an indictment or information must charge but one offense, and where more than one offense is charged it is bad for duplicity, and upon objection being made to an indictment upon this ground the case should be dismissed. It is true that a duplicitous information may be amended, but if such amendment operates as a surprise to a defendant reasonable timé should be allowed him to prepare for trial. To this extent the cases of DeGraff v. State, 2 Okla. Cr. 540, and Green v. State, 6 Okla. Cr. 344, are modified.

Second. The court instructed the jury as follows:

“If you should find in this case, that on or about the 18th day of February, 1910, the defendant did have in his possession intoxicating liquors, to wit, whisky, with intent to sell, barter, or give away the same or any part thereof to one Geo. Dailey or to defendant’s friends or any other person, then the defendant is guilty of the offense charged and you should so find.”

This instruction is fatally defective, because it does not inform the jury that they should find from the evidence in the case beyond a reasonable doubt that the facts therein stated were true; before they could convict the appellant.

In the case of Remer v. State, 3 Okla. Cr. 711, on this subject, Judge Richardson said:

“The court gave the jury the following instruction:

“ ‘No. 2. The court instructs the jury that if you believe from the evidence that the defendant, Sam Remer, did at the time and place alleged in the information barter, sell, or give away intoxicating liquor, to wit, whisky, to one Rufe Correll, it will be your duty to find the defendant guilty.’

“The defendant objected to the giving of this instruction in this form, and his objection being overruled, saved an exception. The objection to the instruction was well taken. This instruction went to the very gist of the case. It might be termed the substantive instruction in the cause; the one embodying the elements of the crime charged, and informing the jury under what circumstances they should convict the defendant, and to which every other instruction given was merely adjective or explanatory. And that being true, it was essential that this instruction should be correct. But it is not. It tells the jury that if they only believe from the evidence that the defendant sold the whisky, then it is their duty to convict. How strong that belief should be the jury were not told. Under this instruction they were authorized to convict even upon a vague, uncertain belief founded upon a bare preponderance of the evidence; whereas the statute and the adjudged cases require that the belief be a positive one and based upon evidence possessing that degree of probative weight and force that it satisfies the minds of the jurors of the defendant’s guilt beyond a reasonable doubt. Claxton v. Com. (Ky.) 30 S. W. 998; Pierson v. State, 99 Ala. 148, 13 South. 550; Webb v. State, 73 Miss. 456, 19 South. 338; Burton v. State, 107 Ala. 108, 18 South. 284; Carr v. State, 104 Ala. 4, 16 South. 150. Every instruction which submits to the jury a hypothetical state of facts, upon the finding of the truth of which they are to convict the defendant, should tell the jury that they must find those facts from the evidence beyond a reasonable doubt. Such instruction should embody only the facts essential to a conviction; and it is the better practice to incorporate in the same instruction the alternative proposition, that if upon a consideration of, all of the evidence the jury entertain a reasonable doubt of the truth of any one or more of these essential facts, they should acquit. We would recommend the following as a proper instruction in this character of cases.

“The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that the defendant, Sam Remer, in this county and state, on or about the 1st day of February, 1908, did sell whisky in any quantity whatever to one Rufe Cornell, then it will be your duty to find the defendant guilty as charged in the information. On the other hand, if, upon a consideration of all of the evidence in this case, you entertain a reasonable doubt as to whether the defendant, in this county, on or about the date mentioned, did sell whisky to the said Rufe Correll, then you should acquit the defendant.”

For the errors hereinbefore pointed out, the judgment of the lower court is reversed and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.


text:
    J. D. WELSH v. STATE.
    No. A-1035.
    Opinion Filed May 18, 1912.
    (123 Pac. 705.)
    APPEAL — Review—Questions of Fact. When the jury find a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be set asida in the absence of prejudicial error.
    (Syllabus by the Court.)

      Appeal from Okfuskee County Court; T. T. Doyle, Judge.

    J. D. Welsh, Jr., was convicted of a violation of the prohibition law, and appeals.
    Affirmed.

      Huddleston & Hockensmith for plaintiff in error.

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

The plaintiff in error was convicted in the county court of Okfuskee county on an information which charged, that he did have in his possession intoxicating liquors with the intention of violating provisions of the prohibition law. January 21,1911, he was sentenced to serve a term of 90 days in the county jail and to pay a fine of $250. From the judgment and order overruling a motion for a new trial he appeals.

It is contended that the verdict is contrary to the evidence. The proof on the part of the prosecution was the testimony of a deputy sheriff and constable that on serving a search warrant they found whisky in two quart bottles and a part of a gallon of wine in the defendant’s place of business, a pool hall and cold drink stand in the town of Boley. The whisky and wine were found behind a bar. In an around the premises they found several barrels of empty whisky and beer bottles. The defendant testified, that he bought the liquors at Ft. Smith for his own use.

As it was said in Vanderburg v. State, 6 Okla. Cr. 485, 120 Pac. 301, these predisposing facts and circumstances are clearly sufficient to prove the unlawful intent. The jury had a right to take into consideration the fact that these liquors were found practically exposed for sale in the defendant’s place of business, and presumably for this reason the testimony of the defendant was not taken as true. The evidence presents every indication that the defendant was engaged in running a joint. When the jury find a verdict of guilty, which is approved by the trial court in overruling a motion for a new trial, and there is evidence in the record which sustains the verdict, it will not be set aside in the . •absence of prejudicial error. There is no error in the record.

The judgment of the county court of Okfuskee county is therefore affirmed, and the cause remanded thereto, with direction to enforce its judgment and sentence therein.

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


text:
    TOM YOUNG v. STATE.
    No. A-1003.
    Opinion Filed May 18, 1912.
    (123 Pac. 699.)
    INTOXICATING LIQUORS — Criminal Prosecutions — Evidence — Sufficiency. In a prosecution for the unlawful sale of intoxicating liquor, the evidence is held to support the verdipt, and that no reversible error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from Atoka County Court-; J. H. Linebaugh, Judge.

    Tom Young was convicted of the unlawful sale of liquor, and appeals.
    Affirmed.

      J. G. Ralls, for plaintiff in error.

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

The plaintiff in error, Tom Young, was convicted on an information which charged him with the unlawful sale of a pint of whisky to J. M. Hembree, and on the 23d day of November, 1910, he was sentenced, in accordance with the verdict of the jury, to serve a term of 30 days in the county jail,, and to pay a fine of $50. From the judgment and an order overruling the motion for a new trial, the defendant appeals.

The evidence, briefly stated, is as follows: J. M. Hembree,, to whom it is charged the whisky was sold, testified, in substance, that on the 16th day of November, 1910, he was given a dollar to go and buy a pint of whisky; that he went to Lankford’s lumber yard, where he found the defendant working, and that he there bought a pint of whisky from him; that he went back to Smith and Presson, two deputy sheriffs, and gave them the whisky. The deputy sheriffs, Smith and Presson, testified that the witnessHembree was given a dollar to go and buy whisky, that they followed and kept in sight, that Hembree went into Lankford’s lumber yará, and there remained from 5 to 30 minutes, and then returned with the whisky. Presson testified that he marked the dollar that he gave to witness Hembree, and that when they arrested the defendant in the lumber yard, they found the marked dollar among the defendant’s money. The defendant, testifying on his own behalf, admitted that he saw the witness Hembree in the Lumber yard, but denied that he had any conversation with him about whisky, or that he asked him for any whisky. Jim Grooms testified,, as a witness for the defendant, that he was-present at the time that Hembree was there, and no whisky was sold him. Lankford testified that he did not see any transaction between them. ' During the cross-examination of Hembree, he was asked if he had been engaged in selling whisky, to which he answered, “Yes.” He was then asked the question: “How long .were you engaged in it all together?” This was objected to by the state, and objection sustained.

It is contended by the defendant’s counsel that “the court should have sustained the motion for a new trial, for the reason that there was no evidence to warrant a. conviction.”

In this connection, it is argued that the witness Hembree was ■an accomplice and should be corroborated; and that here there was no corroborative evidence. That the witness Hembree was an accomplice is not correct; and his testimony is corroborated by the two witnesses, Presson and Smith, in all respects, except as to the actual sale, which was not made in their presence. The truth or falsity of the testimony of the witness Hembree was a question for the jury. The evidence of this witness, if true, was sufficient to convict the defendant. The jury found it to be true; and their verdict received the approval of the trial court in overruling the motion for a new trial. All questions of fact must be ■determined by the jury, as is said in some of the cases. The jurors are the sole judges of the credibility of the witnesses who testify before them, and they are not .bound to, nor can they be compelled to, credit the testimony of any witness, whether controverted or not.

Certain exceptions were taken to the rulings of the court on the admission of evidence, and the remaining assignments of error are based thereon. We think they are without merit.

For the reasons stated, the judgment is affirmed.

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


author: ARMSTRONG, J.

text:
    PEARL LAWYER v. STATE.
    No. A-1074.
    Opinion Filed May 25, 1912.
    (123 Pac. 850.)
    T. APPEAL — Sufficiency of Evidence. The credibility of witnesses and the weight or value to be given to their testimony is a question solely for the jury's determination; and, to reverse a judgment for the reason that the verdict is contrary to the evidence, this court must find) as a matter of law, that the evidence is insufficient to warrant the conviction.
    2. APPEAL — Questions of Fact. It is the policy of'the law in this jurisdiction to permit questions of fact to be determined solely by the jury; and when the people, by their legislative bodies, have enacted provisions looking to this end, it is the duty of the courts to carefully observe them.

      3. APPEAL — Review. When there are grounds to justify the conclusion that the jury has erred in its judgment on the facts, this court will look carefully to the record for errors of law sufficient to justify a reversal.
    4. APPEAL — Sufficiency of Evidence. It is the duty of the trial judge, under the law, to set aside a verdict of conviction which is against the weight and credibility of the evidence, when, in his judgment, justice so demands. When the trial court, who has seen the witnesses and heard them testify, puts the stamp of approval on the verdict of a jury, it comes to this court, not upon the proposition that the verdict is against the weight and credibility of the evidence, but upon the proposition that it is contrary to the evidence. And when there is any competent evidence tending reasonably to support a conviction the finding of the jury, approved by the trial court, will not be disturbed.
    (Syllabus by the Court.)

      Appeal' from District Court„ Kingfisher County; A. H. Huston, Judge.

    Pearl Lawyer was convicted of larceny, and appeals.
    Affirmed.
    ■ Bradley & Bradley, for plaintiff in error.

      •Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Pearl Lawyer, was convicted at the September, 1910, term of the Kingfisher district court on a charge of larceny of a calf, and his punishment fixed at imprisonment in the state penitentiary for a term of one year.

The only question presented by this appeal, worthy of consideration, is the sufficiency of the evidence.

The proof 'on behalf of the state is not as strong as it could have been, although the incriminating facts are sufficient to support a conviction. The principal witness for the state, who was a near neighbor of the accused, and who had been subpoenaed, was conspicuous by his absence from the trial. There are enough circumstances disclosed by the record to indicate that he gave damaging testimony at the hearing before the examining magistrate. The calf stolen was about a month old, and belonged to Joe Grimes, a farmer, who lived near Kingfisher, and was found 15 miles away, and across the Canadian river, at the home of the accused, with his cattle. At the time the owner found it, the accused would neither deny nor affirm that he had any connection with it; but at the trial denied that he knew anything whatever about it. It is shown that he was in town in a wagon about the time the calf disappeared, and hauled some animal home. A number of witnesses testified for him that it was a yellow dog he had in the wagon; but the jury evidently believed that it was the calf in question, The proof also shows that he had been convicted of larceny theretofore.

Unless the verdict is contrary to the evidence, this court will not undertake to disturb the finding of the jury on questions ■of fact. It is the policy of the law in this jurisdiction to permit questions of fact to be determined by the jury solely; and when-the people, by their legislative bodies, have enacted provisions looking to this end, it is the duty of the courts to carefully observe them.

Where there are grounds to justify the conclusion that the jury has erred in its judgment upon the facts, the court should, and this court does, look carefully to the record for errors of law sufficient to justify a reversal. But the record in this case fails to disclose prejudicial error of this character. The verdict of the jury comes to this court with the approval of the trial court, who saw and observed the witnesses, and who was familiar with many circumstances of the trial which the written record never discloses. For this reason, it is the duty of the trial judge, under the law, to set aside a verdict which is against the weight and credibility of the testimony, ■ when, in his judgment, justice so demands. But when the trial court puts the stamp of approval on the' verdict of the jury,, it comes to this court, not ttpon the proposition of the insufficiency -of the testimony, nor that the verdict is against the weight of the evidence, but upon the proposition that the verdict is contrary to the evidence.

When there is any competent evidence tending reasonably to support the verdict of a jury, this court will not disturb such verdict on appeal; and it is useless for counsel to argue in this court that the verdict is not supported by the weight of the evidence, when there are no errors of law. We occasionally reverse a conviction on the grounds that there is no evidence to support the verdict of the jury; in other words, that the verdict is contrary to the evidence. But it is only in cases where this condition is clearly disclosed by the record.

Other questions raised have been determined by this court adversely to the contention of the plaintiff in error.

No reversible error appearing, the judgment of the trial court is affirmed.

FURMAN, P. J., and DOYLE, J., concur.


text:
    MITCHELL BIGFEATHER v. STATE.
    No. A-1250.
    Opinion Filed June 1, 1912.
    (123 Pac. 1026.)
    1. TRIAL — Indorsement on Information or Indictment — Appeal—Discretion of Court, (a) In felony eases less than capital tbe names ' of additional witnesses may be indorsed on an information or indictment at any time within the discretion of the court, and this discretion will not be reviewed upon appeal unless the record shows that it was abused.
    (b) The law does not require that the names of witnesses used in rebuttal shall be indorsed on an indictment or information.
    2. NEW TRIAL — Grounds—Verdict Contrary to Evidence. Our statute provides that a new trial may be granted when the verdict is contrary to the evidence. It is not enough that the court maybe of the opinion that the weight of the evidence is against the verdict, but the court must go further and find that there is no evidence in the record from which the jury could rationally conclude that the appellant was guilty before we would be authorized to grant a new trial upon the ground of the insufficiency of the testimony, unless it should appear from the record that the jury were influenced by improper motives in arriving at their verdict.
    (Syllabus by the Court.)

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

      Mitchell Bigfeather was convicted of manslaughter in the first degree, and his punishment assessed at four years in the state penitentiary, and he appeals.
    Affirmed.
    /. W. Watts, Ed M. Frye, and Bernstein & Spiers, for appellant.

      Smith C. Matson„ Asst. Atty. Gen., and T. P. Shackleford, Co. Atty., for the State.
   FURMAN, P. J.

First. Appellant was indicted for manslaughter in the first degree. In their brief, counsel for appellant claim that the court erred in allowing the county attorney to indorse on the back of the indictment the names of additional witnesses called in chief, and that the court erred in allowing the witnesses whose names were so indorsed to testify in behalf of the state. Counsel do not show how they were injured by this action of the court. An inspection of the record shows that, while three of the witnesses so indorsed on the back of the indictment did testify in chief, yet they did not testify to any material facts in the case, and their testimony was only cumulative of other witnesses for the state, and was not in any manner contradicted or the truthfulness of theii testimony denied by appellant. The only witness whose name was so indorsed on the indictment who testified to any material fact was called in rebuttal. It is not necessary to indorse the names of rebuttal witnesses on an indictment or information. In felony cases less than capital the names of additional witnesses may be indorsed on an indictment or information at any time within the discretion of the court, and this discretion will not be reviewed upon appeal unless the record shows that it was abused. See Ralph Hawkins v. State, infra, 123 Pac. 1024; Ford v. State, 5 Okla. Cr. 240, 114 Pac. 273.

Second. Counsel for appellant contend that the verdict of the jury is not supported by the testimony. Our statute provides that a new trial may be granted on this ground only when the verdict of the jury is contrary to the evidence. See section 6896, Comp. Laws 1909. It is not enough that the court may be of the opinion that the weight of the evidence is against the verdict, for the jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses. We have therefore uniformly held that, when there is any evidence in the record from which the jury might legitimately conclude that the appellant is guilty, a new trial should not be granted for the insufficiency of the evidence. See Boucher v. State, 6 Okla. Cr. 387, 118 Pac. 1002; Gritts v. State, 6 Okla. Cr. 537, 118 Pac. 673; Flanders v. State, 6 Okla. Cr. 318, 118 Pac. 593; Smith v. State, 5 Okla. Cr. 296, 114 Pac. 278; Kerkendall v. State, 5 Okla. Cr. 570, 115 Pac. 612; Williams v. State, 4 Okla. Cr. 523, 114 Pac. 1114; Fuller v. Territory, 2 Okla. Cr. 86, 99 Pac. 1098; Bolman v. State, 2 Okla. Cr. 235, 101 Pac. 135; Hendrix v. United States, 2 Okla. Cr. 240, 101 Pac. 125; Phillips v. United States, 2 Okla. Cr. 628, 103 Pac. 861; Hines v. United States, 2 Okla. Cr. 639, 103 Pac. 879; Moody v. United States, 2 Okla. Cr. 662, 103 Pac. 862, 1039; Cox v. Territory, 2 Okla. Cr. 668, 104 Pac. 378; Stack v. State, 2 Okla. Cr. 697, 103 Pac. 1068, 105 Pac. 320.

According to the testimony in this case, the appellant, the deceased, and a number of other persons assembled at the home of Jack Johnson, in Sequoyah county, Okla., and while there drank considerable whisky. One witness testified that appellant at one time drank a half pint cup half full of whisky. The appellant admitted having taken-three drinks of whisky on that' occasion. A difficulty arose between appellant and the deceased. The testimony as to the cause of this difficulty is by no means clear.’ In fact, it appears to have been simply a drunken row in which the deceased was killed by appellant. Appellant’s own testimony makes out a clear case of self-defense, but the jury was not bound by his testimony. They might have believed him had it not been for the fact that, when arrested two hours after the homicide, he strongly denied having been at the home of Johnson that day, and denied all connection with the difficulty. These denials establish one of two things: either the conscious guilt on the part of appellant, or the fact that he was so drunk he did not know what happened. Either of these conclusions was inconsistent with the testimony of appellant given upon the trial of the case. Another damaging fact against appellant is that, after the homicide was committed; and when one of the bystanders attempted to phone for a physician, the appellant with-an open knife in his hands forced the bystander to leave the phone and desist’ from such attempt.

We think that, under the evidence, the jury were justified in finding appellant guilty, and, while they might have arrived at a different verdict, we cannot say that their verdict is contrary to the evidence. No exceptions were reserved to the instructions of the trial court, and we fail to find any material error therein.

The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    FRANK MANNING v. STATE.
    No. A-1381.
    Opinion Filed June 1, 1912.
    (123 Pac. 1029.)
    1. JUEY — Competency of Jurors — Voir Dire, (a) A juror cannot be disqualified on his voir dire by asking him if it would have any bearing upon him in rendering his verdict in a case if it should develop during the trial that the defendant had prior thereto been convicted of manslaughter, and it is not error for the trial court to refuse to allow such question to be answered.
    (b) Under certain conditions the fact of a previous conviction for manslaughter of a defendant might be admissible in evidence and become a matter to be considered by the jury under proper instructions from the court.
    2. WITNESSES — Impeachment—Conviction on Criminal Charge, (a) Where a defendant takes the witness stand in his own behalf, he may be asked if he has ever been convicted of a felony or of any offense showing want of moral character. The purpose of this evidence is to affeet his credibility as a witness by showing that he has been convicted of a felony or of any offense indicating a want of moral character. The fact that an appeal is pending from such conviction will not render such evidence inadmissible. It is the verdict of the jury upon such accusation that affects the credibility of the witness.

      3. APPEAL — Review—Harmless Error. While it is improper for the court to instruct the jury that if they find any witness in the case has willfully sworn falsely as to any material fact, then the jury has a right to disregard the testimony of such witness except in so far as the same may be corroborated by other facts and circumstances in evidence, yet the giving of such instruction will only be reversible error where it appears from the entire record that the appellant was injured thereby.
    4. TRIAL — Instructions—Requests—Instructions Already Given. It is not error for the trial court to refuse to give a requested instruction although it may be a correct statement of the law, if the principles therein contained have already been given in the general instructions to the jury.
    5. SAME — Indorsement of Names of Witnesses — Harmless Error, (a)Por circumstances under which the trial court was justified in finding that in a capital case the name of a witness was furnished the defendant more than two days prior to the day on which such case was called for trial, see opinion.
    (b) The law does not prescribe the manner in which the names of witnesses in a capital case shall be furnished the defendant. If it be made to appear to the satisfaction of the trial court that such names were furnished the appellant at least two days before the case was called for trial, the manner in which the names were so furnished becomes immaterial.
    (c) Where a witness in a capital ease is permitted to testify over objection that the name of such witness was not furnished the defendant two days before the case was called for trial, such failure to furnish the defendant with the name of such witness and permitting such witness to testify will not be reversible error where it is shown that the witness did not testify as to any material fact against the appellant.
    6. APPEAL — Harmless Error — Opinion Evidence — Presumptions — Sufficiency of Evidence, (a) The admission of incompetent evidence is not ground for reversal of a conviction unless it affirmatively appears from the record that the appellant was injured thereby.
    (b) A doctor should not be allowed to testify to his opinion as to the position the body of the deceased may have been in when he received the fatal wound; but, where from an inspection of the entire record it appears that the defendant was not injured by the introduction of this incompetent evidence, it will not be ground for the reversal of a conviction.
    (c) When the wife of a defendant is a material witness in 'his behalf and she is not placed upon the stand by him or her absence is not accounted for by the defendant, this becomes a circumstance to be considered against the defendant.
    (Syllabus by the Court.)

      Appeal from District Court, Tulsa County; L. M. Poe, Judge.

      Frank Manning was convicted of manslaughter in the first degree, and his punishment assessed by the jury at eight years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.

      Giddings &' Giddings, for appellant.

      Smith C. Matson, Asst. A tty. Gen., and Redmond S. Cole, Co. Atty., for the State.
   FURMAN, P. J.

First. Upon the trial of this case when the jury were being examined on their voir dire, counsel for appellant propounded the following question to the juror Kelly:

“Mr. Kelly, if it should develop in the trial of this case that the defendant had at one time prior in his lifetime been convicted of manslaughter in the second degree, and that the case was now pending in the Criminal Court of Appeals of this state, would that have any effect or bearing upon you in rendering a verdict in this case?”

The question was objected to as incompetent. The objection _was sustained, and the appellant excepted to the ruling of the court. We do not think that the court erred in sustaining the objection to the question as asked. In the case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, this court expressly decided that, where a witness had been convicted of a felony or of any offense which indicated a want of moral character, this was a proper fact to be admitted in evidence and considered by the jury as affecting his credibility as a witness. Again, if upon the trial appellant had offered evidence of his previous good character for peace, it would have been competent for the state to prove this previous conviction in rebuttal. These are the only two contingencies in which such previous conviction could be developed upon the trial, and in both of them it would have been proper and necessary for the jury to consider such conviction in arriving at a verdict.

Second. Upon the trial of this case when appellant was upon the witness stand in his own behalf he was asked the question, “Were you ever convicted of manslaughter?” to which appellant objected, and, the objection being overruled, appellant answered “Yes, sir.” It is objected that this evidence was inadmissible because' the appellant had appealed from such conviction, and that at the time of this trial the case in which appellant had been convicted of manslaughter was pending in the Criminal Court of Appeals, the proposition being that, as the case was upon appeal, the conviction was not necessarily final. The sole purpose of evidence of this kind is to affect the credibility of a witness. This purpose is accomplished by showing such conviction, even though the conviction may have been reversed upon appeal. If the conviction had been reversed because it was contrary to the evidence, this might be shown in behalf of such witness. Many courts hold that for the purpose of impeachment a witness may be asked if he has ever been arrested or accused of an offense. For the reasons given in the case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, this court holds that the mere fact that a witness may have been accused of an offense could not be proven for the purpose of affecting his credibility, but we think that where a witness has been tried for a felony or for any crime which indicates a want of moral character, and the case has been submitted to a jury, and they have found from the evidence that he is guilty, this fact may be given in evidence to the jury for the purpose of affecting the credibility of the witness. The law presumes that the jury was intelligent and impartial and that they would not find a man guilty upon mere suspicion or an accusation of his enemies. It is the verdict of the jury upon such an accusation that affects the credibility of the witness. Prior to a trial and verdict of guilty the law presumes that a defendant is not guilty, but, when a jury selected in part by a defendant finds that he is guilty, this presumption of innocence is wiped out and the opposite presumption, that he is guilty, prevails. We therefore hold that the court did not err in overruling the objection to this evidence.

Third. Upon the trial of this case the court instructed the jury as follows:

“And if you believe that any witness in the case has willfully sworn falsely to any material fact, then you have the right to totally disregard his testimony except in so far as the same may be corroborated by other facts and circumstances'in evidence.”

This instruction is erroneous, but is not necessarily reversible error. See Henry v. State, 6 Okla. Cr. 430, 119 Pac. 278. Upon the entire record in this case the jury would have been warranted in finding that appellant had willfully sworn falsely to material facts, but his testimony was in some respects corroborated by the testimony for the state. We therefore feel that this instruction benefited appellant and is not ground for reversing this conviction.

Fourth. Counsel in their brief complain of the action of the trial court in refusing to give certain special instructions requested by appellant upon the trial. We have examined the instructions requested and find all of the issues involved in this case fully set forth in the instructions given. It is not error for the trial judge to refuse to give a requested instruction, even if it may'- be a correct statement of the law, if the principles therein contained have already been given in the general instructions. ■ -

Fifth. Upon the trial of this case the state placed Madona R. Kenefick upon the witness stand, and the following occurred as appears of record:

“Mr. McNeill: Comes now the defendant and objects to the introduction of the testimony of the witness for the reason that the name has not been indorsed upon the information in this case. The Court: Has there been any notice served that this witness was to be used? Mr. Sturgis: Yes, sir. The Court ¡ When? Mr. Sturgis: The 29th day of March. At this time we will ask leave to indorse the names of the witnesses on the information included in this notice. The Court: Yes, sir; leave will be given to indorse the names which have been served. Mr. McNeill: To which defendant objects as prejudicial to the rights of the defendant; said leave not having been asked prior to the time of the trial. Mr. Cole: If the court please, we ask permission at this time to show the service that was made of the list of witnesses to be used by the state in its case in chief on the defendant in this trial, the same having been served on the 29th day of March, 1911. The Court:- Who served them? Mr. Cole: Served by the sheriff. The Court: ■ Where is his return? Mr. Cole: His return has not been made. We ask permission at this time to let the return show that it was made. The Court: Make your return. Let it be shown. (Mr. Cole hands paper to counsel for the defendant.) The Court: Let these names be indorsed on the information. Mr. McNeill: Comes now the defendant and objects to the indorsing of the names on the information for the reason that the same is done after the trial has begun, and the record fails to show or disclose that any list of witnesses had ever been served upon the defendant or defendant’s counsel according to law, no proper return shows the list of witnesses as having been made, and for the further reason that the defendant has the right to rely upon the names indorsed upon the information at the time of beginning of the trial, the indorsement of said names after the tidal proceeds becomes prejudicial to the rights of the defendant. The Court: No; overruled. Mr. McNeill: Note an exception.”

It will be noticed that counsel for appellant do not deny that appellant was furnished with the list of witnesses on the 29th day of March, but they stand upon the ground that the sheriff had not made a proper return and the further ground that the indorsement of the name of such witness was prejudicial to the rights of appellant because made after the trial had begun, but they fail to show wherein this prejudice existed, and they cite no authorities in support of their contention. The record shows that this case was called for trial the 3d day of April, 1911. We think that the court was justified in finding that the name of this witness was furnished appellant on the 29th day of March, four days before the case was called for trial, notwithstanding the fact that a formal return of such service had not been made. The point was that the name of this witness had in fact been furnished appellant. The question of a formal return was immaterial. But even if we are wrong in this, and if the court did err in permitting the name of this witness to be indorsed on the information and to testify in this case, the error was harmless, because an inspection of the record shows that her testimony related altogether to matters which did not at- all affect the rights or involve the guilt or innocence of appellant.

Sixth. In the supplemental brief filed by appellant it is contended that this case should be reversed because the trial court erred in allowing Dr. William M. Moore to testify as to the position of the body of the deceased when the shots were fired. We think that the admission of this evidence was error. See Byers v. Territory, 1 Okla. Cr. 699, 100 Pac. 261, 103 Pac. 532; Price v. United States, 2 Okla. Cr. 449, 101 Pac. 1036, 139 Am. St. Rep. 930. In the Byers case this court refused to reverse a conviction where evidence substantially the same as this was introduced, holding that, while it was incompetent, yet in view of the entire testimony introduced there was no reason to. believe that appellant was injured thereby. In Price’s case we again held that this evidence was incompetent and reversed the. conviction because from the whole record it appeared the appellant was injured by its introduction. See these two cases for a full discussion of the principles of law involved.

We think that this case does not come within the rúle laid down in the Price case, but comes clearly within the rule laid down in the Byers case. There was no eyewitness in the Price case, and the only evidence upon which the state relied to secure a conviction was the testimony of two physicians as to their opinion of the position of the arm of the deceased at the time he received the wound, based upon the range of the bullet after it entered his body, and it was upon this testimony alone that the appellant was convicted. But the case at bar presents an entirely different condition of affairs. The evidence of the physician as to his opinion of the position of the body of the deceased at the time the fatal wound was received is not corroborative of the evidence upon which appellant was convicted, and we do not believe that it tended to his conviction. In this case there were two witnesses besides appellant who saw this difficulty. One of these witnesses was the wife of appellant. She could not be called as a witness for the state, but appellant could have placed her on the stand if he had desired to do so, and the fact that he failed to place his wife on the witness stand is a circumstance strongly tending to prove that the testimony of Overstreet, the state’s witness, was true, and the testimony of appellant was false.

In Mercer v. State, 17 Tex. App. 452, that court said:

“In substance, the state’s attorney reminded the jury that the witness Sarah Vaughn testified that her father confessed his paternity of the child to his wife, threatened to kill himself, and expressed his opinion that the said Sarah ought to be willing to go with him to the grave. He reminded the jury of the fact that it was beyond the power of the state to produce the wife as a witness against her husband, but that it was within' the defendant’s 'power to produce her as a witness in his behalf, and disprove, if he could, the confession deposed to by the said Sarah. The counsel argued that the defendant’s failure to produce his wife, who was accessible, was a fact corroborative of the testimony of the witness Sarah. The court overruled objections to this line of argument. It was disclosed by the evidence that the defendant’s wife must have known important facts bearing directly upon the issue in the case, and that she was within easy reach of the process of the court. She could have explained fully the occurrence testified about by his two daughters when he got his gun and said he would blow his grains out. She could have testified, perhaps, to many other facts which would have shed light upon, this horrible transaction. It was not within the power of the. prosecution to adduce her testimony because, being the defendant’s wife, she was not permitted under the law to testify against him in this case. He alone could call for her testimony and compel its production. Her knowledge of the facts, whatever that knowledge might be was at his command— was within his reach — and without he produced it, or consented to its production, it was a sealed book, which no human tribunal has the .power to open against him. Under these circumstances, we think the prosecuting attorney was justified in the remarks complained of, and that the court did not err in its action in relation thereto.”

We have passed upon this question in two cases. See Rhea v. Territory, 3 Okla. Cr. 230, 105 Pac. 314; Hampton v. State, infra, 123 Pac. 571.

William Overstreet testified for the state as follows:

“I have known Frank Manning for nine years. On November 25th I went to his home north of Pawnee to borrow a horse. Saw Kenefick, Manning, and Manning’s wife in the kitchen; the men seated at the table. Manning and Kenefick were quarreling and something was said about whipping somebody; I couldn’t get the name. I went into the northwest room and started the graphophone. In a short time Manning and Kenefick followed me into the room and sat down. They were chewing the rag about something and once got up and acted like they wanted to' fight. I told them to sit down and listen to the graphophone and they sat down. I couldn’t tell what they were talking about on: account of the noise made by the graphophone. After a bit I heard a noise back of me and turning saw Manning on the floor in the corner and Kenefick on him. I pulled Kenefick off and pushed him to my right and as Manning got up I pushed him to> my left. They had not said anything that I heard. I said, ‘What are you fellows doing?’ Manning stepped back a short distance and said to Kenefick, ‘You son of a bitch, I ought to kill you.! Kenefick made no reply and did not make a move. Manning took his automatic gun out of his pocket and made a rush at Kenefick. I grabbed for his gun but missed and he hit at Kenefick’s head. He had the gun in his left hand, and I suppose he hit him. Kenefick was then sitting on a chair. Manning fired around me twice at Kenefick. Don’t know whether either of the shots took effect. I took hold of Manning and backed him into the bedroom adjoining the room we were in and tried to get his gun. I said, ‘There ain’t no use of having trouble like this.’ Manning replied, ‘You take Kenefick out of here and everything will be all right.’ I left Manning and went back tor Kenefick. I said, ‘Joe, come on and get into the buggy and go with me to town. There ain’t no use in having trouble like this.’ Joe never said a word. He was just standing there in the northwest room. We started and got into the kitchen, and he stopped on me. I tried to take him out by force, but he torn loose from me and went back into the northwest room. He didn’t say anything at all. I stepped on outdoors, and on the steps met Mrs. Manning. I went on about six steps when Mrs. Manning called to me. I turned round and saw Kenefick and Manning talking in the northwest room. Kenefick was standing on the west side of the door leading into the bedroom.' Manning was standing right in front (east) of him, and I was right on the east of them all. Mrs. Manning wanted me to go back in the house, but I told her I had done all I could do. They stood by the door leading into the bedroom talking. They were from a foot and a half to two feet apart. I heard them talking and heard Kenefick say ‘Frank, I’m a good Irishman, shoot me if you want to.’ Manning stepped back east two or three steps and said, ‘You son of a bitch, I will,’ and commenced firing. He shot three times. I had started home because I saw trouble brewing. But I didn’t expect Kenefick to do anything. I went out to the buggy and then on to town. Was gone just a short time and returned with Albert McGuire. Kenefick was not yet dead. Manning was gone, and Mrs. Manning was there alone. Kenefick died in a very short time after I returned. I found three empty .32 shells near where-he was laying. Sheriff Pumroy was the next to arrive. Kenefick had no weapons during the evening.”

Charles I. Pumroy, called on behalf of the state, testified substantially as follows:

“My name is C. I. Pumroy. I was sheriff of Pawnee county on November 25, 1910. I first saw the defendant Manning at Jay’s drug store where he was leaning back against the showcase smoking a cigar. I told him to come with me. He asked, ‘What for?’ I told him I wanted to take him over to the jail, and he again asked what for. I told him I had just been informed that he had shot a man down at his house, and I would have to arrest him. He asked, ‘You are not gping to arrest me for that are you?’ I went to Manning’s home and found a dead man, whom I learned was-Kenefick. I found a .32 copper jacked bullet in his union suit. The next morning I went back and found two empty .32 cartridges near the northeast corner of the room. After I had arrested Manning I asked him what the trouble was about. He said he was a child of misfortune and couldn’t take things that you fellows could. I asked him how it happened, and he stopped off and says, ‘Charley, you are no lawyer,’ and I says, ‘No, I ain’t,’ and that ended the conversation for the.time being. When we examined Manning at the jail we found no marks or bruises on his person.”

Joe Wierman, called by the state as a witness, testified that defendant came to his home on the night of the homicide, did some phoning, and said he had shot at a man four times. Jesse Wilson, called by the state, testified that he was at the home of 'Joe Wierman that evening and heard Manning say he had “shot a son of a bitch four times.” Mrs. Joe Wierman testified to the same as Jesse Wilson.

It is true that appellant did testify to a state of facts which, had if not been for the doctrine of mutual combat, tended to 'make out a case of self-defense. If his testimony was true, why was it he did not place his wife on the witness stand to corroborate his statement? She was present and was a competent witness- in his behalf. ' ,

Under all of the evidence in this case we cannot say verdict is contrary to the testimony. In fact, we are fully convinced that appellant is guilty of at least manslaughter in the first degree. According to the entire evidence, this was a case of mutual combat, and a defendant cannot be heard to say such a killing is justifiable upon the ground of self-defense. See Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; Koozer v. State, ante, 123 Pac. 554.

There is nothing in the record which causes us to believe that appellant was injured by any of the errors pointed out in this opinion.

The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ-, concur.


text:
    VERGE HEATLEY v. STATE.
    No. A-1388.
    Opinion Filed June 1, 1912.
    (123 Pac. 850.)
    INTOXICATING LIQUOKS — Illegal Sale — Evidence. For testimony which sustains a conviction for unlawfully having possession of intoxicating liquors with intent to sell the same, see opinion.
    (Syllabus by the Court.)

      Appeal from Jackson County Court; B. N. Woodson, Judge.

    Verge Heatley was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    P. K. Morrill, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and /. M. Williams, Asst. Co. Atty., for the State.
   FURMAN, P. J.

The proof in this case was to some extent conflicting; but the cerdibility of the witnesses was exclusively for the trial court. The sheriff of Jackson county testified that on the 31st day of May, 1911, about 9 o’clock at night, he searched a rooming house, known as the Blue Goose, in Altus, Jackson county, Okla., and he found there some eighteen or twenty bottles of whisky; that he found some of this whisky in a back room downstairs; that in the room where the whisky was found there was. also found a number of empty bottles lying around and a barrel of empty bottles, and these empty bottles were whisky bottles and beer bottles; that upon going upstairs and making a further search he, found a trapdoor under the carpet; that the carpet had to be rolled back to get to the trapdoor. Under the trapdoor he found fourteen bottles of whisky. This witness testified positively that appellant, Verge Heatley, and a young man named Dean were operating the Blue Goose rooming house at this time; that while he was leaving the place he met Heatley, and asked him who was running the Blue Goose, and appellant replied that he was running the place; that appellant was then informed that whisky had been found there, and appellant then changed his statement, and said that he had not yet taken charge of the place.

This testimony tended to prove that the room where the barrel of empty bottles was found was used as the place where sales were made, and under the secret trapdoor upstairs was the place where the supply was concealed. If appellant had this whisky in his possession lawfully, why the necessity for this concealment? The fact that he professed to be operating the Blue Goose rooming house until he was informed that whisky had been found there, and that he then attempted to deny it, is also strongly indicative of his guilt.

J. T. Kimbell'testified that he had seen appellant at the Blue Goose, and heard him say that the Blue Goose was his; that is, he was running and controlling it. This witness also testified that he saw empty bottles and corks scattered around the Blue Goose.

The defendant offered considerable testimony for the purpose of showing he did not own and was not in possession of the Blue Goose.

The case was tried by the court, without the intervention of a jury. The court heard all of this evidence, and was in a much better position to determine the question as to the credibility of the witnesses than are the members of this court.

The judgment of the lower court is therefore, in all things, affirmed.

ARMSTRONG and DOYLE, JJ„ concur. ■