text:
    RAY CRISWELL v. STATE.
    No. A-4333.
    Opinion Filed April 7, 1924.
    (224 Pac. 373.)
    (Syllabus.)
    1. Trial-Qualified Refusal to Place Witnesses Under Rule not Prejudicial Error. A qualified refusal of the court to place the witnesses under the rule at the request of the defendant was not, under all the circumstances shown, an abuse of judicial discretion amounting to prejudicial error.
    2. Same — Refusal to Instruct on .Circumstantial Evidence Justified. Instructions examined and held sufficient.
    (a) A failure to give an instruction on circumstantial evidence was justified.
    3. Objection as to Reception and Exclusion of Testimony Held Without Merit. The alleged erroneous reception and exclusion of testimony held unimportant, and not such as would affect the issues if a new trial were granted.
    Appeal from District Court, Texas County; Arthur G. Sutton, Judge.
    Ray Criswell was convicted of assault with a dangerous weapon, and he appeals.
    Affirmed.
    Ross Rizley, H. E. G. Putnam, and W. G. Hughes, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Ray Criswell, plaintiff in error, in this opinion designated the defendant, was convicted of an assault with a sharp and dangerous weapon, and his punishment was assessed at confinement in the penitentiary for a year and a day.

Webb Wharton, the complaining witness, was the owner of some stock ranches, and he, together with John Barnes, was engaged in the real estate business in Texhoma, where they maintained an office. On the day of the difficulty Webb Wharton was in his office when the defendant entered, at about 4 o’clock in the afternoon. Wharton was sitting on his desk in the rear room of the office, and Barnes and his wife were sitting in chairs in the same room. According to the testimony on behalf of the state, as the defendant entered the office he exclaimed, “I have got you now,” and as he advanced, with an open knife in his hand, toward where Wharton was seated on the table, he stated: “You have lied! I’ve got you now!” Wharton, to protect himself, seized a chair and held it in a striking attitude between himself and the defendant. The defendant then caught hold of a round of the chair with his left hand and with the chair between them pushed Wharton back on the table and stabbed him with the knife, inflicting a wound about 1 inch long and 2y2 or 3 inches deep on Wharton’s left side, just under and near the heart, from which he bled profusely. After an examination and treatment by a local physician, he was taken to a hospital at Dalhart, Tex., where an .operation was performed to stop the internal hemorrhage and where he remained under the care of physicians and nurses for some weeks.

The defendant’s defense is a novel one. From the testimony of the defendant and other parts of the record we are unable to determine whether he is claiming that the wound was inflicted in his self-defense, whether it was accidental, or whether Wharton’s wound was caused by the defendant at all.

The facts as claimed by the state were definitely supported by the prosecuting witness and by the testimony of Barnes and his wife. The testimony of the defendant was supported by only one witness, a young man in his employ who came with him into the office of Wharton and Barnes. The defendant’s testimony was to the effect that Wharton attacked him as he stepped into the inner office, raising the chair and advancing toward the defendant, and that he does not remember or know whether he had a knife at that time; that whatever resistance he offered was in his necessary self-defense, by implication claiming that whatever injury Wharton sustained in the affray (if any) was accidental. Defendant’s employee stated that he saw no knife and did not know that the prosecuting witness had been stabbed until some time afterwards.

The sheriff testified that when he arrested the defendant he took from him a pocket-knife; that his deputy went into a bank and brought the defendant out,- and that at that time the defendant had the knife open in his hand; that when the sheriff asked him if that was the knife that did the work he just opened his hand, with .the knife in it, and said laughingly, “That is the bad knife.”

Before the taking of any testimony, the defendant requested that the witnesses be placed under the rule. We assume from the remarks of the court, as they appear in the record, that the state’s witnesses may have been present at that time, but that one or more witnesses for the defendant had not arrived. The court for this reason refused to direct the witnesses to retire during the taking of testimony. The court announced that the rule would not be invoked because some of the witnesses were absent. We think it would have been better practice for the court to have granted the request of defendant, but from what appears of record we cannot say that the court abused his discretion in so ruling. Subsequent parts of the record indicate that the testimony of the state and of the defendant were so irreconcilable that it would have made no difference if the rule had been enforced.

The court in his instructions defined the offense charged in the information as being the offense within the purview of section 1764, Comp. Stat. 1921, followed by a definition of an assault and an' assault and battery, offenses included in the offense charged. lie then gave an instruction upon the quéstion of who might be' the aggressor and the rights of each of the respective parties if the other provoked the difficulty, and an instruction upon the law of self-defense. Without reciting the instructions at length, we find that they sufficiently covered the issues of law raised by the testimony. The facts as claimed by the state and those asserted by the defendant are so utterly irreconcilable that fine-drawn distinctions of rhetorical meaning, criticized by the defendant, could not have operated to the prejudice of the defendant.

The defendant claims that the court erred in refusing to instruct upon the law of circumstantial evidence. The testimony on both sides was direct and positive; it was sharply conflicting, but not circumstantial, in the ordinary sense of that term. Under the evidence there was no occasion for an instruction upon circumstantial evidence.

We have examined all of the instructions given and those requested and refused. We think that the jury were fairly advised of the law in the premises and that the instructions, fairly construed, nowhere shifted the burden of proof to the defendant.

The questions raised by the defendant relative to the exclusion of witnesses from the courtroom, justification in assault and assault and battery, and the burden of proof were well discussed in the state’s brief. To analyze all these in detail herein would require an extended recital- of facts and the instructions of the court, which we deem unnecessary under the facts in this particular case.

Some testimony, was excluded that might properly have been admitted, as tending to throw light upon the motives of the respective parties, culminating in this affray. Some of this would apparently have been to the advantage of the state and some to the advantage of the defendant.

From a consideration of the whole record we think it would amount to a miscarriage of justice to set aside the verdict on mere technicalities, which is the most that any of the errors complained of amount to. The testimony on both sides showed that the prosecuting witness was in his office, unarmed, where he had a right to be, and that the defendant entered this office, whether in an aggressive manner or not, and immediately became involved' in a physical encounter with the prosecuting witness which lasted but a few moments, and that the prosecuting witness was immediately found to have sustained a severe wound from some sharp instrument. To us it appears conclusive that the defendant was guilty as charged. If the wound inflicted had been a little higher up, the defendant might be here convicted of murder.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., eoneur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    RAMSEY BRUNER v. STATE.
    No. A-4408.
    Opinion Filed April 7, 1924.
    (224 Pac. 555.)
    (Syllabus.)
    1. Forgery — Information Held to State Offense. An averment in an information that the accused obtained valuable merchandise by means of a false and forged order executed and delivered by him for that purpose sufficiently states an offense under the provisions of section 2078, Compiled Statutes 1921.
    2. Same — Evidence Sustaining Conviction. The forged instrument itself, amplified by oral testimony explaining its import and the purpose of its execution, is sufficient to support the verdict.

      Appeal from District Court, Seminole County; John L. Coffman, Judge.
    Ramsey Bruner was convicted, of forgery in the second degree, and he appeals.
    Affirmed.
    C. L. Hill, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

The errors complained of in this appeal all grow out of two principal assignments of error: First, that the information, the sufficiency of which was challenged in the court below, does not state facts sufficient to constitute the crime of forgery or any crime; second, that the proof does not support the verdict.

The information charged that the accused forged a certain order for the extension of credit and delivery of goods, with the fraudulent intent to defraud and swindle the person upon whom the purported order was drawn. The accused was a negro who claimed to have had an arrangement with another negro who worked on the section to work for him; the name forged to the purported order was that of the section foreman; and the person upon whom the purported order was drawn was a merchant. This written order was in words and figures as follows:

“Hazel, Okla., Aug. 29, 1921. Mr. Milsap let Garfield Wilson have a shirt and a pance so that is all. Joe Earl.”

It appears that Garfield Wilson had been working on the section, and by agreement this defendant was to take his place and work for him for a few days. The order above set out was presented at the Milsap store by the accused and accepted by the manager and goods delivered to the accused to the value of $15.

Tbe defendant took the stand in his own behalf, and admitted that he drew the order without the knowledge or consent of Joe Earl, the section foreman; admitted that he took the order to the Milsap store and obtained the goods; but claims that he did this without any purpose or design of cheating or defrauding any one; that he had permission from Garfield Wilson to do this, and expected that Milsap & Co. would be paid out of wages earned and to be earned by Garfield Wilson and himself.

As to the sufficiency of the information we hold that the order above set out is an “evidence of debt or the engagement for the payment of money upon a contingency,” within the meaning of the statute upon which this prosecution was predicated (section 2078, Comp. Stat. 1921), and that the information was sufficient.

Upon the question of the sufficiency of the evidence the defendant himself admitted that he had no authority from Joe Earl to draw this order; admitted that neither Joe Earl nor the railroad company owed him anything at the time the order was drawn. Other circumstances in the case indicate that the order was forged and delivered with felonious intent on the part of the defendant.

Having reached this conclusion it will be unnecessary to notice the other assignments of error urged, all of which hinge on these two. '

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    JACK SHEPHERD v. STATE.
    No. A-4325.
    Opinion Filed April 7, 1924.
    (224 Pac. 556.)
    (Syllabus.)
    Assault and Battery — Evidence Sustaining Conviction for Assault with Dangerous Weapon with Intent to Do Bodily Harm. In a prosecution for shooting another with intent to kill, evidence considered and held sufficient to sustain a conviction for assault with a dangerous weapon with intent to do bodily harm.
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    Jack Shepherd was conyieted of assault with a dangerous weapon, and he appeals.
    Affirmed.
    Eaton, Carter & Gilder, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this ease charges that the defendant, Jack Shepherd, did shoot one Paul Cone with intent to kill. The jury returned a verdict finding him guilty of assault with a dangerous weapon, and assessed the punishment at imprisonment in the penitentiary for a term of two years and nine months. He has appealed from the judgment rendered upon- such conviction.

The errors assigned question the sufficiency of the evidence to sustain the conviction, and that the' court erred in admitting incompetent evidence over defendant’s objections and exceptions.

The evidence shows that in the city of Okmulgee, shortly after midnight, June 15, 1921, the shooting occurred.

Paul Cone testified in substance that he came home between 12 and 1 o’clock; Walter Monroe’s wife was there, and was half drunk; that he started across the street with her, and Jack Shepherd approached them and fired two shots at him, the first shot missed, the second shot taking effect, the bullet passing through his intestines; that he had known Jack Shepherd for more than a year, and supposed they were good friends; that after firing the shots Shepherd ran north through the .alley towards Joe Walker’s house. On cross-examination he testified that when the first shot was fired Monroe’s wife ran away, that he.knew her husband, Walter Monroe, and he did not fire the shots.

Joe Walker testified in substance that he knew Paul Cone and Jack Shepherd; that he heard the shooting and directly after Jack Shepherd came by; that he asked Shepherd where the shooting was; Shepherd said he did not know; that he went west, witness went south, and found Paul Cone lying in the- street, and he carried him to Eva Morris’ house.

Eva Morris testified that the defendant, Jack Shepherd, lived next door to her; that she did not see him at any time before or after the shooting that night; that she heard the shots, and when she arrived there Paul Cone was lying on the porch; that she asked him who shot him, and he said, Jack Shepherd shot me.”

On the part of the defense Mrs. I. Z. Monroe testified that she was with Paul Cone when he was shot, and saw the man that fired'the shot, and the man who fired the shots was not the defendant, Jack Shepherd.

The defendant testified that he was not the man who shot Paul Cone; that he never had any difficulty with Paul Cone, and did not have any reason for shooting him.

On cross-examination he stated that he left Okmulgee the night before the shooting, which occurred on Friday night, and went to Eufaula, and did not return until the following Monday. He was then asked if he did not draw a gun on Walter Monroe, husband of the Monroe woman, in Mann’s Cafe. The question was objected to on the ground that it was not proper cross-examination and prejudicial; the objection was overruled, and he answered, “No.”

In rebuttal Walter Monroe testified that the defendant, Jack Shepherd, drew a gun on him in Mann’s Cafe; that he saw the defendant, Jack Shepherd, the day before the shooting working at Fuller’s Pool Hall, racking balls. The defendant did not object to this rebuttal testimony, therefore there is nothing before us for review.

It was the theory of the state that the defendant shot his friend, Paul Cone, believing him to be the husband of Mrs. Monroe. It was on this theory the state sought to show the defendant’s relations with his witness Mrs. Monroe, and for the purpose of showing motive for the shooting.

It is well settled that the state has the right on cross-examination to show the nature of the relations existing between the witness and the defendant, so far as their relations are . such as would create a bias that might reasonably be expected to effect the credibility of the witness, and this rule cannot be changed by the fact that such evidence would probably prejudice the defendant in the minds of the jury. Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132.

It is said that the verdict is not sustained by the evidence. The jury had the witnesses before them, and could see their manner of testifying, and they no doubt in determining the truth took into consideration all the attending circumstances of the case. Where there is a direct contradiction between the testimony of the witness for the state and that- of the defendant it is for the jury to decide which is worthy of belief.

We are satisfied that the substantial rights of the defendant have not been prejudiced by any error of law appearing in the record. The judgment of the lower court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    A. B. HARRISON et al. v. STATE.
    No. A-4337.
    Opinion Filed April 7, 1924.
    (224 Pac. 557.)
    (Syllabus.)
    Appeal and Error — Conviction on Circumstantial Evidence not Disturbed. A conviction for larceny resting on circumstantial evidence will not be disturbed by this court, where the defendants’ explanations of admitted facts pointing to their innocence are in part disputed and where the explanations as a whole do not raise in the minds of the jury a reasonable doubt of their guilt.
    Appeal from District Court, Custer County; Thos. A. Edwards, Judge.
    A. B. Harrison and another were convicted of grand larceny, and they appeal.
    Affirmed.
    Eugene Forbes and T. W. Jones, Jr., for plaintiffs in error.
    The Attorney General and-G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

A. B. Harrison, Lige Bell, and Harvey Jones were jointly charged by information with the crime of grand larceny for the theft of a quantity of wheat from the bins of one H. B. Kaiser. At the trial Harvey Jones was granted a severance and the cause tried as to A. B. Harrison and Lige Bell only. These two defendants were found guilty as charged and, the jury failing to assess the punishment, were by the court sentenced to serve a term of two years’ imprisonment in the state penitentiary.

These defendants, all negroes, were charged with the theft of a wagonload of wheat on the night of the ’25th of August, 1921. The conviction was based largely on circumstantial evidence, and the only error urged by defendants is that the evidence was insufficient to support the verdict; that it was insufficient to exclude every other reasonable hypothesis than the guilt of the defendants.

The prosecuting witness, a white man, had two bins of wheat in a granary in his field, and on the morning of the 26th of August, 1921, he discovered that some wheat had been taken from one of these bins on the night previous. One of the defendants, a negro neighbor, also had a bin of wheat on his premises from which it is claimed that a load of wheat was marketed by the two others, with his knowledge and consent, on the 26th of August, the day that the prosecuting witness discovered that some of his wheat had been taken. The issue of fact raised was whether the wheat sold by the defendants was their own, or was the wheat alleged to have been stolen from the prosecuting witness.

The state showed that there were tracks made by a wagon and two horses leading from the bins belonging to the prosecuting witness to the premises of one of the accused negroes and thence on to town where a load of wheat was marketed by defendants, early that morning. One of the horse tracks was made by a horse with a broken hoof, and it was shown that one of these defendants owned such a horse. •

When the defendants were suspected of having committed the theft, some officers went to their home located between the home of the prosecuting witness and the • town where the wheat was marketed, and the defendants were, there interrogated by the officers and asked to explain what they knew about it. The defendants said that they had the evening previous loaded a wagon with wheat from their own bin and taken the wheat to market early that morning. To verify or discredit the explanation made by the negroes, the officers, late that afternoon, inspected the wheat in the negro’s granary and looked for tracks thereabouts. They found that the upper surface of the wheat in the bins was dusty and that there were feathers and straw scattered about over its surface, indicating that the wheat in this bin had not been recently disturbed.

It was shown that there were on this negro’s premises about 300 chickens and some' turkeys which had access to this wheat bin, and defendants claimed that the surface condition of the wheat was due to the chickens feeding there and that the dust and particles of straw were blown there by. the wind from the feed lot where the bin stood.

This bin or granary rested on a ledge of gyp rock, so that wagon or horse tracks adjacent could not be discerned, and it was claimed by defendants that cattle and horses in the lot had obliterated any tracks that might have been made leading from the gate up to this rock ledge upon which the bin stood. The testimony of the defendants, corroborated in some particulars by other witnesses- both white and black, and by some circumstantial evidence, might be deemed to be a rational explanation indicative of their innocence. .

Tbe court fairly defined the rule applicable to the law of circumstantial evidence thus:

“* * • The guilt of the defendants must be proven by competent evidence beyond a reasonable doubt, and all the facts and circumstances proven should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis than that of his guilt, and sufficient to produce in your minds the reasonable moral certainty that the accused committed the offense charged against him.”

Applying this rule to the proof, this case might be reversed but for the fact that. there was some conflict, in the defendants’ evidence and some circumstances and testimony tending to impeach the story told by the defendants, making it a question solely for the jury, who were in better position thán this court would be to weigh the evidence, some of which was demonstrative, and to pass upon the credibility of the witnesses who testified in their, presence.

We are not unmindful of the fact that, where white and black people reside in the same community where larceny is committed, some member of the black race- may- be ■ unjustly accused of the crime; but the record in this ease does not disclose that the jury were in any degree influenced by passion or prejudice.

Bearing in mind that there was some' demonstrative evidence-arid some conflict on disputed issues of fact, this court would not be justified in holding that such of the evidence as the jury deemed credible did not exclude every reasonable hypothesis other than the guilt of the accused.

The judgment of the trial court is therefore affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    SAM GRADINGTON v. STATE.
    No. A-4419.
    Opinion Filed April 8, 1924.
    (224 Pac. 722.)
    (Syllabus.)
    Homicide — Evidence Sustaining Conviction for Manslaughter in First Degree. In a prosecution for murder, evidence considered, and held sufficient to sustain a verdict of manslaughter in the first degree.
    Appeal from District Court, Oklahoma County; C. C. Smith, Special Judge.
    Sam Gradington was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Moman Pruiett and Victor A. Sniggs, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Sam Gradington, was, by information filed in the district court of Oklahoma county, charged with the crime of murder, alleged to have been committed in said county on the 29th day of August, 1911, by shooting one George Munsen with a pistol. As a result of the trial he was convicted of manslaughter in the first degree, and the court by its judgment sentenced him to imprisonment in the penitentiary for a term of 15 years.

The Attorney General has filed a motion to affirm the judgment for the following reasons:

“This appeal was perfected in this court on the 27th day of July, 1922, by the filing of the original case-made and petition in error with the clerk of the Supreme Court of this state, and thereafter, to wit, July 3, 1923, this court made an order permitting the plaintiff in error to withdraw the record for 15 days for the purpose of writing a brief, which order was on said date aforesaid presented to the clerk of this court, who then and there, delivered to the representative of plaintiff in error the record in said appeal. That said record has not been returned according to the aforesaid order of this court, and on December 22, 1923, this court, through its presiding judge, made an order directing the plaintiff in error to return said record instanter, "which order was by the clerk of the court duly transmitted to the plaintiff in error or his attorney of record, and said record has not, as yet, on this December 28th, been returned to this court. It is apparent and evident that said appeal was filed wholly for the purpose of delay; there being no merit in said appeal so far as we are able to discover and learn. We therefore respectfully pray the court to enter an order affirming the judgment of the lower court. ’ ’

From the brief remaining in the files, it appears that the main contention of counsel for plaintiff in error is that the verdict was against the evidence, and that a new trial should have been granted on the ground. of newly discovered evidence.

The facts as stated in the brief filed on behalf of appellant are briefly stated as follows:

The killing occurred in a building on the south side of West California street, in Oklahoma City.. The front part of the building was used as a barber shop, and the back part as a negro gambling house. There was no partition between the barber shop and the gambling house except a fence. Next to this building was located the White Star Baggage & Transfer office. On the afternoon of the date alleged, several ne-groes were in the gambling house in the rear of the barber shop, when the defendant entered through the back door with an automatic pistol in his hand. His talk was very loud and profane, and, threatening Mansfield Simpson, the proprietor of the gambling house, with his pistol, he took from him $25. George Munsen, manager of the White Star Baggage & Transfer office, appeared at the back door of the gambling house with a gun in Ms hand and ordered the negroes to stop cursing, saying there were some ladies in the White Star office, and said to the defendant, “Put that gun up.” The defendant said, “What have you got to do with it?” and shot George Munsen two or three times. The deceased fell back from the door into the alley, dying almost instantly.

As a -witness in his own behalf, the defendant testified that on Sunday before the homicide he was in a free for all dice game at Mansfield Simpson’s place; that he noticed that the dice had been sand papered, making an advantage in favor of the man who ran the game, and that he lost his money; that when he appeared in the place on the day of the homicide it was not his intention to kill or shoot anybody; that he knew the reputation of Simpson and his place and carried his gun to keep from being beaten up; that he did not curse or use any profanity in the gambling house, and did not take any money from Mansfield Simpson; that he saw the shape of a pistol in Simpson’s pocket, and said, “Listen, boys, don’t none of you run out, I ain’t going to hurt you, I want some understanding about my money”; that he took the gun from Simpson and gave it to Frank Sparks; that he was not acquainted with George Munsen, the deceased; that while he was talking to Mansfield Simpson this gentleman (the deceased) appeared at the back door and said, “Put those guns up, if you get to shooting in here you are liable to shoot somebody through the wall”; that when he turned the deceased said, “Drop that gun,” and had his pistol square on him; that he said, “Mister, I am trying to get some understanding about my money,” and deceased said, “Drop that gun, if you don’t you will get. killed in here,” and he cracked right down on me. When he fired I fired as quickly as possible. After I fired the first shot he dropped in a crouching position with his gun in his hand,. and continued to fire.

It seems the theory of the state was, as the evidence showed or tended to show, that the defendant, while in the perpetration of a felony, committed the homicide, and that he is guilty of murder.

On the facts, which are undisputed, the homicide was perpetrated by the defendant while engaged in the commission of a misdemeanor, and the defendant is guilty of manslaughter in the first degree upon his own testimony. We accordingly hold the motion for a new trial on the ground of newly discovered evidence was properly overruled.

A consideration of the evidence as set forth in plaintiff in error’s brief impresses us with the thought that the defendant might well have been convicted of murder. For the reasons stated, the motion to affirm is allowed.

The judgment below is affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    MARTIN CLARK v. STATE.
    No. A-4270.
    Opinion Filed April 10, 1924.
    (224 Pac. 738.)
    (Syllabus.)
    1. Homicide — “Manslaughter in Second Degree” — Statute. “Any killing of one human being by the act, piocurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.” Section 1745, Comp. Stats. 1921.
    2. Same — “Culpable Negligence” Defined. “Culpable negligence” is the omission to do something which a reasonable, prudent, and honest man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case (quoting Words and Phrases, First Series “Culpable Negligence”).

      3. Same — Evidence Sustaining Conviction for Manslaughter in Second Degree by Mine Foreman. The proven omission of duties imposed by statute upon a mine foreman, together with other manifest omissions of duty not defined by statute, as shown in this case, are sufficient to sustain a charge of criminal negligence.
    (a) Statutory provisions imposing duties to take certain precautions concerning work carried on at a place and under conditions manifestly dangerous do not necessarily preclude the duty of observing other precautions not covered by statute.
    Appeal from District Court, Latimer County; E. F. Lester, Judge.
    Martin Clark was convicted of manslaughter in the second degree, and he appeals.
    Affirmed.
    Philos S. Jones and Monk & MeSherry, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Martin Clark, plaintiff in error, here designated the defendant, was by a verdict of a jury rendered October 6, 1921, found guilty of mansaughter in the second degree, and his punishment was assessed at imprisonment in the county jail for a period of one year and a fine of $500. From the judgment on this verdict he appeals.

This prosecution and conviction were based on culpable negligence. The defendant was the foreman or pit boss at Mine No. 19 of the Missouri, Kansas & Texas Coal Company in Latimer county. This was a large mine, the excavations and underground workings of which extended over an area of more than 300 acres. These excavations consisted of tunnels, slopes, entries, rooms, and air courses, with some electric tramways and a telephone system. On the 21st day of August, 1920, there were approximately 140 men employed and working at various places in this mine. On this- date and prior thereto there was, in -what was known as the fourth east entry, a strong vein or feeder of noxious, combustible, and explosive gas, which discharged large amounts of gas that undiluted with air would produce asphyxiation, and when mixed with a certain small percentage of air became combustible and highly explosive, but when diluted with a greater percentage of air became harmless. There was and had been in operation an air fan of sufficient size and dimensions, with sufficient revolutions per minute, to force a great enough current of fresh air through the tunnels, slopes, entries, rooms, and air courses within the mine, that those persons working there might have fresh air to breath, and that these noxious and combustible gases might be rendered harmless, and to drive and carry the gas out at an exit provided. On this day this fan, for some reason or other, ceased to run for a period of time variously estimated at from 20 to 30 minutes. During this interim the gas accumulated in sufficient quantities near the fourth east entry that when some employe of the company started the fan in operation this body of gas was driven along the passageway and into the rooms of the fourth east entry, where miners were at work with burning lamps, getting out the coal, resulting in an explosion in which ten men were instantly killed.

The charging part of the information is very lengthy. The charges, condensed, may be stated as follows:

First. That the defendant was the mine, foreman, in. full charge and control of the operations, management, and direction of the mine and of all machinery and apparatus belonging thereto, so far as they pertained to the underground workings, tunnels, slopes, entries, and air courses.

Second. That he was. overseer and directed the mining operations in getting out the coal, making drifts and tun-neis, and delivering the coal to the cars and containers by means of which it was taken to the shaft and hoisted to the earth’s surface.

. Third. That it was the defendant’s duty to see that fresh air was kept moving through a shaft into these underground tunnels, slopes, entries, air courses, and rooms, and to see that air was properly conducted into the places where the men were at work, by means of air courses, curtains, cut offs, and brattices, made from, canvas, lumber and other materials.

Fourth. That there were large veins of noxious and explosive gases exuding into and near the fourth east entry where a number of men were mining coal, so that working' in that portion of the mine was more hazardous and dangerous than in other places, and that the defendant, being a miner of long experience, well knew of this extra hazard and danger, and knew that it required the greatest degree of precaution and care to protect the lives and safety of the persons there employed.

Fifth. That it was the duty of the defendant to operate, or co-operate with others in operating, an air fan of sufficient size and dimensions, with sufficient revolutions per minute, to force a current of fresh air through the air passages and other parts of the mine, so as to furnish fresh air for breathing purposes and for the further purpose of diluting the explosive gas there collecting so as to render it harmless.

Sixth. That it was the duty of the defendant, in the event that the fan should fail or cease to operate through unavoidable accident, or otherwise, to immediately and before again starting the fan in motion cause any and all persons within the mine to be removed therefrom as quickly as possible.

Seventh. That it was the duty of the defendant to install and keep-in operation a telephone system, as required by law, to enable the operators on the. surface or elsewhere to notify the diggers and miners of impending danger, including the stopping of the fan, or from any other cause.

Eighth. That the defendant, culpably unmindful of his duty of protecting the safety and the lives of the men there working, permitted the telephone system to be and remain out of order, so that at the time of the explosion it could not be used to notify the men that the fan had ■ ceased to operate, and that they should repair to a place of safety.

Ninth. That the defendant, in conjunction with other employes, was culpably negligent in not providing for an overseer or some person to watch the fan to see that the fan and the air current were constantly in motion.

Tenth. That the defendant was culpably negligent in not making the proper arrangements to see that after the fan had ceaseu to operate and these noxious and explosive gases allowed to accumulate in the fourth east entry the fan should not again be put in motion until all the men had evacuated the mine; that permitting the fan to be put in motion after it had stopped for an interval of 20 or 30 minutes caused the accumulation of noxious and explosive gases to be driven to where the men were at work with burning lamps, resulting in the explosion in which 10 men lost their lives.

It appears that the fan used to force air into and through the mine had been propelled by a steam engine, and that for some reason or other it became necessary to repair the steam engine, and' that the fan, on the day preceding the explosion, had been connected with an electric motor; that, knowing of this change, a committee of miners on the morning of the accident called upon the defendant, and stated to him that the men were afraid to work in the mine for fear the electric current might be interrupted, causing the fan to cease to operate for a time at least, and requested the defendant to put a man in charge of the fan to see that it was kept in operation, or, in the event that it should cease to operate, the men working in the mine might be promptly notified. A master mechanic, one Ben Treado, who was repairing the steam engine, said that he would be there, and that he would watch the fan. The defendant himself made no reply, made no promises, and offered no suggestions. This master mechanic, Treado, was working on the engine 300 yards distant from the air shaft and fan. The evidence does not disclose where he was when the fan ceased to operate, or what caused it to stop.

At the time of the explosion the defendant was engaged in making a round of inspection through the various workings of the mine, and did not know about the interruption in the operation of the fan and the subsequent happenings until after the explosion, when he was informed of the catastrophe by one or more of the men as they were making their escape from the region of the explosion.

The evidence further shows that the party line telephone was in bad order; in fact, was not working; that in places the current had been grounded, and that an attempt to notify those on the surface that the air current had ceased moving was futile; that certain signals were given by means of bells, and that messengers were sent to different parts of the mine as rapidly as possible to inform those there of impending danger; that the defendant, so soon as he was apprised of the explosion, did everything within his power to prevent further fatalities and gave directions that the men should leave the mine; that he organized the rescue party, who ■ made explorations into the region where the explosion had occurred, using safety lamps.

Manslaughter in the second degree is defined by our statutes (section 1745, Comp. Stats. 1921) as follows:

“Any killing of one human being by.the act, procurement or culpable negligence of another, which, under .the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide; is manslaughter in the second degree.”

It was the theory of the state that’ the information charged and the proof showed that the death of these 10 men was directly due to the culpable negligence of the defendant.

“Culpable negligence” has been defined as the omission to do something which a reasonable, prudent, and honest man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case. An act, or an omission, to be culpable, that is, to be a breach of legal duty, must be such as would cause a reasonable, careful man to foresee that the result would be productive of injury. 2 Words- and Phrases, First Series, 1780, and eases cited; 1 Bouvier’s Law. Dict. (Rawle’s 3d Ed:) 736. Our own court has defined culpable negligence thus:
“The want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions.” Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040.

Culpable negligence may be predicated upon acts of omission as well as upon those of commission. 13 R. C. L “Homicide,” § 157 et seq.

“It is an undeniable philosophic truth, * * * that a person’s liability for his acts depends upon their tendency under the circumstances known to him.” 20 R. C. L. 11; Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264.

The defendant says that his authority and duties pertained only to the supervision of affairs underground, and that by contract and custom and pursuant to his duties prescribed by statute he had nothing to do with the operation of the fan at the mouth of the shaft. He asserts likewise that maintenance of the telephone system was a duty lodged with the superintendent, and that no defects in the operation of the fan above ground or in the maintenance of the telephone system above or under ground could be imputed to him; that if culpable negligence was proved it must be imputed to the persons whose duty it was to see that the fan was kept in operation, and who were under obligation to see that the fan was kept in motion, and to see that the telephone system was in working order.

This theory of the defendant seems to be based, in part, at least, upon the assumption that he owed no duties to the workmen underground except those specifically prescribed by statute or by specific contract. The several statutory provisions relating to safety in mines, construed together, indicate that all the employes of whatever rank were to co-operate with one another to see that mines are safe to work in. To us it seems clear, under these statutory provisions, that the defendant’s duty under the circumstances in this case did not end at the mouth of the shaft.

The fan was the very heart of the ventilating system, and the underground passages were the veins and arteries through which fresh air designed to dilute and render harmless the poisonous and explosive gases circulated. The defendant occupied the important position of mine foreman, whose attention had been specifically called to the unsafe condition of the fan by a committee of workmen recognized by law. This complaint had been made to the foreman personally, in the absence of the superintendent; it was well known to this foreman that any interruption in the operation of the fan might cause the lives of the workmen below ground to be instantly snuffed out. Under such circumstances one in authority cannot escape responsibility for failing or refusing to make the fan safe and sure of continued operation merely because it was located on top of the ground, at the head of the ventilating shaft, ordinarily under the supervision of some other person.

The statute provides that it shall be unlawful for any person, company, corporation, owner, lessee, officer, or agent to operate or permit to be operated any coal mine within this state not equipped with a party line telephone system, proceeding at length and in detail to describe the character of telephone system required. The evidence here discloses that the telephone system in this mine was and for several days had been out of order and the fact that the phone system was so out of order contributed to the delay in notifying the operators at the mouth of the mine of the cessation of the fan, and this unnecessary delay directly contributed to the fatal explosion. The mine foreman whose duty it was to supervise the mining operations underground should have exercised reasonable care and ordinary caution to see that the telephone system was in working condition. The evidence disclosed that some of the wires had been grounded for several days, and the efforts to communicate over the telephone so soon as it was discovered that the fan had stopped were futile, requiring the use of bell signals to notify the operators above the surface, an inadequate method of conveying information of the impending danger. The fact that the telephone system was not working properly also prevented those who discovered that the fan had stopped from notifying others who were at work in the various underground excavations. .

From a humane standpoint, as well as under the statutes, it was the duty of the foreman to take at least reasonable precaution to insure the safety of the men about to go to work át a place of known danger. The claim of the defendant that the statutes alone fixed the measure and limitations of his duty toward his fellow employes is not founded in reason ñor supported by authorities. One may be required to act with reasonable prudence where there is no statute specifically prescribing his duties. There are instances where persons are guilty of culpable negligence independent of statutes specifically pointing out how or in what manner dangerous activities should be carried on. Barrow v. State, 17 Okla. Cr. 340, 188 Pac. 351, 9 A. L. R. 207, annotations, 211; Pamplin v. State, 21 Okla. Cr. 136, 205 Pac. 521, annot., 23 A. L. R. 1554; Johnson v. State, 66 Ohio St. 59, 63 N. E. 607, 61 L. R. A. 277, notes 299, 90 Am. St. Rep. 564; annotations, L. R. A. 1917C, 536; annotations, L. R. A. 1918B, 954; 13 R. C. L. “Homicide,” § 161; 29 Corpus Juris, 1158. Nor is it any defense for one charged with manslaughter resulting from culpable negligence to show that others besides himself were negligent directly contributing to the loss of life. State v. Shelledy, 8 Iowa, 477; Commonwealth v. Cook, 8 Pa. Co. Ct. Rep. 486; Ainsworth v. U. S., 1 App. D. C. 518; notes, 61 L. R. A. 298; 13 R. C. L. “Homicide,” § 161; 29 Corpus Juris, 1155.

So that if this defendant and Ben Treado were both under legal obligation to see that the fan was kept running, and by their gross negligence failed to do so, directly causing the death of these miners, both would be guilty, and the negligence of one would not excuse the other. Whether there was such negligence on the part of one or both, directly causing the fatal explosion, under the circumstances here, was a question for the jury. The record shows that there was evidence, if believed by the jury, indicating that the defendant was culpably negligent in not providing for a watchman for the fan, or in permitting the men to go to work under ground without such precaution. Of course the negligence of one cannot be imputed to the other so as to hold him criminally liable for the independent acts or omissions of the other.

The same reasoning applied to defendant’s authority and duties relating to the telephone system. If the defendant was primarily negligent in allowing the telephone system to be and remain out of repair, and the fact that the telephone system was in bad order directly prevented miners who knew of the danger notifying other employes to repair to a place of safety after the fan had ceased to operate, the fact that another besides defendant was also under obligation to see that the telephones were kept in order would not excuse nor palliate the culpable negligence of the defendant, if such negligence there was.

Bearing in mind that the defendant had charge of the underground workings of the mine, that he had been cautioned by a mine inspector to repair the telephone system, that the person who usually repaired the telephone was, partially, at least, under the direction and authority of the defendant, and that for a day or two this man had been engaged in other repair work about the -mine, the jury would be justified in concluding that the defendant was directly responsible for allowing the telephones to be and remain out of order.

Those in charge of the operation of coal mines, in whole or in part, should have a .decent regard for the lives and safety of those working under them, and more particularly so where mining is carried on under conditions extraordi-riarily hazardous because of veins and feeders of noxious and explosive gases. Under such circumstances every reasonable precaution should be taken by every person engaged in the work where it is manifest that the want of care on the part of any of the persons responsible may bring on fatal consequences. The' absence of speh care may be culpable negligence within the meaning of the statute defining second degree manslaughter.

Having reached the conclusion we have, it will serve no good purpose to treat the several assignments of error separately, further than to state generally that the defendant was accorded a sufficient preliminary hearing; that there was no error in refusing the several instructions requested, and not given; that the instructions given by the court were as favorable to the defendant as the law and the facts in the case warranted; and that the evidence adduced at the trial was competent, and, construed as a whole, supported the verdict. The judgment of the court below is therefore affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    BARNEY SELFRIDGE v. STATE.
    No. A-4276.
    Opinion Filed April 10, 1924.
    (224 Pac. 742.)
    (Syllabus.)
    1. Trial — Improper Questions to Accused Reversible Error, Although Objections Sustained. Where the prosecuting attorney subjected the defendant to a series of immaterial questions as to other offenses, and questions tending to degrade and belittle him, there is ground for reversal, though objections to such questions were sustained.
    2. Trial — General Objections Sufficient to Wholly Incompetent Evidence. Where evidence is wholly incompetent, a general objection thereto is sufficient.

      3. Trial — Reversal Where Prosecution Persisted in Asking Prejudicial Questions, Though Objections Sustained. A conviction will be set aside where the prosecuting attorney, without reprimand from the court, persisted in asking improper and prejudicial questions on his cross-examination of the defendant, notwithstanding the sustaining of objections thereto.
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    Barney Selfridge was convicted of a violation of the prohibitory liquor law, and appeals.
    Reversed and remanded.
    King & Crawford, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was convicted and in accordance with the verdict of the jury sentenced to pay a fine of $50 and be confined in jail for 30 days for the offense of conveying intoxicating liquor, alleged to have been committed December 10, 1921, in the city of Ada, by transporting three six ounce bottles of whisky from Jim’s Restaurant, on the north side of Main street, to Ben Beam’s barber shop on the south side of Main street in said city.

Bob Duncan, sheriff, the sole witness for the state, testified:

“I have known the defendant, Barney Selfridge 15 or 20 years; on the date alleged I called him over from in front of Jim’s Restaurant and told him I had a couple of warrants for him; he said he wanted to go to Beam’s barber shop; we walked in, and into'the back end; he said, ‘I haven’t carried a gun in a long time.’ I said, ‘What have you got on you now?’ and he drew a bottle out of his pocket and broke it; then broke two more bottles; I could smell whisky very plainly, corn whisky; the bottles were four to six ounce bottles. He did not have any gun on him; I then went to his house and found some whisky.”

The state rested, and the defendant asked the court to instruct' the. jury to return, a verdict of not guilty, which the court refused to do.

Nettie Selfridge, wife of the defendant, testified:

“I remember when Sheriff Duncan came to our house with a search warrant; I was at home with my four girls, there was no whisky there and there has never been any whisky at our house to my knowledge; I did not pour any whisky in the tub of dirty water.”

Bertha Selfridge testified:

“My age is 16 years; I live with my father and mother; I was at home when Sheriff Duncan came there; my father was not there at that time, there was no whisky on the place that I know of; Sheriff Duncan took away a fruit jar of dirty water.”

Nevada Selfridge testified:

“I am 15 years old; I go to high school; I was at home when the officérs came; they took a fruit jar of dirty water with them; they picked it up in the wash tub.”

E. W. Maples testified:

“I was running the barber shop when Sheriff Duncan and Barney Selfridge came in; I heard the breaking of glass on the cement floor in the back room; after they left I went back and could not smell any whisky there; I thought I heard one or two bottles break.”

The testimony of the defendant on his own behalf is as follows:

“I. was standing just back of my car; the sheriff called to me and said, ‘Come here; I have a warrant for you;’ we went into the barber shop, and I asked Mr. Maples to go on my bond; he said, ‘All right;’ we went into the back room; the sheriff said, ‘You have got a pistol on right now.’ I said, ‘I have not owned a pistol in 8 months; I have hair tonic in this bottle; I. have got another bottle in my left pocket, containing listerine for my tonsils;’ I pulled it out and he knocked it out. of my hand; I never did sell any whisky; I have never been charged with selling whisky before; I used to be a deputy sheriff; I did not have any whisky at my home.”

On cross-examination the defendant was ■ asked the following questions:

“Q. You remember last summer going out in Bill James’ tomato patch to dig up some whisky and Bill threw a gun on you? A. I went out there and he threw a gun on me.
“Q. What were you doing out there? A. I will tell you just the straight of it. The'little boy of mine was working in the garden patch; he left the shovel out there and I went out there to get the shovel, and Mr. James threw a gun on me and wanted to know what I was doing there?
“Q. Didn’t you dig up a bottle, and.you and Bill James take a drink? A. No, sir.
“Q. Did you have any out there? A. No, sir.
“Q. Well the truth is you have been hauling it around in that car the last six months? A. No, sir.
“Q. Never hauled a bit? A. No, sir.
“Q. Been' hauling whores around in it haven’t you?
“By the Court: Objection sustained.
“Q. Maples tell you he would go on your bond? A. Yes, sir; but I wanted to get some one else. It takes two, don’t it?
“Q. No, sir; you should know if you are going to run • for sheriff again. You didn’t have to get him to get another man? You were not about half drunk the day he arrested you? A. No, sir.
“Q. Hadn’t drank a drink that morning? A. No, sir; I had not.
“Q. I will ask you if you .are the same Barney Self ridge that swore out a warrant for ruining your daughter and then tried to swear out a warrant for another man for ruining your daughter?
“By the Court: Objection sustained.”

J. E. Martin testified:

“I work in Holly’s drug store; I remember Sel-fridge coming in there with a hair tonic prescription; I filled it; it was prepared not for a beverage, but for a hair tonic. It carried about 50 per cent, of alcohol; as I remember it was an 8 or 12 ounce bottle.”

On cross-examination witness was asked these questions:

“Q. You seen defendant hauling women around in that car at night?
“By the Court: Objection sustained.
“Q. You seen him hauling whores around in that car? Women you know to be whores?
“By the Court: Objection sustained.
“Q. You know he has been hauling whisky around in it, don’t you? A. No, sir.”

One of the grounds of the motion for new trial and assigned as error is that the defendant was prevented from having a fair and impartial trial by reason of the misconduct of the county attorney in asking improper questions on cross-examination of the defendant and of his witness Martin.

Obviously the questions asked were entirely improper, wholly irrelevant, and were calculated to prejudice the minds of the jury. The prosecuting attorney represents the entire people, including the defendant, and, while it is commendable to industriously secure and present all the evidence which tends to show the guilt of the defendant, it certainly will not be contended that it is fair on the part of the state to persistently interrogate witnesses as to matters immaterial and grossly incompetent, to the great prejudice of the defendant.

In Pickrell v. State, 5 Okla. Cr. 391, 116 Pac. 957, we said:

“Such conduct tends to destroy public respect for the prosecuting attorney’s office and invites contempt for the dignity of the court. A person accused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant, cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.”

And see Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101.

For the errors aforesaid, the judgment is reversed and the cause remanded for further proceedings according to law.

MATSON, P. J., and BESSEY, J., concur.


text:
    ARTHUR FANNING v. STATE.
    No. A-4171.
    Opinion Filed Dec. 31, 1923.
    Rehearing Denied April 12, 1924.
    (224 Pac. 359.)
    (Syllabus.)
    1. Homicide — Propriety of Instruction that Self-Defense not Available to One Provoking Assault. In a homicide case, where none of the several belligerent' parties were trespassers, and all at the beginning of the affray were in a place where they had a right to be, an ordinary instruction that one provoking a fatal assault cannot invoke the right of self-defense is proper.
    (a) Such an instruction should be qualified, where the doing of a lawful act provoked the difficulty, when the evidence warrants such qualification.

      2. Homicide — Instruction as to Real or Apparent Danger Sufficient. An instruction relating to real or apparent danger examined, and held sufficient.
    3. Trial — Use of Word “Slayer” Instead of “Assailant” in Instruction on Self-Defense Immaterial. The use of the word “slayer” instead of the word “assailant” held immaterial under the facts proved, considered with the other instructions given.
    4. Same — Instruction on Self-Defense Held not to Deprive Accused of Benefit of Lawful Conduct of Those Acting with Him. The instruction .admonishing the jury that if they found that the accused alone, or in concert with others, and not in his own self-defense, was responsible for the homicide, considered with the other instructions given, did not deprive the accused of the benefit of the lawful conduct of those acting with him.
    Appeal from District Court, Canadian County; Jas. I. Phelps, Judge.
    Arthur Fanning was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    J. I. Howard and A. M. Beets, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Arthur Fanning, plaintiff in error, here designated the defendant, was on the 11th day of June, 1921, in the district court of Canadian county, convicted of the crime of manslaughter in the first degree, for the death of Garnett Barker on December 24, 1920. His punishment was fixed at confinement in the state penitentiary for a term 7 years. From the judgment rendered on the verdict, he appeals to this court.

The record in this case is voluminous, comprising more than 1,000 typewritten pages. Both sides were represented by able counsel, and, considering the number of persons involved in the difficulty out of which this tragedy, grew, and the complex attending circumstances, the record is singularly free from error. The only complaint urged by the defendant is that the instructions of the court were insufficient and misleading.

In order that this assignment of error may be comprehended it will be necessary to make'a statement of the testimony at some length. This homicide and the death of Elmer Fanning at the same time were the culmination of ill feeling between Garnett Barker and his father, Beverly Barker, and their friends and employes on the one side, and, the. defendant and his brother, Clint Fanning, and their friends and employes on the other' side. At and near the scene of the homicide there were 7 men, armed with various kinds of weapons, among which were 3 shotguns, '2 or more pistols, and a double-bitted ax. Garnett Barker and Beverly Barker, his father, lived on farms adjacent to lands leased and cultivated by the defendant and his brother, Clint Fanning, located between two Barker farms. On this leased land there was about 30 acres of standing corn then being harvested by the Fannings, assisted by three neighbors. One-third of the com so harvested was to be delivered to one of the Barkers on the Barker premises. The one to whom this rent portion originally belonged had transferred his interest to the other Barker shortly before harvest time. During the crop season the Barkers and their employes passed back and forth by and through the Fanning cornfield, sometimes going through the field and sometimes skirting it on either side.

During the crop season and before the com was gathered some stock had broken into the cornfield and eaten or destroyed some of the corn. There was some question as to whether Beverly Barker or the defendant, Fanning, was responsible for the trespass of the stock in the corn. In any event some controversy arose between the parties with reference to that portion of the crop so destroyed. That matter had been adjusted between the parties, and no further trouble was had between them until about the 21st or 22d of December, 1920, two or three days before the homicide. At that time Garnett Barker, accompanied by a hired hand, Tom Womack, and Louis Barker, a cousin, came through the cornfield where the defendant was shucking com. Garnett Barker had an ax with him, and it is claimed by the defendant and his witnesses that the deceased threatened to chop the the defendant up with this ax; that, however, was denied by the other witnesses accompanying the deceased at that time.

On the night of the 23d of December, the night before the homicide, the defendant sent his brother, Clint Fanning, over to the home of Ed and Dave La Follette, who lived about a mile southeast of Arthur Fanning’s residence, to employ the two La Follettes to help shuck corn the next day, in order that the shucking might be finished before Christmas. At that time Arthur Fanning’s father, T. E. Fanning, was living about 20 miles east of the home of Arthur Fanning, and, as Arthur Fanning was preparing to leave the Barker neighborhood as soon as the corn crop was gathered, he had been hauling his part of the corn crop to his father’s place. On the day before the homicide he had returned from his father’s, where he had delivered a load of the corn, accompanied by his brother-in-law, a Mr. Phillips, and by his brother, Elmer Fanning, who was badly crippled and unable to perform manual labor.

On the morning that the homicide occurred, after the chores had been done by Garnett Barker, Louis Barker, and Tom Womack, they were ready to leave and go . back to Beverly Barker’s about 10 o’clock. Garnett Barker went out and procured a stick which he measured and cut to the length of 26 inches, with the avowed intention of measuring the wagon box of the defendant, Arthur Fanning. He also procured a .38 special Colt’s revolver which he owned, and asked his wife where the shells for the revolver were kept. She refused to disclose their whereabouts to him, and urged him not to take his gun with him. He replied that he was going to take the gun with, him for protection, and that he was going to protect himself. His wife still refusing to show him where the shells were, he made a seareh for them and found them in another house some distance from the main residence. He loaded his revolver and put two or three of the shells in his pocket. Then either the deceased himself, or one of the parties with him, procured a double-bitted ax, and with these weapons and the 26-inch stick the deceased, Tom Womack, and Louis Barker left the home of the deceased and started for the home of Beverly Barker, passing through the Fanning cornfield.

At about this time Clint Fanning, brother of the defendant had left the cornfield with Ed La Follette’s wagon loaded with corn to take the same to the home of Garnett Barker, as part of his share of the crop. He was accompanied by Elmer Fanning, the crippled brother. When the deceased, Garnett Barker, was some 75 or 100 yards north of the road he or his companion saw Clint Fanning coming down the road with the load of corn, and the deceased and his companion turned and walked back down to the road, where they met Clint and Elmer Fanning. Some conversation occurred there, the substance of which was that the deceased asked Clint Fanning when they would finish, and he stated he thought they would finish by noon, or in time to get home for Christmas. Then, the deceased gave some directions about putting a board across the window of the - crib to keep the corn from rolling out, and with his companion started up the road in the opposite direction from which Clint Fanning had come.

At this time Garnett Barker was armed with the .38 caliber revolver. After he and his companion had proceeded .up the road perhaps 100 yards, according to the evidence, Elmer Fanning, the crippled brother, asked Clint if he saw the gun in Barker’s pocket, and Clint stated that he did. Without saying anything further Elmer Panning got •' off the wagon and started back up the road following the deceased and his two companions.

At this time 17 or 18 rows of corn remained to be gathered; the rows being less than a quarter of a mile long. Arthur Fanning was shucking corn at- the south end of the rows and just north of the road; Dave La Follette was shucking about 100 yards north and along the west side of the cornfield; Ed La Follette, his brother, was shucking almost opposite him on the other side of the corn row — each shucking north, one being right-handed and the other left. • The deceased, Garnett Barker, continued up the road, to the east until he came to the wagon where Arthur Fanning was shucking corn. There was some talk between the 'two men at Fanning’s wagon, in which Barker asked Fanning when they would finish, and Fanning stated that he did not know. Barker asked him if he had any idea and he said, “Not a bit,” some of the witnesses testifying that he said, “Not a damn bit.” Barker then remarked that that was rather a short way to answer a man, and Fanning said that was the way he ought to be answered on account of the way he had talked to him a few days before. Barker then remarked, “If that is the way you feel about it, let it go,” and he and his companions started on north in the cornfield in the direction of where the La Follettes were shucking corn.

When Garnett Barker, Tom Womack, and Louis Barker reached the point where the La Follettes were shucking corn, some greetings were had and almost immediately Ed La Follette and Tom Womack engaged in a fist fight over some grievance, real or fancied, on the part of Ed La Follette against Tom Womack. At that time the others present, Garnett Barker, Dave La Follette, and Louis Barker, did not take any part in the fight. Ed La Follette was getting the best of the fight, and Tom Womack started running up the the hill. The La Follettes testified that Garnett Barker then told Womack in substance that he need not run and to stay and fight if he wanted to, as nobody was afraid; that about the time Womack started to run away Dave La Follette asked the deceased what he had been saying to Arthur Fanning about them. Barker replied, “Nothing,” and asked who said that he had. Dave La Follette said that Arthur Fanning had, and Barker answered that Fanning was a liar.

There were four eyewitnesses to the homicide, in addition to Beverly Barker, who claimed to have been a witness; the witnesses being Tom Womack, Louis Barker; Ed and Dave La Follette. Arthur Fanning had a 12 gauge shotgun in his wagon; Ed La Follette had a double-barreled shotgun in his wagon;, and Clint Fanning had one in his wagon — the various witnesses testifying that it was their practice to carry these shotguns during the corn gathering season for the purpose of killing rabbits, quail, or other game that they might run across.

During the fight between Tom Womack and Ed La Fol-lette and the controversy between Dave La Follette and Garnett Barker, Arthur Fanning had walked up from where he was shucking corn, carrying his shotgun in his right hand, grasped near the center. When he reached the scene of the trouble the evidence is somewhat contradictory as to just what occurred, but Arthur Fanning ordered Garnett Barker off the premises, and Barker accused him of drawing a gun on him. The evidence is somewhat conflicting as to just what was said, but, analyzed most favorably to the defendant, it is to the effect that Fanning handed the gun to Dave La Follette, who was standing hear him, and that Dave La Follette set it over against Ed La Follette’s wagon. The witnesses all agree that the shooting then commenced almost immediately. Elmer Fanning, the crippled brother, who had gotten off the wagon of Clint Fanning, had come up at that time, but no witness testified to having seen Elmer Fanning until he was on the scene of the trouble and just behind the defendant, Arthur Fanning. In any event the shooting started, the state’s witnesses testifying that Elmer Fanning fired the first shot, being followed- almost immediately by a shot from Garnett Barker; and the witnesses for the defendant testifying that Garnett Barker shot first and that Elmer Fanning shot almost immediately following and about the time that Garnett Barker fired the second shot. After that the shooting was fast and furious, so that it is hard to determine who fired each shot and the order in which the different shots were fired. Garnett Barker was shooting a .38 Colt’s special double-action gun; Elmer Fanning was shooting a .32 Colt’s on a .45 frame, single-action, but he shot almost as fagt as Garnett Barker, as he held the gun in one hand and knocked the hammer back with the other hand. Near the close of the shooting Arthur Fanning fired the shotgun, striking Garnett Barker in the shoulder, but not inflicting a fatal wound — the evidence of all the parties showing that the bullet from Elmer Fanning’s pistol caused Barker’s death. As the shooting between Garnett Barker and Elmer Fanning proceeded, Barker advanced towards Elmer, and they both dropped about the same time; Barker dying almost immediately, and Fanning about an hour thereafter.

The shotgun wound inflicted by the defendant was not a fatal wound, but the state claims that defendant was acting in concert with and in law was a principal with his deceased brother, who fired the fatal shot that killed Garnett Barker -at about the same time that he (Elmer Fanning) fell mortally wounded by a. shot fired by deceased.

Defendant claimed justification on the grounds of self-defense, and urges that under the facts as shown in evidence the court erred in his instructions to the jury on that issue. Particular complaint is made of instruction No. 13, which was as follows:

“You are further instructed that the definition which the court has given you for justifiable homicide presents for your consideration what is termed the law of self-defense, and in this connection you are instructed that a person who, without having sought the difficulty and without having voluntarily entered into it, is assaulted or threatened with an immediate assault by another, with such means and under such circumstances as would cause a reasonable person in like situation to believe that he was in danger of being killed or of receiving great bodily injury at the hands of the other, has the right for the preservation of his own safety to use such force and violence upon his assailant as would reasonably appear to the slayer to be necessary to avert the threatened danger, even if it involves the taking of human life. And in such ease, if the assaulted person is in a place where he has a right to be and the danger is not of his own seeking or willfully provoked by him he is not required to flee from it, but he may resist it with adequate and necessary force until he is safe.
“The law of self-defense, however, is emphatically a law of necessity; it does not imply the right of attack, and cannot avail in any case where the difficulty is sought for or induced by the slayer by any willful act of his own, or where he voluntarily enters into it, or of his own free will enters into it, no matter how hard he may be pressed or how great his danger may become during the progress of the difficulty, unless he in good faith abandons the contest and either by word or act makes that fact known to his adversary. If, however, the original aggressor does in good faith abandon the contest and does by word or act make that fact known to his adversary, and if thereafter his adversary continues the combat, then such adversary himself becomes an aggressor and thereafter the original aggressor has the right of self-defense.
“A homicide is not justified on the grounds of self-defense, however, unless it is actually or apparently necessary to save the life of the slayer, or to prevent his receiving some great bodily injury at the hands of the deceased. The apprehension of no other danger will justify the resort to so extreme a measure as the taking of human life.
“It is not necessary, however, to the plea of self-defense that the slayer’s danger shall be actual or real; all that is necessary is that the slayer, from his standpoint, under all the facts and circumstances then existing or by him honestly believed to be true, has reasonable cause to .believe and does believe that he is in such pressing danger. The slayer’s belief of that fact, however, must be a reasonable one; that is, he must have reasonable cause for such belief, and such belief, however honest it may be, if the facts and circumstances then existing and known to the slayer or honestly believed by him to be true, furnish no reasonable cause would constitute no justification for a homicide; for men do not hold their lives subject to the unreasonable fears or excessive caution of others.
“A reasonable cause for such belief is such an overt act or demonstration made by the deceased at the time of the shooting as, considered in the light of all the facts and circumstances then existing and known to the slayer, or by him believed to be true, would create in the mind of a reasonably prudent person in like situation an honest belief that the deceased then and there intended to kill him or inflict great bodily injury upon him, and that it was necessary to kill the deceased in order to avert such threatened danger to himself. What acts or demonstrations do or do not constitute such reasonable cause and whether or not any were made are questions of fact to be determined by the jury, upon a consideration of all the facts and circumstances in evidence before you. And, in this connection, you are instructed that if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Arthur Fanning, acting alone or in connection with Elmer Fanning, Dave La Follette, and Ed La Follette, or either of them, said defendant participating therein, shot the said Garnett L. Barker and thereby killed Mm, but should further believe that the deceased, Garnett L. Barker, without the defendant, Arthur Fanning, having sought the difficulty or having voluntarily entered into it or having willfully provoked it, assaulted the defendent or attempted to assault the defendent in such manner and under such circumstances as would cause a reasonable person, situated as was the defendant at that time, to honestly believe that he was in immediate danger of being killed or of receiving great bodily injury at the hands of the deceased, and that the defendant under such circumstances, for the purpose of averting such apprehended injury to himself and not in the spirit of malice or revenge, inflicted the fatal wound upon the deceased, having reasonable cause to believe and honestly believing that it was necessary to him to act for the preservation of his own safety, then and in that event the killing would be justifiable, and it would be your duty to acquit the defendant.”

Defendant earnestly contends, at great length, that this instruction is faulty because it fails to define, as a matter of law, when and under what circumstances the defendant, under the evidence, would be at a place where he had a right to be; and that the question of provoking the difficulty was incorrectly stated. Defendant says the language used, “You are instructed that a person who, without having .sought a difficulty and without having willfully provoked it, or voluntarily entered it, is threatened with immediate assault,” has certain rights, etc., would be appropriate if the evidence in the case disclosed that the defendant, with an intent and purpose and with a premeditated design to take the life of Gar-nett Barker, willfully and unlawfully entered into a controversy with him and provoked a difficulty for the purpose of consummating that design; that Arthur Fanning ordered the deceased to leave the premises and stop the fussing, and that he had a right to do this and had a right to use such force as was necessary to accomplish that purpose, so long as it did not amount to the taking of human life or inflicting serious bodily harm upon the trespasser. Defendant claims that by this instruction the court not only deprived him of the benefit of any good intent he might have had in going to the scene of this difficulty, but did not tell the jury what his actual rights were. In support of this contention defendant cites the holdings of this court in the cases of Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129, and Turnbull v. State, 8 Okla. Cr. 465, 128 Pac. 743.

It may be conceded that an ordinary instruction to the effect-that one provoking a difficulty cannot invoke the plea of self-defense might be erroneous, where the doing of a lawful act provoked violence on the part of another. In such ease the lawful provoking of another might not operate to deprive the aggressor of his right to self-defense, .but, as we analyze the testimony before us, this is not such a case. The facts here indicate that this was in a large measure a mutual combat, where all of the parties were armed and in a belligerent state of mind, ready and willing to resort , to violence, and that the combatants on both sides were acting in concert with others. We think to have instructed the jury as requested upon this point, under the facts here, would have amounted to a comment upon the weight of the evidence — a vice to be avoided.

While it is the duty of the trial court to give instructions upon every clean-cut issue of law, such courts will not be required to. give instructions on speculative theories of law that may be deduced from some collateral phase of the testimony. To do so would in many instances tend, to confuse rather than enlighten the jury upon the real, substantial issues involved. We think the instruction as given, standing alone, and in connection with the other instructions given, fairly stated the law as applied to the evidence.

The case of Gibbons v. Territory, supra, is not in point, because there the accused was an officer, on trial for murder growing out of an effort to.discharge ¿n official duty, under which circumstances an ordinary • instruction that one who provokes a difficulty will be deprived of his right to plead self-defense would not be a true statement of the law. The situation in that case was entirely different from that disclosed by the facts here, where all of the parties originally were at a place where they had a right to be, and the right of self-defense, if any there was, grew out of subsequent happenings. And the case of Turnbull v. State was one in which the assault grew out of a lawful act of the accused, and the court instructed the jury that, if they believed that the accused provoked the violence or brought it on by any willful act of his own, then they were not authorized to acquit him. Under the circumstances there the phrase should have read “by any unlawful act of his own” because the provoking of a difficulty by a lawful act would not deprive one of the right to invoke the plea of self-defense. The language used in the instruction here under consideration related to a different state of facts and is of different import.

It is urged that the court should have instructed the jury, defining as a matter of law under what circumstances the defendant is in a place where he has a right to be. Under the facts as shown in evidence we see no necessity for such an instruction. The defendant and those assisting him in shucking corn had a right to be where they were; the landlord and those employed by him were rightfully there to see that a proper division of'“the crop was made and to instruct the tenant as to the disposition of the landlord’s portion of the grain. The jury knew all this. That fact was so apparent that it was not, in our judgment, necessary to elaborate upon'that phase of the evidence. The question of trespass was not involved, as in the following eases cited by defendant: Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923; Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375; Armstrong v. State, 11 Okla. Cr. 159, 143 Pac. 870; Swan v. State, 13 Okla. Cr. 546, 165 Pac. 627.

The case of Brandley v. State, cited by defendant (14 Okla. Cr. 479, 173 Pac. 661), is not in'point because in the instruction there given what was said about the defendant’s right to be where he was when the difficulty arose was couched in terms calculated to lead the jury to believe that the defendant was a trespasser, when as a matter of fact he had a right to be there, which is not true of the language used here.

It is further urged that this instruction is faulty because it nowhere tells the jury that they “must place themselves in the position of the defendant and view the situation from his standpoint.” We think the following language used by the court is equivalent in meaning:

“It is not necessary, however, to the plea of self-defense that the slayer’s danger shall be actual or real; all that is necessary is that the slayer, from his standpoint, under all the facts and circumstances then existing or by him honestly believed to be true, has reasonable cause to believe that he is in such pressing danger.”

Defendant also complains that the word “slayer” was improperly used, for the reason that the evidence shows that the- shot fired by the defendant was not the shot that caused the death of the deceased. Considering this point, together with the instruction relating to accomplices, we hold that the use of the word “slayer” instead of the word “assailant” was immaterial.

Defendant next objects to instruction No. 14, as follows:

“You are further instructed that if you find and believe from the evidence in this case beyond a reasonable doubt that the defendant, Arthur Fanning, in this county and state, on or about the 24th day of December, 1920, acting alone or in connection with Elmer Fanning, Dave La Follette and Ed La Follette, or either of them, not in his real or apparent necessary self-defense, but unlawfully and with a premeditated design on his part to effect the death of the said Garnett L. Barker, did shoot or aid and abet in the shooting of said Garnett L. Barker, thereby killing him, then you find the defendant guilty of murder, as charged in the information.”

Defendant says that this instruction does not give him the benefit of any lawful act on the part of those acting with him. In other words, it is claimed that there’is evidence that Elmer Fanning and the two-La Follettes were also acting in their own necessary self-defense. Assuming this to be true, we must remember that this was an instruction on the issue of murder, and that the jury found the accused guilty of manslaughter; thus eliminating the elements of murder.

The defendant claims self-defense for shooting a person who prior to that time had been mortally wounded by another. The language used in the instruction that, if the defendant did so act alone or in concert with the others, or either of them, “not in his real or apparent self-defense, but unlawfully and with a premeditated design,” is Sufficient to apprise the jury that, if these three were justified in doing what they did, then the guilt or innocence of the accused would rest on his act of aggression, or his want of aggression, measured by his own motives alone. This is mostly a matter of rhetorical construction rather than a construction of law, upon which a citation of authorities would be useless. In construing this and the preceding instruction examined we must bear in mind that both must be construed together in connection with the instructions on manslaughter and the other instructions given.

Upon. consideration of the whole case, we think the instructions were fair to the defendant, and that he otherwise had a fair trial, and that the penalty of 7 years’ imprisonment imposed was justified.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.