author: COLLIER, Special Judge.

text:
    WHITE M. WAIDE v. STATE.
    No. A-2317.
    Opinion Filed February 21, 1917.
    (162 Pac. 1139.)
    1. ¿¡VIDENCB — Records. In a .trial for embezzlement by a guardian of tlie funds belonging to bis ward’s estate, tlie records of •tlie county court showing application by su'ch guardian for an order of sale of the lauds belonging to t}ie ward, the granting of an order of sale, a sale of such lands, report of such sale, and tlie 'confirmation of such sale, together with a neport My such guardian of the receipts and disbursements of said funds, may be legally admitted in evidence for 'the purpose of showing that the money alleged to have been embezzled came into his hands as such guardian.
    2. EVIDENCE — Sufficiency of Evidence — Confessions. A conviction of an offense cannot be properly had upon the extrajudicial 'confessions of a defendant, entirely independent of any other evidence of the corpus delicti.
    3. EMBEZZLEMENT — Embezzlement by Guardian — Proof. On a trial of a guardian for embezzlement, in addition to proving beyond a reasonable doubt the relation of guardian and ward, and that the said guardian received said funds belonging to his ward’s estate, a legal conviction cannot follow, unless it also be proved beyond a reasonable doubt that the guardian did not have the funds which he is charged to have embezzled, or that he has fraudulently misappropriated them.
    4. EVIDENCE — Transcript of Testimony by Accused. On the trial of a guardian for embezzlement of funds belonging to his ward’s estate, the transcript of an examination of such guardian in
      the -county court as to the management by the said guardian of his ward’s estate is extrajudicial, and such transcript cannot legally be -admitted in evidence on the trial of -the defendant, except in connection with other independent, evidence tending to support -the corpus delicti of the offense charged.
    5. NEW TRIAL — Jury—Documentary Evidence. While the jury may legally have and consider all the documentary evidence admitted on the trial of a cause, it. is a sufficient ground to- support a motion for a new 'trial that the jury improperly had before them and 'Considered a writing containing incriminating statements against the defendant as it.o the offense charged, which said written statement was not in evidence in the cause.
    6. TRIAL — Evidence—Direction of Acquittal. Where in a criminal case -the evidence is insufficient to sustain a conviction, in that, the evidence is insufficient to show the corpus delicti of the offense charged, it is reversible error for the trial court, upon the request of the defendant, to refuse to direct, the jury to acquit the defendant.
    7. APPEAL AND ERROR — Reversal—Evidence. Where a conviction is had without legal evidence of the corpus delicti of the offense charged, the judgment of conviction will be reversed on appeal.

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

    White M. Waide was convicted of embezzlement, and he appeals.
    Reversed and remanded.

      Blanton & Andrews and Wayne H. Lasater, for plain-' tiff in error.

      S. P. Freeling, Atty. Gen., and'' Jno. B. Harrison, Asst. Atty. Gen., for the State.
   COLLIER, Special Judge.

In this case White M. Waide, hereinafter designated defendant, was informed against in the district court of Garvin county for the offense of embezzlement, and convicted and sentenced to imprisonment in the penitentiary. The embezzlement alleged is of funds belonging to the estate of his ward which came into his hands as guardian.

The uncontradicted evidence is that said defendant, as guardian'of said ward, made application for the sale of the lands belonging to his said ward to the county-court of Garvin county for the stated purpose of investing the proceeds of said sale at interest, that the sale of said lands was ordered made, reported as made, and such sale confirmed by the court, and the deed executed for said lands as shown by the records of said' court, which were admitted in evidence against the objection and exception of the defendant, and that after the execution of the deed to said lands arrangements were made by said guardian whereby a loan on said lands was negotiated for $2,800, and the proceeds-of said loan went into the hands of said guardian. The defendant was cited by the county court to make> a report, and the judge of said county court sought to examine him in regard to his ward’s estate. The said defendant declined to answer, was committed to jail, sought release by habeas corpus, which was refused, and was released from jail upon the understanding that he would answer questions and make a report of his transactions as such guardian.

Thereafter the said defendant filed in said county court a report, admitting receipt by him as such guardian of $3,200 belonging to his ward’s estate, $400 of which said amount was received for rent on lands belonging to his ward prior to the sale of said lands, and asking to be credited with expenditures in behalf of his ward in a sum in excess of said $3,200 reported as having been received by him as said guardian, but no vouchers were filed with said report in support of the said expenditures claimed, and the evidence does not show t^t said expenditures were in fact made.

The further uncontradicted evidence is that after the filing of said report the county judge again sought to interrogate the defendant in regard to his actions as such guardian, and the defendant declined to answer part of the questions propounded to him upon the ground that the answers thereto might incriminate him. This examination was very voluminous and many questions answered by the defendant, but the only material information so far as this cause is concerned which was elicited by said examination was the admission by the defendant that he, as guardian, had received $3,200 belonging to the estate of his ward. The said examination was taken down by the stenographer of the court, and a transcript thereof admitted in the trial of this 'cause, against the objection and exception of the defendant and upon the ground that said confessions made to the said county judge were involuntarily made and the admission of said transcript of said questions propounded and the answers of the defendant thereto was duly excepted to.

There was further uncontradicted evidence that the defendant had not been removed as such guardian, nor any decree rendered by the county court upon said report filed by him of his receipts and disbursements as such guardian, nor any demand for payment made upon him by any one legally authorized to do so for the said money alleged to have been embezzled, or any part thereof, which had not been properly responded to. There is no evidence whatever in the case as to any disposition by the defendant of the said money alleged to have been embezzled or any part thereof. The defendant did not testify in his own behalf. There was ojjppr evidence in the case, but, in the view we take of the cause, we deem it unnecessary to recite the same.

At the close of the evidence the defendant asked the court to direct the jury to return a verdict of not guilty, which request was refused and duly excepted to.

The jury returned a verdict of guilty, and thereupon the defendant filed a motion for new trial upon several grounds, including the ground that the jury had considered the written objection filed by the guardian ad litem, to the report filed by the defendant of his receipts and disbursements as such guardian, which said objections contained statements detrimental to the defendant as to the offense charged, which objections had not been placed in evidence in the trial of the cause, and upon the ground that the evidence was insufficient to sustain the verdict of the jury. In support of said motion defendant offered evidence that the guardian ad litem, of said minor appointed by the county court had filed in the'court an objection to the report filed in said court by the said guardian of his receipts and disbursements, and that the said objections to said report contained damaging statements in connection with the offense charged; that said written objections of the guardian ad litem, to said report of defendant were not put in evidence in the case, but in some unknown way the said written objections went into the hands of the jury and were considered by them. The court overruled the motion for a new trial and sentenced the defendant in accord with the verdict rendered, to which the defendant duly excepted. To reverse the judgment rendered, upon the conviction had, this appeal is prosecuted.

Very many errors are assigned, but the only errors argued and insisted on in the brief of the defendant and the oral argument of the case which we deem necessary to review are as follows:

. (1) Refusal of the court to direct a verdict in favor of the defendant. ■

(2) Admitting in evidence a transcript of the examination of the defendant in the county court upon the investigation of the management by the defendant of the estate of his said ward, upon the ground that the same was not a voluntary confession by the defendant.

(3) Introduction in evidence of the records of the county court of the application ■ of the defendant for tlie sale of the lands of his said ward, order authorizing said sale, the report of salé, confirmation of the sale, and the report of the defendant of his receipts and disbursements as such guardian.

(4) Overruling motion of defendant'for a new trial.

In this «case it is essential to the legal conviction of the defendant of the offense of the embezzlement charged, that the money alleged to have been embezzled belonged to the estate of his ward, and came into his hands as guardian of said ward, and that the said money was misappropriated or was used in some way other than in the due and lawful exercise of his trust as guardian. Section 2673, Rev. Laws 1910.

We are of the opinion, and so hold, that the trial court did not err in admitting in evidence the records of the county court showing the application of the defendant for the sale of the lands of his ward, the order to sell the same, the report of the sale of said lands, and the confirmation of said sale, together with the said report of the defendant of his receipts and disbursements as such guardian, and that by said records it was made to appear beyond a reasonable doubt that the money alleged to have been embezzled came into the hands of the guardian for the use of said ward, which money it was his duty not to convert to any purpose other than in the lawful exercise of his trust as such guardian.

The uncontradicted evidence also shows that no adjudication of said report was made by the county court, that the defendant was not removed as guardian, that no one having authority so to do ever made a demand on the defendant for the payment of said funds or any part thereof, and that the defendant did not properly respond to such demand if made. Indeed, so far as is shown by any evidence in the case, it does not appear that the money alleged to have been ambezzled, or any part thereof, was in any manner used or disposed of by the defendant, and the confession insisted upon by the state, as contained in the said transcript of the examination of defendant by the county judge, was not properly admissible in evidence, even if there was any evidence therein tending to show the commission of the crime charged, until other evidence than such confessions had been introduced of the corpus delicti.

Defendant did not testify in his own behalf, and, so far as the evidence in this case discloses, all the money alleged to have been embezzled by him may have been* at the time of his trial and conviction, in defendant’s hands or on deposit in some safe place subject to his order.

The said examination of the defendant by the county judge was very voluminous,' but, so far as we have been able to understand the same, there was no evidence therein contained tending to support the offense of embezzlement, other than the admission of the defendant of receiving the money which he is charged with embezzling, and this receipt of said money by him is by other independent evidence in the case shown beyond a reasonable doubt.

The contention- made by the defendant that the statements made by him- at his examination by the county court were not voluntary we think well taken, and that the court committed reversible error in admitting the transcript of said examination in . evidence. The statements made by defendant at his said examination in the county court were extrajudicial confessions, if confessions at all, and not admissible in evidence in the absence of other independent evidence of the corpus delicti of the offense charged. Choate v. State, 12 Okla. Cr. 560, 160 Pac. 34.

“An extrajudicial confession .is one made out of court, whether to an official or a nonofficial.” (Words and. Phrases, vol. 3, p. 2625.)

A conviction based upon a confession unsupported by some independent evidence that the crime has been committed cannot be upheld. Leola Marston v. State, 9 Okla. Cr. 275, 131 Pac. 716.

The doctrine, as stated by Judge Brett in the well-considered case of Choate v. State, supra, that a conviction cannot be predicated alone upon extrajudicial confessions without any independent proof of the corpus delicti is well settled, and the authorities cited by him support his assertion that this rule is almost universal. Indeed, said rule of law has been so long upheld that it is not open to controversy.

The evidence shows beyond a reasonable doubt that the money alleged to have' been embezzled, or at least a part of it (the sum of $400), came into the hands of the defendant as a trust fund belonging to the estate of his ward, and if in fact the money had been embezzled by the defendant, it was only necessary, to complete the legal evidence of the corpus delicti of the crime charged, to introduce proof showing by some fact, positive or circumstantial, that the defendant did not have the funds which had come into his hands as guardian, or that they had been dissipated or fraudulently misappropriated; but there is no evidence in the case to show that at the time of his conviction the defendant did not have the money on hand or had misappropriated the same. It follows that the corpus delicti of the offense charged was not legally proven, and the tria] court committed reversible error in not directing a verdict of acquittal as requested by the defendant. Choate v. State, supra.

While section 5912, Rev. Laws 1910, provides that the jury may have in the trial of a cause such documents as have been received in evidence in the case, certainly it does not authorize the jury to have written statements incriminating the defendant which have not been put in evidence, and it was therefore improper that the jury had and considered the objection of the guardian ad litem to the report made by the defendant. It may not be improper to add here that prosecuting officers should see that when papers are being delivered to the jury no improper documents are included therein. The said written objection of said guardian ad litem to the report filed by said defendant not having been introduced in evidence in the cause, it was extremely prejudicial to the defendant for it to be considered by the jury, and in our opinion was sufficient, together with the failure to legally prove the corpus delicti, to entitle him to a new trial, and accordingly the court committed prejudicial error in overruling the defendant’s motion for a new trial.

In the case of White et al. v. State, ante, p. 76, 162 Pac. 232, it is said:

“While it is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it.”

In said case of White et al. v. State, Presiding -Judge Doyle said:

“The performance of this duty, on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the- legal presumption of innocence to which every one is entitled who is put upon his trial for an offense” — citing Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271.
“Under our Procedure Criminal, section 5937, Rev. Laws 1910, a new trial shall be granted ‘when the verdict is contrary to law or evidence.’ Under this provision the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand is imposed upon the trial court in the first instance, and on appeal upon this court.” (White et al. v. State, supra.)

While this court is committed to the doctrine that it will disregard technicalities and harmless errors, it will not permit a conviction to stand which is had, as in this, case, by a violation of the well established rules of la\y.

“Where in a criminal case the evidence is insufficient to sustain the conviction, in that the evidence is insufficient to show the commission of the offense charged, the judgment of conviction will-be reversed on appeal.” (Leola Marston v. State, 9 Okla. Cr. 275, 131 Pac. 716.)

There are very many errors assigned which we deem unnecessary to review, as the errors pointed out must work a reversal of this cause.

To the county judge is committed the general supervision of the estates of minors, and when the defendant declined to answer questions propounded to him concerning the condition of his ward’s estate, upon the ground that they might incriminate him, there was ample ground for the removal of this guardian and the appointment of his successor, and for a demand upon the defendant for the funds, which had come into his hands as. such guardian. If this had been done, though a demand’ for the funds is not essential as the misappropriation’ of the funds may be otherwise shown, and the defendant had failed to respond to such demand, such evidence would have completed the necessary evidence of the corpus delicti of the offense-charged; while, on the other hand,, had the defendant properly responded. to a demand for said trust funds which had come into his hands as such guardian, this trial would have been avoided and the interests of the minor properly protected. It is to be regretted that the county judge did not1 properly view the situation and act accordingly.

The- cause is reversed and remanded.

ARMSTRONG and BRETT, JJ., concur.

Note. — One of the judges of this court, Hon.. THOMAS H. DOYLE, having been disqualified, and this-fact having been duly certified to Gov. R. L. Williams, he. thereupon appointed Hon. WILLIAM A. COLLIER as special judge of the Criminal Court of Appeals for the trial and determination of this case. Judge COLLIER having duly qualified” as special judge,, the case was submitted upon oral argument and briefs by both parties.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    CHARLIE MILLER v. STATE.
    No. A-2397.
    Opinion Filed February 26, 1917.
    (163 Pac. 131.)
    1. CRIMINAL LAW — Trial—Conviction. Tbe general rule is that when a denfendant is put upon trial for one offense, he is to be ■convicted, if at all, by evidence which shows that he is guilty of that offense alone.
    2. EVIDENCE — Other Offenses — In General. Generally speaking, evidence of other ©rimes is competent to 'prove the specific crime charged when it tends to establish: First, motive; second, intent; third, tihe absence of mistake or accident; fourth, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; fifth, the identity of the person charged with the commission of the crime on trial.
    3. SAME — Robbery. Evidence of another separate and distinct robbery, committed the preceding night, by the defendant upon another person, in the same neighborhood, in much -the same way, is not admissible in evidence 'against one who is being ¡tried for robbing a pedestrian on the street in a city by pointing a pistol at him. Such is not an exception to the rule, that evidence of matters other than those changed in the information are admissible. It is only when the testimony as to the separate offense will have some tendency to prove the offense charged in the information that it is admissble. It mus'li, therefore, hare some logical connection with the offense charged.
    4. EVIDENCE — Self-Disserving Statements — Duress. When a prisoner is compelled by duress to make self-disserving statements, such statements cannot be put in evidence against him.
    5. SAME — Statements of Prisoner — Voluntary Character. To render statements made by a prisoner admissible, they must be entirely free and voluntary; that is, must not be abstracted by any sort of threats or violence, nor obtained by any direct or implied promises. It is not important to determine whether they amount to a confession of guilt, or merely declarations of fa«t tending to show guilt.

      Appeal from District Court, Muskogee County. Fred P. Branson, Judge.

    Charlie Miller was convicted of robbery, and he appeals.
    Reversed and remanded.
    The plaintiff in error, Charlie Miller, was tried and convicted on an information charging him with having robbed one W. J. Orall of 42 cents, and he was sentenced to imprisonment in the penitentiary for the term of ten years. He appealed by filing in this court on February 9, 1915, a petition in error with case-made. The evidence in the case, briefly stated, is as follows:
    W. J. Orall testified that about 11:30, Sunday night, June 28, 1914, as he was on his way home, he met a man in the 400 block on East Broadway, Muskogee, who asked for a match, and then threw an automatic, in his face, and said, “Throw up your hands,” and took from him 42 cents, consisting' of a quarter, a dime, a nickel, and two pennies; that he then went on home and telephoned the police station, and about 20 minutes later the officers appeared with the defendant, and he told them the man who robbed him “was just about the same size”; that they showed him a battered penny which he identified as one of the pennies taken from him by the robber; that he did not remember where he got the penny.
    Ed Davidson testified that in answer to a telephone call saying there had been a holdup on East Broadway, he and Clark Compton left the police statiqn in a car for the place named, and at the corner of D. and Okmulgee streets they picked up the defendant, and on searching him found 42 cents in money and a gun.
    D. C. Hughes testified that they put the defendant in the patrol and took him to the station; that he put the 42 cents in an envelope, and sealed it (he produced the pistol and the envelope) ; that the defendant made a number of statements, first saying that he was from Joplin, Mo., where he had worked in the coal mines eight or nine months and that a week .before he left there and came to Muskogee; that witness then asked him where he spent the evening and he said he went to the city park early in the evening; that later, after taking him out the second time, he said that he had been to a show on Broadway, and went to the park after the show was out; that later on he said that he had not been working at Joplin, but had been in Kansas City, and came by way of Joplin, and there bought the gun; that witness asked him -what time he left Joplin, and he said, “Friday, and got into Vi-nita Saturday evening, and rode the blind from Vinita to Wagoner”; that witness asked him why he did not buy a ticket and he said, “I only had 40 cents and wanted to save my money”; that witness asked him where he got the pennies and he said he did not know; that he first said that his, name was Webb, and finally said his name was Charlie Moore, and that he had worked in a restaurant on Second street, and had a brother working at the Katy Hotel.
    On cross-examination Hughes testified ■ in part as follows:
    “Q. Now, what did you do when you got him to the station? A. We searched him and taken him in the room ■and talked to him. Q. Where? A. The room that Compton and Robbins have — his private room. Q. What did you do there? A. Talked to him, and asked him where he had been, and got the different' statements. Q. Mr. Hughes, were you in the room all the time Clark Compton and Robbins was in there? A. No, sir. Q. Didn’t you see the officers strike this defendant while you were there? A. No, sir. Q. Didn’t you help to punish him in there physically? A. No, sir. Q. To refresh your memory, didn’t you get hold of his arm and twist it up so he suffered pain? A. No, sir. I only taken hold of his arm one time, and' got him in the patrol, and he said something — and I said ‘You are the dirty son of a bitch that has been doing this work,’ and he throwed up his arm and said, ‘Don’t you call me a son of ;ia bitch,’ and then I caught his arm and gave him a half Nelson. Q. You think the officers should talk that way? A. I don’t know. That depends ori what kind of a person you are talking to. Q. So you tell this jury that you said .to him that ‘You are the God damn son of a bitch that has been doing this robbing’? A. That is the statement I made. I don’t know whether I said ‘God damn’; I believe I said ‘son of a bitch.’ Q. You saw no one strike him? A. No, sir. Q. You were not there all the time? A. No, sir; I was not.”
    Earl Smith testified that he saw the defendant on Saturday night preceding the Sunday night that Mr. Orall was robbed on Dayton street. Against the objections 1 of the defendant he was permitted to testify as follows:
    “When I saw him he was standing up right by the shrubbery .and under a catalpa tree on the south side of the high school. Q. What did he do? A. He threw a gun on me and told me to put my hands . up. Q. What part of the .body did he point to? A. Just above the breast here; right middle ways. Q. Did you throw up your hands? A. Well, at first I told him I had only about 30 cents, if you want that I will give it to you, and he said, ‘Put them up,’ and I put them up. I turned around, and he walked on behind me and held his gun on me. Q. What kind of a gun did he have? A. Automatic, I judge — about a 32 or 38 in size. Q. Did he take your money? . A. Yes, sir. Q. How much? A. A dollar — 95 cents or a dollar, or something. Q. After that what did he do? A. Told me to go on down the street. Q. Did you go? A. Yes,- sir; I went. I stopped when I got six or eight steps, and saw that he had left my watch hanging on me, and I turned around and said, ‘Much obliged, old boy, for leaving me my watch, and he told me to go on down the street, and if I looked back again he would shoot my behind off.”
    Smith testified that he had looked at the defendant on Sunday night following and again on the day of the trial, and he was positive that the defendant was the man that robbed him.
    As a witness in his own behalf Charlie Miller testified that he was 19 years of age; lived with his parents at Westville, Okla.; that he had lived in Muskogee, and returned there the last time on Sunday morning, the 28th day of June; that he left Joplin the Thursday before and went to Neosho, Mo.; left there Friday night; arrived at Afton Saturday morning; went, from there to Vinita; left there Saturday night, riding on top of a coach to Wagoner; was put off at Wagoner about 1 o’clock Sunday morning, and caught a freight train to Muskogee; had breakfast at Jim Hallett’s restaurant; Hallett was an old acquaintance and in their conversation he told him that he only had 85 cents; went to the Yale show that evening; and then went to the city park, expecting to find his-brother there; that returning from the park the officers drove up in an automobile, arrested him, and took him to the police station and took him into a room, where one officer got him by the hair of the head and another by the legs, and they said, “Now,' didn’t you do it?” and he said, “No”; that they did this about a dozen times, and hit him with their fists, trying to make him say that he was the fellow that held the young man up, and every time he said that he did not do it they hit him.

      Jim Hallett testified that he conducted a restaurant in Muskogee for five years; knew the defendant about three years; saw him Sunday morning, June 28, at his place; that he paid 20 cents for his breakfast with a half dollar, and he gave him the change.
    On rebuttal Mrs. Ella Everett testified that she knew the defendant, and saw him in Muskogee about the 18th of June.
    R. H. Mauss testified that he saw the defendant near the Muskogee High School the night Earl Smith was robbed.

      M. G. Bailey, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the state.
   DOYLE, P. J.

(after stating the facts as above). Upon an information duly filed in the' district court of Muskogee county, charging him with, having robbed W. J. Orall of 42 cents in money, plaintiff in error was tried and convicted of robbery in the first degree. The jury failed to agree upon the punishment. Motion for new trial was duly filed. On July 14, 1914, the court overruled the motion and pronounced judgment and sentenced the defendant to imprisonment for 25 years. Thereupon a motion to vacate said judgment and to modify said sentence was filed, which motion was sustained. On August 10th the court again rendered judgment and sentenced the defendant to serve a term of ten years’ imprisonment in the penitentiary, and he has appealed to this court. It appears from the record that when the case was called for trial, it having been made to appear that the defendant 'was destitute of means to employ counsel, the court appointed Mr. Bailey to defend him, and when the judgment appealed from was rendered the court ordered the reporter to furnish a transcript of the testimony without expense to the defendant. The case was filed in this court as that of a poor person. No brief has been filed on.behalf of the defendant, and we have not been favored with an oral argument in his behalf.

An examination of the record leads to the conclusion that the judgment of conviction ought not be permitted to stand, and this altogether without regard to the merits of the question of guilt or innocence of the defendant. To affirm the judgment would do violence to well-settled and recognized rules of practice and procedure in criminal prosecutions, and would be in violation of our conception of the rights of every individual charged with crime.

The transcript of the testimony in the case discloses that over the objections of counsel for the defendant the court permitted witness Ea,rl Smith to testify, not only as to seeing the defendant in the city, of Muskogee the night preceding the night of .the robbery, but also permitted this witness to testify that the defendant at that time assaulted him with a gun and robbed him.The robbery as testified to by witness Smith was a separate and distinct offense, entirely disconnected with the offense charged, and the question presented is, Does this testimony of' a separate offense come within any of the well-known exceptions to the general rule in criminal cases, that when a defendant is put upon trial for one offense he is to be convicted, if at all, by evidence which shows he is guilty of that offense alone? This rule is tersely stated by Mr. Bishop, who says:

“The state cannot prove against a defendant any crime not alleged, either as foundation for a separate punishment, or as aiding the proofs that he is guilty of the one charged, . even though he has put his character in issue.” (2 Bishop’s New Crim. Proc. sec. 1120.) ■

Commenting on this rule in the case of People v. Molineux, 36 Misc. Rep. 435, 73 N. Y. Supp. 806; Id., 168 N. Y. 291, 61 N. E. 293, 62 L. R A. 193, the Court of Appeals says:

“This rule,, so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence- from all others, at least from the birth of Magna Charta. It is the product of that same humane .and .enlightened public spirit which, speaking through our common law, has decreed that every person charged with the commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a reasonable doubt. This ■ rule, and . the . reasons upon which it rests, are so familiar to every student of our law. that they need' be referred to for no other purpose than to point out the exceptions thereto.”

The exceptions as stated in the opinion are as follows:

“Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish: (1) Motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the. commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.” (Wharton on Crim. Ev. (9th Ed.) sec. 48; Underhill on Ev. sec. 58; Abbott’s Trial Brief, Crim. Trials, sec. 598.)

See, also, State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807.

In the case of Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689, which was a robbery case, the court permitted an accomplice witness to testify in reference to conspiracy to commit another robbery entirely disconnected with the offense with which the defendant was charged, and it was held that the evidence objected to did not fall within any exception to the general rule. In that case it was said:

“Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the crime charged.”

To bring a case within this exception to the general rule, there must be evidence of system between the offense on trial and the one sought to be introduced. They must be connected as parts of the general scheme or plan.

Mr. Underhill in his work on Criminal Evidence (section 88), thus states this exception to the general rule:

“No separate and isolated crime can be given in evidence. In order that one crime may be relevant as evidence of another, the two must be connected as parts of a general and composite scheme or plan. Thus the movements of the accused prior to the instant of the crime are always relevant to show that he was making preparations to commit it. Hence, on a trial for homicide, it is permissible to prove that the accused killed another person during the time he was preparing for or was in the act of committing the homicide.for which he is on trial. And, generally, when several similar crimes occur near each other, either in timé or locality, as, for example, several burglaries or incendiary fires upon the same night, it is relevánt to show that the accused, being present at one of them, was present at the other if the crimes seem to be connected. Some connection between the crimes must be shown to have existed in fact and in the mind of the actor, uniting them for the accomplishment of a common purpose, before such evidence can be received. This connection must clearly appear from the evidence. Whether any connection exists is a judicial question. ' If the court does not clearly perceive it, the accused should be given the benefit of the doubt and the evidence rejected. The minds of the jurors must not be poisoned and prejudiced by receiving evidence of this irrelevant and dangerous description.”

The court in its charge to the jury stated that the evidence tending to show that Earl Smith was robbed by some one oh the night previous to the alleged robbery was admitted solely for the purpose of identification.

In the case of People v. Molineux, supra, it was said:

“Another exception to the general rule is that, when the evidence of an extraneous crime tends to identify the person who committed it as the same person who committed the crime charged in the indictment, it is' admissible. There are not many reported cases in which this exception seems to have been affirmatively applied. A . far larger number "of cases, while distinctly recognizing its existence, have held it inapplicable to the particular facts then before the court. The reason for this is obvious. In the nature of things, there cannot be many cases where evidence of separate and distinct crimes, with no unity or connection of motive, intent, or plan, will serve to legally identify the person who committed one as the same person who is guilty of the other. The very fact that it is much easier to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime proves the dangerous tendency of such evidence to convict, not upon the evidence of the crime charged, but upon the super-added evidence of the previous crime. Hence our courts have been proverbially careful to subject such evidence to the most rigid scrutiny, and have invariably excluded it in cases where its relevancy and competency was not clearly shown. As was said in People v. Sharp, 107 N. Y. 471 [14 N. E. 345, 1 Am. St. Rep. 851], such evidence ‘tends necessarily and directly to load the prisoner down with separate and distinct Charges of past crime, which it cannot be supposed he is or will be in proper condition to meet or explain, and which necessarily tend to very gravely prejudice him in the minds of the jury upon the question of his guilt or innocence.’ Such evidence gives opportunity for the conviction of an accused person upon mere prejudice, instead of by evidence showing the actual commission of the crime for which a defendant is on trial. It compels a defendant to meet an accusation not charged in the indictment, which he might successfully refute if given the opportunity to do so unembarrassed by other issues.”'

The mere fact that the crime charged in the information and the crime testified to by the witness Smith were similar in the method and the means employed in their execution does not serve to identify the defendant as the man who robbed Orall. There was no such intimate connection between the two crimes that; in proving the one, the evidence necessarily tended to prove the other. Such proof in a doubtful case might turn the scales against the defendant, but the law does not permit it, and it would be dangerous to' subvert the rule, upon the vague theory that it identifies the defendant as the person who committed the offense charged. The only testimony of witness Earl Smith which was competent and admissible in this case is that part, and that part alone, in which he states that he saw the defendant in Muskogee on the night preceding the robbery of Orall. As to his testimony detailing the facts constituting another robbery, it was clearly incompetent, and its admission was necessarily prejudicial to the defendant, because he was only required to meet the charge of robbery in the information, and he is not presumed to know that he would have to meet and repel testimony as to another separate and distinct offense.

The next assignment of error is that the court erred in admitting the testimony of the witness Hughes. This witness testified as to statements made by the defendant to him and other police officers. On his cross-examination he frankly' stated that he called the defendant a vile name, and caught him by the arm “and gave him a half Nelson.”

As a witness in his own behalf the defendant stated that:

“One officer took him by the hair of the head, another by the legs and they pulled him up and down about a dozen times and hit him with their fists each time trying to make him say that he was the fellow that held the young man up.”

These officers did not testify, and in this respect the testimony of the defendant stands undisputed. It is elementary law that such statement must be entirely free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, in order to be admissible. The genius of our free institutions requires that admissions of the accused shall not be used against him, unless made voluntarily.

In the case of Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849, it is said:

“Primarily there are two facts which render a confession inadmissible as evidence: First, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination; and second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrust-worthiness.”

It is not important to determine whether the statements in question amount to a confession of guilt, or merely a declaration of facts tending to show guilt, for, as said in Greenleaf on Evidence:

“The law excludes not only direct confessions, but any other declaration tending to implicate a prisoner in the crime charged, even though in terms it is an accusation of another or a refusal to confess.”

Says Wharton:

“Not only is it an indictable offense to apply torture to another for the purpose of extorting a confession; but all confessions so induced will be rejected, if offered to prove a case of guilt. And even when violence is not used, the mere threat to apply it in any shape works a similar exclusion.”" (Wharton Crim. Ev. [9th Ed.] sec. 646.)

The foregoing we think is a sufficient exposition of the law on the question as it arises in this case. The proceedings shown by the testimony in this case cannot be too strongly denounced. They violate every principle of law, reason, humanity, and personal right. They restore the barbarity of ancient and medieval methods. They obstruct, instead of advance, the proper ascertainment of truth. It is far from the duty of an officer to extort confession by punishment. On the contrary, he should warn his prisoner that every statement he may choose to make may be used against him on his trial.

Other questions are presented by the record, but the two we have discussed are sufficient for the disposal of this case. . For the efrors pointed out, the judgment of the district court is reversed, and the cause remanded. The warden of the penitentiary will surrender the defendant to the sheriff of Muskogee county, who will hold him in custody until he shall be discharged or his custody ■changed by due course of law.

ARMSTRONG and BRETT, JJ., concur.


author: BRETT, J.

text:
    WILLIE WILLIAMS v. STATE.
    No. A-2834.
    Opinion Filed March 3, 1917.
    (163 Pac. 279.)
    1. HOMICIDE — Dying Declarations — Sense of Impending Death. Where deceased was mortally wounded, and said to those around him, “I am growing awfully weak, and cannot last much longer,” and then told them who shot him, and the circumstances under which he was shot, held, that this showed deceased was conscious of impending'death; and that under these solemn conditions an oath 'could not have added verity to his statement; and that his statement was properly admitted as a dying declaration.

      2. HOMICIDE — Instructions—Manslaughter. Where the accused placed a pistol to the head of his prostrated and wounded victim, who was begging -him not to shoot him again, and deliberately said, ‘‘Dead men tell no tales, and dead policemen tell no tales,” and then deliberately fired the fatal sholb, held, that that act stripped the offense of every element of every crime except coldblooded murder, and that the trial judge properly n-efused to confuse the jury by giving an instruction on manslaughter in Itilie first degree.
    3. EVIDENCE — Witnesses Not Produced in Court — Hearsay—Appeal. (a) Where a witness is not produced and sworn in court and no sort of effort is made to develop his testimony, 'this count will not surmise as to what he would or would not have testified had he been produced.
    (b) Held, -that testimony of pux-ponbed extrajudicial confessions of third persons, which, if made at all, were made without -the sanctity of an oath, should be excluded as mere hearsay testimony.

      Error from District Court, Muskogee County; R. P. deGraffenried, Judge.

    Willie Williams was convicted of murder, and he brings error.
    Affirmed.

      Dan M. Meredith, for plaintiff in error.
    . R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

In this case the plaintiff in error,. who will be referred to as defendant, was tried and convicted of murder, and sentenced to suffer the death penalty. The record indicates that he was ably and diligently defended, and every possible right that he had faithfully guarded . and protected; but both the law and the facts were -against him, and, penned by the stern hand of justice, the verdict could not have been less.

Without going into the revolting details, the material facts áre: That about 2 o’clock on the morning of December 26, 1915, deceased, Sam Neal, who was a member of the police force of the city of Muskogee, intercepted .the defendant shortly after he had left a hardware store with some stolen goods. The defendant shot the deceased, partially disabling him, and then threw him down upon the street. The deceased asked the defendant not to shoot him again, to which the defendant replied, “Dead men tell no tales, and dead policemen tell no tales,” and then' deliberately placed the pistol near his head and fired the fatal shot. The deceased lived something like an hour and a half after receiving this mortal wound. He was well acquainted with the defendant, and when his brother officers reached him he was perfectly conscious and rational, but stated to them that he was growing awfully weak, and “could not last much longer,” and then told them who shot him and how it occurred.

The defendant, immediately after committing this crime, left the city, presumably afoot, and boarded a train bound for Ft. Smith, Ark., at a water tank several miles out of Muskogee. But the officers along the line had been notified, • and when the train reached Porum two officers entered the car, and one of them said to the defendant, “You killed a man at Muskogee last night,” and he sprang up in a half stooping position with a pistol in his hand and said, “You are- damn right 1 did,” ■ and attempted to shoot the officer, but before the pistol fired the officer seized his hand, and deflected its range, and the bullet went wild. After this pistol was taken from him, he drew another, which he also discharged in a futile effort to shoot the officer. When finally disarmed, he was again reminded by the officer that he killed a man at Muskogee last night, to which he replied, “Yes, and you turn me loose, and give me my gun, and I will kill another.” One of the guns taken from him at Porum by the officers was the pistol of the then dead policeman, which he had taken from him after inflicting the mortal wound.

The defendant complains because the court permitted the statement of the deceased policeman to be introduced in evidence as a dying declaration, insisting that his statement, “I am growing awfully weak, and cannot last must longer,” was insufficient in law to show that the deceased was, at the time ,of making the statement,, conscious of approaching death. But with this contention we cannot agree. This court has repeatedly passed upon this question; and in Morris v. State, 6 Okla. Cr. 41, 115 Pac. 1035, Judge Doyle, speaking for the court, lays down the sound, sensible, and correct rule, saying,,:

“It is essential to the admissibility of dying declarations, and is a preliminary fact to be proved by the prosecution, that they were made under a sense of impending death. This may be made to appear from what the injured person said, or where from the nature and1 extent' of his injuries it is evident that he must have known that he could not survive. It is sufficient if it satisfactorily appears that they were made under the sense of impending death, whether it be directly proven by the express language of the declarant, or be inferred' from his evident danger,♦ or the opinions of the medical attendants, stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declaration and his death, and the fact that the declarant was so weak that he could not sign his name and so affixed his mark, all of which are resorted to, in order to ascertain the state of declarant’s mind.”

And in Offitt v. State, 5 Okla. Cr. 49, 113 Pac. 554, Judge Armstrong tersely states the rule, saying:

“A declaration made by deceased, clearly without premeditation or design, when the record shows he is mortally wounded, and he has made statements showing that he realizes his condition, is properly admitted as a dying declaration.” Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003; Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561.

Under the facts in this case there can be no question of the admissibility of the statement of the deceased. Death was then upon him, and, realizing it, he stated to his fellow officers, “I am growing awfully weak, and cannot last much longer,” and within an hour from that time he was in eternity; and under these solemn conditions an oath could not have added verity to his statement.

The defendant also insists that the court should have given á requested instruction on .manslaughter in the first degree. But there was not even a suggestion of manslaughter in the first degree in this case. The defendant in the trial of this case denied committing the crime; denied having admitted it to the arresting officers, and under his theory he was an innocent man. But under the statement of the dying officer, which the jury had every reason on earth to believe, he was guilty of a foul, atrocious, and cold-blooded murder; he killed his victim to seal his lips. But an overruling Providence stayed the hand of death until the tongue he intended to silence might speak. And when he placed the gun to the head of his wounded victim, who was begging him not to shoot him again, and deliberately said, “Dead men tell no tales, and dead policemen' tell no tales,” and then deliberately fired the fatal shot, that act stripped the offense of every element of every crime except cold-blooded murder. And the judge was eminently correct in refusing to confuse the jury by an instruction on manslaughter in the first degree. Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170; Yarbrough v. State, ante, p. 140, 162 Pac. 678.

(a) The defendant further complains because the court, he says, refused to allow him to introduce a couple of irresponsible jailbirds, who, he stated, would testify that another person, not on trial, told them he committed the crime. But the record shows that these witnesses were not produced in court, or placed upon the witness stand, and no sort of effort was made to develop their testimony, and no proper tender of their evidence- was ever made. And this court cannot pass upon the question of what a witness’ testimony might have been, or whether or not it might have been competent, when such witness was not, produced in court, or sworn, or' placed upon the witness stand, and no sort of effort made to develop his evidence; for the reason that this court cannot assume to ■ surmise as to what his testimony might or might not have been if he had been produced. To permit this kind of practice would be to invite fraud and imposition upon the courts.

(b) Besides, in Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84, it is held that testimony of purported extrajudicial confessions of third persons, which, if made at all, were made without the sanctity of an oath, should be excluded as mere hearsay testimony, the court saying:

“A defendant who is being tried on a criminal charge is not entitled to introduce proof which has for its purpose the establishing before the jury the fact that some other person has confessed that he committed the crime, .and that the defendant had nothing to do therewith and was not concerned therein”

—and in support of this position citing and quoting Donnelly v. United States, 228 U. S. 243, 33 Sup. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710, and numerous other authorities.

We think no prejudicial error was committed in the trial of this case, and that the facts justified the judgment and sentence. The judgment is therefore affirmed.

It is therefore ordered, adjudged, and decreed that the warden of the state penitentiary at McAlester proceed to carry into execution the judgment and sentence of the district court of .Muskogee county, in accordance with the death warrant issued thereon; and the 13th day of April, 1917, is designated as the date for the execution of said sentence.

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


text:
    A. L. OWEN v. STATE.
    No. A-2862.
    Opinion Filed March 8, 1917.
    (163 Pac. 548.)
    1. CRIMINAL. LAW — Capacity to Commit Crime — Insanity—Test. The true test of criminal responsibility, where the defense of insanity is interposed, is whether- the defendant had sufficient reason to know the nature and quality of his act, and whether he had sufficient reason to know right from wrong.
    2. NEW TRIAL — Bias—Expressed Opinion of Jurors — Affidavit— Knowledge. ■'When affidavits charging jurors with, having expressed opinions as to ithe guilt of the defendant prior to their being called as jurors are relied upon to annul the verdict and obtain a new 'trial, it must.be clearly shown ¡that neither the defendant! nor counsel for the defendant knew the facts averred in such affidavits at the time the jury -was impaneled.
    3. APPEAL AND ERROR — Question of Fact — Finding. As a general rule, fee finding of fee trial court upon an1 issue of fact arising upon affidavits and evidence adduced on a motion for a new trial will not be disturbed where fee evidence reasonably tends to support such finding.
    4. APPEAL AND ERROR — Modification of Sentence. Under Procedure Criminal (section 6003, Rev. Laws 19101), this court in the furtherance of justice has the power to modify any judgment appealed from by reducing the sentence.
    5. CONTINUANCE — Affidavit—Absent Witnesses — Admission. The record shows feat on September 4, 1916, fee defendant was arraigned, and on September 6th he filed a motion for continuaiK-e based on the absence of material witnesses, one of whom was a nonresident of ithe state. On the same day the motion, was overruled by the court, and fee defendant was put upon trial. Held, feat fee affidavit for continuance is insufficient, because it fails to show that the defendant could procure the attendance of such nonresident witness, and fails to state that he intends to take-the deposition of such nonresident witness. However, technical objections should not ordinarily prevent the granting of a eon-tinuan'ce, and in this ease the county attorney should have ad- ■ mitted feat said witness, if present, would testify-as stated in the defendant’s affidavit, and that said affidavit might be read and treated as fee deposition of fee absent ■wttnés's, and for this reason ithe judgment and sentence of death is modified to imprisonment for life 'at hard labor.

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

    A. L. Owen was convicted of murder, his motion for new trial was overruled, and he brings error.
    Judgment and sentence modified and affirmed.

      Hainer, Burns & Toney, Geo. H. Hughes, and Henry D. Green, for plaintiff in error.

      S. P. Freeling, A'tty. Gen., and R. McMillan, Asst. Atty. Gen.; for the State.
   DOYLE, P. J.

The plaintiff in error, Owen, was, by information duly filed in the district court of Cherokee county on the 23d day of August, 1916, charged with the crime of murder, alleged to have been committed in said county on the 4th day of May, 1916, by shooting one Lizzie Morgan with a pistol. On September 4th following he was arraigned, and on the 6th day of September he was put upon trial, which resulted/ on the 8th day of September, in a verdict of guilty of murder and fixing the penalty at death. On September 12th his motion for new trial was overruled and judgment rendered on the verdict, and he was sentenced to suffer death by electrocution on the 27th day of November, 1916, in the manner provided by law. From the judgment and sentence an appeal was taken by filing in this court on October 28, 1916, a petition in error with case-made.

The facts, briefly stated, are as follows:

The plaintiff in error at the date of the homicide was about 50 years of age, and had resided near the old negro seminary, about six miles north of Tahlequah, for seven or eight years. He was a widower, his wife having died about five years before. He had nine children, five sons, aged respectively 28, 13, 11, eight and six years, and four daughters, two married and two single, 15 and 17 years of age. The four younger sons and two single daughters lived with their father. The deceased, Mrs. Lizzie Morgan, a widow, and her four children had occupied a part of the old negro seminary building for about two years. The plaintiff in error became infatuated with her, and for a while she permitted his attentions, but finally refused to marry him. On the morning of the tragedy, between 8 and 9 o’clock, the plaintiff in error entered the seminary building, and, seeing Mrs. Morgan, he drew a pistol, saying, “Old gal, your time has come,” fired three shots, one of which entered her right side and another her left side, from the effect of which Mrs. Morgan died that day, about 3 o’clock.

Mrs. Renner, a sister of Mrs. Morgan, testified: That she lived with her husband neay the seminary spring, and Mrs. Morgan’s little girl came screaming and saying that there was something the matter with mamma, and she rushed- up to the seminary building, and met Owen coming out with a pistol in his hand. He said: “Stop until I tell you what I have done; I have killed her;” and she said: “For God sake what did you do this for?” He said: “Do not be scared; I would not hurt a hair on your head or Mr. Renner’s either. I killed her because she would not marry me. I have not had any peace for two years, and she would not marry me, and I killed her.” That she went into the room where her sister was lying on the bed, and Owen followed her in, and said, “Has she got her dose?” and she said, “Yes; she is dying now; for God sake get out of here;” and Mrs. Morgan said, “Good-bye, Abe, and go on away, you have killed -me;” and Owen said, “Good-bye; I will meet you in hell where you belong;” and as he started out the door he turned around and said, “I have two more bullets, and I am going to put them right here;” arid Mrs. Morgan said, “0 God, have mercy on me and my little children!” and Owen said, “There is no God; there is no mercy for you; go on to hell where you belong;” and with an oath he went out.

The county attorney and the court reporter reached the scene of the tragedy before Mrs. Morgan died, and she made the following statement:

“Abe Owen shot me. He shot me because 1 would not marry him. He said: T am going to give you one more chance to be my wife, or I will shoot you.’ He said last summer if I would not be his wife he would shoot me. He has been trying to talk to me ever since I have been out here. When I got up this morning "I got a threatening letter under the front door. It said: T have everything ready and you are a damn hypocrite, and a liar, and fit for hell.’ This letter was in his handwriting. I know his handwriting. He winked at me as he came by the window. I smiled and did not get mad. They were all talking, and I thought he was gone. He came in and said: T have got everything ready. You are fixed’— and got his gun out and hit me the first shot. He shot three times and hit me twice, and I ran under the table the second shot. Mr. Slape and Mrs. Slape and Della Ryáls were in there, and I think they all ran out. It was a big gun. It must have been a 44 Colt’s. As he went out the door I said: ‘0! Lord, have mercy on me and care for my babies!’ He said: ‘Don’t call your Lord; hell is the place for you.’. As he left I reached out my hand and said: ‘Good-bye, Mr. Owen.’ He came back and said he had come back to see if he had done his work and if he had not he was going to. That is why I said to him what I did.”

W. P. Davidson, sheriff, testified that he arrested the defendant about a week later near Fayetteville, Ark.; that after he -was placed in the county jail at Tahlequah his' children visited him, and he told them not to grieve after him; that he was on his way.to hell. There is no dispute as to the facts and circumstances of the homicide.

The theory of the defense was that the defendant was of unsound- mind and wholly irresponsible for his acts.

■ J. F. Owen, an older brother, testified that the defendant was born at Rolla, Mo.; that when he was 12 years old the family moved to Newton county, Ark.; that their mother was a sickly, weakly woman; that sometimes she would just get mad and would not talk to anybody for a day or two; that Dr. Shinn of Yardell, Ark.., treated her. On cross-examination he stated that he never knew of any member of the family.on either side ever having any brain trouble or weakness of mind.

, Ella Owen, a daughter of the defendant, testified that two days before the tragedy her father had some kind of spell, and her brother brought him to the house, and they put him to bed; that her father had one or two of these spells a month; that after these spells he did not talk with any sense.

Stella Owen, another daughter, testified that her father had spells sometimes twice a month; that' when they came on he would lay down wherever he was, and for two or three days after one of these spells he would not be in his right mind.

Frank Owen, his son, testified ■ that his age . wap twenty-eight years; that two days before the homicide he was working with his father. near the house and his- fa-' ther had a spell, and he took him by the arm and led him to the house and put him on the bed; that for more than a year his father had been having these fits or spells, and about 14 years before, when they were liying in Arkansas, his father had three or four of these spells, and was attended by Dr. T. J. Shinn, who lived at Yar* dell; that after these spells his father would be crazy for a day or two and generally would talk on Scriptures or about Socialism.

Arthur Reagan testified that he was the defendant’s son-in-law, and lived about three miles from the defendant’s place; that on the morning of the homicide, between 6 and 7 o’clock, the defendant called at his house and asked him for his gun and he let him have it; that the defendant said he was going down about Okmulgee; that he seemed to be in his right mind at that time.

■ As a witness in his own behalf the defendant testified :

“That he had not been in anything like good health for 30 years; that when he was about 20 or 25 years old he had some mental trouble, and corresponded with a doctor at Kansas City, but don’t remember his name and don’t remember what name he gave to his mental trouble; that he treated him until he could not buy his medicine any longer and got all right; after that was in pretty good health until about 12 years ago, that Dr. T. J. Shinn at Yardell treated him, also a younger Dr. Shinn, who now lives at Wagoner, treated him for the same kind of mental trouble; that he had several light strokes while in jail.”

His further examination was, in part, as follows:

“Q. Can you state to the jury whether or not within the last year or year and a half those spells have increased in frequency? A.., Yes, sir; and they were harder; they would last longer after the main part of them. After the main part of my spells would quit I would feel queer and kind of foolish for sometimes a week. They did not work exactly alike all the time. Q. How long- have you known Mrs. Morgan? A. Well, sir, I think I have known her from the day she moved into the old colored seminary in January, 1914, I reckon it was. Q. What was the purpose of your going to the place where she lived on the 4th day of May, 1916? A. Well, sir, I went by there to see one Bill Slape. He lived in the north end of the old seminary building, and Mrs. Morgan occupied the three south rooms. Q. What purpose did you have in view when you went there on May 4th? A. I went there to see Mr. Slape on a business transaction. Q. What were your feelings with relation to Mrs. Morgan? A. I had a tender feeling, a kind feeling towards her; I respected her as a lady. Q. Did you ever have .any trouble with Mrs. Morgan? A. No, sir; none whatever. Q. I will ask you if you ever proposed to Mrs. Morgan? A. Yes, sir; that was along in February or March after she came there in Januáry. Q. Was there any conditions attached to that agreement? A. Yes, sir. Q. What was one of the conditions? A. Well, she told me when wé raised the subject we could not possibly get married under two or three years, or possibly four years. Q. Did you know what family Mrs. Morgan had at that time? ■A. Yes, sir; she had three little girls and one little boy. Q. Where did you get the pistol? A. I got it from Arthur Reagan; my son-in-law.' Q. Do you remember what time of day it was when you got that pistol from Arthur Reagan? A. It was early in the morning. Q. What did you tell Reagan you wanted with the pistol? A. I told him that I was going to Okmulgee when he let me have the gun. Q. Did you intend to go to Okmulgee? A. No, sir; I never had any intention of going there. Q. Where did you go? A. .Well, started back home, and when I got down near the seminary to where there is a road running towards home I just decided I would go by the seminary, by Bill Slape’s place, and close up this crop deal with him if I could. Q. Now, what was your intention by getting that pistol? A. My intention was to shoot myself. I aimed to shoot my own head clear off. Q. Why did you decide that? A. Simply because my satisfaction on this earth was destroyed. That is exactly it. That is the truth about it. I was robbed of what I had. Q. How did you enter that house where Mrs. Morgan was? A. I went at the north door. There was a wagon backed up to the door, and they were loading some stuff in the wagon. Ode Nodine and his .brother were just starting out with a sewing machine. Q. Now what took place when you went into the room belonging to Mr. Slape; do you remember whom you saw in that room? A. Well, no; I remember Mr. Slape being there, and I remember Mrs. Morgan being there. I didn’t know that she was in there until I got in there, but the other parties I can’t remember who they were. Q. Where did you have that pistol when you entered the room? A. I had it right here- on my left side. Q. Did you say' anything to any one in the room? A. I spoke to those boys. As I told ■ you, they was coming out with that sewing machine, and I was just going in, and I swung over to the left, and I was about to fall until they stepped over and gave me room, and I just stepped over to the side of them, and that threw me near to Mrs. Morgan,' and when I saw her she turned and looked at me and gave me the hardest look I ever seen, and for some cause I lost control of myself, and I said, ‘Old gal, the time has come when you can’t put nothing else over me,’ and I reached and got this gun and shot and missed her. She never said a word. She•just turned around and dropped down under the table. As she went down she put her hand oh her bosom, and I just dropped down and shot at her again under the table, and she turned and raised upon the other side of the table, and I turned and shot again, and she said, ‘Mr. Owen, don’t shoot any more; you have fixed me.’ I said, ‘If you have got enough I won’t shoot any more,’ and I put my gun back. Bill Slape took hold of me, and I said, ‘Bill, I have nothing against you, but don’t bother me.’ Mrs. Morgan went out into the hallway, and I went out after her and asked if she wanted me to lay her on the bed. I said, ‘Wouldn’t it have suited you better to have carried out your contract with me than to have it this way.’ And she said, ‘Don’t talk to me about it, go on away;’ and I went out in the yard and turned around and went back in the house to see Mrs. Morgan again, and found her laying on the bed, and I went in there, and they would not let me talk to her, kept shoving and begging me to leave, and I turned around and left. Q. Where did you go then? A. I started home, and I met one of my little boys, and I asked him where the oldest boy was, and he told me where he was supposed to be, and I went on, and he was not there, and I started on. Q. Well, you didn’t go home then? A. No, sir. Q. How long did you stay in that neighborhood? A. Well, I was there three or four days. Q. Where were you? A. Oh, in the woods, and on the road, and around about there first one place and then another. I was back in them hills east of the seminary somewhere. Q. Why didn’t you kill yourself? A. Well, sir, I don’t know, but I will tell you. When I shot her it changed my plan, and I went looking for this boy to tell him what to do with my children, and I never did find him; I got lost, and I lost this said gun somewhere.”

Several character witnesses qualified and testified that the general reputation of the defendant was that of being a peaceable, law-abiding citizen.

In rebuttal, the state introduced two witnesses who testified that they had known the defendant for about 25 years in Arkansas and Oklahoma, and had never known of him having spells of an epileptic nature or any disorder of the mind.

Several medical experts were called as witnesses by the state, and the court sustained the defendant’s objections to hypothetical questions embracing the undisputed facts, on the ground that the proof offered was not proper rebuttal.

'■The transcript of the testimony covers nearly 300 pages, but the foregoing statement is sufficient to present the questions raised by the errors assigned.

The evidence shows that, when the defendant shot Mrs. Morgan, he knew the nature and quality of the act he was doing. He seemed to have a perfect understanding of the nature of the act, and to know when he committed it what the effect of it was with reference to the crime of murder. The defense of irresponsibility, at best, presented a question of fact for the jury, and it was for them to decide whether or not the defendant was legally responsible for his acts, which was the only con-, tested issue. Their conclusion is amply sustained by the evidence.

Error is assigned on the ground that Jurors Robert Young and C. P. Warren were prejudiced. In his motion for a new trial the defendant states: _

“That Robert Young, one of the jurors, had formed and expressed an opinion that a penitentiary sentence would be too good for this defendant; that said statement was made before the trial to and in the presence of Herbert Davidson, whose affidavit is hereto attached; that C. P. Warren, one of the jurors, had formed and expressed the opinion that this defendant was guilty of murder, and that if he, the said C. P. Warren, had his way, he would hang or put in the electric chair this, defendant ; that said’ statement was made to and in the presence of Charles Alverson, before the trial of’ the cause, whose affidavit is hereto attached.”

Upon the hearing on the motion for a new trial the juror Young testified, and denied making any such statement to Herbert Davidson or any other person, and the record- shows that the affiant Davidson, although duly served with a subpoena, did not appear. The juror C. P. Warren testified that he made no such statement nor any similar statement to affiant Alverson. From the examination' of affiant Alverson as a witness it appears that he is an ex-convict, and four or five witnesses duly qualified ‘ and testified- that the general reputation of said Alverson for truth and veracity in the community in which he resided was bad.

It is a settled rule ©f this court that the finding of the trial court upon- a question of fact arising upon affidavits and evidence adduced on a motion for a new trial will not be disturbed where the evidence reasonably tends to support such finding. Horton v. State, 10 Okla. Cr. 294, 136 Pac. 177; Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350.

This brings us to the only remaining proposition in. this cause. When the case was called for trial the defendant filed and presented a motion for continuance based on the absence of material witnesses in his behalf, without whose evidence .it is alleged defendant could not safely proceed to trial. • His affidavit for continuance contained all the formal allegations required by law, anc^’ among others, the following statements: That Dr. Thós. Shinn, of Yardell, Ark., was acquainted with defendaht for many years and acted as his physician when ■ he resided in the state of Arkansas, and if present would testify that defendant’s mother was subject to fits of melancholia, and that he treated defendant for a form of epilepsy, known in medicine' as psycho-epilepsy, and •= that the general effect of such epileptic condition was to weaken the mind, judgment, reason, and the- ability to differentiate between what is morally right and. what is morally wrong; that Dr. T. J. Shinn, of Wagqner, Okla., would testify that defendant was afflicted "with said disease, which is a progressive disease of the mind; that Andrew J. Foster, of Moodys, Okla., was duly served with a subpoena to appear as a witness, but was confined to his bed with fever, and was too sick to attend the trial; that, if present, he would testify that he was with defendant in the fall of 1915, near the town of Hulbert, Okla., when defendant was .attacked by a spell or fit of epilepsy.

. The application for continuance was overruled, exception allowed, and the trial proceeded.

Counsel for the defendant contend that:

“The overruling of the motion for a continuance was a denial of defendant’s constitutional right to have compulsory process for witnesses in his behalf, and in contravention of defendant’s constitutional guaranties within the meaning of our Bill of Rights.”

No rule is more firmly established in this state than that this court will not reverse a judgment of the trial court upon the ground that it refused to grant a continuance unless it appears that such court has manifestly abused its discretion in refusing it. However, it is the right of every person accused of crime to have a fair and impartial'trial and compulsory process to compel the attendance of his witnesses, and that involves, as a matter of course, the time reasonably necessary to prepare for trial, and to find and produce testimony in his defense. It is not, however, a matter of which the defendant can complain that the trial is speedy, if he has had time for preparation and is ready for his defense. Continuances ought always to be granted when, from the showing made, justice requires it; this to enable the defendant to procure all legal and competent evidence necessary for the fair presentation of his defense, if he has. used due diligence to obtain the same.

Under our Procedure Criminal the defendant has the right to take the deposition of any material witness residing out of the state, and this only when an issue of fact is joined upon an indictment or information. Section 6036, Rev. Laws 1910. The application must be made upon affidavit (section 6038, Rev. Laws 1910), and > must be upon five days’ notice to the county attorney (section 6039, Rev. Laws' 1910). It is further provided that upon a motion for continuance on account of the absence of evidence, if the state will consent that on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, no continuance shall be granted on the ground of the absence of such evidence. Section 5045, Rev. Laws 1910.

When a defendant desires the testimony of a witness who is a nonresident of the state, and therefore not amenable to the process of the court, he cannot rely upon such nonresidence of his witness as a cause for a continuance, unless he shows that he desires to take the deposition of such nonresident witness. , Here the defendant stated in his affidavit that he desired the presence of the nonresident witness. However, technical objections should not ordinarily prevent the granting of a. . motion for a continuance, if it is necessary to the proper’ presentation of the defendant’s case. And in this case we think the county attorney should have admitted that the witnesses, if present, would testify as stated in the defendant’s affidavit, and that said affidavit might be read and treated as the depositions of the absent witnesses,, and, failing to do this, the trial should have been postponed at least ten days.

Counsel for the defendant contend that at least the judgment and sentence should be' modified to imprisonment for life. Under the following provision of our Penal Code the punishment to be inflicted for the crime of murder is left to the determination of the jury:

“Any person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury.” (Section 2319, Rev. Laws 1910.)

The verdict of the jury is conclusive upon the trial court, and the'court below is without power or authority to render judgment and sentence except in accordance with the verdict. On appeal, however, our Criminal Procedure Act provides that:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial.” (Section 6003, Rev. Laws 1910.)

Under the statute this court, in the furtherance of justice, has the power and authority to modify any judgment appealed from by reducing the sentence. However, that power should not be exercised unless it is apparent that injustice has been done. Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170.

In this case we think the defense of insanity entirely failed and was properly discredited by the jury; yet upon the record before us we are unwilling to say that the overruling of the motion for a continuance did not-endanger the rights of the defendant, and without the power given under the statute to modify the judgment this court would be compelled to reverse the case and remand it for a new trial, and for' the reasons stated we think that the judgment and sentence in this. case should be modified to imprisonment for life at hard labor.

The judgment of the district court of Cherokee county herein will he modified to the extent that the sen-, tence will be changed from the infliction of the penalty of death to that of imprisonment in the state penitentiary at hard labor for life, and, as thus modified, the judgment is affirmed.

ARMSTRONG and BRETT, JJ., concur.


author: ARMSTRONG, J.

text:
    GUY HUBER v. STATE.
    No. A-2134.
    Opinion Filed March 10, 1917.
    (163 Pac. 329.)
    1. APPEAL AND ERROR — Discontinuance. The right of appeal is a privilege granted by the laws of the state to persons who are convicted of crime. The option of exercising and discontinuing the same, when (the statute and rules of the court are 'complied with, ordinarily rests in the discretion of the party appealing. ■
    2. SAME — Dismissal by Plaintiff in Error. When a person has lodged an appeal in this court and the cause has been duly briefed, argued, and submitted, this count, in the absence of good reasons shown to the contrary, will permit the plaintiff ,in error to dismiss the appeal on his own motion, and direct the trial court to enforce the judgment and sentence.

      Error from District Court, Kiowa County; James R. Tolbert, Judge.

    Guy Huber was convicted of murder, and he brings error.
    Dismissed.

      Zink & Cline, George D. Keys, and Hays & Hughes, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Guy Huber, was convicted at the May, 1913, term of the district court of Kiowa county, on a charge. of murder,' and his punishment fixed at imprisonment for life in the state penitentiary. The appeal'was-duly filed in this court, and the cause briefed upon its merits and argued orally to the court by counsel. Subsequent to the submission of the cause upon the briefs and argument, to wit, on. the 19th day of February, 1917, the plaintiff -in error filed his motion to dismiss the appeal, which is as follows, to wit:

“In the Criminal Court of Appeals of the State of Oklahoma.
“Guy Huber, Plaintiff in Error, v. State of Oklahoma, Defendant in Error. “Motion to Dismiss.
“Comes now Guy Huber, plaintiff in error, and states to the court that at the May, 1913, term of the district court of Kiowa county, Okla., he was tried and convicted of the crime of murder; that the judgment and sentence of said, court was that he should be confined in. the state penitentiary at McAlester, Okla., for the period of his natural life; from which judgmeht and sentence plaintiff in error appealed to the Criminal Court of Appeals of ' Oklahoma, and said appeal is now pending on the docket of said court.
“Plaintiff in error further states to the court that he does not wish to prosecute said appeal, and prays the ' court that same be dismissed, and that the judgment and sentence of the district court of Kiowa county against him be, by the court, ordered executed.
“[Signed] Guy Huber, Plaintiff in Error.
“Witness: J. R. Jarrell.”

The right of appeal is granted by law, and is a right that all persons convicted of-crime in the courts of the •state may exercise. In other words, it is a privilege granted by the law to those against whom judgments of confinement or punishment by fine are rendered, which they may exercise at their option. When an appeal is once lodged in this court and the cause submitted, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. In the case at bar, there is no reason made to •appear why the dismissal should not be ordered in compliance with the motion of the plaintiff in error. It is therefore the order of the court that the motion be sustained, and the appeal accordingly dismissed.

Mandate directed to issue forthwith.

DOYLE, P. J., and BRETT, J., concur.


text:
    FRANK NASH v. STATE.
    No. A-2185.
    Opinion Filed March 10, 1917.
    (163 Pac. 330.)
    1. APPEAL AND ERROR — Discontinuance—Right of Accused. The right of appeal is a privilege granted by .the laws of the state to persons who are convicted of crime. The option of exercising and discontinuing Itthe same, when the statute and rules of the court are complied with, ordinarily rests in the discretion of ■the party appealing.
    2. SAME — Dismissal. When a person has lodged an appeal in this court and the cause has been dulyi briefed, argued, and sub- . mitted, this court, in the absence of good reasons shown to the contrary, will permit the plaintiff'in error to dismiss the appeal on his own motion, and direct the trial court to enforce the Judgment and sentence.

      Error from District Court, Kiowa County; . James R. Tolbert, Judge.

      Frank Nash was convicted of murder, and he brings, error.
    Dismissed.

      Zink & Cline, George D. Keys, and Hays & Hughes, for plaintiff in error.

      R. -McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Frank Nash, was convicted at the -August, 1913, term of the district court of Kiowa county, on a charge of murder, and his punishment fixed at imprisonment for life in the state penitentiary. The appeal was duly filed in this, court, and the cause briefed upon its merits and argued orally to the court by counsel.

Subsequent1 to the submission of the cause upon the briefs and argument, to wit, on the 19th day of February, 1917, the plaintiff in error filed his motion to dismiss the appeal, which is as follows, to wit:

“In the Criminal Court of Appeals of the State of Oklahoma.
“Frank Nash, Plaintiff in Error, v. State of Oklahoma, Defendant in Error.
“Motion to Dismiss.
“Comes now Frank Nash, plaintiff in error, and states to. the court that at the August, 1913, term of the district court of Kiowa county, Oklahoma, he was tried and convicted of the crime of murder; that the judgment, and sentence of the court was that he should be confined" in the state penitentiary at McAlester, Oklahoma,, for the period of his natural life; from which judgment and sentence, plaintiff in error' appealed to the Criminal Court of' Appeals of Oklahoma, and said appeal is now pending on the docket of said court.
“Plaintiff in error further states to the court that he does not wish to prosecute said appeal, and prays. the court that same may be dismissed, and the jüdgment and sentence of the district court of Kiowa county against him be, by the court, ordered executed.
“[Signed] Frank Nash, Plaintiff in Error.
“W C. Kilgore, Witness to Signature.”

The right of appeal is granted by law, and' is a right that all persons convicted of crime in the courts of the state may exercise. In other words, it is a privilege granted by the law to those against whom judgments of confinement or punishment by fine are rendered which they may exercise at their option. 'When an appeal is once lodged in this court and the cause submitted, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. In the case at bar, there is no reason made to appear why the dismissal should not be ordered in compliance with the motion of the plaintiff in error-.

It is therefore the order of the court that the motion be sustained, and the appeal accordingly dismissed.

Mandate directed to'.issue forthwith.

DOYLE, P. J., and BRETT, J., concur.


author: PER CURIAM.

text:
      Ex parte EB. DANIELS et al.

    No. A-2531.
    Opinion Filed March 10, 1917.
    (164 Pac. 990.)

      Habeas corpus by Eb. Daniels, Henderson Leopard, and James Blue against M. C. Binion, Sheriff of Oklahoma County.
    Writ discharged and petitioners remanded to custody of respondent.

      Giddings & Lillard and Thos. Wallace, for petitioners. . ,

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an application for writ of habeas corpus to prevent M. C. Binion, sheriff of Oklahoma county, from transferring and delivering Eb. Daniels, Henderson Leopard, and James Blue to the sheriff of Garvin county, Okla.; it appearing from the answer filed by respondent that the petitioners are held in custody by virtue of an order of the county judge of Gar-vin county,' committing said petitioners to the custody of the sheriff of Oklahoma county, and that they are now held subject to the order of said court to answer a complaint. wherein said petitioners are jointly charged with the crime of conjoint robbery.

The vwrit is discharged, and the petitioners are remanded to the custody of the respondent.


text:
    WILLIAM FREELY v. STATE.
    No. A-2568.
    Opinion Filed March 10, 1917.
    (164 Pac. 990.)

      Appeal from County Court, Comanche County; R. J. Ray, Judge.

    William Freely was convicted of violating the prohibitory law, and he appeals.
    Affirmed.

      John A. Lenertz, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, William Freely, was convicted at the July,’ 1915, term of the county court of Comanche county, on a charge of having the unlawful possession of intoxicating liquor with intent to sell same. His punishment was fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

An examination of the record discloses no error prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is therefore affirmed.

Mandate ordered forthwith.


text:
    GEORGE WARD v. STATE.
    No. A-2656.
    Opinion Filed March 10, 1917.
    (164 Pac. 989.)

      Appeal from County Court, Pottawatomie County; Hal Johnson, Judge.

    George Ward- was convicted of violating the prohibitory law, and he appeals.
    Affirmed.
    G. A. Outcelt, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, George Ward, was convicted at the December, 1915, term of the county court of Pottawatomie county, on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment .fixed at a fine of $50 and imprisonment in the county jail of Pottawatomie county for a period of 180 days.

An examination of the record discloses no error prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is therefore affirmed.


text:
    WILL TOWERY v. STATE.
    No. A-2860.
    Opinion Filed March 10, 1917.
    (163 Pac. 331.)
    ’EVIDENCE — Admission by Silence — Constitutional Provisions. Where a party charged with the commission of a crime is under arrest, and a third party, in his presence, makes a statement to the - ' officers, which, tends to connect the accused with the commission of ^the crime, and the accused remains silent, such 'Statement, and the fact that Itihe accused remained silent, is not admissible in evidence against him, for the Constitution clothes the accused with the right of silence, and it would be absurd to «ay in one. breath he has the right of silence, and in the next' to hold that he could be forced to testify against himself, <by the very act of exercising this right.

      Error from District Court, McIntosh County; T. P. Clay, Assigned Judge.

    Will Towery was convicted of .murder, and he brings error.
    Reversed and remanded.

      W. H. Twine, and /. D. Epps, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

In this case the plaintiff in error, Will Towery, who will be referred to as defendant, was convicted in the district court of McIntosh county of murder, and sentenced to death. ■ The facts in this case present an unfortunate condition from several angles, and in the trial of the case we think reversible error was committed.

The deceased, Charles Vaughn, was a white man, apparently past middle life, and on August 4, 1916, the day of the homicide, he seems to have met the defendant and his brother, Cecil Towery, at the resort of a negro woman, where they were all carousing and drinking Choctaw beer. Later he took them and two other young negro men in his automobile and went to Grayson, to a negro picnic, where he and some of his young negro companions indulged in further dissipation. He and three of these young negroes then returned to another place in the community of questionable reputation, and while there the deceased accused the defendant and his brother, Cecil, of having stolen a quart of whisky from him. They each denied the accusation, but he took all three of these young negroes in his car and started with them to Gray-son, stating that he intended to have them arrested. They had gone but a short distance from this last resort when the defendant’s brother, Cecil Towery, who was. sitting .on the back seat, struck the deceased with his fist, and said, “I will run this durn car.” Classie Scott, a cousin of the defendant and his brother, Cecil, who was sitting with Cecil in the back seat, tried to prevent Cecil from further violence, but Cecil shoved him aside and said, “To hell with you.’.’ And as soon as the car was stopped, Scott jumped out and ran for help; but, when he and the party he had summoned returned, Vaughn was in a sitting posture between the seats with his head almost severed from his body, and the defendant and his brother, Cecil, had fled. The pockets of deceased were wrong side out, and the top of the automobile had been pulled down and partially covered the dead man.

Cecil was arrested that afternoon near the scene, in a drunken and crazed condition, and lodged in the jail at Tulsa. The defendant a day or two later appeared at the jail in Tulsa, and voluntarily surrendered. At the time Classie Scott left, the defendant, who was in the front seat with deceased, appeared to be in the act of getting out of the car. No one saw what was- done after Scott left the car; but Cecil pleaded guilty to murder, and testified in behalf of the defendant, exonerating him of all blame, and testified that the defendant did all he could to prevent him from killing the deceased. On his plea of guilty he was sentenced to death, and has been executed; and the only evidence, outside of the fact that the defendant was present and fled, that tended to show that he participated in the crime was a statement of an officer to the effect that, while they were both in jail together and surrounded by. a number of officers, Cecil told him, in the defendant’s presence, that the defendant gave him - an open knife with which he cut the deceased’s throat, and the defendant remained silent. Another officer testified that defendant stated on a different occasion that it was his knife that Cecil used, but witness did not intimate that defendant stated that he gave Cecil the knife at the time of the homicide, or for the purpose of using it on the deceased.

It cannot be argued that the defendant’s 'mere presence is sufficient to base a conviction upon; for if Scott, upon whom no suspicion rests, and who in a way did what he could to prevent a tragedy, had remained upon the scene, and unsuccessfully continued his efforts to prevent a tragedy, he doubtless would have been implicated in this murder, and might have found it as difficult to extricate himself as does this defendant. And the testimony of this officer concerning Cecil’s statement to him, and that, the defendant remained silent, was clearly incompetent, and most prejudicial, and should not have been admitted in evidence, and was doubtless one of the main factors in influencing the jury to return this verdict. In Vaughan v. State, 7 Okla. Cr. 685, 127 Pac. 264, 42 L. R. A. (N. S.) 889, this court, in passing upon the identical question now under- consideration, said:

“It is error in the trial of .a criminal case for the court to admit testimony as to declarations between- an officer who had accused under arrest and the state’s witnesses, or other persons, in the presence of the accused, tending to connect him with the offense charged, and that the accused remained silent as to such conversation, and when a conviction results with such testimony before the jury a new trial should be granted ”

—and quoted with approval from the Court of Criminal Appeals of Texas in Gardner v. State [Tex. Cr. App.] 34 S. W. 945, as follows:

“Were .these facts, and especially the silence of appellant, competent evidence? They were not. In Com. v. McDermott, 123 Mass. 440 [25 Am. Rep. 120], it is held: ‘A person who is held in custody on a charge of crime is not called upon to contradict statements, prejudicial to him, made in his presence by another person in answer to inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence against him.’ This case cites Com. v. Kenney, 12 Metc. (Mass.) 235 [46 Am. Dec. 672] ; Com. v. Walker, 13 Allen [Mass.] 570. To give silence the effect of an admission, the party charged with it must have been in a position to explain. If the party is under arrest, his silence cannot be used as sustaining the hypothesis of acquiescence thereto. * * * We deem these authorities sufficient to support the rule that, if the party is under arrest, silence cannot be used to support the hypothesis of consent to statements made in -his presence by others.”

See Simmons v. State, 50 Tex. Cr. 527, 97 S. W. 1052; Merriweather v. Commonwealth, 118 Ky. 870, 82 S. W. 592, 4 Ann. Cas. 1039; State v. Epstein, 25 R. I. 132, 55 Atl. 204; State v. Weaver, 57 Iowa, 730, 11 N. W. 675; State v. Carter, 106 La. 407, 30 South. 895; State v. Howard, 102 Mo. 142, 14 S. W. 937.

And in Ellis v. State, 8 Okla. Cr. 522, 128 Pac. 1095, 43 L. R. A. (N. S.) 811, in an opinion by the late Judge Furman, it is held:

“A person 'held in custody on a charge of crime is not called upon to contradict statements prejudicial to him, made in his presence by another; and, though such statements were not contradicted by such person, they are not admissible in evidence against him.”

And Judge Furman further says:

“Wharton on Criminal Evidence, sec. 680, lays down the rule as follows:" ‘To give silence, however, effect as an admission, the party charged with it must have been in a position to explain. Before acquiescence in the language of others can be used or assumed as a confession of the truth of any particular statement or the existence of any particular fact, it must plainly appear that the language was heard and the conduct understood. . Thus' neither a person asleep nor when intoxicated, or a deaf person, can be in this way prejudiced by statements made in his presence, * * * nor can silence when a party is under arrest.’ ” v

This doctrine is established in this jurisdiction; and under it, we think, the record shows the defendant was deprived of a substantial and material right, his constitutional right of silence, for it would be absurd to say in one breath he has the right of silence, and in the next to hold that he could be forced to testify against himself by the very act. of exercising this right.

The judgment is reversed, and the cause is remanded.

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