text:
    LEO DOBBINS v. STATE.
    No. A-3938.
    Opinion Filed Sept. 11, 1922.
    (208 Pac. 1056.)
    (Syllabus.)
    1. Husband and Wife — Information for Wife1 Abandonment Sufficient, and not Bad for Duplicity. — For information held sufficient to charge the offense of wife abandonment, and noft bad for duplicity, see body of opinion.'
    2. Evidence — Evidence Tending to Aggravate or Mitigate Offense. —Wher.e the jury is authorized to assess the punishment, 'any evidence tending either to aggravate or mitigate the offense is admissible.
    3. Trial — Refusal of Requested Charge, Where no Evidence to Support. — It is not error to refuse to give a requested instruction, where there is no evidenqe sufficient in law to support the theory on which the requested instruction is based.
    4. Husband and Wife — That Husband Married Wife under Duress no Defense to Charge of Wife Abandonment.) — Where there had been no effort to annul the marriage, the fact that the husband married his wife under duress is no valid defense to a charge of wife abandonment.
    Appeal from County Court, Dewey County; "W. A. Carlton, Judge.
    Leo Dobbins was convicted of wife abandonment, and be appeals.
    Affirmed.
    Fred L. Hoyt' and E. A. Darnell, for plaintiff in error.
    Tbe Attorney General, for the State.
   MATSON, J.

On the 12th day of October, 1920, the county attorney of Dewey county, Okla., filed an information, duly verified, in the county court of said county, which, omitting the caption, is as follows, to wit:

“In the name and by the authority! of the state of Oklahoma, now comes J. H. Antrobus, the duly qualified and acting county attorney in and for Dewey county, state of Oklahoma, and gives the county court of Dewey county, state of Oklahoma, to know and be informed that Leo Dobbins did, in Dewey county, and in the state of Oklahoma, on or about the 18th day of May, in the year of our Lord one thousand nine hundred and twenty, and anterior to the presentment hereof, commit the crime of wife abandonment in the manner and form as follows, to wit:
' ‘' That Leo Dobbins, a person at and within the county of Dewey and state of Oklahoma, on or about the 18th day of May, 1920, did then and there without good cause abandon his wife, Leona Dobbins, and has ever since said date refused and neglected to maintain and provide for the said Leona Dobbins, and that on the 25th day of August, 1920, a child was bom to Leona Dobbins'and her husband, Leo Dobbins, to wit, Lucile Dobbins, and the said Leo Dobbins has failed and willfully neglected to provide for said Lucile Dobbins, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.
“J. H. Antrobus, County Attorney.”

On the same day defendant was brought before the court and was released" under a bond of $500 to appear at the January, 1921, term of the county court. Oh the 3d day of January, 1921, the cause came regularly on for trial, and the case being called for trial, defendant was duly arraigned, at which time he filed a demurrer to the information on the following grounds:

“ (1) That the information does not substantially conform to the requirements of the statute.
“(2) That more than one offense is charged in the information and in the same count.
“ (3) The facts stated do not constitute a public offense.
"Wherefore said defendant prays the court to set aside the information herein and discharge this defendant.”

Which demurrer was by the court overruled, and exceptions saved by defendant. The defendant then entered a plea of not guilty, and a jury was duly chosen and sworn to try said cause. Whereupon the state introduced its proof and rested, and the defendant introduced! his evidence and rested. The defendant offered requested instructions numbered A, B and C, which were respectively as follows, to wit:

“No. A. Gentlemen of the jury, you are instructed that the state has failed in this case to produce evidence sufficient to base a conviction upon, and the court instructs you to return a verdict of not guilty. ’ (Which instruction was refused, and exceptions saved by defendant.)
“No. B. Gentlemen of the,jury, the court instructs you that the information in this case charges that on the 25th day of August, 1920, a child was born to Leona Dobbins and her husband, Leo Dobbins, to wit, Lucile Dobbins, and that said Leo Dobbins has failed and willfully neglected to provide for said child, Lucile Dobbins, and the court informs you that the state has totally failed to produce sufficient evidence upon which to base a conviction under the charge of failing and neglecting to provide for said child, Lucile Dobbins, and the court instructs you that the defendant cannot be convicted of the charge of abandoning said child.' You! are therefore instructed to render a verdict of not guilty of the! charge of abandoning said child or failing or neglecting to provide for said Lucile Dobbins.” (Which instruction was refused, and exceptions saved by defendant.)
“No. C. Gentlemen of the jury, you are instructed that the defendant interposes as one of the defenses in this casé that the marriage was entered into and the marriage vows made by reason of threats on the part of the father pi the prosecuting witness, and that, by reason thereof the marriage contract and marriage vows entered into by said defendant were null and void, and that the same would constitute grounds of divorce. And you are instructed that if you find from the evidence that such marriage was entered into through fear and because of the threats of the father of the prosecuting witness, and that the marriage was not voluntary on the part charged, and you should find the defendant not guilty and so of the defendant, the same will constitute a defense to the crime say by your verdict.” (Which instruction was refused, and exceptions saved by defendant.)

The' court thereupon gave instructions numbered 1 to .11, inclusive, and defendant objected and excepted to instructions 1, 2, and 3 on the following grounds:

"Comes now the defendant, and excepts to the instructions given by the court, and especially to instructions numbered 1, 2, and 3, for the reason that the court fails to instruct the jury on the entire charge made in the indictment, and especially that he fails to charge them on the law in regard to the crime of abandonment, and failing and refusing to support one Lucile Dobbins, his alleged child.”

The-jury returned a verdict of guilty, but failed! to agree ¡upon the punishment. The defendant moved to discharge the defendant, notwithstanding the verdict, for the reason there was not; sufficient evidence upon which to base a conviction, which motion was overruled, and exceptions saved. The defendant was then sentenced by the court to pay a fine of $500 to be paid to Leona Dobbins in‘weekly installments of $10.

A motion for a new trial was duly filed by defendant, and presented to, the court, and thereafter overruled, to which action objection was made and exception taken. The alleged errors here assigned are as follows:

“ (1) That the court erred in overruling the demurrer to the information. To which ruling defendant duly excepted.
“ (2) That the court erred in permitting any evidence to be introduced under the information and over the objection of defendant. To which defendant excepted.
" (3) That the court erred in admitting incompetent and irrelevant and immaterial evidence prejudicial to the rights of defendant. To which defendant objected and excepted.
‘ ‘ (4) That the court erred in refusing to give a direct verdict as requested in offered instruction No. A. To which defendant duly excepted.
“ (5) That the court erred in refusing to givei requested instructions Nos. A, B and C. To which defendant duly excepted.
“(6) That the court erred in giving instructions Nos. 1, 2, 3, 4, and 5 over the objection of defendant. To which defendant duly excepted.
“ (7) That the court erred in overruling defendant's motion for a new trial. To which defendant duly excepted.”

It is first argued that the trial court erred in overruling the demurrer to the information. In this connection it is contended that the information does not allege every essential element of the crime intended to be charged, in that it does not allege that defendant abandoned his wife “in, destitute or necessitous circumstances. ’ ’ The information is based on section 1, chapter 149, Session Laws 1915, which, as far as here involved, reads as follows:

“That every person who shall without good cause abandon his wife andj neglect and refuse to maintain and provide for her, and who shall abandon his or her minor child or children under the age of twelve years, in destitute or necessitous circumstances, and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail, or at hard labor on the public roads of the county not less than one month nor more than twelve months, or by both such fine and imprisonment. ’ ’

The act is not ambiguous. The legislative intent is plain from the context. As to wife abandonment, the offense is complete so soon as she is abandoned by her husband “without good cause” and he thereafter “neglects and refuses to maintain and provide” for her. The words, “in destitute or ¡necessitous circumstances” qualify the clause immediately preceding — “and who shall abandon his or her minor child or children under twelve years of age”; that portion of the act is applicable alike to the father or mother. The Oklahoma act was evidently framed from the act of Kansas (Laws Kan. 1911, c. 163), and the difference in phraseology between the two acts indicates an intent on the part of the Oklahoma Legislature to make the offense of wife abandonment criminal under the circumstances enumerated, without reference to whether the wife was “in destitute or necessitous circumstances” at the time of such abandonment. In this respect the' Oklahoma act clearly departs from the prior Kansas act. In other respects the phraseology of the two acts relative to their criminal provisions are substantially identical. .

Further it is contended that more than one offense is charged in one count in the information. There is no merit in this contention. The information charges the abandonment of the wife; the additional allegations referring to her pregnancy and subsequent birth of the child and failure thereafter to provide for it create no new or additional offense. The statute defines but one offense, that may be committed in different ways; the husband and father may, by the same act, abandon his wife without just cause, and minor child or children under the age of 12 years in destituid and necessitous circumstances, and fail to provide for either or both. If he> does .either or both, he has committed but one offense, and that offense continues until proper provision, to the best of his ability, is made for their adequate support.

The information in this case charges but one act defined by the statute as constituting the> offense, that of wife abandonment. The additional allegations concerning the birth of the child are merely surplusage, are not misleading, and are not sufficiently averred to constitute a second or superfluous offense, even had the abandonment of the child1 been alleged to have been at a different time. See State v. Franks, 21 Okla. Cr. 213, 206 Pac. 258. There was no error in overruling the demurrer to the information.

It is also urged that the trial court erred in permitting the state, over objection and exception by defendant, to introduce evidence to show that defendant abandoned his wife “in destitute and necessitous circumstances.” As the jury was authorized to assess the punishment, any evidence tending either to aggravate or mitigate the offense was properly admissible. Prather v. State, 14 Okla. Cr. 327, 170 Pac. 1176.

Finally, it is contended that the trial court erred in refusing to give instructions B and C, requested by defendant.

Instruction B is to the effect that defendant could not be convicted of abandonment of his minor child under the allegations of the information. The trial court, in the general charge to the jury, limited the jury to a conviction of the defendant for the abandonment of his wife. This sufficiently safeguarded his substantial rights, and, in view of the instructions given, there was no error in the court’s refusal to give requested instruction B.

Requested instruction C was to the effect that defendant had entered into the marriage contract with his wife by reason of threats on the part of her father, and that therefore the marriage was null and void, and if the jury found such to be the fact, defendant could not be found guilty. We think this instruction was properly refused, (1) for the reason that there is no evidence sufficient in law to show that the marriage entered into between! the defendant and his wife was by reason of any threats of violence to the defendant on the part of the father of the prosecuting witness; (2) because a marriage, even if obtained by duress, is not necessarily void, but merely voidable, and as the defendant had not invoked the jurisdiction! of a court of equity to annul his marriage to the prosecuting witness, and there had been no annulment of the mar-riage by any court, so far as the trial court was concerned the marriage wasi valid and binding upon the parties, and the law cast upon the defendant the legal duty of providing for his wife, and defendant admits, and the record in this case shows, that the defendant had refused and neglected to perform such duty after having abandoned his wife without just cause. Bostick v. State, 1 Ala. App. 255, 55 South. 260.

There is practically no conflict in the evidence in this case. Defendant admits the abandonment, and subsequent failure to provide for his wife. The trial court was very liberal to defendant in the charge to the jury, and fairly presented the law of the case.

The judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    C. F. SULLIVAN v. STATE.
    No. A-3881.
    Opinion Filed Sept. 15, 1922.
    (209 Pac. 181.)
    (Syllabus.)
    1. Animals — Statute Penalizing Owner of Stock Running at Large —Intent or Culpable Negligence. — Under the provisions of sections 137 and 138, Rev. Laws 1910, as amended by section 2, chapter 192, Session Laws of 1917, penalizing the owners of live stock for permitting them to run at large, the law contemplates that there must be a purpose on the part of the owner to permit his stock to run at large, or such culpable negligence on the part of the owner as would indicate an indifference as to whether they wjere restrained or not.
    2. Same — Owner Without Fault not Liable. — Where, through some untoward circumstances, or through no fault of the owner, live stock escapes from a well-kept, adequate inclosure, the penal provisions of the statute do not apply.
    Appeal from County Court, Love County; B. W. Jones, Judge.

      C. F. Sullivan was convicted of not restraining Ms domestic animals, and be appeals.
    Reversed.
    J. H. Hays, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for tbe State.
   BESSEY, J.

C. F. Sullivan, plaintiff in error, was on tbe 20th day of September, 1920; found guilty of tbe offense of not restraining bis domestic animals, and bis punishment was assessed at a; fine of $100 and costs. From tbe judgment on this verdict, be appeals.

Tbe evidence in tMs case shows that O. F. Sullivan was tbe owner of a large pasture, comprising more than a section of land in Love county, OMa., in which be kept a large number, of cattle; that Sullivan did not reside at or near the pasture, but made bis home in Ardmore; that one Looney Stewart was employed by Sullivan to ride after cattle and look after tbe pasture fences; that it was bis duty at all times to keep tbe fences in repair, so that tbe cattle could not get out of tbe inclosure; that tbe pasture furnished good grazing and an abundant water supply for the cattle there kept; that tbe fences were in good shape at tbe time of tbe alleged offense, but that there were a number of gates, which could not be kept up because of the carelessness of people passing through; that these gates had been put in for the benefit of persons driving across the pasture, so that they would not tear down the fences to get through, as had been done prior to their being put in; that on the 15th of October, 1919, a number of cattle got through an open gate in one side of the pasture, and got into the pasture of W. F. Banks, adjoining the Sullivan pasture, and that Banks made complaint to Sullivan by letter, and to Stewart, also, about this trespass; that Sullivan came to see Banks about the matter, but Banks was not at home; that subsequently Banks signed the complaint upon which this prosecution was instituted.

This prosecution was instituted under the provisions of section 137, R. L. 1910, and section 138, R. L. 1910, as amended by section 2, chapter 192, Session Laws of 1917. The sections are as follows:

“Every owner of swine, sheep, or goats shall restrain them, at all times and seasons of the year, from running at large; Provided,- that in any county, or stock district thereof, where said animals, or any of them, are now running at large under authority of article 2, chapter 4' of the Session Laws of 1908, it shall be lawful for same to continue to run at large, unless restrained by an election held as hereafter provided in this article.”
“All domestic animals, other than those mentioned in the two preceding sections, shall be, by the owner thereof, restrained, at all times and seasons of the year, from running at large, unless permitted to run at large by an election- held as hereafter provided in this article: Provided, that in any county, or stock district thereof, where any of said animals are now running at large under authority of article 2, chapter 4, of the Session Laws of 1908, or section 38, article 1, chapter 1, of the Session Laws of 1903, it shall be unlawful for same to continue to run at large, unless restrained by an election held as hereafter provided in this article.
“Any person, firm, association or corporation violating the provisions of sections 1, 2 or 3 of this article, same being running sections 136, 137 and 138 of the Revised Laws of Oklahoma, 1910, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by á fine of not less than twenty-five dollars, and each day such stock or domestic animal is permitted to run at large, shall be and constitute a separate offense; Provided further, that when a firm or association is adjudged guilty of a violation of the, provision herein, the punishment shall be assessed against each member of such firm or association, and in case of a corporation, such punishment shall be! assessed against the president or managing officer of! such corporation.”

The «barging part of the information; is as follows:

"That on the day and| year aforesaid, and in the county and state aforesaid, the said C. F. Sullivan did not restrain his cattle from running at large, and the same trespassed on the premises of W. J. Banks, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The only instructions given by the court defining the issues were instructions Nos. 1 and 2, as follows:

"The defendant, C. F. Sullivan, is charged by information filed and presented in this', court on the 15th day of October, 1919, with the offense of not restraining his domestic animals from running at large, and in this connection you are instructed that all domestic animals are prohibited by, law from running at large, and that it is the duty of persons owning such animals to restrain them at all1 times and seasons of the year from running at large. ”
"You; are further instructed that, if you find from all the testimony in this case beyond a reasonable doubt) that the defendant, C. F. Sullivan, did on or about the 15th day of October, 1919, or within one year prior thereto, commit the crime of not restraining his domestic animals from running at large, and that the domestic animals of the said C. F. Sullivan did trespass upon the premises of W. J. Banks, it will be your duty to find the defendant guilty as charged in the information, and fix his punishment at a fine of not less than $25 for each day such domestic animals were permitted to run at large.”

The Attorney General has filed a confession of error in this case, and an examination of the record by this court convinces lus that the confession of error is well taken. The evidence indicates that the owner of the trespassing cattle used every reasonable means and took every precaution to keep them restrained, and that the cattle escaped through a gate left open by persons passing through the pasture, through no fault of the owner or his agents. The plaintiff in error requested the following instructions, which were by the court refused, and exceptions allowed:

“You are instructed that the/ law of agency does not apply in criminal law, and if you find from the evidence in this case that the defendant, C. F. Sullivan, had and maintained a pasture in Love county, Oklahoma, and the said pasture and cattle in the same, if any, were in the charge, custody, and control of Looney Stewart, and you further find that said cattle did break out of said pasture, and were not restrained from running' at large, as charged in the information, then and in that event, before you could convict the defendant herein, you must believe from the evidence beyond a reasonable doubt that C. F. Sullivan knowingly and willfully refused to keep in restraint the cattle in said pasture at the time the alleged offense was committed.”
“You are instructed that, if you find from the evidence in this cáse that the gate to thd pasture in question was left down by others than the defendant, C. F. Sullivan, and without his consent or permission, and that by reason thereof that said cattle did gain outlet from the pasture at the time of the alleged commission of the offense, then and in that event it will be your duty to return a verdict of not guilty and acquit the defendant. ’ ’

Ordinarily, in cases involving a violation of police regulations, the motives and purposes of the accused are not taken into consideration; the doing of the thing prohibited alone constitutes the offense, irrespective of the motive or intent. But in this case we are convinced that the motive and intent do constitute an essential element of the offense. Considering our statutes relating to trespassing animals as a whole, in connection with the language used in the amendatory act, providing that the owner of live stock who fails to restrain the same from running at large “shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less’ than $25, and that each day such stock or domestic animals is permitted to run at large, shall be and constitute a separate offense, ’ ’ it would seem that there' must be a purpose on the part of the owner to permit his stock to run ah large, or such culpable negligence as would indicate an indifference on his part as to whether they were restrained or not.

Suffering or permitting animals to run at large implies knowledge,' consent, or willingness on the part of the owner, or such negligent conduct as is equivalent thereto; but' it does not comprehend a ease where, through some untoward circumstance, the owner is unable to watch or care for them in a particular instance, or where animals escape from their owner after due precaution has been taken to secure them, without fault or negligence on his part. Montgomery v. Breed, 34 Wis. 649; Beattie v. State, 77 Ark. 247, 95 S. W. 163; Collinsville v. Scanland, 58 Ill. 221; 3 Corpus Juris, 180, and cases there cited; notes and annotations, 9 Ann. Cas. 285, 286.

It is generally held, under statutes prohibiting horses and cattle from running at large, that, when they escape from their owner’s inclosure without his fault or negligence, they are not at large, in the legal sensei of the term. 1 R. C. L. 1150. Considering the nature of the statutes dealing with live stock running at large, and particularly the language of the statute making it a penal offense, in the light of the authorities cited above, wé think it wa^ not the intention toi penalize a person whose stock escaped from a well-kept pasture without his fault or negligence.

The judgment of the trial court is reversed.

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


text:
    CORB PAYNE et al. v. STATE.
    No. A-3892.
    Opinion Filed Sept. 16, 1922.
    (209 Pac. 334.)
    (Syllabus.)
    1. Mayhem — Information—Particular Description of Instrument Unnecessary. — In an action fot maiming, where the information charges an assault with a blunt instrument, wounding and permanently injuring one of the eyes of the person assaulted, where a battery as well as an assault is charged:
    (a) Under the circumstances in this case, a particular description of the instrument used need not be alleged.
    2. Appeal and Error — Mayhem—Evidence Concerning Unidentified Club and as to Statements by Injured Person not Prejudicial.— Evidence concerning a certain club or “billy” held improper, but . immaterial, and not prejudicial.
    (a) Likewise as to evidence of what the injured person said at the poljice station after the difficulty.
    3. Trial — Mayhem—Sufficiency of Instructions Relating to Reasonable Doubt and Premeditated Design to Maim. — Instructions relating to reasonable doubt and premeditated design examined, and found sufficient.
    4. Appeal and Error — Incomplete Record — Presumption of Correct Rulings, — Where the record is incomplete touching upon allegted disparaging remarks made in the closing argument, this court will presume that the trial court ruled correctly.
    Appeal from District Court, Creek County; Mark L. Bo-zarth, Judge.
    Corb Payne and Earl Williams were convicted of maiming, and they appeal.
    Affirmed.
    Frank P. Smith, for plaintiffs in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Corb Payne and Earl Williams were on April 7, 1920, convieted of the crime of maiming, and the punishment of each was fixed at confinement in the state penitentiary for a term of three years. , The amended information in substance charges that:

"Said defendants, Corb Payne and Earl Williams, then and therel being, without authority of law, and with' the premeditated design to injure one E. E. Hensel, and'to disfigure his personal appearance and disable the members and organs of his body, and seriously diminish his physical vigor, in and upon the said E. E. Hensel unlawfully, willfully, purposely, and feloniously did then and there make an assault upon the said E. E. Hensel with a certain blunt instrument or instruments, a better description of which is not known to the county attorney, the said Corb Payne and Earl Williams then and there had and held in their hands, on the right eye of the said E. E. Hensel purposely, unlawfully, willfully, and feloniously did injure and destroy the same, with a premeditated design on the part of them, the said Corb Payne and Earl Williams, to injure, disfigure, disable, and seriously diminish his physical vigor, all of which is contrary to, the form/ of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The injured man testified that he was a police officer, holding the position of desk sergeant in the, city of Sapulpa; that on the night of June 27,1919, he saw defendant Williams on the street in Sapulpa, opposite where he was; that Williams was quarreling with some negroes, using loud, profane, and vulgar language. Witness ordered Williams to cease, but Williams continued, saying he was from overseas and was not going to let any “d-negro bump him around on the street.” After some argument the officer took hold of Williams and started towards the police station. After the objectionable talk ceased, the officer hesitated whether to take williams further or not. While he so hesitated, Williams attempted to escape, and defendant Payne caught hold of witness for the purpose of overcoming him and permitting Williams to escape. Witness was knocked down, struck, beaten, and abused in the .encounter; both defendants making their escape. The witness then went on towards the police station and reported the affair. A short time thereafter the defendants were arrested in the vicinity of the place where the difficulty occurred. The testimony is conflicting as to just the manner in which the blow was struck that destroyed the eyesight of the witness.

Fourteen assignments of error are urged as to why the' judgment of the trial court should be reversed. These assignments may be condensed and summarized thus:

(1) That the court erred in overruling the demurrer to the amended information, on the ground that the amended information failed to show the manner in which, or with what instrument or weapon, if any, the beating and striking was done, and that no battery was charged.

(2) That the court erred in permitting the state to withhold certain evidence that should have been introduced in chief, if admissible at all, and permitted it to be introduced in rebuttal.

(3) That the court erred in admitting in evidence a statement of the prosecuting witness Hensel, made at or near the city hall, after the difficulty was over, and in the absence of the defendants.

(4) That the court erred in giving instruction No. 4, and in refusing to give a substitute instruction offered by the defendants.

(5) That the court erred in failing to properly admonish the jury in regard to improper remarks of the special prosecutor in his closing' argument to the jury.

Section 2345, R. L. 1910, defines the crime of maiming as follows:

“Any person who, with premeditated design to injure another, inflicts upon his person any injury which' disfigures his personal appearance, or disables any member or organ! of his body, or seriously diminishes his physical vigor, is guilty of maiming.”

It is contended by the defendants that that part of the information, “the defendant did then and there make assault upon the said E. E. Hensel with a certain blunt instrument or instruments * * * then and there had and held in their hands, on the right eye of the said E. E. Hensel,” failed to charge that a battery was committed, as well as an assault. We think this amended information, construed as a whole, necessarily implies that a battery, as well as an assault, was committed, and that the information was sufficient, and sufficiently apprised the defendants of the naturej of the accusation against them. It would be absurd to contend that the eye of the prosecuting witness could have been permanently injured and the sight destroyed by a mere simple assault, without a battery, and it would be a strained construction to say that this information does not state a battery. Where a personal injury results from an assault upon person, a battery is necessarily implied. Cotton v. State, 22 Okla. Cr.—, 210 Pac. 739.

Defendants next complain of the testimony'of Eichard Jeffrey, introduced by the state in rebuttal. The evidence in chief did not show definitely by what means or with what instrument the wound in the eye was inflicted. It occurred some time during the fight, and may have been inflicted by the bare fist, or by some small instrument held in the fist, or by a black-jack or billy. Eichard Jeffrey, a boy whose' father had a blacksmith shop near the scene of the difficulty, said that some three or four months before the trial he was passing through the alley near where this controversy took place, and found a stick or policeman’s billy1, which he turned over to his father and had not seen since; that the policeman’s club exhibited to him was the stick, or was like the stick, he found and delivered to his father. This witness did not positively identify this stick or billy, and the court, over the, objections of the defendants, permitted it to be introduced as an exhibit.

We are inclined to agree with counsel for defendants that no proper foundation was laid for the introduction of this exhibit, and that the instrument was, not properly identified as being the one previously found by the boy, and for the further reason that it was not shown that the defendants had anything to do with this particular stick or club. The injured prosecuting witness had previously testified that he had carried such a stick that evening, and that he had it when the difficulty commenced, but that it was taken away from him during the difficulty. Under all the circumstances in this case, we think it was immaterial whether this particular stiek or billy* was the one with which the wound was inflicted or not. Maiming may be accomplished with the clenched fist, or with any instrument calculated to inflict bodily injury. This man’s eye may have been ruptured by the fist of his assailants, or, by some stick, black-jack, or billy club, and the finding of this particular club in the alley near where the difficulty occurred could be only a remote circumstance affecting the issue one way or another. There was no question but that the man’s eye was permanently injured. There was no question but that he received this injury during the progress of this difficulty, and that it was inflicted by one or the other of the defendants; the testimony indicating that the two were acting in concert and were therefore jointly responsible.

Where the kind of instrument or weapon with which the injury was inflicted is unknown, and that fact so stated in the information, proof may be made to the. effect that the injury was inflicted by an instrument of any character. Our statute expressly provides that it is immaterial by what means or instrument, or in what manner, the injury is inflicted, and that the design to injure or disfigure is inferred from the fact that an injury was inflicted, unless the circumstances indicate the contrary. Sections 2348 and 2350, R. L. 1910. Under these circumstances, we think the rights of the defendants were not prejudiced by the introduction of this evidence on rebuttal. The order in which testimony may be introduced is largely within the discretion1 of the trial court. 26 R. C. L. Trial, ’ ’ §§ 41, 42.

Exceptions were taken to portions of the testimony of C. H. Payton, another police officer of Sapulpa, as being hearsay testimony and not a part of the res gestae. Omitting the objections interposed and dialogue between court and counsel the testimony complained of is as follows:

“Q. Where did you first see Mr. Hensel after this [difficulty] occurred? A. He was right in front of the city hall.
“Q. Where was you? A. At the corner there. I was coming out in the car, starting to town. -
“Q. What was the general appearance of Mr. Hensel at that time? A. I didn’t,'know him when I first saw him; he was all bloody. I didn’t know: until I got up to him who he was.
“Q. Do you know the defendants, Corb Payne and Earl Williams? A. Yes, sir.
“Q. Now, did you have a conversation with Mr. Hensel there at that time, when he stepped up to the door, about what was the matter with him? A. Why, yes.
“Q. What did he say was the matter with him? A. He didn’t know just exactly at the time who it was. He knew them, but not by name;
“Q. Did he describe them to you? A, Yes, sir.
“Q. From the description he gave of them, did you know who it was? A. Well, no; not at the time I didn’t just exactly know who it was from the description.
“Q. Did you arrest these boys? A. Yes, sir.
“Q. Which one? A. Corb Payne.
“Q. Did you see Williams after he was arrested that night? A. Yes, sir.
“Q. Did the description Mr. Hensel gave you of the boys —did he say! anything about the kind of clothes they had on? A. How come me to go after Payne and Williams, I met Sunrise Gibson on the corner, and he said these were the two boys connected with it.
“Q- Did he give you a description of either of one of those boys’ clothes? A. Yes, sir.
“Q. What did he say? A. He said he had Williams by the collar, and tore his shirt open in front.
“Q. Did you see Williams after he was arrested? A. Yes, sir.
“Q. What was the condition of his clothes then? A. Oh, his shirt' wag all tore open here, (indicating), and his tie was pulled plumb around! to the side.”

This testimony was unimportant, except the description given of Williams’ shirt being torn open, for the purpose of identification. The witness, however, testified that he did not apprehend Williams and his codefendant upon the description given him by the prosecuting witness, but stated that he made the arrest on account of the statement made to him by Sunrise Gibson, who pointed them out as the two boys who were connected with the difficulty. We agree with counsel for defendants that this conversation was not a part of the res gestae; but the statements made by witness were immaterial, because they did not tend to elucidate or explain the incidents connected with the injury or the assault-. The; fact that Williams’ shirt was torn open at the throat could have been properly proved in another way; but the fact that it was introduced in this irregular manner did not operate to defendants’ prejudice.

Defendants complain that the court, in instruction No. 4, stressed the question of reasonable doubti as applying to "whether or not the assault complained of was made at the-time and place set out in the information, implying that reasonable doubt did not apply to the element of premeditated design to injure. The court gave an instruction upon reasonable doubt, being instruction No. 2, as follows:

‘'The jury are further instructed that the defendants are presumed to be innocent of the charge .against them, and this presumption continues and abides with them throughout the trial, or until it has been overcome by testimony which satisfies you beyond a reasonable doubt of the guilt of the defendants. ’ ’

Following that was an instruction upon premeditated design, as follows:

“You are instructed, gentlemen of the jury, that any person who, with a premeditated design to injure another, inflicts upon that person any injury which disfigures his personal appearance, or disables any) member or organ of his1 body, or seriously diminishes his physical vigor, is guilty of maiming.”

The instruction complained of is as follows:

“You are instructed, gentlemen of the jury, if you believe and find from the testimony in this case beyond a reasonable doubt that the defendants, Corb Payne and Earl Williams, on or about the time mentioned in the information and in this county and state, with a premeditated design to injure E. E. Hensel, and) to disfigure his personal appearance, and disable the members and organs of his body, and seriously diminish his physical vigor, made an assault upon the said E. E. Hen-sel unlawfully, willfully, purposely, and feloniously, with a certain blunt instrument or instruments, and by reason of such assault the right eye of the said E. E. Hensel was injured and destroyed, then your verdict should be guilty. On the other hand, if after a consideration of all the' testimony in this case you have a reasonable doubt as to whether or not assault complained of was made at the time and place set out in the information^ and in the manner complained of, then your verdict should be not guilty.”

We think the three instructions quoted, considered together, fairly state the law relating to reasonable doubt and premeditated design. The language used by the court, “in the manner complained of, ’ ’ has reference to the information; the definition of the offense was outlined in instruction No. 1, which included premeditated design.

The instruction requested by the defendants was as follows:

“They [the jury] must believe beyond a reasonable doubt that, if either of the defendants struck the blow, they did so with the premeditated design to' destroy the sight of the eye, and unless you so find, your verdict should be not guilty, in this case.”

The statement of the offense as requested in this instruction is not the law; the language of the statute is “with premeditated design to injure another.”

Finally, it is contended that remarks of the special prosecutor in his closing argument in the ease were improper and prejudicial. This assignment of error cannot be considered, for the reason that the so-called disparaging remarks of the special prosecutor are not sufficiently shown in the record. The exact language used should have been set out in full in the record, along with that part of the opposing argument to which it referred. The statement, made in the closing argument, that certain of the things said by the opposing attorney in his argument were “nothing but bosh and slop,” may or may not have been prejudicial, depending largely on what opposing counsel said. Often disparaging replies are provoked by the complaining party. The whole, or such parts, of both arguments as relate to the matters complained of, should be set out iu the exact language used by the orators, ¿A order to enable this court to' intelligently decide the import and effect of the language used. Here the record recites excerpts and conclusions only, which is not sufficient. An attorney, in his argument to the jury (and to the courthouse fans there assembled, has a right to criticise the logic of his opponent’s argument ; he may use oratorical flourishes and figures of speech in denouncing the defendant or his witnesses, so long as it is predicated upon the testimony introduced or their conduct or demeanor at the trial. In analyzing the testimony, he may state that it is his personal belief that the defendant is guilty as charged, and that his witnesses testified falsely. If he should indulge in invective and personal abuse not warranted by the testimony, the .court should, on request, admonish the jury to disregard such remarks, and in extreme cases the court should, in the absence of the jury, reprimand the attorney making such remarks. From what appears here we cannot say that the remarks of which complaint is made were prejudicial. Sanditen v. State, 22 Okla. Cr. 1, 208 Pac. 1040; Tillman Jones v. State, 20 Okla. Cr. 154, 201 Pac. 664; other cases cited in Shive’s Digest, p. 108.

Though the evidence in some particulars is conflicting, there is much testimony indicating that these defendants, with a common purpose to do bodily injury, violently assaulted the prosecuting witness, permanently destroying the sight of one of his eyes.

Finding no prejudicial error in this record, the judgment «of the trial eourt is affirmed.

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


text:
    KEARBY LYDE v. STATE.
    No. A-3882.
    Opinion Filed Sept. 16, 1922.
    (209 Pac. 226.)
    (Syllabus.)
    ' 1. Jury — Sheriff Disqualifieicl to Summon Talesmen foir Special' Venire Having Been Witness in Farmer Trial. A. sheriff who. is a material witness for the state in a criminal action, and who was present and testified and heard practically all the testimony Offered at a former trial of the same issues, is disqualified to summon talesmen for a special venire in a subsequent trial of the cause.
    2. Same — Panel Vulnerable to Challenge,' — A challenge to the jury panel under such circumstances should have been sustained, under the provisions of section 5848, Rev. Laws 1910.
    Appeal from District Court, Love County; W. F. Freeman, Judge.
    Kearby Lyde was convicted of rape in tbe first degree,, and be appeals.
    Reversed and remanded.
    See, also, 17 Okla. Cr. 365, 187 Pac. 252; 17 Okla. Cr. 619; 191 Pac. 606.
    Graham & Logsdon and George H. Culp, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty., Gen., for tbe State.
   BESSEY, J.

On December 1, 1918, Kearby Lyde was by-a verdict of tbe jury found guilty of rape in tbe first degree. Judgment was rendered on September 13, 1920, pursuant to a mandate of this court in Ex parte Kearby Lyde, 17 Okla. Cr. 619, 191 Pac. 606, August 23, 1920, assessing bis punishment at confinement in tbe penitentiary for a term of 15 years.

Plaintiff in error was on the 20th day of November, 1918,. regularly placed on trial before a jury, charged with rape. At' this trial tbe issues were regularly submitted to: tbe jury, but on account of the illness of one of tbe jurors and their-inability to agree upon a verdict the jury was ordered discharged. On November 29, 1918, the cause came on for trial al seeond time. The sheriff, F. N. Smith, thereupon returned into open court his service of a special open venire of jurors, and the court ordered such venire impaneled. Plaintiff in error objected to this special venire by a motion to quash the panel, for the reason that the sheriff who summoned these jurors was an important and material witness for the state in the prosecution of this charge; that this sheriff was present and heard, all the testimony taken, both at the examining trial and up oh the former trial of the cause, wherein the jury failed to reach a verdict; that the sheriff was disqualified to summon a special venire in this cause, on account of his actual bias against the plaintiff in error; that on account of having heard the testimony upon the trial in district court he had formed and expressed an opinion relative to the merits of this case, and was therefore clearly disqualified to select an impartial venire from which to select the jury.

The county attorney admitted that F. N. Smith was the sheriff of Love county, and that his name was indorsed as a witness on the information, and that he had been present and heard the testimony in the two former trials. In support of this motion to quash the panel the sheriff testified that he was present and assisted in the arrest of the plaintiff in error; that he was present at the examining trial, and heard practically all the testimony at that trial, as well as at the former trial in district court; and that he was a witness for the state at the former trial. In the course of this examination, of the sheriff the following question was propounded to him:

“From the testimony which you heard, Mr. Smith, both upon the examining trial and in the case upon the final trial in the district court at this term, have you formed or expressed an opinion as to the gnilt or innocence of the defendant as to the offense charged in the information?”

This was objected to as incompetent,-irrelevant, and immaterial, and the objection was sustained by the court. Later this further question was propounded to this officer:

“Based on what you know in this ease as an officer and upon the testimony Which you have heard in this ease, Mr. Smith, could you go into the box, if selected as a juror in this case, without any opinion formed in your mind as to the guilt or innoeenee of the defendant of the offense charged in the information.”

To this question an objection was likewise interposed and by the court sustained. Section 5848, R. L. 1910, is as follows:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.”

In this case, as ini every criminal case, the accused had a constitutional and statutory right to a trial before an impartial jury. In order to safeguard the selection of an impartial jury by means of a special venire, the Legislature saw fit to enact the statute quoted above. The provisions of thig statute are plain and susceptible of but one construction; that is, that the officer who summons a special venire must be impartial and unbiased, and must possess such qualifications as would make him acceptable as a juror in the cause. To us it seems clear that this officer did not possess the requisite qualifications, that it was error to sustain the objections propounded to test his qualifications as a juror, and the motion to quash the special venire should have been sustained.

This statute is well calculated to guard against handpicked juries by officers who might be inclined to select individuals whose inclinations and prejudices would cause them to favor a conviction. This court has recently held, in the case of Liddell v. State, 18 Okla. Cr. 87, 193 Pac. 52, 16 A. L. R. 405, iff a well-written opinion by Judge Matson, that it is essential to the fair and impartial administration of justice that an operi or special venire' of jurors should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice, and that where the sheriff who serves the open or special venire of jurors is a material witness for the state, and! ,a challenge to the panel of such open venire is interposed, it is prejudicial and reversible error for the court to overrule such challenge, citing Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689. This principle has also been stated and upheld in Shepherd v. State, 17 Okla. Cr. 630, 192 Pac. 235; Hisaw v. State, 13 Okla. Cr. 484, 165 Pac. 636; Harjo v. State, 1 Okla. Cr. 590, 98 Pac. 1021, 20 L. R. A. (N. S.) 1013.

The question of the improper selection of a jury being thus presented at the threshold of this inquiry, it becomes unnecessary to notice the several other assignments of error urged in the brief of plaintiff in error.

The judgment of the trial court is reversed, and the cause remanded.

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


text:
    E. D. WRIGHT v. STATE.
    No. A-4226.
    Opinion Filed Sept. 16, 1922.
    (209 Pac. 179.)
    (Syllabus.)
    1. Schools and School Districts — Parent not Liable for Failure to Send to Public School Child Taught by Private Instructors. Where a parent 5s prosecuted under the penal provisions of our compulsory school attendance statute for a failure to cause his eight year old 'child to attend the public school, and where such parent shows that the child has been taught by competent private instructors and is proficient in practically all the branches taught in the public school to children of about the same age, such parent is not subject to the penalties prescribed by section 7930, Rev. Laws 1910, as amended in section 1, c. 69, Sess. Laws 1919.
    2. Indictment and Information — Necessity for Negative Averment and Evidence to Sustain,- — Where a negative averment is an ! essential and material part of th!e description of an offense, such negative averment should be made and sustained by the evidence.
    3. Schools and School Districts — Erroneous Instructions as to Duty of Parent Educating Child Privately. — Instructions relating to qualifications of teachers and courses of study, as set out in the opinion, held erroneous.
    Appeal from County Court, Major County; Harry Randall, Judge.
    E. D. Wright was convicted of violating the compulsory school laws, and he appeals.
    Reversed.
    Tom E. Willis, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Att-y. Gen., for the State.
   BESSEY, J.

E. D. Wright was convicted in the county court of Major county, on the 28th day of December, 1921, of violating the compulsory school attendance laws of this state, and by the judgment of the court his punishment was assessed at a fine of $25 and costs, amounting to $131.45.

This prosecution was instituted under section 7930, E. L. 1910, as amended by section 1, chapter 59, Session Laws of 1919, which in substance provides that it shall be unlawful for any parent to neglect or refuse to cause his child or children to attend some public or private school, or other school, unless other means of education are provided, for a period of two-thirds of the time the public school in the district of his residence is, in session. The information charged that E. D. Wright, defendant' below, neglected, refused, and failed to compel his minor child, Felicia Wright, to attend the public school of his district, or any private school, for two-thirds of the time the public school was in session.

This information was defective, in that it failed to charge, negatively, that the, child attended no other, school, and that no. other means of education was provided, as incorporated in the statutory definition of the offense. These were not mere matters of defense; they constitute) an essential element of the offense, as defined by statute. Where a negative averment is an essential and material part of the description of an offense, such negative averment must be made. 22 Cyc. 344; 14 R. C. L. 188; 6 Ann. Cas. notes 726 et seq.

Mrs. Wright, the mother of Felicia, testified that' her daughter was eight years of age, and that she, the mother, had been giving the child instruction in the branches taught in the public school for a period of about five hours each day. The mother was a graduate of a normal training school, in which the curriculum included pedagogy, language, literature, history, mathematics, and other branches.. She testified that the child was proficient in drawing, writing, spelling, reading, and mathematics. In addition to these branches of study, she was being given Bible and religious instruction, instruction in paper cutting, clay modeling, and drawing. Exhibits of the child’s work were offered, showing consider.able proficiency in writing, mathematics, drawing, and other ,■ subjects.

The evidence also shows that the father, plaintiff in error here, was an experienced teacher; that he had taught three .years in the public schools of Kansas, and had! taught school several years in Oklahoma; that he had been employed by the government three years as a teacher in the Phillippine Islands ; and that he had taught one year in a business college .at' Wichita, Kan. The testimony shows that he assisted his wife in giving Felicia; instruction, and that she was unusually proficient in all branches for a child,'of her age.

The testimony of the father and mother as to the child’s -training was not .successfully impeached by any of the state’s witnesses. The parents offered to show in open court, by •demonstrative evidence, that the child had received efficient •educational training, which offer was refused.

Ostensibly this was an action to punish a parent for ne.glecting the education of his child; in reality, the record indicates that this prosecution! grew out of religious differences and disputes arising out of the management of school affairs, involving a bond issue, the location of a consolidated •school building, and methods of instruction and school discipline. The parents were members of the religious sect known as Seventh Day Adventists, and testified that they were desirous of training their children to become missionaries •and ministers, and claimed that the training and moral influences in the public school there were not favorable to that end. For this and other reasons they decided to give this child instruction at home, in lieu of a public school training. So long as the child’s education was not neglected, we think these parents, under the Constitution and laws of this state, had a right to manage and supervise the education of their •child, if done in a fitting and proficient manner. The proof is nob at all convincing that the education of this child was being in any way neglected. It seems to us that the state misconstrued the scope and spirit of the statute upon which this prosecution was based. Over the objection of plaintiff in error the court instructed the' jury, in part, as follows:

“In case a parent elects to furnish other means of education, it,'is his duty under the law to furnish the necessary equipment for said child, and an instructor, competent to instruct his child in the prescribed course of study, as laid down by the state, or in some other course of instruction equal to or! better than the course of instruction as laid down by the state, so that the child may be educated to fill its station in life when it reaches its majority.
“You are instructed that the state reserves the right to fix the number of hours the children in the state shall be taught, and in that respect you are instructed that a school month shall consist of four weeks of five days each, of six hours per day.”
“You are instructed that under the, laws of the state of Oklahoma no person or persons are authorized or permitted to issue any special permit, certificate, or temporary certificate to any person, authorizing them to teach, except the county superintendent of the county in which the special permit, certificate, or temporary certificate, is to be used, and that in that event such temporary certificate, permit or special certificate shall only remain in effect until the next regular teachers’ examination, and this applies to public schools of the county.”

In addition to the foregoing, the court gave a lengthy instruction defining the qualifications of teachers in public schools, which the jury by inference may have applied to private tutors. These instructions, we think, were erroneous. Under the terms of the statute and under the Constitution, a parent may have his children instructed by a competent private tutor or educated in a sectarian or other accredited school, without a strict adherence to the standard fixed for teachers in the public] schaols of the state. ¡The statute makes no provisions fixing the qualifications of private teachers, or teachers in private schools or academies, or to prescribe definite courses of study in such cases. Of course, if such schools or instruction were manifestly .inadequate, or such instruction was furnished for the sole purpose of evading the proper education of a child, the. statute could then be properly invoked. Whether such independent facilities for education, outside, of the' public schools, are supplied in good faith, and whether they are equivalent to those afforded by the' state, is a question of fact for the jury, and not a question of law for the court.

For the reasons given above, the judgment of the trial court is reversed.

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


text:
    In re JOHN KELLEY.
    No. A-4444.
    Opinion Filed Sept. 18, 1922.
    (209 Pac. 183.)
    Application of John Kelley, charged with murder, to be admitted to bail.
    Petition granted.
    Culp & Culp, J. H. Hays, and Jas. H. Mathers, for petitioner.
    The Attorney General, for respondent.
   BESSEY, J.

The petitioner, John Kelley, here referred to as the defendant, stands charged with the murder of George Smart on September 4, 1922, at Marietta, Love county, Okla. At the preliminary trial, held before the county judge sitting as an examining magistrate, petitioner was committed to jail without bail. Afterwards, an application for bail was heard before Hon. B. C. Logsdon, judge of the district court, at Marietta, and 'the application was denied. The petitioner now comes to this court, supporting his application by the testimony heard at the preliminary trial, supplemented by the testimony taken before the district judge.

The petitioner testified, in his own behalf, to the effect that he has lived in what is now Love county for more than 25 years; that he is now and for a number of .years has been associated with his father in the grocery business at Marietta; .that among their regular customers were the railroad section hands and other railway employes, members of organized labor; that' the defendant had been for many years acquainted with the deceased, George Smart, who was by occupation a drayman and also city marshal of the town of Marietta; that Mr. Smart had on different occasions been employed by the defendant, and that up to the day of the homicide their business and social relations had b'een pleasant. On the afternoon of the day of the- homicide, word was conveyed to the defendant that some one had told the section foreman that the defendant wasl hostile toward organized labor. At about 5:30 o’clock, as the section men were returning home from work, the defendant asked the section foreman about this rumor, and the foreman told defendant that George Smart was the author of the story, and that if what Smarij said was true he and the members of his crew would cease to trade with defendant. The defendant denied that he had made any statements hostile to labor unions and returned to Ms store.

About that time, defendant’s wife came in the store, suffering from the effects of a dental operation, and asked defendant to accompany her home. He told her he would first go tlo the post office and then take her home. Before going to the post office, he put a pistol in his pocket. At the post office, a few doors distant from defendant’s place of business, defendant saw the deceased near the post office door, at the foot of a flight of stairs leading up over the post office from the outside. The defendant said to the deceased "I want to see you a minute,” and the two stepped a few steps away from the foot of the stairs. Defendant then said: “George I understand you have been telling Mr. Nichols, the foreman of the section, that I am against the unions. We have been good friends, and I don’t understand why you said: ‘ ‘ George, I understand you have been telling Mr. Nichols, given you any cause to say anything like that.” The deceased replied, “Don’t say that to me,” and struck the defendant on the head and ear with his fist. The two then clinched, falling* to the pavement; the defendant beneath the deceased. There they struggled and fought for two or three minutes, tbe deceased all the while striking, choking, and biting the defendant; that during the struggle defendant’s pistol became partially disengaged from his pocket, and that he got hold of the pistol with one hand, and fired a shot which penetrated the body of the deceased, causing his death; ■that after the shot the deceased relaxed and the defendant got up, got his pistol, and returned to his store.

The story as related by defendant was corroborated, for the most part, by a number of disinterested witnesses. There was no positive showing that the defendant sought a difficulty with the deceased. The defendant and his wife testified that the defendant was in the habit of carrying a gun from his place of business to his home and back, evening and morning. Both men were in their shirt sleeves, and the deceased was unarmed at the time of the difficulty. The! deceased was city marshal 'of the town of Marietta, and sometimes carried a gun. Defendant stated that during the altercation, on account of being choked, he was fast losing his strength, and that he fired his pistol in his necessary self-defense.

The testimony shows that the defendant had heard and knew that the deceased was a violent man and had killed another man prior to that time. There were other details related by defendant and other witnesses that need not here be recited. We. think the testimony as a whole makes an issue of self-defense, and that a jury might be warranted in finding the defendant not guilty, or guilty of some lesser degree of felonious homicide than murder.

For that reason it is ordered that the defendant be admitted to bail in the sum' of $15,000, with good and sufficient sureties to be approved by the court clerk of Love county.

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


author: MATSON, J.

text:
    RAY THISSEN v. STATE.
    No. A-3688.
    Opinion Filed Sept. 23, 1922.
    (209 Pac. 224.)
    (Syllabus.)
    1. Malicious Mischief — Statute for Protection of Owner of Property and not Property Itself. — Section 2765, Rev. Laws 1910, creating the offense of malicious mischief for defacing or destroying real or personal property, was intended to' protect the owner of such property, and is not for thle protection of the property itself.
    2. Same — Necessity for Malice Toward Owner of Property. — In a prosecutidn for malicious mischief under section 2765, Rev. Laws 1910, malice toward the owner of the property defaced, injured, dr destroyed is a necessary ingredient of the offense.
    3. Same — Animals—Malicious Mischief in Killing Dog. — To support a conviction for malicious mischief arising out of the killing of a dog, belonging! to another, the statfe need not show actual or express malice toward the owiie'r of such dog, but it must establish such a degree of malice against the owner which the law deems sufficient to be inferred from the nature of the act itself and from the circumstances which accompany and characterize it.
    4. Same — Conviction noti Sustained by Evidence» — For evidence held not to show malice sufficient to sustain a conviction un-iter section 2765, Rev. Laws 1910, see body of olpinion.
    Appeal from County Court, Craig County; Frank L. Haymes, Judge.
    Ray Thissen was convicted of the crime of malicious mischief, and he appeals.
    Reversed and remanded.
    Kornegay & Probasco, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, J.

Defendant was prosecuted in the county court of Craig county for the crime of malicious mischiei., and on a trial by jury was found guilty, and sentenced to pay a fine of $25.

Defendant shot and killed the dog of the prosecuting witness while the same was trespassing on his farm a few miles distant from the city of Yinita, in Craig county, Okla. The prosecuting witness and a friend had taken three greyhounds belonging to them from the city of Yinita into the country for the purpose of chasing jack rabbits, and the dogs had pursued a rabbit across the premises of defendant, through his orchard, and near to his house and barn.

Defendant saw the dogs, but did not see anybody accompanying them. It appears that at the time defendant shot land killed the dog the prosecuting witness and his friend were about a quarter of a mile away, and were not seen by defendant. Defendant says he thought the dogs were stray dogs, and that he shot at them for the purpose of scaring them off his premises in order to prevent them from disturbing his livestock and from tolling his own dog away with them.

Defendant also states that he fired first over the dogs, and that two of them ran away, while the third started directly toward him, ¿pparently, as he believed, to attack him, and that he then shot and killed the dog . when the same was about 15 or 20 feet away from him.

The prosecuting witness and his friend state that defendant fired 4 or 5 times at the dogs, and that at the time defendant shot the dog in questiton he was 20 or 30 yards away from him, and that the dog was not attempting to attack defendant. Defendant and the prosecuting witness were strangers.

The charging part of the information is as follows:

“That Ray Thissen did, in Craig county and in the state of Oklahoma, on or about the llth day of May, 1919, and anterior to the presentment hereof, commit the crime of malicious mischief in manner and form as follows, to wit:
“That the said Ray Thissen, in the county and state aforesaid, on the day and date aforesaid, did maliciously injure and destroy certain personal property, to wit, a dog, the said dog not being the property of the said Ray Thissen, but was then and there the property of one J. H. Wagoner, and the said dog was at that time assessed and listed for taxation in said Craig county, Okla.. for the year 1919, contrary,” etc.

Defendant demurred to the information on the ground that the statements therein contained did not constitute a crime, nor show that defendant was guilty of the commission of any offense. The demurrer was overruled, and exception taken by defendant to such ruling.

Defendant also demurred to the. evidence of the state on the ground that there was no evidence showing the commission of the offense charged' in. the information, and no evidence showing defendant guilty of malicious mischief, which demurrer was overruled and excepted to.

At the conclusion of all the evidence defendant requested the court to direct a verdict of not guilty, on the ground that the state had failed to prove any malicious intent on the part of the defendant toward the owner of the dog, and for the reason that there was no evidence in the case to establish the charge contained in the information, which motion was overruled and excepted to.

Defendant requested the court, among instructions requested, to charge the jury in effect that a necessary ingredient of the crime charged was malice toward the owner of the dog, and that malice against the animal, if proved, would not warrant a conviction. These several requested instructions were refused, to, which action proper exceptions were saved.

In the general charge to the jury the court gave no instruction along the lines of those requested by the defendant, but did instruct the jury that—

Malice was “a necessary ingredient, to be proved or made to appear from the facts or circumstances proved. Without this ingredient the crime is not complete, and the act complained of i would be only a trespass, for which the party injured would be compelled to resort to a civil action for redress, and not a criminal prosecution; and, unless you believe from the evidence beyond a reasonable doubt that such malice has been proven, it is your duty to acquit the defendant.”

The trial court also defined malice as follows:

“The court instructs the jury that malice includes not only anger, hatred, and revenge, but every other unlawful and unjustifiable motive. Malice is not confined to ill will toward an individual, but is intended to denote an action flowing from any wicked and corrupt motive, a thing done with a wicked mind, where the fact has been attended with such circumstances as evince plain indications of a heart regardless of social duty, and fatally bent on mischief; hence malice is implied from any deliberate or cruel act against another, however sudden, which shows an abandoned! and malignant heart.”

Among several assignments of error, it is contended that the refusal of the trial court to give the requested instruction requiring proof of malice against the owner of the dog; either in the form requested or else in a modified form, was prejudicial to the substantial rights of defendant because of the failure of the court in the general charge to limit the jury in this respect.

This prosecution is based upon section 2765, Revised Laws 1910, which reads as follows:

“Any person who maliciously injures, defaces or destroys any real or personal property not his own, in eases other than such as are specified in the following sections, is guilty of a misdemeanor, and in addition to the punishment prescribed therefor, he is liable in treble damages for the injury done, to be recovered in a civil action by the owner of such property or public officer having charge thereof.”

In construing this section of the statutes, this court, in the ease of Colbert v. State, 7 Okla. Cr. 401, 124 Pac. 78, held:

“Section 2692, Comp. Laws 1909 [section 2765, Revised Laws 1910], creating the offense of malicious mischief for defacing or destroying real or personal property, was intended to protect the owner of such property, and is not for the protection of the property itself.”
“Malice toward the owner of such property is a necessary ingredient of the offense.”

In 8 Ruling Case Law, p. 300, it is said:

“It is very generally held that the killing or injuring of a domestic animal does not constitute malicious mischief unless the act is done with malice against the owner; malice against the animal itself being insufficient no matter how brutal or cruel the act may be.”

While there is a considerable conflict of opinion as to whether in prosecutions for malicious mischief against the property of another a malicious intent to injure the owner of the property is a necessary ingredient of the offense, it seems to be the general rule, however, that as to malicious injuries! to animals an intent to injure the owner is a necessary ingredient. These holding^'were perhaps the outgrowth of the very general statutes of the states directed against Cruelty to animals — the courts, almost universally holding that in prosecutions under such statutes malice toward the owner of the animal is not essential to be proved. Such a statute is section 2746, Revised Laws 1910. Our statutesi were taken from Dakota. In the case of State v. Minor, 17 N. D. 454, 117 N. W. 528, 19 L. R. A. (N. S.) 273, the Supreme Court of North Dakota, construing .a statute identical with section 2765, supra, held:

“The word ‘maliciously,’ as used in section 9315, Rev. Codes 1905, relating to the crime of ‘malicious mischief,’ is to be given a restricted meaning, and/ imports that the act to which it relates must have resulted from actual ill will or revenge. It implies an intent to vex and annoy the owner of the property injured.”

In construing the cruelty to animals statute, in Terr. v. Crozier, 6 Dak. 8, 50 N. W. 124, it was held that express malice against' the owner, was not necessary to constitute the offense; that it was sufficient if there was an intent to injure cattle of another.

Section 2822, Revised Laws 1910, defines the terms “malice” and “maliciously” to “import a wish to vex, annoy, or injure another person, established either by proof or presumption of law.”

While under our statutes it would probably not be necessary for the state to establish actual or express malice toward the owner of the property, it is essential, we believe, in prosecutions under section 2765 (especially is this true where tbe property injured or killed is a' domestic animal) to establish such a degree of malice against the owner, whoever he might be,, which the law would deem sufficient to; be inferred from the nature of the act itself and .from the circumstances which accompany and characterize it.

The failure of the trial court to instruct that malice toward the owner of the property was a necessary ingredient of the offense when; requested to do so was, in the opinion of the court, prejudicial to the substantial rights of defendant, in that the court failed to fully cover the law applicable to the charge and the evidence, and! for such reason the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

DOYLE, P. J., and BESSEY, J., concur.


author: PER CURIAM.

text:
    ROBERT LEE MICKLE v. STATE.
    No. A-3883.
    Opinion Filed Sept. 23, 1922.
    (209 Pac. 194.)
    Appeal from District Court, McIntosh County; Harve L. Melton, Judge-
    Robert Lee Mickle was convicted of the larceny of live stock, and he appeals.
    Appeal dismissed, and cause remanded, with directions to enforce judgment.
    H. B. Reubelt and Clark Nichols, for plaintiff in error.
    The Attorney General andi N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment-of conviction rendered against the defendant, Robert Lee Mickle, in the district court of McIntosh' county on the 24th day of May, 1920, for the larceny of 33 head of cattle ; punishment being assessed at confinement in the state penitentiary for a term of 4 years.

The Attorney General has filed the following motion to dismiss this appeal:

“Comes now George F. Short, the duly qualified and acting Attorney General, and moves the court to dismiss the appeal filed herein because the same has not been filed in the time prescribed by law, and calls the court’s attention to page 371 of the case-made, which shows that the judgment and sentence was entered in the district court of McIntosh county, Oklahoma, on the 24th day of May, 1920, and the appeal filed in this court on the 26th day of November, 1920, more than six‘months after the judgment and sentence.”

Section 5991, R. L. 1910, in part provides as follows:

“In felony cases the appeal must be taken within six months after the judgment is rendered.”

An examination of the record by the court, discloses that the motion to dismiss is well taken, and that the appeal was not lodged in this court within the time allowed by statute and should therefore be dismissed; and it is so ordered, and the cause remanded to the trial court, with directions to enforce the judgment.


author: BESSET, J.

text:
    H. E. SULLIVAN v. STATE.
    No. A-3900.
    Opinion Filed Sept. 23, 1922.
    (209 Pac. 193.)
    (Syllabus.)
    Druggists — Evidence Insufficient to Support Charge of Receiving Narcotics. — Where one is charged with “receiving and taking into his possession” certain narcotic drugs, evidence showing that the accused made an unsuccessful attempt to take the drugs from the transmission company held insufficient to support the charge, under the provisions of section 2, chapter 60, Session Laws 1919.
    Appeal from District Court, Lincoln County; Hal Johnson, Judge.
    H. E. Sullivan was convicted of receiving narcotics, and he appeals.
    Reversed and remanded.
    James A. Embry, for plaintiff in error.
    The Attorney General and Thos. G. Andrews, Co. Atty., for the State.
   BESSET, J.

On the 7th day of September, 1920, H. E. Sullivan, plaintiff in error,, in. this opinion styled the defendant, was found guilty of the crime of receiving narcotic drugs, and his punishment was assessed at confinement in the state penitentiary for a term of three years and a fine of $500.\

The information charged that the defendant—

‘ ‘ did willfully, unlawfully, and feloniously receive and take into his possession certain narcotic drugs, to wit, 32 bottles of morphine sulphate, each containing one-eighth ounce, and two bottles of cocaine, each Containing one-eighth ounce, in violation of the provisions of section 2, chapter .60, Session Laws 1919, of the state of Oklahoma.”

The statute referred to in the information makes it ai felony for any person to sell, give away, dispense, manufacture, produce, deal in, administer, or distribute, or to receive, conceal, buy or iii any manner facilitate the distribution, concealment, or sale of, or distribution of, any narcotic drugs. One of the contentions' of the defendant is that the testimony does not show that he received or came into possession of the narcotic drugs, within the meaning of the statute.

Clyde Boyle, a deputy sheriff, testified: That the defendant was at the Ft. Smith & Western depot, in the town of Warwick, before and after tbe west-bound Ft. Smith & Western train arrived, a little after .5 o ’clock on the evening of March 31, 1920. That the pasteboard box containing the narcotics in question was on a hand truck, and after the train left the station the defendant came around the depot and looked at this box on the truck. That he picked the box up and started off with it, and had advanced five or six steps toward the station door, when witness stopped him( and placed him under arrest, whereupon defendant threw the package back on the truck. The defendant was then taken into the depot and left in charge of another man, while the witness went to make another arrest. The package was consigned to Dr. T- M. Harrison, Warwick, Okla. When witness asked ,the defendant about the package, the latter replied that it did not belong to him. Witness heard the defendant ask the agent if the package had been called for.

Ray Horn testified: That he was the helper at the depot at Warwick. That on this day he went to the Ft. Smith & Western depot with Boyles when the train from the east came' in. That the defendant picked up a package from a truck, where it had been unloaded from the train, and said something witness did not understand. When they got close enough to him to hear, the defendant said, “Has anybody inquired for this package?” Mr. Boyles then said to the defendant, “Consider yourself under arrest.” Defendant threw the package on the truck and said that it did not belong to him.

The county attorney testified: That he went to the express office at the depot in the town of Warwick and signed a receipt for the express package in question, containing the narcotics described in the information, and took it into his possession.

This is, in substance, all the testimony in the record relating to the receipt and disposition of the narcotics in question. Webster’s Dictionary defines the word “receive” thus:

“To take, as something that is offered, given, sent, paid, or the like; to accept.”

The Century Dictionary gives the word this definition:

“To take from a source or agency of transmission; to take by transfer in a criminal manner.”

While the testimony shows that the defendant had this package in his hand, the real possession by this act did not pass from the transmitting company. There was no sueh transfer and relinquishment of possession until it was delivered to the county attorney. Doubtless it was the intention of the defendant to receive and receipt for this package by signing the name of the consignee, Dr. T. M. Harrison; (probably a fictitious person). In all probability, but for the interference of this deputy sheriff, this package would have been so delivered. We think there was under the circumstances shown, no such taking, receipt, or delivery as is contemplated by the statute. There may have been intent, coupled with actual attempt; but the trap was sprung too soon. The testimony,; as shown by the record, might have been sufficient to sustain a charge of an attempt to commit this offense, under the provisions of section 2803, R. L. 1910.

Other assignments of error are urged; but, since the facts as stated must opératelas grounds for* a reversal of this conviction, the other assignments need not be analyzed at this time.

The cause is reversed and remanded.

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