author: ARMSTRONG, J.

text:
    OKLAHOMA CITY v. SPENCE.
    No. A-1818.
    Opinion Filed September 21, 1912.
    (126 Pac. 701.)
    1. INTOXICATING- LIQUORS — Municipal Power — Regulation of Liquor Traffic. Section 3, article 1, of the Charter of Oklahoma City, among other things provides: "And' said city shall have power to enact and enforce all ordinances necessary to protect health, life and property and to prevent and summarily abate and remove nuisances and to preserve and enforce good government and order for the security of the city and its inhabitants, to protect the lives, health and property of the city; and to enact and enforce all ordinances upon any subject; provided, that no ordinance shall be enacted inconsistent with the general laws of this state, the state Constitution or this charter.”
    Held, that this provision authorizes said city to pass an ordinance penalizing the maintenance of a place for the illegal sale of intoxicating liquor.
    2. INTOXICATING LIQUORS — Power of Cities — Police Powers— Regulation of Traffic. Section 683, Compiled Laws Í909, provides: "The city council shall have power to enact ordinances to restrain, prohibit and suppress tippling shops, billiard tables, bowling alleys, houses of prostitution and other disorderly houses, and practices, games and gambling houses, desecrations of the Sabbath day, commonly called Sunday, and all kinds of public indecencies. No license shall ever be granted for any house of prostitution, or for gambling house, gambling device, game of chance, or any disorderly house or practice; and no city officer shall accept or receive any hush money, or any money or valuable things, from any person or persons engaged in any such business, or practice, or grant any immunity or protection against a rigid enforcement of the laws and ordinances enacted to restrain, prohibit and suppress any such business or practice.”
    Held, that under this provision cities of the 'first class in this state, whether under the charter form of government or not, have the right to pass and enforce by-laws or ordinances prohibiting the sale of intoxicating liquors, possession or unlawful conveyance of the same, or the maintenance of a place wherein the same are sold.
    3. FORMER DECISION REAFFIRMED. The doctrine in Re Sim- • mons, 4 Okla. Gr. 662, 112 Pac. 951, and upon rehearing in the same case, 5 Okla. Or. 399, 115 Pac. 380, reaffirmed.
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court j John W. Hayson, Judge.

    Mrs. Irene Spence was convicted of violating an ordinance of Oklahoma City. From a judgment of the county court reversing the conviction, the city appeals.
    Reversed and remanded.

      J. W. Johnson, Municipal Counsel, and D. A. .Richardson, for plaintiff in error.

      Wilson & Wilson, for defendant in error.
   ARMSTRONG, J.

The defendant in error, Mrs. Irene Spence, was tried and convicted in the municipal court of Oklahoma City on a charge of maintaining a place for the illegal sale of intoxicating liquor. She appealed to the county court of Oklahoma county, which court rendered judgment upon a demurrer in favor of the defendant in error and against the city of Oklahoma City, the plaintiff in error, holding that the city of Oklahoma City had no authority to enact a by-law or ordinance penalizing the maintenance of a place for the illegal sale of intoxicating liquor. From this latter judgment the city of Oklahoma City appeals.

That portion of the ordinance involved in this appeal is as follows:

“It shall be unlawful for any person to keep or maintain, or to aid, assist or abet in keeping or maintaining in this city a place where intoxicating liquors are manufactured, sold, bartered or given away, in violation of the provisions of this ordinance, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this ordinance.”

The penalty for violation of this ordinance is a fine of not less than $10 and not more than $100, or imprisonment in the city jail not more than 30 days, or both such fine and imprisonment.

The sole question before this court for consideration is: Has the city of Oklahoma City the right -to pass and enforce -such .a provision?

Counsel for the plaintiff in error contend that this question has been settled by the doctrine announced by this court in Re Simmons, 4 Okla. Cr. 662, 112 Pac. 951, and upon rehearing in the same case 5 Okla. Cr. 399, 115 Pac. 380.

Counsel for the defendant in error contend that the city of Oklahoma City under its charter and the statute is not authorized or empowered to pass the ordinance in question, and that if it is so empowered the ordinance is void because the penalty does not conform to the penalty prescribed by the prohibition ordinance of the Constitution wherein the minimum punishment is a fine of $50 and imprisonment for 30 days, and contend that the doctrine in the Simmons case, supra, does not conclude the question here presented.

The provision of the charter of Oklahoma City with reference to this question is as follows:

“And said city shall have power to enact and enforce all ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove nuisances and to preserve and enforce good government and order for the security of the city and its inhabitants, to protect the lives, health and property of the city; and to enact and enforce all ordinances upon any subject; provided, that no ordinance shall be enacted inconsistent with the general laws of this state, the state Constitution or this charter.”

In addition to this grant of power in the charter, the statute makes the following grant to all cities, whether under the charter form of government or not:

“The city council shall have power to enact ordinances to restrain, prohibit and suppress tippling shops, billiard tables, bowling alleys, houses of prostitution and other disorderly houses, and practices, games and gambling houses, desecrations of the Sabbath day, commonly called Sunday, and all kinds of public indecencies. No license shall ever be granted for any house of prostitution, or for gambling house, gambling device,, game of chance, or any disorderly house or practice; and no city officer shall accept or receive any hush money, or any money or valuable things, from any person or persons engaged in such business, or practice, or grant immunity or protection against a rigid enforcement of the laws and ordinances enacted to restrain, prohibit and suppress any such business or practice.” (Section 683, Comp. Raws 1909.)

Section 2, article 18, of the Constitution, provides that:

“ * * * Every municipal corporation now existing within this state shall continue with all of its present rights and powers until otherwise provided by law, and shall always have the additional rights and powers conferred by this Constitution.”

We have carefully considered the arguments of counsel upon all the phases of this question as it is now presented, and are impelled to the conclusion that the doctrine in the Simmons case, supra, completely answers the contentions raised here. While the specific question here under consideration was not discussed in that case, the principle is identical and the discussion, reasons given, and authorities there cited are applicable to the question we are now considering. We do not think it is necessary to repeat the citations or renew the discussion, for there is nothing that we can add to what was said in the Simmons case. We are clearly of opinion that the city of Oklahoma City both by its charter provision and by the statute has the right to pass and enforce the ordinance in question. The city authorities have no concern with the enforcement of the state law. They are not enforcing the state law, and are not enforcing provisions of the Constitution. They are simply enforcing their by-laws enacted by’ reason of the grant of power contained in the charter and in the statute, either of which would be sufficient.

The contention of counsel for defendant in error would probably be tenable if the city authorities were clothed with the power to and were enforcing the laws of the state, but they are not doing that. They are simply enforcing their own by-laws.

For a complete discussion of the doctrine upon which this case is disposed of, see the Simmons case, supra.

Having reached the conclusion that the city has the right to pass and enforce this ordinance, it follows that the judgment of the trial court should be reversed, and the cause remanded, with direction to proceed with the trial as provided by law, and it is so ordered.

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


source: Caselaw Access Project

author: DOYEE, J.

license: Public Domain

text:
    GUS WALKER v. STATE.
    No. A-1233.
    Opinion Filed September 28, 1912.
    (126 Pac. 829.)
    1. EAPE — Criminal Prosecution — Sufficiency of Evidence. Evidence reviewed, and held sufficient to sustain verdict of guilty in prosecution for statutory rape.
    2. SAME — Evidence—Admissibility. In a prosecution for statutory rape, the defendant is not entitled as a matter of right to question the prosecutrix on cross-examination as to whether any one except the defendant had sexual intercourse with her.
    (Syllabus by the Court.)

      Appeal from District Court, Okfuskee Co^mty; John Caruthers, Judge.

    Gus Walker was convicted of statutory rate, and appeals.
    Affirmed.

      W. A. Huser and C. B. Conner, for plaintiff in error.

      Chas. West, Atty. Gen., for the State.
   DOYEE, J.

The plaintiff in error, Gus Walker, was convicted of the crime of rape, alleged to have been committed on the 1st day of August, 1909, upon Pearl Baker, a female under the age of 16 years, and his punishment assessed by the jury at imprisonment in the penitentiary for five years. The judgment' and sentence was pronounced and entered February 24, 1911. He appealed by filing in this court a petition in error with case-made July 1, 1911.

There were but two witnesses for the state. J. L. Baker testified that prosecutrix was his daughter; that she was born in the Cherokee Nation on the last day of July, 1895, and was now 15 years of age; that he had one other child, a boy, 11 years old; that his wife died four years ago; and he had since lived with his daughter and son on a farm in Okfuskee county. The prosecutrix testified that she was acquainted with the defendant for about two years, that he lived about a half or three-quarters of a mile from her father’s home.

The record shows that it was with great difficulty the witness was brought to the point of testifying in support of the allegations of the information, and then only after much urging by the county attorney and admonishing remarks by the court. As taken from the transcript her further testimony is as follows:

“Q. Did the defendant any time during the summer of 1909 have any improper relations with you? Just answer the question. I know it is embarrassing.

“By'1 the Court: Answer that question.

“By the Witness: A. I don’t want to injure him, because I don’t want him sent over the road.

“By Mr. Wright: Q. Answer the question. Did he, or did he not?

“By the Court: Answer the question ‘Yes’ or ‘No.’

“By the Witness: A. I would give my life if I could just only keep him out of there.

“By the Court: Answer that question ‘Yes’ or ‘No.’

“By Mr. Wright: Q. Just answer the question.

“By the Court: Q. Can you answer that question ‘Yes’ or ‘No? You can answer it ‘Yes’ or ‘No.’ Answer it one way or the other; say ‘Yes’ or ‘No.’

“By Mr. Huser: The defendant objects to the question because it is leading, and calls for a conclusion of the witness. Ret him ask the witness what happened.

“By Mr. Wright: That will be the question to follow, I think. I will withdraw the question. How far did you live from Welty at this time? A. Lived about a mile and a half. Q. How far did you live during the summer of 1908? A. Lived about four miles. Q. Just remove your hands, and sit up straight so the jury can hear you. You just answer the questions that are asked and state- what the truth is, whatever it is. A.-It is not going to do me any good. It is not going to help me raise that baby. Q. I will ask you, did the defendant ever have intercourse with you at any time? Answer ‘Yes’ or ‘No.’

“By the Court: Q. Answer that question ‘Yes’ or ‘No,’ one way or the other. Did the defendant ever have sexual intercourse with you? A. Yes, sir.

“By Mr. Wright: Q: When was it as near as you remember, about what time? A. I don’t know what time it was. Q. What year? A. I don’t know that either. Q. As a result of the sexual intercourse are you the mother of a child at this time? A. Yes, sir. Q. When was that child born? A. Born 11th day of May, 1910. Q. In what county were you living at the time you had that sexual intercourse with the defendant? A. In Okfuskee. Q. You are not now, or never have been, the wife of the defendant, Gus Walker, have you? A. No, sir.”

On cross-examination she admitted that at the time of the birth of her child she told Mrs. Mashburn that the child was Lon Welch’s; that she told her this because she did not want to tell her whose child it was.

The defendant testified on his own behalf that three years before the trial he moved from Texas to Okfuskee county, Okla., and denied that he ever had intercourse with the prosecutrix. On cross-examination he admitted that in December, 1909, he moved back to Texas, and was there arrested for the offense here charged.

The first assignment of error is “that the evidence on the part of the state is insufficient to sustain a conviction, for the reason that the act complained of is not shown to have occurred within the statute of limitations; that the trial court therefore erred in denying defendant’s motion for a directed verdict of acquittal.” We have no hesitation in saying that the evidence disclosed by the record was amply sufficient to warrant the court in refusing to direct a verdict of acquittal. It is an undisputed fact that defendant and prosecutrix had known each other for less than three years before the trial. The birth of the child conclusively established a prior .act of intercourse, and this fact was relevant. It is our opinion that the evidence is sufficient to sustain the verdict.

The only other assignment argued in the brief relates to a ruling of the court on the cross-examination of the prosecutrix. She was asked:

“Q. Miss Pearl, did any one else ever have intercourse with you except the defendant? By Mr. Wright: We object as incompetent, irrelevant, and immaterial, and not proper cross-examination. By the Court: Sustained. (The defendant excepts.)”

We think the court properly sustained the objection to this question. If the question was definite in time or confined to about the time of the commission of the alleged crime, it might be competent cross-examination, in that the answer might tend to show that a man other than the defendant had sexual intercourse with the prosecutrix, and could have been the father of the child. Bice v. State, 37 Tex. Cr. R. 38, 38 S. W. 803; Knowles v. State, 44 Tex. Cr. R. 322, 72 S. W. 398; People v. Flaherty, 79 Hun, 48, 29 N. Y. Supp. 641. In the form the question was asked the evident purpose was to show a lack of chastity, and thus impeach the prosecutrix. Evidence tending to show a lack of chastity on the part of the prosecutrix is only admissible to raise the presumption of consent, and, this being a case of statutory rape, that issue was not in the case. Says Wharton:

“Whether in a prosecution for rape the prosecutrix can be compelled to answer as to prior sexual relations with other persons than the defendant has been the subject of conflicting rulings. In England, and in several of our own courts, the conclusion is that, while such questions may be asked, answers to them will not be compelled; and in Massachusetts it has been held that in such cases proof of the prosecutrix having had prior connection with others than the defendant is inadmissible. On the other hand, in New York and other states the prosecutrix will be compelled to answer questions as to such acts of illicit intercourse with others than the defendant. As to whether, upon denying such intercourse, she can be contradicted, there is also a difference of opinion. The real question in such cases is, Is it material to the issue whether the prosecutrix had previously such illicit intercourse?” (Wharton, Crim. Law [10th Ed.] sec. 568.)

“The great weight of authority is to the effect that the bad character for chastity of the prosecutrix in a prosecution for rape cannot be shown by introducing evidence of particular acts of unchaste conduct with a person or persons other than the defendant.” (5 A. & E. Ency. 878.)

In the case of State v. Smith, 18 S. D. 341, 100 N. W. 740, the Supreme Court of South Dakota says:

“Under our statute it is rape to carnally know a female child-under the age of sixteen years, either with or without her consent, and no evidence of specific acts of similar unchaste conduct with men other than the accused is admissible to show consent, or for the purpose of further disgracing the child, or as bearing upon the credibility of her testimony. In the case of People v. Johnson, 106 Cal. 289, 39 Pac. 622, the court say: ‘The prosecuting witness is under the age of consent, and for this reason evidence either of general reputation or specific acts would seem to be immaterial. This class of evidence is admissible for the purpose of tending to show the nonprobability of resistance upon the part of the prosecutrix; for it is certainly more probable that a woman who has done these things voluntarily in the past would be much more likely to to consent than one whose past reputation was without blemish, and whose personal conduct could not be truthfully assailed. In other' words, this class of evidence goes to the question of consent only, and in a case like the present the question of consent is not involved. * * * Sound reason declares that such of necessity must be the rule. If this class of evidence was admissible as going to the credibility of the testimony of the prosecutrix in its entirety, then it would be equally admissible as against the veracity of any female who might be called upon to give evidence in a case. Yet no such principle is recognized anywhere.’ The following cases are to the point that evidence showing that a female under the age of consent has had prior sexual intercourse with other men is incompetent, as bearing upon her credibility, as well as for every other purpose. State v. Whitesell, 142 Mo. 467, 44 S. W. 332; State v. Ogden, 39 Ore. 196, 65 Pac. 449; People v. Abbott [97 Mich. 484] 56 N. W. 862, 37 Am. St. Rep. 360.”

After a careful examination of the record, we think the defendant had a fair trial. The trial court and jury saw and heard the parties, and the verdict and judgment should not be disturbed in the absence of prejudicial error.

Finding no error, the judgment is affirmed.

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


author: FURMAN, P. J.

text:
    LEE FOWLER v. STATE.
    No. A-1101.
    Opinion Filed September 30, 1912.
    (126 Pac. 831.)
    1. TRIAL — Instructions—Exceptions, (a) Our statutes require that the instructions in a ease must be settled before they are read to the jury. This means that counsel must have an opportunity to offer suggestions to the trial court with reference to the instructions given, and reserve exceptions to any instructions which they deem to be injurious to the rights of their client.
    (b) Where the trial court refused to submit the instructions in a case to the attorneys for their inspection before the instructions are read to the jury, a defendant will be entitled to such objections and exceptions as he might have had if the instructions had been previously submitted to his counsel.
    2. HOMICIDE — Instructions—Self-Defense. When a defendant is unlawfully attacked at a place where he has a right to be, it is improper to instruct the jury that he cannot plead self-defense unless the jury find that he could not have averted the danger by retreating.
    3. SAME — Evidence—Bes Gestae — Credibility of Witness — Character. (a) The character of the place where a homicide is committed is a part of the res gestae of the offense, and may be proven upon the trial.
    (b) On cross-examination for the purpose of affecting his credibility, the occupation, manner of living, and companions of a witness may be inquired into.
    (c) The fact that a witness is a professional bootlegger, or has been convicted of bootlegging, may be proven for the purpose of impeaching his testimony.
    4. APPEAL — Harmless Error. Before this court can reverse a conviction upon the ground that the trial court erred in the admission or rejection of evidence, or in its instructions to the jury, we must further find, from an inspection of the entire record, that appellant was injured thereby; and to determine this issue the court must consider the question as to whether the appellant is guilty or innocent of the offense charged.
    5. HOMICIDE — Appeal—Harmless Error. For a statement under which admitted error of the trial court in the instructions to the jury is not ground for reversal, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Jefferson County; Roy Hoffman, Assigned Judge.

      Lee Fowler was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    Appellant was tried in the district court of Jefferson county, charged with the offense of murder. He was convicted by the jury of manslaughter in the first degree, and sentenced by the court to imprisonment in the penitentiary for the period of 25 years.
    The following is a condensed statement of the material parts of the testimony introduced in this case:
    Dr. L. P. Sutherland testified: That he was a physician and resided in the town of Waurika. That he was summoned to attend the deceased shortly after he received the fatal wound. That upon examining the body of deceased he found that a bullet had entered 'to the left of the spinal column and gone out about three or four inches beneath the fifth and sixth rib and passed through and came out immediately over the sixth rib. This wound was fatal. Deceased was wounded about 4 o’clock at night, and died at 8 o’clock the next morning. That he was present when the clothes of deceased were taken off of him. That there was nothing about his person, except a few dollars in silver in his pants pocket, two $5 bills, and his watch and some tobacco and a little memorandum book, and that no weapon was found on deceased, except a pocketknife.
    Joe Weyman testified for the state: That he resides in and was night watchman of the town of Waurika. That' he heard the shots of the difficulty in which the deceased was killed. That he entered the joint kept by appellant about two minutes after-wards. That he saw the deceased there. He was just crouched down against the building. He was neither lying down nor standing. That with the assistance of others, he carried the deceased back into the building and straightened him out. Deceased did not speak. When witness entered the room, appellant said, “I am the man that done the shooting,” and said, “Here is my gun.” Appellant said he shot one shot to bluff deceased and the next one to hit him. Appellant was trying to take a drink of liquor. He had a bottle in one hand and a glass in the other. Appellant was very nervous, and could not pour the liquor without spilling it, and finally set the glass down and took the bottle in both hands. This happened in Jefferson county, state of Oklahoma. Appellant was very much excited and very nervous when witness entered the room.
    Dr. Cantrell testified: That he was a physician and resided in Waurika. That shortly after the shooting he wag called to the place of business of appellant and found the deceased there wounded. Dr. Sutherland was there. Deceased was shot in the back. That the ball came out about two inches below the right nipple. Deceased died from the effects of this wound the next morning. That a pocketknife and some money was taken from the clothes of deceased after he was shot.
    J. O. Barnhill testified for the state: That witness heard the shooting which resulted in the death of deceased. It was between 3 and 4 o’clock at night. Witness then went to the place of business of appellant. Witness heard appellant say, “I have killed him.” Appellant says, “By God, he is dying, and all I regret is that I shot him in the back.” Appellant also said, “I ought to be hung,” and said he would not have done it for a thousand dollars. Witness saw a knife taken from the pockets of deceased after he was removed to the hospital. The state then rested its case.
    Miss Pearl Atwood testified for appellant: That she was a nurse at the Stevens Sanatarium at Waurika at the time of this homicide; was there when deceased was brought in wounded. That witness examined the clothing of deceased and found some money and a pocketknife. That the money and pocketknife were all in the same pocket. The knife was open when found in the pocket of deceased.
    Joe Weyman was recalled by the appellant, and testified that he did not hear appellant say that the only thing he regretted was that he shot the deceased in the back, and that he ought to be hung.
    Lee Fowler, the appellant, testified in his own behalf: That he lived in the town of Waurika, and was running a joint there at the time deceased was killed. That he had met the deceased two or three times before the killing. That on the night of the homicide deceased and appellant were engaged in a game of cards. They began to play about 11 o’clock, and continued to play until about 3:30. That they started playing pitch for $1 a game, and when they quit playing they were playing for $5 a game. That on several occasions during the game a squabble came up between them. Witness then testified as follows:
    “A. We was playing — every once in a while he would raise a squabble over the game, or something like that, and along about 3:30, something like that, between 3 and 4 o’clock, we had played a game for $5. I won the game and left up my $5 on the table, and finally he claimed the $5 bill himself, and I pitched the cards across the table, and I told him it was getting late; I would quit. And he said all the time I was the fairest man he ever played with. And he said, T will play you for all the money you have got in front of yoú.’ I told him ‘All right,’ I would play him. I wanted to quit anyway. Q. Well, did you play him? A. No, sir; we didn’t. Q. What was the reason you didn’t play him? A.'Why, I put up my money. I believe I had •$22.50. I had a $10 bill and a $5 bill and $7.50 in silver — -I had $7, I believe it was, and two quarters that we had used during the game for set-back when we first commenced playing — and he stacked his silver up on top of my money, and then backed out and would not play, and taken $2.50 of my money. Q. What was said then when he took the $2.50 of your money? A. I told him he had gotten my money, and I didn’t want to take it away from him. Q. What did he say ? A. T will die before I will give it up.’ Q. What did you do, if anything? A. He raised up just about the time he put this money in his pocket, or after he went to his pocket with this money, and said, T will kill the damn son of a bitch or have it.’ The Court: I didn’t hear it. A. He says, T will kill the damn son of a bitch or have the money,’ and raised up and started to his pocket. Q. Which pocket? A. To his right-hand pocket. Q. What did you do then? A. Why, I raised up and drawed my gun just as quick as I could and shot. Q. How many times did you shoot? A. I shot twice, I believe. Q. Do you know which shot hit him? A. I would judge the first one did. Q. Flow came you to shoot the second shot? A. It was accidentally■ shot. Q. You may state whether or not you was excited at the time? A. Yes, sir; I was excited. Q. At the time you fired the shot, you can state to the jury whether or not you believed your life in danger? A. I thought he meant to kill me at the time.”

      Several witnesses testified that they knew the appellant, and that his general reputation as a peaceable, law-abiding man was good. The state, in rebuttal, proved by two witnesses that they heard Miss Atwood state that when she took the knife from the pocket of deceased it was closed, but that she had a habit of opening a knife as soon as it came into her hands, and that she had opened this knife as soon as she took it out of the pocket of deceased.

      Bridges & Vertrees, for appellant.

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

(after stating the facts as above). First. But two questions are presented in the brief of counsel for appellant. The first is that the trial court erred in refusing to allow appellant to examine the instructions given, before they were read to the jury, in order that they might have an opportunity to present objections and save exceptions to the instructions read. The recitals contained in the record sustain this contention of counsel for appellant. There was error in this action of the court. Our statutes require that the instructions must be settled before they are read to the jury. This means that counsel should have-an opportunity to offer suggestions to the trial court with reference to the instructions given, and make objections to any instruction which they may deem to be injurious to the rights of their client. Where the court refuses to comply with this provision of the law, a defendant is entitled to such objections and exceptions as he might have had, provided the instructions had been submitted to his counsel for inspection before they were read to the jury. For a full discussion of this question, see Thompson v. State, 6 Okla. Cr. 50, 117 Pac. 216.

Second. Among other things, on the subject of self-defense the court instructed the jury as follows:

“There must have been no other reasonable mode of escape or' of avoiding the combat with safety. As a matter of law, no one has a right to kill another, even in self-defense, unless such killing is apparently necessary for such defense. Before a person can justify taking the life of a human being on the ground of self-defense, he must, when attacked, employ all reasonable means.within his power, consistent with his safety, to avoid the ■danger and avert the necessity of the killing; and if you find he could have, by retreating, averted the danger and avoided the necessity of the killing, it was his duty to do so.”

To this instruction counsel for appellant vigorously object, and, as they requested an opportunity to inspect the instructions before they were given to the jury, we must treat this instruction as though expressly excepted to. Under this instruction, it would be necessary for the jury to find as an affirmative fact that the defendant had used all reasonable means, consistent with his safety, to avoid the danger and avert the necessity of the killing; and that he could not, by retreating, have averted such danger and avoided the necessity of the killing. This practically placed the burden upon the appellant of proving his innocence. This form of instruction has been repeatedly condemned by this court. See Price v. Territory, 1 Okla. Cr. 508, 99 Pac. 157; Floyd v. State, 5 Okla. Cr. 65, 113 Pac. 212. Under the old common law, no man could defend himself until he had retreated, and until his back was to the wall; but this is not the law in .free America. Here the wall is to every man’s back. It is the wall of his rights; and when he is at a place where he has a right to be, and he is unlawfully assailed, he may stand and defend himself; and cases sometimes arise in which he has the right, when unlawfully assailed, to advance and defend himself until he finds himself out of danger.

Third. On cross-examination, appellant testified that the place where the homicide occurred .was a booze joint, and that he was engaged in the sale of intoxicating liquors. This evidence was material and competent, because the character of a place where a homicide is committed is a part of the res gestae of the offense; and it has always been held that the occupation, manner of living, and companions of a witness may be inquired into, on cross-examination, for the purpose of affecting his credibility. See Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110; Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544. The fact that a witness is a bootlegger may be proven for the purpose of impeaching his reputation for truthfulness, and is as effective for this purpose as his general reputation would be. Hendrix v. State, 4 Okla. Cr. 611, 113 Pac. 244; Crawford v. Ferguson, 5 Okla. Cr. 377, 115 Pac. 278.

Fourth. In their brief counsel for appellant do not claim that their client is innocent; neither do they attempt to show how he was injured by the errors complained of. They not only studiously avoid the discussion of those questions, but they say:

“As we have learned, and partly through the opinions of this court, it is no concern to the appellate tribunal whether the defendant is guilty or innocent.”

We are at an utter loss to understand how counsel can make this statement, because it is directly the reverse of the law of Oklahoma. This question came before this court first in the case of George v. United States, 1 Okla. Cr. 319, 97 Pac. 1052, 100 Pac. 46. This court there said:

“When a defendant is clearly guilty, this court will not reverse a conviction upon a technicality or exception which does not affect the substantial -rights of the defendant. This is the settled policy of this court.”

In fact, we could not hold otherwise without committing willful, wicked, and deliberate perjury. Our statutes expressly state that on appeal this court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties. This is one of the laws which we have sworn to enforce; and the lawyers of Oklahoma must distinctly understand that we are going to follow this statute explicitly, both in its letter and in its spirit. This statute meets with our entire approval. This we announced in the case of Byers v. Territory, 1 Okla. Cr. 702, 100 Pac. 261, 103 Pac. 532. We there said:

“If, upon appeal, the only question to be decided was as to whether or not any error had been committed upon the trial of the case in the court below, without reference to the question of the guilt of the defendant, then the trial judge would be the real defendant, and would be upon trial on the appeal, and the guilt of the defendant would become immaterial. Certainly no sane and impartial man should - contend for a doctrine which would be so subversive of justice, and which would result in such ruinous consequences to the' enforcement of criminal law. It would make our courts a mockery, a snare, and a delusion. Justice demands that _ in the administration of law its processes should never be allowed to become a game of skill between contending counsel. There has been entirely too much of this in the past. It has resulted in the miscarriage of justice in many cases, and has bred a spirit of disgust for law and contempt for courts in the public mind. Reduced to its last analysis, the doctrine contended for by counsel, if recognized, would require this court to hold that, where evidence is admitted during a trial, and upon appeal it is held that such evidence was improperly admitted, a reversal of the conviction must follow, regardless of the character of the evidence in the record, upon the ground that, the prosecution having offered this evidence as a part of its case, it is estopped from denying its injurious effect. It appears to us that this application of the doctrine of estoppel to the state, in the enforcement of its criminal laws, on account of the ignorance or mistaken judgment of one of its servants, is technically run mad and gone to seed. We decline to be bound by or to follow a line of authorities so repugnant to reason, so demoralizing to respect for law, and so destructive to justice. The habit of reversing cases upon technicalities is a very convenient one for appellate courts; for by so doing they can escape much hard labor and avoid all responsibility for their decisions, for a violation of some technical rule can be found in almost every closely contested case. We believe that appellate courts should faithfully and fearlessly do their duty, and decide every question presented with reference to the substantial merits of the case in which it arises. In this way only can justice be administered.”

Counsel will look in vain for any support, in the decisions of this court, of the position they have taken in their brief.

Fifth. It is conceded that the trial court erred in refusing to submit the instructions to counsel for appellant for inspection, in order that they might have an opportunity to reserve any exceptions which they might desire to save, and to request any special instruction in addition thereto, before the instructions given were read to the jury. It is also conceded that the trial court erred in imposing an illegal burden upon the law of self-defense in its instructions to the jury. But it does not necessarily follow that this conviction must be reversed, because we cannot lawfully reverse a conviction, unless we have reason to believe, from an inspection of the entire record, that the appellant has been deprived of some substantial right thereby, to his injury, in the trial of the case. Upon a consideration of the entire record, we are of the opinion that, while the trial court erred as to the law, the jury were clearly right in the conclusion at which they arrived; and that if any mistake was made it was in convicting the appellant of manslaughter in the first degree, when they should have convicted him of murder. Appellant was engaged in a business which placed him in open defiance of the laws of the state. This does not prove or tend to prove that he is guilty of 'murder; but it is utterly inconsistent with the good character which he attempted to establish as to his being a quiet, law-abiding, and peaceable citizen, and his occupation, under the repeated decisions of this court, clearly impeached and destroyed his credibility as a witness. The testimony of the state was that deceased was shot in the back, and within two minutes after the fatal, shot was fired, when the first witness entered the place of business of appellant, appellant announced that he had done the killing, and stated that he fired the first shot to bluff the deceased and the last to hit him; and that appellant did not then attempt to excuse or justify what he had done, or state any cause for the shooting, but was found with a whisky bottle in one hand and a glass in the other, and was so nervous and excited or intoxicated that he could not pour the liquor in the glass without taking the bottle in both hands. To other persons who came in some time afterwards, appellant said: “I have killed him. By God, he is dying, and all I regret is I shot him in the back. I ought to be hung.” It seems that when appellant realized what he had done, from his own low standard of morals, he believed he ought to be hung, and in this opinion we concur, and we are surprised that the jury did not reach the same conclusion. Appellant and deceased had been gambling together nearly all night, and, considering the place and the condition of appellant when the witnesses came in, they had been drinking whisky. A dispute doubtless arose with reference to the stakes of the game, and to enforce his claims appellant appealed to his six-shooter, and when deceased attempted to leave be was shot in the back. This was a case of murder, and instead of appealing and complaining appellant should be extremely grateful to the jury for having found him guilty of manslaughter only.

While there is error in-the record, yet we find that appellant suffered no injury thereby. The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    C. V. FOSTER v. STATE.
    No. A-1105.
    Opinion Filed September 30, 1912.
    (126 Pac. 835.)
    1. HOMICIDE — Documentary Evidence — Declarations—Self-Defense, (a) Where a temporary order of injunction has been issued and served upon a defendant, enjoining him from removing a child beyond the jurisdiction of the court, and requiring him to retain the child within such jurisdiction until the matter can finally be determined, and where an attempt is made to forcibly take such child out of the possession of the defendant, and out of the jurisdiction of the court, before the matter has been finally determined, and the party making this attempt is killed in the difficulty arising therefrom, upon the trial of the defendant for murder on account of such killing, the files and order of the court in such injunction proceedings are admissible in evidence to show the good faith of the defendant.
    (b) Where the state introduces the declarations of a defendant in evidence, they cannot arbitrarily select such parts of said statements as are injurious to the defendant and ignore other parts of the same statements which are favorable to him; but the defendant is entitled to have any benefits which may reasonably arise from any part of such statements, unless they are proved to be untrue by other evidence.
    (e) Where the issue of self-defense is raised in a murder case, it is competent for the defendant to offer evidence of threats to do him injury, made by the deceased, and hostile demonstrations made toward him by the deceased or others acting with him, whether the defendant was aware of such demonstrations or not.
    2. TRIAL — Instructions — Circumstantial Evidence. In a murder case, where the defendant admits the killing, or where there is direct evidence that the defendant killed the deceased, a charge on circumstantial evidence should not be given.
    3. HOMICIDE — Instructions—Applicability to Evidence. For facts which required the court to instruct the jury upon the law of kidnapping and the right of a defendant to prevent the commission of this felony, see opinion.
    4. SAME — Instructions—Self-Defense. When a defendant is at a place where he has a right to he, and he is unlawfully assailed, it is error to instruct the jury that he should have retreated, before he can avail himself of the right of self-defense.
    5. TRIAL — Province of Jury — Credibility of Witnesses. The jury, in the first instance, are the exclusive judges of the credibility of witnesses; and if they find a witness has been successfully impeached, there is no law which requires them to believe him, it matters not how much his evidence may have been corroborated. It is error for the trial court to take this right away from them by its instructions.
    (Syllabus by the Court.)

      Appeal from District Court,, Jefferson County; Roy Hoffman, Assigned Judge.

    C. V. Foster was convicted of manslaughter in the second degree, and brings error.
    Reversed.
    Appellant, C. V. Foster, and his son, Baker Foster, were jointly prosecuted by information and tried in the district court of Jefferson county forthe offense of murder. Baker Foster was found not guilty by the jury; but appellant, C. V. Foster, was found guilty of manslaughter in the second degree, and his punishment was assessed by the court at confinement in the penitentiary for the period of four years.
    The material portions of the evidence in the case are as follows:
    S. P. Treadwell testified for the state: That he was sheriff of Jefferson county. That in response to a call he went to the Gan farm, near Grady, and there found a dead man about three-quarters of a mile from the house of appellant, down in the river bottom. That .the man was shot in the right rib, and the ball came out about two inches from his spinal column. He was also shot below the collar bone, the ball coming out at the back, and was also shot about an inch above his right eye. Witness arrested appellant and his son, Baker Foster. That appellant said they had had a shooting scrape, and went down into the bottoms and showed witness where the shooting had taken place. That appellant said, when he fired at deceased, he was coming from the timber at the mouth of the canyon, near a hackberiy tree. He said the deceased shot at him first, and then turned and shot at his son, Baker Foster. Appellant said he shot four times.
    W. J. Curtis testified, in behalf of the state, that he was deputy sheriff of Jefferson county; that he went to the scene where the homicide occurred; that he had a conversation with appellant and his son with reference to the difficulty. His testimony upon this subject was as follows:
    “Q. What else did they say, if anything? A. Well, they said — I asked them who shot first, I think is the way that come up. And they said that Burgett shot first, and I think they said he emptied his shotgun; probably shot at the old man, and then turned at the boy before he shot at him with the shotgun. There was a couple of hulls laying there under the tree there, and I picked them up and asked the old man how they come out there, and he said, T throwed them out.’ And I said, Where is that gun?’ and he said he taken it to the house, and I said, ‘Why didn’t you leave the gun at the tree?’ He said he was afraid the fellows would come back and get the gun.”
    Walter Gan testified for the state: That he resided near the place where the shooting occurred. That he had heard the shooting about noon. That he had heard appellant say that they had had a fight that morning. They said Jess Burgett came and stole the baby, and they had a fight about the baby, in which the baby was shot. Appellant told him he did not know whether deceased was shot or not.
    J. H. Brown testified for the state: That he lived in the state of Texas, and about or 3 miles from the place of the shooting. He went to the place of the shooting and found Jess Burgett dead. He described the wounds on the body of the deceased.
    Rube Brown testified for the state: That he resided in the town of Grady. That he went to the scene of the shooting and found the dead body of Jess Burgett. He described the scene of the shooting and the condition of the body.
    Gertie May Burgett testified for the state that she resided at Grady, and was the wife of deceased; that she was at the house of appellant the day of the killing; that appellant was her father; that witness and her husband were separated at the time of the killing; that they had a daughter about three years old; that on the morning of the killing deceased' came to the house of the father of witness and got the child; that witness was at work in the field picking cotton with her father and two younger sisters, about 600 yards from the house; that when they received news that deceased had gotten the child they all quit work and went to the house; that appellant went in pursuit of the child.
    G. G. Childress testified: That he resided at Cornish, in Jefferson county, and was a huckster. That he was at the house of appellant on the day of the shooting. He went there with his chicken wagon and stopped to collect some money. Appellant came up with some other member of his family and said the baby was shot. Appellant said he was certain he had hit him three times. Appellant said he had captured his gun.
    Joe Foster testified: That he was a son of appellant. That he was at the house of appellant when Jess Burgett came to get the child of his sister. That witness saw him as he was leaving the house. Deceased was armed with a shotgun. That appellant was over in the field working, about 600 yards from the house, picking cotton. That witness went to the house and got a gun and tried to stop the deceased, but could not do so. Witness then went and told appellant what had happened. Appellant came on back to the house and followed deceased. Witness told appellant the direction deceased had gone with the child.
    J. L. Holloway testified: That he lived about a mile and a half from the place of the killing. That he heard the shooting. That he could not tell exactly where it was, except it was in a southeast direction from where he was at. Something like a dozen shots were fired. First the main shooting came up, and then there was a pause, and then two other shots were fired. There were not over ten seconds between the main shooting and the two shots.
    Ed Punneo testified: That he resided at Fox. That he was at the house of appellant on the morning of the shooting, buying hogs. That he asked them if they had any hogs for sale. They said they did not.
    Dr. A. G. Cranfield testified that he was a physician and resided at Grady; that he examined the deceased. He then testified as follows: .

      “A. I believe I have some notes (witness refers to memorandum) that I can state from better. My memory, since I have been getting a little bit old, may not be so good. I written them off the next day. Mrs. Gan’s pasture, where we found Jess Burgett with gunshot wound in his forehead one inch over left eye; exit back part of head; wound made with large caliber gun. One wound in left breast; one in the ninth or tenth inter-costal space. I ain’t right sure of that, as he had part of his clothes on, and I did not count. Entered in the right side; exit through or near the left kidney; made with a gun of smaller caliber. Inside of right knee, some five shots, supposed to be from a shotgun or small caliber gun in the left leg. His coat, laying under him, contained two shot holes. One in the front, where the ball entered, was badly powder burned, and showed it had been put out. One in the back— Q. What is your opinion —that he died from the effects of the wound? A. My opinion is that he died from the wounding in the (indicating) head; that was the immediate cause of his death.”
    The state then rested its case.
    Appellant offered in evidence the files and order of the court in cause No. 1,678, in the district court of Jéfferson county, showing that the deceased had applied for and obtained a temporary injunction against appellant and the wife of the deceased, restraining them from removing their infant child from the jurisdiction of the courr until such matter could be ¡finally inquired into, and that the hearing on said injunction was made returnable on the first day of the next term of the court, which was prior to the homicide, and followed this with an" offer to prove that the deceased had made several attempts to steal the child at night from the house of appellant, and that deceased's purpose was to get acress Red river and get the child into Texas before the injunction suit would be tried; that deceased had threatened to kill appellant, which evidence was by the court excluded, to which appellant excepted.

      Appellant then offered W. J. Cooper as a witness in his behalf. He testified: That he lived about three miles east of Grady and about two miles from the house of appellant. That he saw deceased about daylight on the morning of the killing. That deceased had spent the night at the house of witness. Deceased left the house about daylight, and had a shotgun and a sixshooter. Witness heard the shooting about 8 o’clock. It sounded like about thirteen shots were fired. The shooting sounded as if made by two different guns, a big gun and a small gun. That after the main shooting was over witness heard two shots fired, and heard a man hollow.
    And thereupon the defendants, by their counsel, offered to prove by the witness W. J. Cooper that about three weeks before the time of the homicide deceased, Burgett, and two other men camped near his house for the night, which point was about a mile from the home of the defendant, and that said parties told said witness that they were going to make an attempt that night to steal the child, over which the difficulty arose, from the home of this defendant; that just before night the two parties that came with the deceased left the camp, saying that they were going to the home of defendant and ask permission to stay all night, and while there steal said child and bring it away from the house and turn it over to said Burgett; that about an hour later the said Burgett left said camp, armed with a shotgun, and told said witness he was going to the home of this defendant to act with said parties in stealing said child, and asked said witness, if he succeeded in stealing said child, would witness assist him that night in crossing Red river into Texas; that on the night before the difficulty, while said Burgett was at his house, he told said witness that he was going over to defendant’s house next morning to steal said child, and that if he could ever get a hold of said child he could hold the child in one arm and with his shotgun in the other could mow 'down the Fosters as fast as they came to him. Which offer to prove was by the court overruled, and to the overruling of which tire defendants then and there excepted, and which exception was by the court allowed.

      J. C. Cordell testified for appellant: That he resided about a mile from the home of appellant. That he heard the shooting. Between'twelve and thirteen shots were fired. They were pistol and gun shots, but he could not tell which was fired first. The shooting was pretty fast. After the main shooting was over, he heard two more shots fired. They appeared to be pistol shots, and were pretty close together.
    The appellant offered further to prove by the witness Cor-dell that on the same night that tíie three men camped near the home of the witness Cooper, at about 2 o’clock a. m. on said night, the said Jess Burgett came to the home of said witness and called for a drink of water, and while there told said witness that he had been over lying around the home of this defendant, and that three different times that night he had leveled his gun on some man in this defendant’s yard, but each time was afraid to shoot, because he was not certain that it was this defendant, and that said Burgett was then armed with a double-barrel shotgun. Which offer was by the court overruled, and to the overruling of which offer the defendants then and there excepted, and which exception was by the court allowed.
    Mrs. C. V. Foster testified that she was the wife of appellant; that on the morning of the homicide appellant and her daughter, Mrs. Burgett, with their little girls, were in the cotton patch picking cotton. She further testified: That her sons were in the field gathering corn. John was at the crib throwing corn back. That after breakfast witness was sitting down at the table writing a letter to her mother. That the baby was on the back porch with her little eight year old girl. The little girl ran into the house and informed her that Jess Burgett had gotten Goldie and gone. Witness went in pursuit of him, and called to him to stop and bring the child back. Deceased replied: “Go back! go back! or there will be bloodshed.” He was running with the child in his arms. Witness followed as well as she could. Her son Baker and her husband soon joined in the pursuit. Witness kept in sight of deceased until he went into the timber with the baby. Soon afterwards she heard the shooting, but did not see any of it. The shooting was very fast. Witness was very much unnerved, but kept on as rapidly as she could. She soon met her husband and son Baker coming back. They turned back and started toward the house. After this witness heard two moie shots. She knows that neither her husband nor son Baker fired these shots. That she does not know who fired them.
    Appellant testified: That on the morning of the killing he was picking cotton with his daughter, when he was informed that the defendant had stolen the child. Appellant was then about three or four hundred yards from the house. Appellant threw his cotton sack down and ran to the house and got his pistol. Appellant saw his wife and went in the direction she was going. Appellant went about 300 yards and met his son Baker on a horse. That Baker told him the direction deceased had gone with' the child. Appellant went down the canyon and saw the deceased with the child in his arms, and said to him: “Jess, take Goldie back to her mother.” Deceased replied: “You God damn son of a bitch, you done everything you could against me, and, God damn you, I will kill you.” Deceased then fired at appellant with his shotgun, and then turned and fired at Baker with the shotgun. He then threw the shotgun down and drew his six-shooter and shot at Baker. At this time appellant began to fire at deceased. He fired four shots at him. When the shooting began, deceased put the baby down. After deceased fired the last shot, he moved off from where the baby was, and appellant picked the baby up and started home with it. As he did so, he looked up and saw the deceased was down on the ground. Baker, the son of appellant, went with him and carried the baby. About 300 yards from the scene of the shooting, they met the wife of deceased, and she said the child was hit by a shot during the shooting. After appellant and his son Baker had left the scene of the shooting, they heard two more shots, but did not know who fired them.
    Questions were then asked appellant, for the purpose of showing that he had been informed of previous threats and hostile demonstrations made by deceased against him; but upon objection of the state this evidence was excluded, to which appellant excepted.

      Appellant placed a number of witnesses upon the stand to prove that his general reputation in the community in which he resided as a peaceable, quiet, law-abiding citizen was good.

      Jones & Green, for appellant.

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

(after stating the facts as above). First. Every word of the testimony offered by appellant and excluded by the court was competent and material, and should have been admitted. This offered evidence is fully set out in the statement of the case accompanying this opinion, and it is not necessary to restate it here.

The offer to introduce in evidence the files in the injunction proceedings pending against appellant- in the district court of Jefferson county should have been received, because under these proceedings it was the duty of appellant to keep the infant child in question within the jurisdiction of the court, and not to allow any person to take it out of such jurisdiction until the matter was finally adjudicated by the court; and in attempting to do this if he acted in good Jaith, which was a question for the jury to determine, he was simply obeying an order of the court, and was thereby within his legal rights and duty. We cannot understand why the court would not permit appellant to prove that deceased had threatened to kill appellant and other members of his family. We suppose it was upon the theory that the issue of self-defense had not been presented. If this assumption is correct, the ruling of the court was proper; but the state introduced a number of witnesses who testified to statements made by appellant with, reference to the fatal difficulty. If these statements had been offered by appellant, they should have been excluded, upon the ground that they were self-serving declarations ; but, the state having introduced them in evidence, it could not select such portions as were against appellant and ignore those parts which were favorable to him; and appellant was entitled to any benefits which might reasonably arise from ■ such statements, unless they were proven to be untrue by other evidence, and in these statements appellant said that the deceased shot at him first. This raised the issue of self-defense, which the jury should decide, under proper instructions from the court. Wherever the issue of self-defense is raised, it is competent for the defendant to offer evidence of threats to do him injury, made by the deceased, and of previous hostile demonstrations toward defendant by the deceased or others acting with him, whether he was aware of such threats or demonstrations or not. Such threats and demonstrations are in no sense of the word hearsay evidence; but they constitute original testimony, and should be received in such case and considered by the jury for what they are worth. In Offitt v. State, 5 Okla. Cr. 48, 113 Pac. 554, Judge Armstrong, speaking for the court, said:

“On a trial of a person charged with murder, evidence tending to show that the deceased had made threats against the appellant is competent, and should be admitted when the issue of self-defense is presented.”

See, also, White v. State, 4 Okla. Cr. 143, 111 Pac. 1010, and Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766. For a full discussion of the philosophy of the law of threats, see Morris v. Territory, 1 Okla. Cr. 624, 99 Pac. 760, 101 Pac. 111. It would be well for,all trial judges in Oklahoma to make themselves familiar with what is there said, because it represents the mature views of this court, and will be followed as a precedent. If this case is ever tried again, all of the evidence offered will be material and competent, and should be admitted.

Second. Exceptions were reserved to the instructions of the court upon the subject of circumstantial evidence; but it would be a waste of time to discuss this kind of testimony here, because this is in no sense of the word a case of circumstantial evidence. Where a defendant admits the killing, or where there is any direct evidence that the defendant did kill the deceased, a charge on circumstantial evidence should not be given. We do not deem it necessary to discuss the accuracy of the instructions given in this case, as the case will have to be reversed upon other grounds, and as the error complained of cannot possibly occur upon a second trial, because no instruction upon this subject should be given.

Third. Section 2300, Comp. Laws 1909, is as follows:

“Every person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, with intent, either: 1st. To cause such other person to be secretly confined or imprisoned in this state against his will; or, 2nd. To cause such other person to be sent out of this state against his will; or, 3rd. To cause such person to be sold as a slave, or in any way held to service against his will, is punishable by imprisonment in the state prison not exceeding ten years. Upon any trial for a violation of this section, the consent thereto of the person kidnapped or confined,-shall not be a defense, unless it appears satisfactorily to the jury, that such person was above the age of twelve years, and that such consent was not extorted by threat, or by duress.”

Section 2290, Comp. Laws 1909, is as follows:

“Homicide is also justifiable when committed by any person in either of the following cases: 1. When resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is; or, 2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or, 3. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace.”

Under the order of the court in the injunction case, it was the duty of appellant to prevent the baby from being carried beyond the jurisdiction of the court until the matter was finally determined. As the baby was under twelve years of age, the attempt upon the part of the deceased to carry the baby into the state of Texas, under the evidence in this case, constituted kidnapping, although the baby may have gone with him of its own free will and accord. When appellant was informed of the attempt to kidnap the baby, it was his right, and duty to use all necessary means to prevent this from being done. If appellant was informed that deceased was armed with a shotgun, and had been informed of the previous threats and hostile demonstrations of deceased, appellant had the right to arm himself and pursue deceased to prevent him from carrying his illegal purpose into’ execution; and if appellant acted in good faith and had reasonable ground to believe that there was imminent danger that deceased would kidnap the child, under section 2290 herein-before quoted, appellant had the right to use all reasonable, necessary, or apparently necessary, means in his power to prevent the commission of this felony. This is the plain statute law of the state, and it is not open for discussion; and the court, by proper instructions, should have submitted this question to the jury and allowed them to pass upon the good faith of appellant. We find no such instruction in the record.

Fourth. Among other things, the court instructed the jury as follows:

“If the jury find from the evidence that the conduct of Bur-gett at the time of the homicide was such as to reasonable lead the defendants to believe that Burgett was about to inflict some great bodily harm upon their persons, and the jury further find that the defendants were not at fault in bringing on the difficulty, and that the defendants could not have retreated without increasing their danger, and that the defendants acted upon such reasonable belief of great bodily harm being done them at the hands of the deceased, Burgett, then the jury should acquit the defendants.”

The portion of the instruction which required the jury to find that the appellant should have retreated before he could act in self-defense is not the law, and should not have been given. This instruction has been repeatedly condemned. See Price v. State, 1 Okla. Cr. 384, 98 Pac. 447; Floyd v. State, 5 Okla. Cr. 65, 113 Pac. 212; Fowler v. State, ante, 126 Pac. 831, decided at the present term.

As was said by this court in the case of Fowler v. State, supra:

“Under the old common law, no man could defend himself until he had retreated, and until his back was to the wall; but this is not the law in free America. Here the wall is to every man’s back. It is the wall of his rights; and when he is at a place where he has a right to be, and he is unlawfully assailed, he may stand and defend himself; and cases sometimes arise in which he has the right, when unlawfully assailed, to advance and defend himself until he finds himself out of danger.”

Fifth. Among other things, the court instructed the jury as follows:

“And in the event you find that any witness has willfully testified falsely relative to any material matter in issue you are at liberty to disregard the whole of such witness’ testimony, except in so far as the same .may be corroborated by other credible witnesses, or by some other facts and circumstances appearing upon the trial.”

This instruction has been so often condemned by this court that it is needless to cite the cases in which this has been'done, as every one who has paid the least attention to what has been decided is already familiar with the law upon this subject. We cannot understand why trial judges disregard what has been decided. They should know that by doing so they are simply inviting a reversal of their judgments, as it would be folly for this court not to enforce its decisions. The practice must be uniform in the state. The effect of the latter clause given was to take away from the jury the right to judge of the credibility of the witnesses. If the jury find that any witness has been successfully impeached in any manner, they are not bound to believe him, because he has been corroborated, as this instruction would require them to do.

There are a number of other errors assigned which it is needless to discuss, because we think that what has already been decided is decisive of the .case if it is ever tried again.

The judgment of the lower court is therefore reversed.

ARMSTRONG and DOYTE, JJ., concur.


text:
    JOHN BOSWELL v. STATE.
    No. A-1312.
    Opinion Filed September 30, 1912.
    (126 Pac. 826.)
    1. CONTINUANCE — Application—Appeal and Error — Discretion of Trial Court, (a) For an application for a continuance which is altogether insufficient, see statement of the case.
    (b) For the necessary elements of an application for a continuance, see opinion.
    (c) An application for a continuance is addressed to the discretion of the court, and this discretion will not be reviewed upon appeal, unless it appears from the entire record that the appellant was deprived of some material right, to his injury, by the action of the court in refusing to grant a continuance.
    2. APPEAL — Instructions—Harmless Error, (a) It is not error for the trial court to instruct the jury in a ease of murder that where the commission of the homicide by the defendant is proven, the burden of proving circumstances of mitigation or that justify or excuse it devolves upon the defendant, unless the proof upon the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable, and that if the jury entertain a reasonable doubt of the defendant’s guilt, upon a consideration of the entire evidence, they should acquit him.
    (b) A defendant cannot complain of an error in the instructions of the court, which instruction is given at his request.
    (Syllabus by the Court.)

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

    John Boswell was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    It is impossible to give a clear and detailed statement of the testimony in this case. The difficulty in which the homicide was committed took place at a baseball game in Cherokee county. With the exception of Avis King, the witnesses who testified in the case were all more or less under the influence of intoxicating liquor when the difficulty took place, and their statements are confused. The appellant himself testified that he had taken two drinks, and that the other participants in the difficulty were all drunk. In fact, the testimony shows that a free fight and drunken row occurred, and it is impossible to tell how it started or what its cause was or who struck the first blow. In this difficulty the appellant and a number of other persons were severely beaten, and Ferdinand King received the wound from which he died. Ferdinand King was an old man about 75 years of age, and was nearly blind. Appellant testified that during the difficulty Ferdinand King struck him, the appellant, over the head with a stick. No other witness testified to anything of the kind. Five witnesses testified that they saw appellant seize a large rock, and throw it at the deceased, which struck him in the temple, and that the deceased immediately fell to the ground. The witnesses testified that deceased was standing by, and not taking any part in the difficulty. Appellant denied throwing this rock, but no one else sustains this statement. The wound made by the blow was on the right side of the head, and about an inch or inch and a half long. It had the appearance of being mashed down, so that the place where the wound was was lower than the other parts of his head. Deceased was unconscious from the time he received the blow. His head seemed to be mashed in. He laid in bed twelve days and 'died. Appellant, according to his own testimony, left the state of Oklahoma immediately after the difficulty, and fled to' the state of Arkansas. He returned to the state of Oklahoma, as he says, as soon as he thought he could get justice.
    When this case was called for trial on the 7th day of February, 1911, appellant filed the following motion for a continuance:
    “Comes now the defendant, John Boswell, and moves the court for a continuance, of this cause till the next term of this court, and on account of the absence of material evidence which he has not been able to obtain, and which he expects to obtain by that time, and said defendant on his oath says he has used due diligence to obtain said evidence and has been unable to do so; that he caused subpoenaes to be issued and served on witnesses who are absent, to wit, T. S. Williams and P. V. Woodruff, and that the testimony of said witnesses will be material, and that defendant believes by the next term of this court he can procure these witnesses, and that they will testify as follows: That they are physicians and were called on the 4th day of October, 1909, to attend and dress the wounds of the person of John Boswell, and which wounds consisted of a lacerated scalp wound, two or two and one-half inches long on the upper posterior part of the head, a fracture of the radius of the right arm near the wrist, a severe bruise on the top of the left shoulder near the shoulder articulation, an injury which probably fractured the bone and rendered the use of the left arm nil for some time, a minor bruise on the back; that B. F. Boswell had a stellated or three-cornered lacerated scalp wound on the top of the head, and some minor bruises on other parts of the body; that from the nature of the wounds there were probably clubs and stones used to produce them, and very considerable force used in the blows that inflicted the wounds. Affiant believes that said testimony will be given and that it is true. Affiant further believes that Ruth Meyers, if present, will testify that she was an eyewitness, and that at the time Ferdinand King received such injuries as he received, this affiant, defendant, was engaged in' defending himself from an assault by John King and Ezra King, and was being badly handled, and. was so engaged as to be unable to throw at any one; arid affiant says that he has sent registered mail to witness last known place.of residence, that the same has been forwarded as he is advised to Moody, Okla., and that he believes he will be able to get this witness by the next term of this court; that the testimony will be material, and that the same will be true as affiant verily believes; and affiant further says that he has caused a registered letter containing a subpoena to be sent to‘ Earlsboro, Okla., and that the registered return card has not been returned, and that he is informed by the postmaster at Tahlequah, Okla., that on last Sunday the registered mail had been forwarded to Moody, Okla., passing through Tah-lequah, Okla. Affiant further says that he caused Nancy McDan-iels, of Welling, to be served with a subpoena, and that he paid her expenses to Tahlequah, Okla., and that she did not demand more fees than he paid her, and that she has failed to obey the said subpoena, and affiant says that, if this witness was present, she would testify, to wit, that Emma King told her on the 4th day of October, 1909, that she broke a baseball bat over the shoulder of John Boswell, affiant, and thought she had broken his shoulder all to pieces, and that John King said he begun the fight because he thought he was a better man than any of the Boswells; that Luke King and Em King said that they believed that they had already killed John Boswell, affiant; that they thought, if he was not already dead, he would die from the beating he got; that Luke and Em King both said they would get John Boswell yet; they were going to kill him; that Ex. King said he did not know how Ferdinand King got hurt; that John Boswell hit him with a rock but he did not know who hit Ferdinand King. He believes the witness will swear to the matters as set out, and that the same is true, and that a continuance, if granted, he can, by the next term of this court, get the witness for the trial. [Signed] John Boswell, Defendant. Subscribed and sworn to before me this 7th day of February, 1911 [Signed] W. H. Talley, Clerk of the District Court.”
    The motion for a continuance was overruled by the court and defendant excepted. The case was postponed until the 13th day of February, and the trial was not concluded until the 14th day of February.

      Bruce L'. Keenan, for appellant.

      Chas. West, Atty. Gen., for .the State.
   FURMAN, P. J.

(after stating the facts as above). The application for a continuance in this case is altogether insufficient. As to the two absent witnesses, T. S. Williams and P. V. Woodruff, the application does not show when the subpoena was issued, or when or by whom or how it was served upon these witnesses. Neither does it show the residence of the witnesses. The testimony set out in the motion for a continuance was in no manner material. If appellant killed the deceased, the fact that he was also injured would not constitute any defense unless the killing occurred while the appellant was attempting to defend himself against such injuries. As to the witness Ruth Myers, there is no statement that a subpoena was ever issued for or served upon her, and no showing is made as to any diligence on the part of appellant to locate this witness or discover her place of residence. It is not enough to state in general terms that a defendant has used due diligence, but the motion must go further, and state the facts which constitute the diligence used, so that the court may judge of this matter. It is an exceedingly serious and dangerous matter for a man to be charged with crime in the courts of Oklahoma, and it is the duty of such person and his attorneys to exert themselves to the utmost and avail themselves of the process of the court in order to obtain witnesses in their behalf. The testimony of the absent witness was not material, because it was simply a statement of her opinion that the appellant was so engaged as to be unable to throw the stone which killed the deceased. An application for a continuance should state the facts which will be testified to, and not the opinion of the witness. The application does not state the residence of Nancy McDaniels, or state when or by whom or how process was served upon her, or at what time she was required by this process to appear in court. The testimony of said Nancy McDaniels is immaterial because it does not state any fact which would justify appellant in killing deceased. Even if the application had been good upon its face, it should have been refused because it was presented on the 7tth day of February, while the trial did not begin until the 13th day of February, which was ample time for appellant to send from one end of the state of Oklahoma to the other for his absent witnesses, and there is no showing that appellant attempted to get process for such witnesses or made any effort to secure their presence during this time. Even if the application had been good upon its face, and if appellant had exercised the utmost diligence to obtain the- attendance of these witnesses, this conviction would not be reversed, because the entire testimony in the case shows the absent witnesses’ testimony was immaterial and was at most only cumulative. It is the settled rule of this court that an application for a continuance is addressed to the discretion of the trial court, and that the refusal of the court to grant a continuance will not be reversible error upon appeal, unless upon an examination of the entire record it appears that appellant was deprived of some substantial right thereby, to his injury. An application for a continuance should state the name and place of residence of each absent witness. It should then allege that due diligence has been used to secure the attendance of said witness, and should disclose the diligence as to each witness by stating the time at which the subpoena was issued, and when and by whom served, and that the witness was summoned to be present at the time of the trial. The better practice is to attach the subpoena for each witness with the return thereon indorsed to the motion for a continuance, and make it- a part thereof, so that the court can tell whether or not as a matter of fact due diligence has been used. The motion should allege in general terms that the testimony of the absent witness is material and set out the facts expected to be proven by each absent witness, and it must also contain such statements as will show that such expected evidence is both competent and material. If the testimony of the absent witness cannot be procured from any other source, this fact should be stated. If it can be procured from some other source, the motion should contain a statement as to why it was not so obtained. But, if such absent testimony can be obtained from some other source, the motion must state the special facts which in reason and justice would entitle a defendant to a continuance in order to enable him to obtain cumulative evidence. A motion which does not comply with either of these requirements is bad upon its face.

Second. Upon the trial of this cause, among other things, the court instructed the jury as follows:

“You are instructed that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant inflicted the wound upon the deceased as charged in the information, and that said wound was the immediate and necessary cause of the death of the deceased, then the burden of proving circumstances of mitigation that jusitfy or excuse the homicide shall devolve upon the defendant, unless by the proof on the part of the state it is apparently and sufficiently manifest that the accused was justified or excused in committing the homicide.”

The court also instructed the jury as follows:

“But, if, after viewing all of the evidence and circumstances in the case, there is a reasonable doubt upon your minds as to the guilt of the defendant of any charge mentioned in these instructions, then it would be your duty to give the benefit of that doubt to the defendant and acquit him.”

We are at a loss to know why appellant should except to this instruction, because the record shows that he requested the court to charge as follows:

“You are instructed that if you believe from the evidence in this case beyond a reasonable doubt that the defendant inflicted the wound upon the deceased as charged in the information, and that said wound was the immediate and necessary cause of the death of the deceased, then the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the defendant, unless by the proof oh the part of the state it is apparently and sufficiently manifest that the accused was justified or excused in committing the homicide.”

Section 6854, Comp. Laws 1909, is as follows:

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

The latter part of the instruction given and complained of does not follow the statute, and is more onerous than the law requires. But this does not constitute reversible error for two reasons: First, it is a substantial copy of the instruction requested by appellant and because a defendant cannot avail himself of an error which was committed by the court at his suggestion; and, second, because there is no word of evidence in this record either on the part of the state or appellant which in any manner tends to excuse, mitigate, or justify the offense committed, and it is a well-settled rule of law that an error in the instructions of the court will not be reversible unless it appears from the record that appellant was injured thereby.

From the whole record appellant is guilty of the offense for which he was convicted. Upon his own showing it was a case of manslaughter, and, while he was probably acting under such intense excitement as to render him incapable of forming that specific intent to kill which is necessary to constitute murder, he is clearly guilty of manslaugther in the first degree.

The other alleged errors in the record are not deemed of sufficient importance to require discussion. The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    GOLDIE CLEMMONS v. STATE.
    No. A-586.
    Opinion Filed September 28, 1912.
    (125 Pac. 704.)
    1. HOMICIDE — Evidence—Remoteness. In a case of homicide or of assault with intent to murder, it is competent to introduce evidence of the conduct, acts, and general demeanor of the defendant before the crime for the purpose of proving that he was armed and in a vicious mood, provided such conduct is so near the time of the homicide or assault that it tends to show the state of' mind of the defendant at the time of the hilling or assault, but it is not competent to introduce evidence of any conduct of appellant so far removed in point of time as not to shed any light upon the ease upon trial.
    2. SAME — Evidence—Presumptions—Provocation. When the question is as to whether or not a defendant charged with assault with intent to murder or with murder acted upon antecedent malice or fresh provocation, the law will presume that such action was upon the fresh provocation, unless there is evidence tending to connect such antecedent malice with such fresh provocation.
    3. SAME — Justification—Defense of Another. The wife has the right to act in the defense of her husband when the facts and circumstances of the case,- judging from her standpoint and as they reasonably appear to her, are such as to create in her mind a reasonable apprehension that her husband is in imminent danger of being killed, or receiving serious bodily injury at the hands of his assailant.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee County; John H. King, Judge.

    Goldie Clemmons was convicted of assault with intent to murder, and appeals.
    Reversed and remanded.
    The case is clearly and correctly stated in the brief of counsel for appellant, which is as follows:
    “This is a case in which the appellant was charged in the district court of Muskogee county with the crime of assault with intent to kill by shooting at G. C. Clemmons. The facts, as disclosed by the record, are: That G. C. Clemmons and the husband of this appellant are brothers. They were running a restaurant and cold drink stand. G. C. Clemmons had discharged one of the men employed by his brother. The husband of appellant had called a police offiicer to have G. C. Clemmons arrested for causing the disturbance, and for discharging his help. The two brothers became involved in a difficulty, and, while the police officer was holding the husband of appellant, G. C. Clemmons struck him over the head with a piece of plank. After he made the first stroke, she ordered him not to strike her husband. When he made the second stroke, she shot at him. Her defense was that she shot to frighten, not to kill, G. C. Clemmons. She insisted that her only purpose was to scare him so that he would not strike her husband again. The case was tried on that issue. The shooting was admitted, and the sole issue for the jury to determine was her intention at the time she fired the shot. She and her husband were moving to the place where the difficulty took place, and they had among other effects two revolvers. One the policeman took from her and the other she used when firing the shot for which she was convicted.
    “We did not represent the appellant in the trial below, and came into the case after the appeal had been filed in this court. In our opinion the record discloses reversible error, in this: The prosecuting witness, G. C. Clemmons, was permitted over the objection of the appellant to testify that two years prior to this difficulty appellant had fired three shots at him, and appellant herself was compelled, on cross-examination, to answer the question as to whether she had two years prior to this difficulty shot at the prosecuting witness. If she had denied the shooting in this particular case, and that had been her defense, then the testimony as to former shots would probably be harmless error; but, when the sole issue was her intention at the time she fired the shot, it was prejudicial to permit the state to prove that on a previous occasion, two years prior to this time, she had fired three shots at the appellant, and for that reason this testimony constitutes reversible error. On page 11 of the case-made appears the following as part of the redirect examination by the county attorney, to wit: ‘Just one other question: Had she ever shot at you before? Answer: Three times, two years ago, after jumping on my mother and beating her up. Question: Did she jump on your mother? Answer: Yes; Dr. Waterford treated her. Mr. Sullivan: I object to the question and ask the answer to be stricken. By the Court: Overruled.’ Again, on page 17: Part of the testimony of the appellant herself appears: Question: Did he hit John (referring to her husband)? Answer: He hit him twice. I asked him when he first entered, “Don’t hit John,” and, when he hit him, I jerked my gun and shot to scare him. Question: Did you shoot to kill him? Answer: No, sir; I shot to scare him.’ Again, on page 19, as part of the cross-examination of the appellant, appears the following: ‘Question: Were you shooting at him just for fun the other three times you shot at him? Mr. Sullivan: We object. Question: That’s all.’
    “This case riiight have been tried on the theory that she would have a right to defend her husband and would be justifiable in shooting in his defense, but it was not tried on this theory. It was tried on the one issue that she shot to scare him. This is shown conclusively by the instructions of the court appearing on page 25, as follows: ‘The defendant has told you that she fired the shot from the automatic pistol, but that she shot to scare G. C. Clemmons, who was having trouble with her husband. It is for you to say, from all the facts and circumstances in the case, whether the defendant shot at the prosecuting witness with the intent to kill him or not. If you have a reasonable doubt of the defendant’s guilt, she should be acquitted.’ The error complained of in the introduction of this testimony was presented squarely to the court in the motion for new trial in the second paragraph, as appears on page 27 of the case-made.
    “We are mindful of the general rule that proof of distinct and independent offenses is admissible if they throw light on the intention of the defendant in the commission of the act for which he is on trial. This is true, even though the testimony may prove separate and independent crime. But the rule is just as well settled that proof of distinct and independent offenses is not admissible on the trial of a person accused of crime where the prior offense is not part of the res gestae,, and does not shed light on the intention of the defendant in the commission of the acts complained of. The court in the case of Williams v. State, 4 Okla. Cr. 523, 114 Pac. 1114, reviewed the authorities on this point, and Judge Furman, speaking, for the court, announced the rule as follows: ‘It is competent in a case of homicide to put in evidence the conduct, actions, and general demeanor of the defendant before the crime, for the purpose of proving that he was armed and in a vicious humor, provided such conduct is so near the time of the homicide that it tends to show the state of mind of-the defendant at the time of the killing.’ We most heartily agree with this statement. A better statement of the rule we do not recall ever having read, and, applying that rule to the case at bar, the appellant is entitled to a new trial. Certainly it will not be contended that the conduct of this appellant in shooting at the 'prosecuting witness two years prior to this difficulty tends to show the state of mind of the appellant at the time of this shooting. Judge Furman in reviewing the authorities quotes with approval the case of State v. Miller, 73 S. C. 279, 53 S. E. 427, 114 Am. St. Rep. 82, in which the court said: ‘The general rule is that proof of distinct and independent offenses is not admissible on the trial of a person accused of crime, but there are exceptions to or modifications of this general rule, as where such evidence reasonably tends to show the malice, intent, or motive of the defendant with respect to the crime charged, or where the offense is so clearly connected with the crime charged as to bring it within the rule of res gestaeJudge Fur-man used the following language, after quoting at length from the leading authorities sustaining the rule announced in the syllabus, which we have quoted: ‘It is there laid down that evidence of the character there involved is admissible for the purpose of showing and explaining the movements and general conduct of the prisoner before and after an offense which immediately preceded the one for which he is being tried.’ Judge Fur-man also quotes with approval the language used by Judge Doyle in the case of Vickers v. United States, 1 Okla. Cr. 452 [98 Pac. 467], as follows: ‘Evidence is admissible that tends directly to prove the defendant guilty, although it may also tend to prove a distinct felony, and thus prejudice the accused.’
    “We can easily imagine a state of facts that might have made the prior shooting admissible. Suppose, for instance, that the state had undertaken to prove that the appellant had held malice against the prosecuting witness, that she had threatened to take his life, that she had made an effort to take his life on this occasion as part of her preconceived intentions to take his life, and that on a former occasion she made an effort to carry out her intentions. The appellant then would have been given an opportunity to meet that issue, but no such state of facts is in evidence. The state did not undertake to prove any malice against the prosecuting witness, or any threats made against him. But the state did prove that she two years before'shot at him three times. A casual reading of the testimony in this record will convince any one that the jury must have been prejudiced against the appellant, or they would never have returned a verdict finding her guilty. The fact that the punishment was fixed at one year in the penitentiary is proof that it was a compromise verdict. If the jury had been thoroughly convinced that she deliberately attempted to murder her brother-in-law, her punishment would not have been fixed at the minimum, but she would have received the maximum. And this goes to prove that the prejudice caused by this testimony of the prior shooting was sufficient to influence the mind of the jury to the extent of giving her the minimum sentence on general principles. A juror that was inclined to hold out for an acquittal would probably be met with the argument that she is a bad woman, the proof shows that she tried once to kill this brother-in-law, and a year in the penitentiary will do her good.
    “The members of this court have had sufficient experience in the general practice and in the trial of criminal cases to know that what might seem the most insignificant circumstances are sometimes sufficient to influence a jury to return a verdict of guilty. And the juries frequently convict on general principles. For that very reason the trial court should not permit the introduction of evidence which raises an issue improper in the case. To send a woman to the penitentiary for one year for shooting at a man who is beating her husband over the head with a plank is a very serious matter.
    “If we had been defending this woman in the lower court, we would have made the defense that she would have the right to shoot, and that she had the right to take his life in the defense of her husband. That was not the defense made. Yet we feel that this court should take all the facts and circumstances as disclosed by the record into consideration, and that justice should be done this woman. That can only be done her by granting a new trial and letting the case be retried in the lower court on the proper issue, and on such facts as are relevant to the issue.”

      Owen & Stone„ for appellant.

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

(after stating the facts as above). We have examined the record in this case carefully, and we find that the facts and questions of law involved are correctly stated in the brief of counsel for appellant. Wé therefore adopt this brief as our opinion in this case; and for the reasons therein stated the judgment of the lower court is reversed and the cause remanded.

ARMSTRONG and DOYLE, JJ., concpr.