text:
    L. S. PARKS v. STATE.
    No. A-3858.
    Opinion Filed Jan. 19, 1922.
    (203 Pac. 481.)
    (Syllabus.)
    Homicide — Shooting with Intent to> Kill — Sufficiency of Evidence. In a prosecution for shooting another with intent to kill, evidence held sufficient to support the verdict and judgment of conviction.
    Appeal from District Court, Pontotoc County; J. W. Bo-len, Judge.'
    L. S. Parks was convicted of assault with intent to kill, and he appeals.
    Affirmed.
    King .& Crawford, for plaintiff in error.
    The Attorney General and E. L. Pulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, L. S. Parks, was convicted on a charge of shooting one Jeff Neal, with intent to kill, and his punishment fixed at imprisonment in the penitentiary for the term of one year. He has appealed from the judgment rendered upon such conviction, but there has been no appearance on his behalf in this court.

The errors assigned question the sufficiency of evidence to sustain the verdict. It appears that Jeff Neal, complaining witness, and the defendant, were living near Dolberg, and there was some disagreement over the rent of a pasture.

Jeff Neal testified:

“I went to the timber to get a load of wood. I was sitting on the load talking to John McCarroll when the defendant appeared and asked McCarroll if he had seen a certain cow; then he mentioned my name, and I said, ‘Spence, I don’t want you on my premises the way you have treated me;’ and I started south going home, about two miles. As I was driving along the road I heard a gun fire. I looked around and there was Spence standing within five feet of me on the right side of my wagon; the first shot hit the brim of my hat and my mules started to run. I threw on the brake and he fired again, hitting me on the shoulder, neck and back of the head. 1 did not have a gun with me. ‘Spence’ is what they all call the defendant, L. S. Parks, down there; the shooting was in Pontotoc county. ’ ’

W. H. Lamb testified:

“I was going from Roff. I noticed Jeff Neal in a wagon behind me. I did not know him then. I saw a man coming on a horse. The nest thing I heard a gun fire. I looked and the defendant was standing on the ground with a gun, near Neal’s wagon. The defendant fired a second shot and Neal hollered. The defendant got on his horse and turned and rode back. Neal asked me to get up on the wagon and see how bad he was shot. I looked at him and asked him where he lived. Then I went to Mr. Fairchilds’ and phoned for his folks to come and get him.”

John S. Treat testified:

“I was picking cotton and saw two wagons coming up the road. Then I noticed a man coming up behind in a gallop. I heard a gun fire and looked up and watched them, just a short time; the gun fired again, and Mr. Neal hollered ‘ Oh Lordy. ’ ’ ’

Dr. J. L. Jeffries testified:

“I am a practicing physician at Boff; was called to attend Jeff Neal. I found shot in his shoulder and in the back of his neck and head, and one or two went through his right ear. ’ ’

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

“I went over to the pasture that day to look for a cow, Some one hollered, ‘Hey.’ I looked and could not see any one, and some one hollered ‘Hey,’ again. I rode out from behind the bushes and saw Jeff Neal standing on his doubletree. I asked Mr. MeCarroll, ‘Have you seen"anything of a “C” brand cow?’ He said, ‘No; I haven’t;’ and Jeff said, ‘You God damn son of a bitch, get off my premises;’ and I said, ‘Jeff, don’t cuss me. ’ He said, ‘I killed your cow and am going to do you the same way. I made my getaway and started on back home. I stopped at Baker’s and saw Jeff! Neal pass in a wagon. I turned around and asked the little girl if Mr. Baker had a gun here. She said, ‘Yes; in the house;’ and I stepped to the door and got it, with six shells. I put them in the gun to protect my life on my way home. I was riding in a trot when I overtook Jeff, and when I got up nearly in front of his mules he made a quick dash like going for a gun, and I jumped off my horse and raised my gun and fired. I missed him. He was still going down after the gun, and I gave him another load as quick as I could. Then I went and gave myself up to the officers.”

While the defendant is not represented in this court, we have carefully gone through the record and find it free from substantial error, and we see no reason to doubt that this conviction was justified by' the evidence.

The judgment of the lower court is therefore affirmed.

MATSON and BESSEY, JJ., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    E. W. FOWLER v. STATE.
    No. A-3676.
    Opinion Filed Jan. 21, 1922.
    (203 Pac. 900.)
    (Syllabus.)
    1. Statute Relating to Forged Instruments. Any person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within this state, which instrument, if genuine, might be filed or registered or recorded under any law of the state, or of the United States, is guilty of a felony.
    2. Forgery — Proof of Uttering Forged Instrument — Absence of Variance. Proof of the ways and means and circumstances of uttering the false or forged instrument held sufficient, and not at variance with the allegations.
    Appeal from District Court, Wagoner County; Chas. G. Watts, Judge.
    E. W. Fowler was convicted of offering for record a false and forged instrument, and was sentenced to a term of one year in the state penitentiary, and he appeals.
    Affirmed.
    E. A. Summers, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

E. W. Fowler, plaintiff in error, in this opinion referred to as the defendant, was by information filed in the district court of Wagoner county, September?, 1918, charged with having, on September 1, 1916, feloniously and knowingly offered a false and forged instrument to be recorded in the office of the county clerk of Wagoner county, Okla., which instrument, if genuine, might have been recorded in said office. At the trial on April 11, 1919, the jury rendered a verdict of guilty against the defendant, without assessing the punishment. The court rendered judgment upon the verdict, fixing the punishment at imprisonment in the state penitentiary for one year. From this verdict and judgment defendant appeals.

Tbe prosecuting witness, Zeke Ford, was a Cberokee Indian, having an allotment of land in. the Cherokee country. According to the authenticated rolls of the Cherokee Nation, Zeke Ford became 21 years of age on September 1, 1916, although according to his own and others’ testimony he was actually 21 years of age in March preceding. The defendant and others engaged in buying and trading Indian lands sought to obtain conveyances of portions of Ford’s allotment at different times during the year 1916. As a witness Zeke Ford was confronted with the deed in question, and testified that he never executed or delivered the deed to any one and never acknowledged the same. He stated that some time in May of the same year in which the deed in question was filed for record he did make a deed of this land to another party, at the request of the defendant, and at the same time signed a deed in blank for the purpose, as he was told by the defendant, of making a copy of the deed which he had executed. There is evidence tending to show that the defendant took this deed which had been signed in blank and filled it out, making it appear that it was executed on September 1st, instead of in May. There is also some evidence tending to show that the false or forged deed which defendant offered for record may have been an entirely distinct and different deed from the blank deed signed by Zeke Ford in May.

The defendant himself testified that the deed in question was in fact executed by Zeke Ford at Wybark, in Wagoner county, in the early morning of September 1st, about 2 o’clock, and that Ford’s acknowledgment was taken by defendant, as a notary public. Zeke Ford denied that he made a deed of any kind or character at Wybark that morning, and there is testimony in the record to corroborate his testimony.

From reading tbe information and tbe instructions of tbe court we find that this charge was predicated upon section 2209, R. L. 1910, wbicb reads as follows:

“Any person wbo knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, wbicb instrument, if genuine, might be filed or registered or recorded under any law of this state, or of tbe United States, is guilty of felony.”

The information charges, in substance, that the defendant committed tbe crime of knowingly and feloniously offering a false and forged instrument for record, describing tbe instrument and stating that said deed was neither signed, executed, nor delivered by tbe said Ezekiel Ford, nor bad be authorized any one to sign, execute, or deliver tbe same for him, but that tbe same was false and forged, and known to be false and forged by tbe defendant when be knowingly and feloniously offered the same for record in tbe office of the county clerk of Wagoner county.

Tbe court, over tbe objections and exception of tbe defendant, gave to the jury instruction No. 3, as follows:

“You are further instructed' that the! deed offered in evidence herein, marked ‘State’s Exhibit A,’ is such an instrument which might be filed or registered or recorded in tbe office of the county clerk of Wagoner county, under tbe laws of this state.
“Therefore you are instructed that, if you find and believe from tbe evidence in this case beyond a reasonable doubt that tbe defendant, E. W. Fowler, on or about tbe 1st day of September, 1916, offered to file and did file with the county clerk of this county tbe deed heretofore mentioned, to be recorded in tbe office of said county clerk, and if you further find and believe from tbe evidence, beyond a reasonable doubt, that said deed was not a true and genuine deed of said Ezekiel Ford, that is to say, if you find and believe from tbe evidence that prior to September 1, 1916, the defendant, E. W. Fowler, did fill in the blanks, that is to say, he wrote or caused to be written in said deed the following, to wit: ‘Ezekiel Ford, a single man — one & No-100 — Jas. A. Ferguson — Wagoner— east one-half of the northeast 4 of section twenty-four (24), township sixteen (16) north, range seventeen (17) east — a part of the Ezekiel Ford allotment — his—1st—September—6,’ and that the said defendant, E. W. Fowler, wrote or caused to be written in said deed, in the acknowledgment thereof, the following words: ‘Wagoner — 1st—Sept.-—6—Ezekiel Ford, a single man — he—his—E. W. Fowler, August 30, 1920,’ and that the defendant E. W. Fowler placed his notorial seal thereof on said deed, as shown by said Exhibit A, without the knowledge o.r consent of said Ezekiel Ford, then and in that event the court instructs you that the filling in of the blanks in said deed, as herein mentioned, would be false and a forgery, and that the instrument would be a false and forged instrument, and not the act of the witness Ezekiel Ford, and if under such circumstances as herein just mentioned the defendant, E. W. Fowler, offered said instrument to the county clerk of Wagoner county for record; he would be guilty of offering a false or forged instrument for record, and it would be your duty to so find.”

The court also, over the objections and exception of the defendant, gave to the jury instruction No. 4, as follows:

“You are therefore instructed that, if you find and be-' lieve from the evidence in this case beyond a reasonable doubt that the defendant, E. W. Fowler, in this county and state, on or about the 1st day of September, 1916, and anterior to the filing of the information in this court, did offer a false and forged instrument for record, to wit, a deed, and did then and there willfully, wrongfully, unlawfully, feloniously, and knowingly offer a false and forged instrument, to wit, a warranty deed purporting to be dated September 1, 1916, signed by Ezekiel Ford, conveying the land heretofore described to Jas. A. Ferguson, to be recorded in the office of the county clerk of Wagoner county, Okla., and you further find and believe from the evidence, beyond a reasonable doubt, that the deed was neither signed, executed, or delivered by the said Ezekiel Ford, or that he authorized any one to sign, execute, or deliver the same for him, but that the same was false and forged and was known to be false and forged by the defendant, E. W. Fowler, then in that event you should find the defendant guilty as charged in the information, and assess his punishment as herein instructed.”

It is contended by the defendant that instructions No. 3 and No. 4 are inconsistent with each other, presenting two different theories of law and fact to the jury, and that instruction No. 4 covers an issue of law and fact not raised in the complaint, and that there is therefore a fatal variance between the allegations of the complaint and the proof supporting the same. With this contention we cannot agree. Repugnancy often blends with variance. Repugnancy is two inconsistent allegations in one pleading; a variance is a disagreement between the allegations and the proof in some matter which, in point of law, is essential to the charge. There was no repug-nancy in the allegations, and this is not a case where one crime was charged and another proved. The gist of this action is not the alteration or uttering of a false or forged instrument ; it is the presenting for record of such an instrument. It would make no difference to either party how or under what circumstances the instrument was forged; the question for the jury was not whether the defendant committed forgery in any particular way, or place; it was whether the defendant presented a false or forged instrument for record. Under the allegations of the complaint the state had a right to show, under any theory of the case, or according to any chain of circumstances, that the instrument at issue' was in fact a false or forged instrument.

One of the ways of determining whether there was a variance in the proof or whether the proof was duplicitous is to inquire whether or not the defendant conld be subjected to another prosecution growing out of the same transaction. It is apparent here that this defendant could plead former jeopardy against any charge of this nature growing out of the circumstances disclosed by this evidence.

The judgment of the trial court is affirmed.

DOYLE, P. J., concurs.

MATSON, J., not participating.


author: MATSON, J.

text:
    W. L. PHILLIPS v. STATE.
    No. A-3719.
    Opinion Filed Jan. 21, 1922.
    (203 Pac. 902.)
    (Syllabus.)
    1. Evidence — Relevancy—Evidence Pointing to Another as Guilty Party. It is competent for the defendant to show, by any legal evidence, that some other person committed the crime charged, and that he had no participation in it. But this cannot be shown by testimony merely tending to show a possible motive on the part of another to commit the crime. The evidence offered must connect such other person with the fact; that is, some overt act on the part of another towards the commission of the crime itself. There must be evidence of acts or circumstances that tend clearly to point to another, rather than to the defendant, as the guilty party.
    2. Witnesses — Competency of Character Witness. Where a witness testifies that he knows the general reputation of a witness for a particular trait of character, he may then be permitted to state what that reputation is, provided it relates to the time of the offense and the residence of the witness whose reputation is attacked.
    3. Same. A witness to general reputation is not rendered incompetent because he cannot say that he has heard a majority of persons of any community, nor even any definite number of them, discuss that reputation.
    4. Same — Cross-Examination. As to knowledge ,of the general reputation of a witness for a particular trait of character, • the question must be referred largely to the conscience of the witness who testifies. A witness to general reputation must answer on his own responsibility and is then subject to cross-examination as to the source, extent and correctness of his information as to that matter. Whether the witness is sufficiently informed to give a general opinion arrived at from the general concurrence in the view which he expresses is a question for the jury to determine.
    5. Witnesses — Impeachment—Contradictory Statement. A witness may be impeached as,to contradictory statement concerning any matter material to the issues in the case, but not as to immaterial and collateral matters.
    6. Same — Cross-Examination as to Relations with Accused. Questions may be put to a witness on cross-examination for the purpose of ascertaining his relations, business, social, or otherwise, with the accused. In this connection it is proper to show by cross-examination the fact of immoral relations subsisting between the witness and the party for whom called.
    7. Same — Improper Impeachment. For error in permitting improper impeachment of witness, see body of opinion.
    Appeal from District Court, McCurtain County; A. A. McDonald, Judge.
    W. L. Phillips was convicted of murder and sentenced to life imprisonment, and he appeals.
    Reversed and remanded.
    W. L. Phillips was convicted at the September, 1919, term of district court of McCurtain county of the crime of murder, alleged to have been committed on the 22d day of October, 1918, by the defendant shooting one Bob Harris with a shotgun, inflicting mortal wounds, from the effects of which the said Harris instantly died.
    The evidence discloses that the killing occurred early in the morning of the date alleged while the deceased was walking along a public highway in the neighborhood of Rufe, a small village in the western part of McCurtain county. Deceased was shot from ambush with a shotgun, and a boy about 12 years of age, who was walking along with the deceased at the time of the killing, testified that two shots were fired. At tbe first shot the deceased fell, and this boy ran over to the side of the road and hid behind a dead tree. While in that position he saw the defendant, as he says, come out from some bushes at the side of the road, walk up close to the body of deceased, and fire a second shot into the head of the deceased. This boy, Williams, also testified that the defendant then walked away in the direction of his home, which was about three-fourths of a mile from the scene of the homicide. After the shooting the witness (Williams by name) walked into the town of Rufe, about one-half mile away, and there told some citizens what he had witnessed. The defendant was arrested at his home in the afternoon of that day. Defendant denied the killing and introduced his four children, ranging in ages from 10 to 16 years, who each testified that they were at home on the morning of the homicide, that they heard the shots fired, but that their father was at home at that time and had never left the premises that morning. The defendant denied the killing of the deceased, and also testified that he had never left his home on the morning of the killing.
    The witness Williams was a stepson of the sister of the defendant, and prior to the defendant having moved into that neighborhood from another part of the state the witness Williams had been living with his stepmother, but a short time after or a short time before (as to exact time there is conflict in the evidence) the defendant and his family moved into the house of his sister the witness Williams moved to the/home of his brother-in-law, Phil Lunsford, but at the time of the killing the witness Williams testified that he had been staying at the home of the deceased, Bob Harris.
    In addition to the defendant’s offer of an alibi an effort was made to discredit the witness Williams by showing that his general reputation for truth and veracity was bad. Of several witnesses introduced for this purpose only two testified that they knew his reputation for that trait of character and that it was bad. The others said they did not know anything about his general reputation.
    Jeff D. McLendon and S. A. Horton, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). During the progress of the trial counsel for the defendant offered to prove by several witnesses that about six or eight months before the homicide the deceased had been arrested and lodged in jail on charges of hog stealing and larceny of merchandise from private residences in the Rufe neighborhood, and that it had been frequently and openly discussed at that time by numerous persons in that neighborhood that the deceased would be killed if he got out of jail, and further that at the time of the homicide the deceased was at large on bail pending trial for these larcenies. Upon objection of the county attorney, the trial court excluded this proffered evidence, to which action the counsel for defendant excepted, and contended that the ruling of the trial court in this respect was erroneous and highly prejudicial to the substantial rights of the defendant.

No offer was made to show by either facts or circumstances that some one other than defendant was guilty of the commission of this homicide. All the defendant offered to prove was a state of ill feeling upon the part of the residents of the neighborhood in which the homicide was committed against the defendant about six months prior to the commission of the homicide, without any proof tending to connect any third person with the killing. The ruling of the trial court in excluding this proffered evidence was correct.

In Irvin v. State, 11 Okla. Cr. 301, 146 Pac. 453, this court held:,

“It is competent for the' defendant to show, by any legal evidence, that some other person committed the crime charged, and that he had no participation in it. But this cannot be shown by testimony merely tending to show a possible motive on the part of another to commit the crime. The evidence offered must connect such other person with the fact; that is, some overt act on the part of another towards the commission of the crime itself. There must be evidence of acts or circumstances that tend clearly to point to another, rather than to the defendant, as the guilty party.
“On a trial for murder, the defendant, for the purpose of showing that the stepfather of the victim may have committed the crime, and for the purpose of showing motive, offered to prove that he and Ms wife had separated, at which time he took with him the property of his wife; that he remained away from his wife until all the money had been squandered; that he then returned to her, because he hoped to profit by her children’s estate; and that he knew the income from the property of stepdaughter was $500 per month. The defendant also offered to prove that, for some time prior to the murder, the stepfather was intimate with a woman other than his wife; this offer having been made upon the court sustaining objections to questions asked on cross-examination of the stepfather as a witness for the state. All the evidence offered on this line was excluded. Held, not proper cross-examination, and that the evidence offered was properly excluded.”

For further authorities on this subject see body of the opinion in the Irvin Case.

It is next contended that the trial court erred in striking, and instructing the jury to disregard, the testimony of a witness for the defendant, concerning the general reputation of the prosecuting witness Grant Williams for truth and veracity.

In this connection the record discloses that on direct examination this witness had testified that he knew the general reputation of this Williams boy in the community where he lived for truth and veracity, and that such reputation was bad. On cross-examination the witness was asked whom he had-heard say that such reputation was bad, and he named one person. He was then asked if he had heard anybody else discuss it, and replied:

"He is the only one I recall at present.”

Whereupon the trial court instructed the jury as follows:

"Gentlemen of the jury, when a witness testified on the witness stand that a man’s character is bad for truth and veracity, and then states that he only knows his reputation on the statement of one man, you are instructed that that is not sufficient, and you will entirely disregard all the testimony of this witness along that line, to which remarks and rulings the defendant then and there excepted.”

We believe that the ruling of the trial court in this respect was erroneous. The rule is well established that where a witness testifies that he knows the general reputation of a witness for a particular trait of character, he may then be permitted to state what that reputation is, provided it relates to the time of the offense and residence of the witness whose reputation is attacked. Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557, and cases therein cited.

Nor do we believe a witness is rendered incompetent to testify as to general reputation because he cannot say that he has heard a! majority of persons of any community, nor even any definite number of them, discuss that reputation. The general reputation of a person is-dependent to a large extent on the habits, age, sex, and living conditions of the person testified about. The witness whose reputation was called into question in this case was a boy only 12 years of age, and it is entirely consistent with human experience that in all likelihood the reputation of a boy of that age would not be as clearly defined or as frequently discussed in the neighborhood as to become so well known as tbe reputation of an older person. While the reputation of a witness of such tender age may not have been discussed generally by a majority of the people of the neighborhood in which he lived, the prevailing opinion of those who did discuss it may have been that his reputation for truth and veracity was bad, and there may have been a general concurrence in this opinion acquiesced in by the people of the community, although there was little discussion of it.

So that the courts have generally adopted the rule that as to knowledge of such general reputation the question must be referred largely to the conscience of the witness who testifies; that the witness must answer on his own responsibility and is then subject to cross-examination as to the source, extent and correctness of his information as to the matter to which he testifies. Whether the witness is sufficiently informed to give a' general opinion arrived at from the general concurrence in the view which he expresses, we think, is a question for the jury to determine. The fact that such witness testifies that he knows,such general reputation is a sufficient predicate to permit the expression of his opinion thereon. Such witnesses are not expert witnesses, and no question of law arises as to their competency to testify after having qualified on the subject of knowledge. The court erred, therefore, in the opinion of this court, in striking this evidence from the consideration of the jury, as it was within the sole province of the jury to determine the weight to be given to the testimony of the witness. The effect of the court’s ruling in this respect was prejudicial to the defendant in this case for the reason that the conviction is based entirely upon the testimony of the witness George Williams sought to be thus impeached.

Further it is contended that the trial court erred in the admitting incompetent and irrelevant evidence in following particulars:

■ Defendant introduced his daughter, Ariel Goodson, as a witness in his behalf, who testified that she was at her father’s house on the morning of the homicide, had stayed there the night before, had eaten breakfast there that morning, and had heard the fatal shots fired; that her father was at home at the time the shots were fired, was not at the scene of the homicide, and did not leave his premises that day until the time of his arrest.

On cross-examination by the county attorney this witness was asked in substance if she was not the same young lady that came to the county attorney’s office and made a sworn statement that her father (defendant) was the father of an illegitimate baby by her. This question was objected to by counsel for defendant, and after consultation between the court and counsel on both sides the court permitted, over objection and exception of defendant, the witness to be asked the following questions:

“Q. You are the/same young lady that came into the county attorney’s office about two months ago and filed an information against this defendant, your father, charging him with being the father of your baby? A. No, sir.
“Q. You didn’t do that? A. (No answer.)
“Q. I will ask you if you didn’t come into the county attorney’s office and make a statement in writing to Mrs. Cyphers, the county attorney’s stenographer, which was taken down in shorthand and subscribed to by you in which you stated that your father was the father of your baby. A. No, sir.
“Q. Didn’t you make that statement to Mr. Wilkinson? A. No, sir.
“Q. You didn’t? A. (No answer.)
“Q. Didn’t you do that about two months ago? A. No, sir.
“Q. And didn’t you — wasn’t your father arrested on that information- — •
“By Mr. McLendon: We object to that now—
“Wait until I ask the question. Q. Wasn’t your father arrested on that charge, and on the day of the trial, preliminary trial to be had, I will ask you if you didn’t come into the county attorney’s office and state to Mr. Wilkinson’ and to me, in the presence of Mrs. Cyphers that you had lied about the statement against your father, and wasn’t the ease dismissed against him for that reason? A. (No answer.)
“By the Court: Answer the question. .A. No. sir.
“By Mr. Gore. Q. .You didn’t do that? A. (No answer.)

In rebuttal the trial court permitted the state to introduce the county attorney’s stenographer, who, over objection and exception of defendant, was permitted to testify that the witness Ariel Goodson, about two months before the trial of this ease, had appeared at the county attorney’s office and made a sworn statement which was reduced to writing, which said sworn statement was read in evidence and was as follows:

“I, Ariel Goodson, make the following statement of my own free will, and without any influence being used by any one for the purpose of obtaining same. My name is Ariel Goodson. I am the wife of Oliver Goodson, and the daughter of W. L. Phillips. Oliver Goodson, and myself were married at Idabel, Okla., on or about the 19th day of January, 1919, and have since been husband and wife. Up to that time I had been living with my father, W. L. Phillips, and my other three, sisters.
“I was 16 years of age on the 3d day of June, 1919, being now in my sixteenth year. Some time during the month of June, 1919, I gave birth to a girl baby near Aekworth, Tex., which lived about three weeks and died of congestion of the brain. My father, W. L. Phillips, was the father of my child and is responsible for my condition in this respect.
“About a year ago while my father and I and my other sisters were living in Okmulgee county, Okla., at the town of Coalton, my father began to have intercourse with me, and same has continued from time to time up until about one month ago. During said time W. L. Phillips has repeatedly had intercourse with me, and as a result of which my child was born.
“I make this statement with the full knowledge of the consequences, and that in order that substantial justice may be done.”

Further in rebuttal the assistant county attorney testified that the witness Ariel Goodson had appeared before him and made an oral statement concerning her father’s relations with her, which was after reduced to writing and sworn to by her; that a sworn complaint or information was filed against this defendant, based on the sworn statement of the witness Ariel Goodson; that the defendant was arrested on said charge; and that on the day of the examining trial the witness Ariel Good-son again appeared in the county attorney’s office and stated that she had lied on her father, whereupon the charge against him was dismissed. It is strenuously contended that the admission of this rebuttal evidence was clearly incompetent and prejudicial to the defendant.

The witness Ariel Goodson was the eldest child of the defendant. On that account she was the most important witness in support of his alibi. If her evidence was successfully impeached, the effect was to discredit the testimony of the other children on that subject.

The purpose of the state, by the introduction of this extrinsic evidence against the witness Ariel Goodson oh rebuttal, was to show that on another occasion in a proceeding entirely distinct from the case in hand the witness had made contradictory and apparently false statements, on the first occasion against ber father, and later in Ms favor. This was not an effort on the part of tbe state to impeach the witness by extrinsic evidence as to contradictory statements concerning any matter material to the issues in the instant ease. The rule is well established that as to such class of contradictory statements, if denied, extrinsic evidence may be produced against the witness, but not so as to immaterial or collateral matters such as this. Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201; Hartwell v. State, 15 Okla. Cr. 416, 177 Pac. 383.

Further, the introduction of the sworn statement supra had the effect of incumbering the record with evidence of another crime alleged to have been committed by the defendant forming no part of the res gestae of the crime for which he was on trial and of which he had not been convicted; nor does such evidence come witMn any of the well-known exceptions to the general rule against proof of distinct offenses.

Nor is the court unmindful of the rule which permits questions to be put to a witness on cross-examination for the purpose of ascertaining his relations, business, social, or otherwise, with the accused. And in this connection it is always proper to show by cross-examination the fact of immoral relations subsisting between the witness and the party for whom called. Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132. And the rule is quite general to the effect that, where on cross-examination the witness denies such relations, extrinsic evidence may be used to impeach the witness. Wigmore on Evidence, vol. 2, §§ 943, 949.

So in this case, had the county attorney inquired of the witness Ariel Goodson, if she had not a short time prior to the giving of her testimony sustained illicit sexual intercourse with her father, the defendant, it would have been proper upon her denial of such relations to have produced either by her former admission or by other witnesses testimony to the effect that she had sustained such relations.

But it is clear from an examination of this record that such was not the purpose of the cross-examiner, nor was the impeachment along this line. At no time was the witness asked if she had ever sustained illicit sexual relations with the defendant, but the inquiry was directed to whether or not she had not made an affidavit to that effect and afterwards had stated that her affidavit was false.

The effect of this line of cross-examination and impeachment was to show that in another proceeding, not connected with the case in hand, the witness had made contradictory and apparently false statements.

We are of the opinion that to permit the witness to be impeached by extrinsic evidence to show such variant statements was improper and prejudicial to the defendant. It had no tendency to show any illicit relations between the witness and the defendant, because the extrinsic evidence itself was contradictory, and the last statement of the witness proved in rebuttal was a denial of such relations. Evidently the county attorney believed the denial because he dismissed the prosecution then pending against this defendant. If the county attorney believed the denial and dismissed the prosecution, why inject into this trial a matter so foreign to the issues and in which so little credence was placed, unless it was for the purpose of impeachment on contradictory statements? That could have been the only purpose, and that clearly was the only probative effect, of the rebuttal evidence.

While it is permissible on cross-examination and within the discretion of the trial court to permit at times immaterial and collateral matters to be inquired of a witness for the purpose of testing the witnesses ’ credibility, source of information, and the like, the rule is universal that as to such matters the examiner is bound by the answer of the witness. Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201.

It is the opinion of this court that the trial court erred in admitting the extrinsic evidence complained of in rebuttal for the purpose of impeaching the witness Ariel Goodson; that the admission of the sworn statement as against the defendant having a tendency to evidence his guilt of a distinct offense disconnected from that for which he was being tried was prejudicial to him in this ease, and the admission of the testimony of the assistant county attorney as to the contradictory statements of the witness Ariel Goodson was also clearly erroneous and in no way connected with the issues of the instant case, and was the impeachment of the witness by proof of contradictory statements on an immaterial and collateral matter. This is not permissible. Payne v. State, supra; Willis v. State, 13 Okla., Cr. 700, 167 Pac. 333.

Other minor errors are complained of, but a consideration of the entire record convinces the court that thé same are without substantial merit.

In view of the fact that this conviction is based solely upon the evidence of the witness Grant Williams, a 12 year old boy, and that the defense interposed was an alibi, and the witness Ariel Goodson was such an important witness for the defendant in support of his defense, the conclusion is reached that for the erroneous action of the trial court in striking from the consideration of the jury the evidence tending to impeach the witness Grant Williams as to truth and veracity and further in permitting the state in rebuttal by extrinsic evidence for purpose of impeachment of the witness Ariel Goodson to disclose the things above enumerated, we think this conviction should be reversed; and it is so ordered.

The warden of the penitentiary at MeAlester will deliver the defendant to the sheriff of McCurtain county, who will hold him in custody until otherwise ordered according to law.

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


author: PER CURIAM.

text:
    LEE FOWLER v. STATE.
    No. A-3823.
    Opinion Filed Jan. 21, 1922.
    (203 Pac. 1118.)
    Appeal from County Court, Stephens County; G- T. Burrows, Judge.
    Lee Fowler was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    R. C. Drake, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Lee Fowler, was convicted on a charge that he did unlawfully sell one quart of alcohol to G. C. Jackson, Ben Jones, and Duge Groves, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. From the judgment he appealed by filing in this court on July 21, 1921, petition in error with ease-made. No brief has been filed, and no appearance made in his behalf in this court. When the ease was called for final submission, the Attorney General moved to affirm for failure to prosecute the appeal. An examination of the record discloses that the appeal is without merit. The judgment of the lower court is therefore affirmed. Mandate forthwith.


text:
    C. W. WORTHAM v. STATE.
    No. A-3787.
    Opinion Filed Jan. 21, 1922.
    (203 Pac. 1119.)
    Appeal from Superior Court., Muskogee County; Guy F. Nelson, Judge.
    C. W. Wortham was convicted of unlawfully transporting intoxicating liquor, and appeals.
    Affirmed.
    C. T. Burns, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, C. W. Wortham, was convicted on a charge of unlawfully conveying intoxicating liquors inMuskogee county, and in accordance with the verdict of the jury was sentenced to be confined for 60 d.ays in the county jail and pay a fine of $100. From the judgment he appealed by filing in this court on March 28,1920, petition in error with ease-made, but there has been no appearance on his behalf in this court. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. An examination of the record discloses no prejudicial error. The judgment of the lower court is therefore affirmed. Mandate forthwith.


text:
    J. F. (BOOTS) WALLACE v. STATE.
    No. A-3816.
    Opinion Filed Jan. 21, 1922.
    (203 Pac. 482.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    J. ,F. (Boots) Wallace was convicted of manufacturing intoxicating liquors, and he appeals.
    Affirmed.

      Womack & Brown and H. Grady Ross, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried and convicted on an information charging that J. F. (Boots) Wallace did in Stephens county, on or about the 18th day of April, 1920, unlawfully manufacture intoxicating liquors, to wit, whisky, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for 30 days, and pay a fine of $50.

When the state rested the defendant took the stand in his on behalf, and testified:

“The officers came out there and got this stuff and outfit ; I showed them where it was; I was not making it to sell, but was making it for my own use. I had run through about a gallon and half, and I got soused. It was a home-made outfit I borrowed from a friend, and I got caught the first time I ever used it.”

The assignments of error are purely technical. On the defendant’s own testimony he is guilty as charged, and only the minimum punishment has been assessed. The judgment is therefore affirmed.


text:
    RANCE JONES v. STATE.
    No. A-3770.
    Opinion Filed Jan. 21, 1922.
    (203 Pac. 480.)
    Appeal from County Court, Pontotoc County; Orel Busby, Judge.
    Ranee Jones was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      King & Crawford, for plaintiff in error.
    The Attorney ‘General and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Ranee Jones, was convicted on a charge that he did have possession of intoxicating liquor, to wit, about three bottles of corn whisky, with intent to sell the same, and was by the court sentenced to be confined in the county jail for a period of 30 days and pay a fine of $100 and the costs. From the judgment an appeal was perfected by filing in this court, on May 5, 1920, a petition in error with case-made. No brief has been filed, and there has been no appearance on behalf of plaintiff in error in this court.

Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x), provides :

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

An examination of the record discloses no prejudicial error, and it appears that the evidence amply supports the verdict.

The judgment is therefore affirmed. Mandate forthwith.


text:
    ALVA SIGHTS v. STATE.
    No. A-3792.
    Opinion Filed Jan. 26, 1922.
    (203 Pac. 484.)
    Appeal from County Court, Custer County; E. J. Lind-ley, Judge.

      Alva Sights was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.
    A. J. Welch, for plaintiff in error .
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

The appellant, Alva Sights, was convicted in the county court of Custer county on a charge of unlawfully conveying intoxicating liquors, to wit, one fruit jar and one can of alcohol, from a certain place in the city of Clinton, said county, to another place in said city, and on the 17th day of March, 1920, in accordance with the verdict of the jury, he was sentenced to be confined in the county jail for 30 days and pay a fine of $50. From this judgment he appeals.

The sufficiency of the evidence to sustain the verdict is the only question presented.

To support the allegations of the information two witnesses testified that they were with the defendant and drank some of the alcohol, and that they emptied the tin container containing the alcohol into fruit jars. Another witness testified that she saw the defendant take a jar of the alcohol from her home and go to his car; that he still had the alcohol when he got into his ear.

The defendant did not take the witness stand or offer any testimony in the case.

An examination of the record indicates that this appeal is destitute of merit, and, in our opinion, the evidence of the defendant’s guilt was ample to justify the verdict.

The judgment is therefore affirmed. Mandate forthwith.


text:
    JOHN HERNDON v. STATE.
    No. A-3626.
    Opinion Filed Jan. 28, 1922.
    (203 Pac. 899.)
    (Syllabus.)
    Appeal and Error — Absence of Briefs — Review—Conviction of Murder. When an appeal is taken from a conviction of murder, and no briefs are filed, this court will examine the record to ascertain whether any fundamental errors were committed at the trial. Where no such errors appear, the judgment of the trial court will be affirmed.
    Appeal from District Court, Greer County; Tbos. A. Edwards, Judge.
    John Herndon was convicted of murder and he appeals.
    Affirmed.
    See, also, 18 Okla. Cr. 68, 192 Pac. 820.
    E. M. Stewart and Giddings & Giddings, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

John Herndon, plaintiff in error, hereinafter called the defendant, was, by information filed in the district court of Greer county on January 7, 1919, charged with the murder of W. F. Oar, on January 5, 1919. At the trial the jury brought in a verdict of guilty, and assessed his punishment at imprisonment for life in the state penitentiary. From the judgment and sentence pronounced on this verdict, March 26, 1919, the defendant appeals.

The record shows that the deceased, W. F. Oar, was a tenant or share-cropper on the premises of the defendant, and that, growing out of this relation, there was some trouble or misunderstanding about the use of defendant’s horses and the removal of certain crops. The deceased procured other men and teams to remove his portion of a feed crop then in shock on the premises, and while these men were engaged in loading this feed defendant went to the field'where they and the deceased were and ordered the deceased not to remove the crop. The deceased refused to heed defendant’s order, and while he was placing a bundle of feed on the wagon the defendant shot him. The deceased then retreated, and the defendant pursued him and fired two more shots into his body, causing death.

The testimony of both the defendant and the state negatived any issue of self-defense. The testimony as a whole indicated a wanton, premeditated design to kill the deceased. It would serve no good purpose to recite the facts in further detail.

Although according to the rules of this court the time for filing briefs has long since passed, no brief has been filed on behalf of the plaintiff in error. Ordinarily, this court will not search the record for errors where no briefs are filed, but, on account of the gravity of the offense here charged, this voluminous record, containing 1,127 pages, has been carefully examined, and upon such examination we find that the defendant was afforded a fair and orderly trial, and that the trial court saw to it that he had the advantage of all his statutory and constitutional rights. The reception and rejection of testimony was fair; the instructions to the jury fairly stated the law in the case. The testimony on the part of the state indicates convincingly that the defendant was guilty of premeditated murder, without any adequate excuse or justification. Under the defendant’s own testimony he was guilty of murder.

There was no defense that could be made to the state’s case except that of insanity. A plea of insanity was interposed, and evidence was heard in support of this plea. Counter testimony was beard, resisting tlie plea of insanity. From tbe evidence on this issue the court believes, as the jury believed, that beyond a reasonable doubt the defendant was sane. The issue of insanity was fairly submitted to the jury.

Finding no fundamental error in the record, the judgment of the trial court is affirmed.

DOYLE, P. J., concurs.

MATSON, J., not participating.


text:
    ROY HUDSON v. STATE.
    No. A-3728.
    Opinion Filed Jan. 28, 1922.
    (203 Pac. 482.)
    (Syllabus.)
    1. Appeal and Error — Discretion of Trial Court — Continuance. Applications for a continuance on the ground of absent witnesses are addressed to the discretion of the trial court. The appellate court will not disturb the trial court’s action on such an application unless a manifest abuse of discretion appears.
    2. Continuance — Showing Necessary — Illness of Witness. Where a continuance is asked on account of the absence of a sick witness, there should be a showing that the witness is sick, and unable to attend the trial, and also that there is a reasonable probability that such witness will be able to attend at the time or term to which a continuance is asked. Where there is no such showing there is no abuse of discretion in overruling the motion.
    3. Same — Continuance not Granted to Obtain Cumulative Evidence. Continuances should not be granted for the purpose merely of obtaining cumulative evidence.
    Appeal from District Court, Coal County; J. H. Line-baugh, Judge.
    Roy Hudson was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      George Trice, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for tbe State.
   MATSON, J.

This is an appeal from tbe district court of Coal county wherein, on September 22, 1919, tbe plaintiff in error, Roy Hudson, hereinafter referred to as defendant, was convicted of tbe crime of manslaughter in tbe first degree, and his punishment assessed at a term of four years’ imprisonment in the state penitentiary.

Jess Holland was shot and killed on the sidewalk in front of his residence in Coalgate, Okla., by Roy Hudson on the evening of the 18th day of December, 1916, when on his way home from his place of business about 7 o’clock, or shortly thereafter. Both the defendant and the deceased had operated-competing barber shops in the town of Coalgate, and there is some evidence in the record of enmity between them existing for several months preceding the fatal shooting. The deceased was killed with an automatic 38-caliber Colts pistol, the defendant inflicted three wounds upon the person of the deceased, one entering the right side and passing through the body, another entering from the rear and passing almost directly through to the front, severing the aorta, the third shot entering one of the legs and breaking one of the large bones in it. The wound which entered from the rear was necessarily fatal, the deceased having died before anybody reached him.

The defense interposed was self-defense; the defendant and the young lady who was with him at the time testifying that the deceased made a motion as if to draw a weapon after having called the defendant a vile name. No weapons were found upon the person of the deceased, and at the time he was killed he was carrying a loaf of bread under one of his arms and a package of beefsteak in his overcoat pocket.

But one question is presented for review in this appeal, it being .contended that the trial court erred in overruling the defendant ’s motion and application for a continuance. The continuance was applied for on account of the absence of three persons who were contended to be material witnesses for the defendant, to wit: Dr. Henderson, Tom Pringle, and Bertha Hudson. Of these witnesses Dr. Henderson later appeared and testified in behalf of the defendant. It is conceded in the brief filed in behalf of the defendant that as to the witness Pringle the motion was not well taken. Reliance is had solely on the action of the court in overruling the motion as to the witness Hudson. The allegations of the motion as to the witness Hudson are substantially as follows:

That Bertha Hudson is a resident of Seminole, Okla. That she had been duly subpoenaed to attend court in this ease. That she was unable to attend court on account of her physical condition, and the certificate of her physician is hereto attached and made a part of this motion. That a true copy of the transcript of the testimony of the witness Bertha Hudson given at a former trial of this cause it attached to the motion and made a part of it. That the witness, if present, would again testify to the same facts. That the facts which the witness would testify to were true and material to the defense of the defendant, and defendant is unable to prove said facts by any other witness. That there is a reasonable probability that if the cause is continued said witness would be present at another term of court, or, in the event she should not be present, defendant would be able to take her deposition. The said witness is not absent on the consent or procurement of the defendant- That application is not made for delay, but in order that justice may be done.

The motion was subscribed and sworn to by the defendant. The doctor’s certificate referred to in the application reads as follows:

“Sept. 16th, 1919.
■“Maude, Olda.
“To Whom. It May Concern:
“This is to certify that Mrs. Grover Hudson isn’t physically able to attend court. She will become a mother now in thirty (30) days. And therefore, I respectfully request the court to excuse her. I am very respectfully,
“W. D. Phillips, M. D.”

Applications for a continuance on the ground of absent witnesses are addressed to the discretion of the trial court. The trial court’s action in overruling such an application will not be disturbed on appeal unless, after an examination of the record, a manifest abuse of such discretion appears. Carnes v. State, 14 Okla. Cr. 585, 179 Pac. 475; Collins v. State, 15 Okla. Cr. 96, 175 Pac. 124; Robnett v. State, 15 Okla. Cr. 541, 178 Pac. 890.

In this instance we find no abuse of discretion on the part of the trial court in overruling this application; on the contrary, we believe the trial court’s action was manifestly correct.

In the first place Bertha Hudson was the wife of the brother of the defendant. She was not a resident of Coal county at the time of the trial. Her attendance could not be compelled unless she was served with a subpoena on which the trial judge had endorsed an order for her attendance. Section 6021, Rev. Laws 1910.

While the application alleges that she had been subpoenaed, it nowhere appears from the application that she had been subpoenaed in such way that the defendant could compel her attendance were she physically able; to attend. Such a showing should have appeared from the application. Furthermore, the statement of Dr. Phillips is very vague and indefinite. It states that Mrs. Hudson is not physically able to attend court because sbe will become a mother in thirty days, and for that reason the court is requested to excuse her. On the ground of illness the application is insufficient. Brown v. State, 15 Okla. Cr. 64, 175 Pac. 66.

In addition, it is clearly disclosed by the record that the testimony of Bertha Hudson, the absent witness, was purely cumulative. The rule is well established that continuances should not be granted for the purpose' merely of obtaining cumulative evidence. Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873; Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707; Petty v. State, 11 Okla. Cr. 438, 147 Pac. 782; Cope v. State, 15 Okla. Cr. 437, 177 Pac. 920.

In addition to what has been said above with reference to this application for a continuance, the trial court permitted counsel for defendant to read to the jury as the evidence of the absent witness, Bertha Hudson, the testimony given by her in a former trial of this cause. The permission thus granted, in the face of the showing made for a continuance, was action most favorable to the defendant, as the trial court could have with propriety prohibited the reading of this witness’ former testimony on the showing made.

"While the evidence in this case is conflicting, this court is convinced, after a careful examination of the entire record, that the defendant was accorded a fair and impartial trial, and was extremely fortunate in that only the minimum punishment for manslaughter in the first degree was assessed against him. The judgment is affirmed.

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


author: DOYLE, P. J.

text:
    Ex parte O. L. LACY.
    No. A-4183.
    Opinion Filed Jan. 28, 1922.
    (203 Pac. 1050.)
    (Syllabus.)
    1. Bail — When Bail Allowable in Capital Cases. Under Const., art. 2, § 8, declaring “All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great,” one charged with a capital offense may be admitted to bail after the information has been filed, prior to trial, if the proof of guilt is not evident, nor the presumption thereof great; and one charged with murder is entitled as of right to a hearing on an application for admission to bail after the information has been filed, prior to trial.
    2. Habeas Corpus — Burden on Applicant for Bail in Murder Cases. On the hearing of an application for bail by one informed against for murder, to determine whether or not the proof of guilt is evident, or the presumption thereof great, the burden-of proof is on the petitioner.
    3. Same — Evidence Insufficient to Show Right to Bail. The evidence considered, and held insufficient to show that petitioner ia entitled to be admitted to bail as a matter of right.
    Application by O. L. Lacy for babeas corpus to be admitted to bail.
    Writ denied, and bail refused.
    Pryor & Stokes, for petitioner.
    The Attorney General, R. C. Woods, Asst. Atty. Gen., Allen Adams, Asst. Co- Atty. (C. Guy Cutlip, of counsel), for respondent.
   DOYLE, P. J.

O. L. Lacy filed in this court on January 24, 1922, a petition wherein he alleges that he is illegally and unlawfully restrained of his liberty and imprisoned in the county jail of Seminole county by C. H. Brown, sheriff of said county, and that his illegal confinement and detention consists in this, to wit: That, by information filed in the district court of said county, he is charged with the murder of one Richard Romine; that, under the evidence introduced on his preliminary examination, the proof of his guilt is not evident nor the presumption thereof great; that petitioner is not guilty of the crime of murder; that he filed an application for bail before Hon. John L. Coffman, district judge, and that said district judge refuses to deny or grant bail.

A transcript of the testimony taken upon the preliminary examination is annexed to and made a part of his petition.

J. T. Rose, a witness for the state, testified in substance as follows:

“On January 2d, this year, I lived four miles south and one and a half east of Seminole. Richard Romie came to my house that day, had dinner, and stayed until 1 o’clock; he said he was going over to Lacy’s; he had on overalls and a jumper, and was unarmed; soon after he left my house I heard three shots fired in quick succession, a pause, and then three more shots.”

Lee Maxey testified:

‘ ‘ I live at Seminole; am a deputy sheriff; was called to O. L. Lacy’s house on January 2d; I found the body of Richard Romine about 200 yards from Lacy’s house; I noticed bullet wounds in his back, in his side, and in his arm; O. L. Lacy said he fired the shots; I didn’t find any weapon on him; I found a pocket knife in his pocket.”

Dr. M. M. Turlington testified:

“I am a practicing physician at Seminole; on the 2d day of January O. L. Lacy called me over the phone and said he had shot a man and asked me to come and see what I could do for him; I went to the home of 0. L. Lacy and found Richard Ro-mine’s body lying about 300 yards from the house; in my judgment he had been dead an hour or two. A bullet entered near the backbone; five bullets went into the body, and two in the arm; one had struck the arm in a flexed condition, had gone through the bone, and struck, but did not penetrate, the body; there was a pool of blood between the body and the defendant’s home, about 10 feet from the body.”

The defendant did not take the witness stand, nor offer any testimony on the preliminary examination, or on the hearing before the district judge.

The constitutional right to bail is granted by section 8 of our Bill of Rights, which reads as follows:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.” Const, art. 2 § 8.

The right to furnish bail by sufficient sureties arises in favor of any person accused of crime, and before conviction, absolutely, and without exception, in cases of all crimes not punishable with death, and in capital cases when the proof of guilt is not evident or the presumption thereof not great. It will be observed that this constitutional provision is silent as to the status of the prosecution. Had the framers of the Constitution intended to provide that the return of an indictment or the filing of an information in the trial court should be conclusive in capital cases, they would, in all probability, have said so.

It follows that a person charged with a capital offense may be admitted to bail after the information has been filed and prior to the trial if the proof of guilt is not evident nor the presumption thereof great. The courts should, however, proceed with extreme caution in exercising the power to admit to bail in this class of offenses. The filing of an information charging a capital offense, where the defendant has not been admitted to bail, is prima facie evidence that the proof of guilt is evident and the presumption thereof great, and the burden of proof is upon the defendant to establish the contrary.

Tbe settled rule of this court is that, upon an application for bail by writ of habeas corpus, after commitment for a capital offense, the burden is upon the petitioner to show facts sufficient to entitle him to bail, and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. Under this rule, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, bail will be refused where, as in this case, the commission of the homicide having been admitted, the defendant does not take the witness stand on the preliminary examination and does not elect to testify in support of his application for bail.

Upon a consideration of all the evidence presented in support of the application in this ease, we are of opinion that the petitioner is not entitled as a matter of right to be admitted to bail.

It is therefore considered and adjudged that the writ be denied and bail refused.

MATSON and BESSEY, JJ., concur.


author: BESSBY, J.

text:
    SOL FREEMAN v. STATE.
    No. A-3717.
    Opinion Filed Feb. 3, 1922.
    (203 Pac. 1052.)
    (Syllabus.)
    1. Continuance — Ground of Absent Witness — Insufficient Showing. Where the accused asked for a postponement of the trial on account of the absence of a material -witness, and the facts stated in the application as to the diligence used in endeavoring to procure the attendance of the witness and the facts stated relative to the probability of procuring his attendance later are indefinite and uncertain, under the circumstances here the court’s refusal to grant a continuance is not error.
    2. Evidence — Presumption from Failure to Introduce Important Testimony. The correct rule as to the presumption arising where a party fails to introduce important testimony relating to facts within his knowledge and control and peculiarly within his reach is that such failure raises the presumption, open to explanation, of course, that the testimony, if produced, would be unfavorable to him.
    3. Attorney and Client — No Implied Power of Defendant’s Attorney to Suppress Evidence. An attorney for a defendant in a criminal case, like other agents, binds his principal only within the scope of his authority, express or implied. There can be no implied power lodged with an attorney trying a case to suppress evidence in violation of the penal laws of the state.
    4. Same — Defendant not to be Prejudiced by Attorney Inducing Witness to Absent Himself. If the defendant’s attorney, in the absence of the defendant during a recess of the trial and without his procurement, consent, or approval, induced a witness to absent himself from court, such action should not prejudice. the rights of the defendant.
    5. Trial — Jury Should Retire While Competency of Prejudicial Evidence is Discussed. Where proffered testimony indicates that it may be incompetent, and if incompetent probably prejudicial, it is the better practice for the court, on his own initiative, or at the request of the objecting party, to have the jury retire while the competency of the proffered testimony is being discussed.
    6. Same — Discussion in Jury’s Presence — Prejudicial Error. Damaging and clearly incompetent statements of facts, to the effect that the son of the defendant, who had not been called as a witness, had confessed that his father was guilty, should not be permitted in the presence of the jury.
    (a) Under the circumstances here, a long and heated discussion in the presence of the jury concerning such confession was prejudicial error.
    Appeal from District Court, Hughes County; Geo. C. Crump, Judge.
    Sol Freeman was convicted of the larceny of domestic animals and sentenced to two years ’ imprisonment in the state penitentiary, and he appeals.
    Reversed and remanded.

      Anglin & Stevenson and C. B. Hall, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and B. L. Fulton, Asst. Atty. Gen., for the State.
   BESSBY, J.

Sol Freeman, plaintiff in error, in this opinion designated the defendant, was, by information filed in the district court of Hughes county, on March 8, 1919, charged with the theft of a steer on August 1, 1918. By verdict of the jury at the trial he was found guilty as charged September 9, 1919, and his punishment fixed at two years’ imprisonment in the state penitentiary, and from the judgment on this verdict he appeals to this court.

The testimony on the part of the state tends to show that the animal in controversy was the property of Andy Sellars, branded with a distinct “forked lightning” brand, and that there were other distinguishing marks on the animal; that some time prior to the alleged offense this animal escaped from the owner’s premises and was afterwards seen at a dipping vat where the defendant was engaged in dipping cattle, and afterwards seen with some live stock that were being sold and shipped by the defendant. Two witnesses testified that they saw the animal in question in the stock pens at Dustin just before being loaded for shipment.

The defendant and other witnesses testified that the animal in question was not among the live stock shipped by the defendant; that there were only two steers in this shipment; and identified the brands and other marks as being different from the brands and marks of the animal owned by Sellars. There was a sharp conflict in the testimony touching upon the identifying marks.

There are but three assignments of error seriously urged in defendant’s brief, namely: (1) That the court erred in overruling defendant’s motion for a continuance; (2) the reception of incompetent and prejudicial testimony; (3) that the testimony as a whole is insufficient to support the verdict.

The motion for a continuance was based upon the absence of R. A. Strain, a witness for the defendant. The motion set out that this witness had left the jurisdiction of the court to visit in the state of Idaho and had not yet returned; that he left the state about three weeks prior to the trial, before the defendant knew that the cause was set for trial; that because of his absence from the state, although a subpoena had been issued, it could not be served on the witness; that his absence from the state was only temporary, and if the cause were continued the defendant would be able to procure his attendance at the next term of court; that the witness, if present, would testify that he was engaged in farming in the neighborhood where the defendant kept his cattle, and that upon learning that the defendant was about to ship a load of cattle to market he went to the defendant to get him to include two cows belonging to the witness; that he brought these two head of cattle to the dipping vat where the defendant had assembled his cattle to drive to the shipping point, and that there were but two steers in the bunch, one branded I JH, and the other JH, and that neither of these brands resembled the “forked lightning” brand on the steer belonging to Sellars; that one of these two steers had been cut out of the herd and afterwards broke through the fence and again joined the herd, and for that reason witness’ attention was particularly called to the two steers and the marks and brands of each; that witness assisted in driving the herd a portion of the way1 to the loading pens.

The county attorney resisted this motion for a continuance, and introduced testimony tending to show that the witness had gone to the state of Idaho to remain permanently. The defendant introduced counter testimony to the effect that the witness was in Idaho only temporarily and expected soon to return. Upon the showing the court announced that, if the county attorney would consent that the affidavit' for.continuance could be read as the testimony of the absent witness, the motion for a continuance would be overruled. To this ruling of the court the defendant objected and excepted. Thereupon the motion for a continuance was overruled and an exception allowed.

It has been often held by this court that the granting of a continuance is a matter that lies largely within the sound discretion of the trial judge. There is no affirmative showing in the record that the defendant had exercised proper diligence to procure the attendance of this witness, nor that, as a matter of law, the witness could be compelled to attend the trial at the next term of court. It would not, under these circumstances, have been an abuse of discretion for the trial judge to refuse a continuance, and since the trial court permitted the affidavit in support of the motion to be introduced in evidence as the testimony of the absent witness, the defendant will not be heard to complain.

The trial of criminal cases should not be delayed, except in cases where it is shown that due diligence has been used to procure the attendance of the witness; that the testimony is important and not merely cumulative; and that the witness can be procured at a subsequent term of court. Otherwise, it would lie within the power of defendants accused of crime to interminably delay and harass trial courts by repeated applications for postponements of trials.

On the question of the reception of incompetent and prejudicial testimony, with reference to declarations made by Doyle Freeman, a son of the defendant, who had not testified in the case, the record discloses the following, being a part of the testimony of the last witness called by the'state:

Q. What is your name? A. Ernest Hill.
Q. Are you the same Ernest Hill who took the stand and testified for the state this afternoon? A. Yes, sir. * *
Q. Did the defendant, through his attorney, Mr. Anglin, make any statement to you as to whether or not he intended to use Doyle Freeman as a witness? A. Yes, sir.
By Mr. Hall: We object as incompetent, irrelevant, and immaterial.
By the Court: He may answer.
By Mr. Hall: Exception.
Q. What did he say about it?
By Mr. Anglin: We object as incompetent, irrelevant, and immaterial.
By the Court: He may answer.
By Mr. Anglin: Exception.
A. Well he told me to go to the prosecuting attorney and see if he was going to use me again this evening, and if not—
By the Court: How is that?
A. He told me to go to the prosecuting attorney and see if he was going to use me again this evening, and, if not, to get out of town, because he wanted to use that boy (Doyle Freeman) .
Q. Because he wanted to use this boy?
By Mr. Hall: We object as incompetent, irrelevant, and immaterial.
By the Court: He may answer.
By Mr. Hall: Exception.
A. Because he wanted to use this boy, Doyle Freeman, as a witness.
Q. Now, Mr. Hill, I will ask you if at your place shortly after the defendant, Sol Freeman, was arrested last fall, you were present and heard a conversation in which McAllen asked Doyle Freeman, “What do you suppose they will do with your pa about the Andy Sellars steer?” A. Yes, sir.
By Mr. Hall: We object as incompetent, irrelevant, and immaterial.
By the Court: Let him finish the question now.
By Mr. Hall: The witness answered the question before we had no opportunity to object.
Q. And if Doyle Freeman—
By Mr. Hall: We object for the further reason that the county attorney is attempting to get some matters before this jury here that the county attorney knows as well as I do is incompetent; and we now further object to questioning along this line which he is attempting to question.
By the Court: Overruled.
By Mr. Hall: Exception.
Q. And if Doyle Freeman didn’t reply to that question, “They will sure stick him — ’’
By Mr. Hall: Now wait. We wish to object again to the question for the reason it is incompetent, irrelevant, and immaterial, and we ask that the jury be instructed not to consider the question, and we further ask the court to instruct the county attorney not to persist in questions of that kind, because he knows that it is incompetent.

The dialogue then continues at length, without any ruling. Later on the examination continues as follows:

Q. And if McAllen didn’t ask the boy, “What do you suppose they will do?” to which the boy replied, “Yes; because he sure got the steer.”
By Mr. Hall: Wait a minute. To which the defendant objects for the reason it is incompetent, irrelevant, and immaterial, and the question being asked by the county attorney only for the purpose of prejudicing the jury against the defendant in this case.
By the Court: The rule of law is that, if a witness repeats or knows anything about a party and refuses to tell it, the presumption is that he would not testify to anything favorable. Most courts instruct that when a case is up before a jury.

Concerning the admissibility of this testimony, the three-cornered dialogue continues at great length.

The correct rule as to the presumption arising where a party fails to introduce important testimony relating to facts within his knowledge and control, and peculiarly within his reach, is that such failure raises the presumption, open to explanation of course, that the testimony, if produced, would be unfavorable to him. 10 R. C. L. “Evidence,” §§ 32 and 53; Crump v. State, 7 Okla. Cr. 535, 124 Pac.632.

It will be seen that the record here does not bring the evidence sought to be elicited from the witness Hill within the rule as stated above. The testimony sought to be elicited was wholly incompetent.

If it was .within the power of the state to show that the defendant himself had attempted to suppress competent testimony, or that the defendant corruptly induced a witness to absent himself from court to avoid danger of impeaching testimony later in the trial, such fact might be shown as affecting the interest and credibility of the defendant. If on the other hand, the defendant’s attorney, in the absence of the defendant and without his knowledge or consent, induced a witness to absent himself from court, we think such action should not prejudice the rights of the defendant. The defendant himself might want all the facts bearing on the case fairly presented. If he should be so unfortunate as to have an attorney who, to win his case, committed a crime by prostituting his high office as an attorney by illegally suppressing testimony without the consent of his client, for that the defendant should not be held accountable. An attorney, like other agents, binds his principal only within the scope of his authority. There can be no implied power given to an attorney by his client to violate the penal laws of the state. See-^ tion 2258, R. L. 1910, makes the suppressing of evidence a misdemeanor.

The most serious objection to this testimony is that the jury were permitted to hear a statement that the son of the defendant had made a declaration to a third person that his father was guilty; that this third person asked him the question, “What do you suppose they will do with your pa about that Andy Sellars steer?” and that the boy replied, “They will sure stick him, for he sure got the steer.” Where the competent evidence before the jury was nearly balanced, as in this case, it may be that the knowledge gleaned from this dialogue turned the scales against the defendant. Indeed, the jury may have based this verdict solely on the alleged statement of this boy to the effect that the father was guilty. The fact that the jury were engaged in deliberation upon the evidence about 60 hours before agreeing upon a verdict confirms this view.

Where the proffered testimony indicates that it may be incompetent, and, if incompetent, probably prejudicial, it is the better practice for the court, on his own initiative or at the request of the objecting party, to have the jury retire while the competency of the proffered testimony is being discussed. Roddie v. State, 19 Okla. Cr. 63, 198 Pac. 345; Beason v. State, 18 Okla. Cr. 388, 195 Pac. 792; Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561; notes to 100 Am. St. Rep. 689.

True, in the course of the long and heated argument the court admonished the jury as follows:

“Gentlemen of the jury, that is not for your consideration. You can see that the attorneys and the court are arguing the rule on a proposition, and the attorneys are a little forcible to the court, and you will not consider any remarks of the court, unless addressed to you, and if it is competent.”

And at another time the court addressed the jury as follows:

“I will tell you again, gentlemen, that the remarks of the court are not intended for your consideration, but intended for the attorneys, to show my rule of law upon that proposition. ”

But this prolonged discussion, including these admonitions of the court, operated to emphasize rather than minimize the impression conveyed to the jury that the son had confessed that his father was guilty, and that therefore he doubtless was guilty. This deduction is almost irresistible, and such damaging statements should not be offered by either party under the guise of making proof of some collateral issue of doubtful competency, or by any other method. This method of conveying incompetent and prejudicial facts to a jury is sometimes appropriately term “badgering in” testimony. In onr opinion, this part of the proceedings amounted to prejudicial error. Porter v. State, 8 Okla. Cr. 64, 126 Pac. 699; notes and annotations, 100 Am. St. Rep. 689.

As before stated, the testimony for and against the defendant appears about evenly divided, but this court has often held that where there is substantial evidence supporting the verdict it will be upheld. Ordinarily, this court will not substitute its judgment as to the weight of the testimony for the judgment and findings of fact of the jury.

For the reasons stated under the second assignment of error, as herein treated, this cause is reversed and remanded.

DOYLE, P. J., concurs.

MATSON, J., not participating.


text:
    B. M. WILMOTH v. STATE.
    No. A-3741.
    Opinion Filed Feb. 3, 1922.
    (203 Pac. 1055.)
    (Syllabus.)
    Homicide — Defendant May not Complain of Conviction of Manslaughter Where Facts Make Crime Murder. In a prosecution for murder, when the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and facts make the crime murder, it is an error in the defendant’s ffivor, of which he has no cause to complain.
    Appeal from Superior Court, Okmulgee County; R. S. Simpson, Judge.
    B. M. Wilmoth was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    Morgan, Pinkston & Hepburn, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty, Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, B. M. Wilmoth, was tried in the court below upon an information for the murder of Henry Simpson, but the jury, by their verdict, found him guilty of manslaughter in the first degree, and assessed his punishment at imprisonment in the penitentiary for a term of four years and six months. He has appealed from the '"judgment rendered upon such conviction.

The following brief statement of the facts and the evidence will be sufficient to make clear the contentions made:

Henry Simpson, the deceased. 34 years old, a coal miner, at the time of his death was living at Henryetta with his wife and three children. About 3 o’clock Sunday morning, March 23, he was shot by the defendant and dropped dead. Saturday evening, March 22, 1919, deceased in company with Will and Gardner Croy, went out to Colletti’s in Henry Baker’s car. While there the defendant, Wilmoth, Tom Blevins, and Jim Johnson came in, the defendant told Colletti he was off the police force and was not going to bother him and asked for something to drink. Will Croy, Henry Baker, and deceased left Colletti’s and went to dance at Mrs. Henderson’s, arriving there about half past 10. About half an hour later the defendant, Tom Blevins, and Johnson came there. Gardner Croy was with them and was very drunk. His brother Will and deceased took him in Henry Baker’s ear; then returned to the dance. About 12 o’clock the dance broke up, and Will Croy, Henry Baker, and deceased started home and stopped the car at Rook’s place, and all three went in the house; then they went out in the yard, and the defendant, Tom Blevins, Johnson, and others were there.

Will Croy testified:

“Tom Blevins hit Henry Simpson, and the fight started. It was a fair fist fight. I heard somebody say, ‘Take him off, I have got enough, ’ and the last I saw of Blevins he was running towards town. The defendant and Johnson started towards the house; then the defendant came back and said to Henry Simpson, ‘You done my friend damn dirty,’ and Henry said, ‘I don’t know Slim; just a fair fist fight. ’ The defendant said, ‘What do you fellows want to be fighting for?’ and pulled his pistol out of his pocket and shot Henry Simpson and shot me. A minute or two before he was shot Henry Simpson said to the defendant, ‘ I ain’t afraid of any God damn car thief.’ Henry Simpson did not have a weapon of any kind. At Henderson’s place I saw the defendant take a revolver out of his pocket and say, ‘I have a notion to shoot that hat off the bed.’ When he said that a woman took her baby off the bed and said, ‘Don’t do that, Slim; you will shoot my baby.’ He laughed and said, ‘I didn’t aim to shoot your baby.’ ”

Henry Baker testified:

“I am a coal miner. I drove my ear up in front of Central Drug store that evening. Henry Simpson and the Croy boys got in my car, and we drove out to Colletti’s place and were drinking some choc, when the defendant and Tom Blevins and Johnson came in. Henry Simpson and Will Croy and I left there together and went to a dance at Henderson’s. While we were there the defendant, Tom Blevins, and Johnson came there. Some one said, ‘Here comes the law.’ The defendant said he was not the law; just old Slim out here for a good time. The first thing I knew the defendant was standing by the door with his gun. I heard him say, ‘I believe I will shoot that hat off the bed,’ and a woman said, ‘Slim, don’t do that,’ and took her baby off the bed. He put his gun back and said, ‘I was not going to do that anyway. ’ I heard him say there a half dozen of times, ‘ I am the meanest son of a bitch that ever hit Oklahoma.’ We left Henderson’s place and started home. We heard a grapho-phone at Rook’s and stopped and watched the dancing, and went out to the back end and drank some choc. The defendant got to cussing again and telling how mean he was. Rook ordered him out of the house. The defendant pulled his gun out, and Rook said, ‘You think because you have been the law you are a bad man; if you don’t get out, I will shoot you in two.’ The defendant said, ‘All right,’ and walked out. About 30 minutes afterwards the defendant started to come in and old lady Rook grabbed his gun, and he put it in his pocket and said, ‘I ain’t going to do nothing.’ I was in the house when the shooting occurred.”

Fannie Bannerman testified:

“I was at the dance at Henderson’s, and left there in company with the defendant, Jim Johnson, Maggie Fanti, and another girl; I don’t know her name. We went to Rook’s house. The defendant had a policeman’s uniform on. Everybody was drinking choc. I saw the shooting. I didn’t hear Henry Simpson say anything before he was shot. He fell just in front of me. I saw the flash of the gun when the defendant fired at Will Croy. Johnson was standing there and said, ‘Slim, you have pulled off a bonehead.’ I said, ‘Ain’t you ashamed of yourself, Slim?’ and one or the other said, ‘Let’s go to town.’ ”

The defendant as a witness in his own behalf testified:

“I was acquainted with Henry Simpson and Bill Croy probably four years. I never had any trouble with either one of these men until that morning. The night before I was standing in front of the post office. Tom Blevins came along in a car with his driver, and we went out to Colletti’s. We stayed there about an hour. When we left there Gardner and David Croy left with us. We came back to town about 11 o’clock, then we went over to Rich Hill to a dance. I had a gun. Some one asked was I still the law. I said, ‘I am not working now,’ and some one said, ‘Old Slim has not got a gun-’ I said, ‘Yes; I have a gun’; and held it in my hand, a 32. A redheaded fellow had his hat on the bed. I held: the gun up, and this woman screamed and said, ‘Oh, Lordy mercy! don’t shoot my baby.’ I told her I was not going to shoot her baby. That is all that took place there. Between 2 and 3 o’clock I left in a car with Jim Johnson. There were two or three other fellows in the car. Fannie Bannerman was not in the car. I was looking for Tom Blevins. Johnston stopped the car at Book’s place. I asked him if I could see'if Blevins was there. He said, ‘I haven’t got time; I have three passengers, but I will come back in a few minutes.’ I went in and saw Henry Simpson, Bill Croy, and Fannie Bannerman there. She was drunk. Henry Simpson told me that Book was making trouble and wanted to kill somebody, and he pulled a gun out of his pocket and showed it to me. I went in the house and asked if they knew where Blevins was. Some one said, ‘He might be out the back way.’ Book said, ‘You boys haven’t treated me right.’ I said, ‘You don’t want to kill me do you?’ I had my hand on my gun, and old lady Book ordered me out of the house. I went to the joint on the back of the lot and found Tom Blevins there. Henry Simpson, Bill Croy, and Jim Johnson went back with me. As we walked up Blevins came out of the joint drunk, and Henry Simpson hit him right in the face, and hit him again. He fell, and Simpson got on him. I started to take Simpson off of him. Bill Croy had a club in his hand and said, ‘ Stand back everybody. ’ I told Johnson to get Henry off of Tom, and I pushed Bill Croy back. Johnson took Simpson off of Blevins. I never saw Blevins any more. We started out, and Simpson and Croy were following us up. Simpson asked me if I was going to throw him and Croy down. I said, ‘Not necessarily, but you did a dirty trick beating up that fellow, and I don’t like it.’ He said, ‘It is not any of your business; I don’t care whether you like it or not,’ and said he would do me the same way. I started on and told them not to follow me. They came on. Bill Croy had this club. As I turned around Simpson said, ‘I know you have got a gun, but you are not the only fellow that has a gun; I am not afraid of you if you had a dozen guns; we beat your friend up and will do you the same way. ’ He put his right hand in his hip pocket and started towards me. I told him to stop. I would guess he was six or eight feet from me when I fired1 the shot. Bill Croy had the club in his hand when I shot Mm. When they fell I went back to see if Blevins was there. I could not find him, so we got in the car and came to town. Three or four minutes after the shooting Fannie Bannerman came out of the choc joint. I had served about four years on the police force prior to this trouble, but I was laid off at the time. I still had my commission.’’

J. J. Johnson testified:

“I was running a jitney car between Henryetta and Dewar at that time. I had some passengers to Henryetta from the dance. The defendant got in the car. There were no women in the car. The defendant wanted to find Blevins, and left the car at Root’s place. I went on to Henryetta; then returned to Rook’s place. When I went in the defendant was standing in the door. There was a racket of some kind. I asked the defendant if he was ready to go. He said he wanted to get Blevins; that maybe he was in the shack back there. We walked back. Blevins was standing by the door. The defendant said, ‘There he is now.’ About that time Henry Simpson struck Blevins and knocked him down. The defendant told me to pull Simpson off, and I did. Will Croy had something in his hand that he jerked off the side of the house. I said, ‘Slim, let’s go;’ so we started. Henry Simpson and Will Croy kept following us. They were cursing. Slim asked them to stand back and let him alone; then he pulled his gun and fired the shots. I do not know whether Croy still had his club in his hand at that time or not.”

In rebuttal Maggie Fanti testified:

“I left the Henderson house with Mrs. Bannerman and another girl and the defendant, Wilmoth, Johnson, and Happy Jack, and we went to Rook’s. I heard Mrs. Rook order the defendant out of the house.”

Fannie Bannerman, recalled, testified:

“I was out in the yard when the shots were fired, and I did not see a stick or weapon of any kind in the hands of Will Croy.”

Don Stornmont testified:

“I went out to the Book place soon after the killing occurred. Henry Simpson was lying on Ms back dead. I closely searched the body and did not find anything on him.”

The first assignment of error is that the court erred in admitting testimony in regard to the conduct and conversation of the defendant at the Henderson place before the shooting occurred. It is not denied that all this occurred in the presence of the deceased. The defendant as a witness explained his conduct to the effect that he did not mean to harm any one at the time. We think it was competent to show everything that occurred there in the presence of each other as tending to show the state of mind of the defendant just before the killing, and it was competent as tending to show that the defendant, as a police officer, was carrying a pistol while under the influence of intoxicating drinks, in violation of section 2548, Bev. Laws.

It is claimed for the defendant that under the evidence he was either guilty of murder or should have been acquitted on the ground of self-defense, and that no instructions on manslaughter in the first degree should have been given.

The record shows that no objection was made or exception reserved to the instructions on manslaughter in the first degree. This court is committed to the doctrine that no prejudice can result to a defendant if convicted of a lower degree of homicide than warranted by the evidence. Lytton v. State, 12 Okla. Cr. 204, 153 Pac. 620; Irby v. State, 18 Okla. Cr. 464, 197 Pac. 526; Smith v. State, 20 Okla. Cr. 298, 202 Pac. 519.

In the Irby Case it is held that:

“In a prosection for murder, when the court submits the issue, and the jury find the defendant guilty of manslaughter in the first degree, in a case where the law and facts made the crime murder, it is an error in the defendant’s favor, of which he has no cause to complain.”

If the testimony for the state is to be believed, the killing of Henry Simpson was a most cruel and wanton murder. According to his own statement on the witness stand the defendant is guilty of manslaughter in the first degree, and we think he ought to be thankful that the jury dealt so leniently with him.

After a careful examination of the record, we conclude that there was no error which could have been prejudicial to the defendant.

The judgment of the lower court is therefore affirmed.

MATSON and BESSEY, JJ., concur.