author: FURMAN, P. J.

text:
    BOB THOMPSON v. STATE.
    No. A-1100.
    Opinion Filed June 6, 1911.
    (117 Pac. 216.)
    1. TRIAL — Evidence — Improper Evidence — Ground for Reversal. (a) Where a witness'voluntarily states a matter which should not be introduced in evidence and the court promptly excludes the testimony given by the witness and instructs the jury not to consider it in their deliberation, such voluntary testimony of the witness, although improper, will not ordinarily be ground for the reversal of a conviction.
    (b) Before the acts or declarations of a person not upon trial are admissible in evidence against a defendant, some evidence should be offered showing that such testimony is competent.
    (e) If courts permit incompetent evidence to be introduced against a defendant upon the promise of the prosecuting attorney to subsequently show that such evidence is admissible, and the admissibility of such evidence is not afterwards shown, and it appears from the whole record that such evidence was of a material and injurious character, the error of the court in admitting such testimony will not be cured by the subsequent action of the court in striking such testimony out, and in instructing the jury not to consider the same in their deliberations, and in such a case a new trial should be granted to the defendant.
    (d) While it is error for the court to allow the statements of a person not upon trial to be introduced in evidence against a defendant without first requiring at least some evidence showing that such person was concerned in the commission of such offense, yet if it should be subsequently proven that such person was concerned in the commission of the offense in such manner as to make his declarations competent against the defendant, then the error of the court in admitting such evidence would be cured and would become immaterial and harmless.
    2. TRIAL — Instructions—Right to Be Heard Upon — Alibi—Appeal.—• Harmless Error, (a) By both constitutional and statutory provisions and as a matter of common justice, counsel for the defense in criminal eases have the right to be heard in trial courts upon questions of law as well as upon questions of fact, and it is error for the trial court to refuse to permit counsel for a defendant to have a reasonable opportunity to be heard upon the instructions to be given to the jury before such instructions are read to the jury.
    (b) Where counsel for defendant in a criminal case request permission to be heard upon the law of the case before the instructions are read to the jury, and this request is refused by the court, such refusal will operate as an exception to each and every paragraph contained in the instructions, and as a request to give proper instructions in behalf of the defendant upon every issue arising from the evidence before the jury.
    (c) Where the record discloses the fact that counsel for a defendant in a criminal ease has requested permission to be heard upon the law of the case before the charge of the court is read to the jury, and this request has been refused by the trial court, it will then become the duty of this court to carefully scrutinize the instructions given, for errors, both of omission and commission, and if any such errors appear, which, in the light of the entire record, may have operated to the injury of the appellant, the judgment of the lower court will be. set aside and a new trial will be granted, whether such error was excepted to or not.
    (d) It is error to instruct the jury upon the subject of alibi that it is the duty of the defendant to introduce a sufficient-amount of evidence to satisfy the jury that he was elsewhere at the time of the commission of the offense, and also to instruct, the jury that if they believe that the defendant has successfully established an alibi, they should acquit him.
    (e) For a correct instruction on the subject of alibi, see opinion.
    (f) It is a general principle of law in a criminal case that a defendant is entitled to be tried on legal evidence alone, and to have his guilt determined by the • jury upon correct instructions as to the law, but it does not necessarily follow that every error in the admission or rejection of testimony and in the instructions to the jury will be ground for a reversal. In- order to constitute ground for a reversal, an error must relate to some material matter and must result in depriving the defendant of some substantial right to his injury.
    (g) For facts stated in the opinion under whieh an error in the charge of the court upon the subject of alibi was not material and constituted harmless error, see opinion.
    (h) The defense of an alibi is only applicable to those cases where the presence of the defendant at the time and place of the commission of the offense is a necessary element of the erime.
    (i) Mere irregularities occurring in the trial of a case which did not affect the material issues of the ease and which did not deprive the defendant of a substantial right to his injury, are not ground for a reversal.
    (j) The mere fact that the deceased may have been a bad man will not of itself constitute either justification -or mitigation for taking his life.
    (Syllabus by the Court.)

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

    Bob Thompson was convicted of murder, and appeals.
    Affirmed.
    Appellant was convicted of murder in the district court of Jefferson county, and his punishment was assessed at confinement in the penitentiary for life. The facts are fully stated in the opinion. On the trial of the cause the court instructed the jury as follows:
    “Gentlemen of the jury: In this case the state of Oklahoma prosecutes the defendants, Tom Gilstrap, Press Morgan, and Bob Thompson by information charging murder. It is alleged substantially in the information that Tom Gilstrap, Press Morgan and Bob Thompson did, in Jefferson county, and in the .state of Oklahoma, on or about the 14th day of March, 1910, and anterior to the presentment of the information herein, commit the crime of murder in the manner and form as follows, to wit: That the said Tom Gilstrap, Press Morgan, and Bob Thompson, persons then and there being, did then and there unlawfully, purposely, wilfully, feloniously, and with malice aforethought, and without authority of law, and with a premeditated design, then and there to effect the death of one Clint Pruitt, did then and there, at and within the county of Jefferson, state of Oklahoma, make an assault on the • said Clint Pruitt with a certain gun or pistol, and that the defendant Tom Gilstrap with a certain gun or revolving pistol, then and there loaded with gunpowder and leaden bullets which he, the said Tom Gilstrap then and there had and held at and towards the said Clint Pruitt, then and there purposely, wilfully, feloniously, and of his malice aforethought, and without authority of law, and with a premeditated design to effect the death of the said Clint Pruit, did shoot off and discharge the said gun or pistol at, upon, and against the said Clint Pruitt, thereby shooting a leaden bullet into and through the body of him, the said Clint Pruitt, a mortal wound, of which mortal wound, so inflicted in manner and form as aforesaid, and so inflicted with intent and purpose aforesaid, he and the said Clint Pruitt, in the county of Jefferson, and the state of Okla-

      homa, on the 15th day of March, 1910, did die; and that the aforesaid Press Morgan and Bob Thompson then and there unlawfully, purposely, wilfully, feloniously, and of their malice aforethought, and without authority of law, and with a premeditated design to effect the death of the said Clint Pruitt, were present aiding, helping, abetting, comforting, assisting, maintaining and advising the murder aforesaid, in the manner and form as aforesaid, to do, commit, and perpetrate said murder, and they, the said Tom Gilstrap, Press Morgan and Bob Thompson, him the said Clint Pruitt, in the manner and by the means aforesaid, unlawfully, purposely, wilfully, feloniously, and of their malice aforethought, and without authority of law, and with a premeditated design to effect the death of the said Clint Pruitt, did kill and murder, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.
    “To this information the defendants have entered a plea of not guilty.
    2.
    You are instructed that a severance has been granted as to the defendant Bob Thompson, and he is being tried alone and separately for the offense charged in the information.
    3.
    “You are instructed that under this information and in this case, the burden of proof is upon the state to prove all the material allegations of the information by material evidence, to the satisfaction of the jury beyond a reasonable doubt, and if the state has done so, then your verdict, should be guilty. But if after a careful, candid, and impartial investigation of all the evidence, facts and circumstances adduced upon the trial, you entertain a reasonable doubt as to any material allegation of this information, then you should find the defendant not guilty.
    “You are further instructed that the defendant is presumed to be innocent of the crime of murder, until each material fact necessary to constitute the crime of murder is proved by competent evidence to the satisfaction of the jury beyond a reasonable doubt. Nothing can be presumed or taken by implication against the defendant, but every presumption of law is in favor of his innocence; and, if after a careful, candid, and impartial investigation of all the testimony, facts and circumstances appearing in the evidence upon the trial you entertain a reasonable doubt'as to the defendant’s guilt, it will be your duty to return a verdict of not guilty.

      4.
    “Homicide is the killing of one human being by another.
    5.
    “Homicide is murder in the following cases:
    “1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being.

      “2. When perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular person or individual.
    “3. When perpetrated without design to effect death by a person engaged in a felony.
    6.
    “Homicide is justifiable when committed by any person when resisting any attempt to murder such person; or to commit any felony upon him or her, or upon or in any dwelling-house In which such person is; or, when committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is reasonable ground to apprehend a design to commit a felony or to do some great personal injury and imminent danger of such design being accomplished.
    7.
    “Homicide is excusable in the following cases:
    “When committed by accident and misfortune, in lawfully-correcting a child or servant, or in doing any other lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent.
    “When committed by accident and misfortune in the heat of passion upon any sudden and sufficient provocation, or upon a sudden combat, provided no undue advantage is taken, or any dangerous weapon used, and that the killing is not done in any unusual or cruel manner.
    8.
    “You are instructed, gentlemen of the jury, that if you find the defendant guilty of murder, it will be your duty to determine by your verdict whether the punishment shall be death or imprisonment for life in the state penitentiary, and the judgment of the court shall be in accordance therewith.
    9.
    “A design to effect death is inferred from the fact of the killing unless the circumstances raise a reasonable doubt whether such design existed.

      “A design to effect death sufficient to constitute murder maybe formed instantly before committing the act by which it is carried into execution.
    “Homicide committed with a design to effect death is not the less murder because the .perpetrator was in a state of anger or voluntary intoxication at the time. ¡>
    10-
    “The jury are instructed that in arriving at a verdict in this case, they are to be governed by the evidence that is permitted by the court to go to the jury, and that you are to entirely disregard any question that may be asked by counsel to which the court has sustained an objection; and that the jury are to entirely disregard and put from their minds any statement of counsel, if any such there be, if such statements are not based, upon the evidence in the case, or which are not a reasonable and fair deduction from the evidence in the case, and the law as given you by the court.
    11.
    “You are instructed that a witness may be impeachable by showing by other competent witness or witnesses that any witness has made statements relative to material matters out of court different to those made upon the stand, or by showing by other competent witness or witnesses that the reputation of any witness in the community in which he lives for truth and veracity is bad.
    “If you find that any witness has been successfully impeached, or had wilfully, testified falsely relative to any material matter, you may disregard all of the testimony of such witness or witnesses except in so far as the same may be corroborated by the testimony of any other credible witness or witnesses, or by some other fact or circumstances appearing upon the trial.
    12.
    “All persons concerned in the commission of crime, whether they directly commit the act constituting the offense or aid and ' abet in its commission, though not present, are principals, and are prosecuted and punished as such.
    13.
    “You are further instructed that a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not

      sufficient if it merely shows the commission of the offense or the circumstances thereof.
    14.
    “The defendant has interposed in this case as one of his defense is proper and legitimate, but you are instructed that fendant was at another place at the time of the commission of the crime, and the court instructs you gentlemen, that such a defense is proper and legitimate, butj you are instructed that when the defendant interposes an alibi as a defense, it becomes the duty, of the defendant to introduce a sufficient amount of evidence in support of his alibi to reasonably satisfy you that he was elsewhere at the time of the commission of the offense, but the burden is not upon the defendant to establish the same to your entire satisfaction. All the evidence bearing upon this point should be carefully considered by you, and if after a careful consideration of all the evidence, you believe that defendant has successfully established an alibi, or have any reasonable doubt as to whether the defendant was in some other place when the crime was committed, you should give the defendant the benefit of the doubt and find him not guilty.
    15.
    “The court instructs the jury, as a matter of law, that a conspiracy is a combination of two or more persons by some concert of action to accomplish some criminal or unlawful purpose, or some purpose, not in itself criminal or unlawful, by criminal or unlawful means.
    “The court charges the jury that before you can convict the defendant upon the theory of a conspiracy between the defendant, Tom Gilstrap and Press Morgan, his alleged associates, you must find from the evidence beyond a. reasonable doubt, and to a moral certainty, that they conspired together before the shot was fired, to do some unlawful act, or to do some lawful act in an unlawful manner, and that the fatal wound was inflicted by some one of them, in the furtherance of the purpose for which they conspired.
    16.
    “The court instructs the jury as a matter of law, that while it is necessary in order to establish a conspiracy, to prove a combination of two or more persons, by concerted action to accomplish the criminal or unlawful purpose alleged in the information, yet it is not necessary to prove that the parties ever came together and entered into any formal agreement or arrangement between themselves to effect such purpose; the combination, or common design, or 'object may be regarded as proved, if the jury believe, from the evidence, beyond a reasonable doubt, that the parties charged were actually pursuing in concert, the unlawful object stated in the information, whether acting separately or together, by common or different means; providing all were leading to the same unlawful result.
    17.
    “If two or more persons, moved and influenced by a common intent and purpose to feloniously assault another with deadly weapons and take his life, and each knows of the common felonious intent and purpose of the other to make such felonious assault on such person, and take his life, then the law says, under such circumstances, the act of one is the act of all assailants; the shot of one is the shot of all; they are all responsible under such circumstances for the acts of each other.
    18.
    “You are the sole and exclusive judges of the weight of the evidence and the credibility of the witnesses, but you are bound by the law as given you by the court. And you are instructed that where two or more witnesses testify directly opposite to each other you are not bound to regard the weight of evidence as evenly balanced, but in determining the weight and - credit that should be given to the testimony of any witness, you may take into consideration his appearance upon the stand, and in the presence of the court and jury, his manner of testifying, his apparent candor and fairness or lack of same, his intelligence or lack of intelligence, his relation to the parties, his opportunities or lack of opportunities for seeing and knowing the facts about which he testifies, his interest or lack of, interest in the result of the action, and together with all the other facts and circumstances appearing upon the trial, determine the weight and credit that should be given the testimony of any witness, and give credit accordingly.
    19.
    “You are instructed that you must consider all these instructions together; you have no right to consider any part or parts of same to the exclusion of other portions thereof.
    SO.
    “When you have retired to your jury room you will select one of your number as foreman who will preside over your 'deliberations, and when you have all agreed upon a verdict he will sign it as such and you will all return with the same into this court.

      21.
    “You are further instructed that your verdict must be unanimous, unless you all agree no verdict can be found.
    “After the argument of counsel, forms of verdict will be handed you by the judge.
    “10-27-1910.
    Roy Horrman, Judge.”

      Bridges & Vertrees, for appellant.

      Smith C. Mat-son, Asst. Atty. Gen., A. C. Cruce and W. I. Gilbert, for the State.
   FURMAN, P. J.

First. The first assignment of error complains of the action of the court in admitting the testimony of Miss Iola Moore, which was as follows:

“Q. Do you know where Dick Thompson was ? A. He was on the front porch. Q. Did you see him after the shooting? A. I did. Pie came to the front door and I opened the door and told him to come in. Q. Immediately after the shooting? A. Yes, sir. Q. When Dick came to the door, how long was it after the shooting? A. We had just gone into Mrs. Clark’s room and I walked back and opened the door and, I says, 'Dick come in you might get shot,’ and he said— By the court: Was Mr. Thompson there? By the witness: No, sir. By the court: Plow long after the shooting was it that you heard this exclamation, made by Dick Thompson? By the witness: Just a few minutes. By the court: About how long? Witness: Ten or fifteen minutes. By the court: Do you know where the shooting is alleged to have been? Witness: Yes, sir. By the court: How far was it from where this exclamation was heard? Witness: About as far as from here to the postoffice, I guess. Q. What was it he said when you told him to come in the door? A. He said I want to go down there to town. Q. What was he doing? A. He was crying, and he wanted to go where the shooting was, and I told him not to do’ it, and he says, T guess if it was your papa you would want to go to.’ Q. Anything else? A. Yes, sir, and in the meantime he just says that the old man has done this, and he wanted to go where the shooting was and Mrs. Clark and I were trying to get him to stay. By Mr. Vertrees: I move that the evidence be excluded from the jury, and that they be instructed not to consider it. By the court: Gentlemen of the jury, the court will exclude this testimony. You are not to consider it in your deliberations of the case.”

Defendant objected to all of this testimony and excepted to the action of the court in admitting the same.

The testimony in this case shows that the defendant, Bob Thompson, had for several months prior to the homicide been stopping at the boarding house kept by Mrs. Clark, and that a short time before the shooting, defendant Bob Thompson left his son, Dick Thompson, at said boarding house and requested Mrs. Clark, the proprietress, to keep the boy at the house. The testimony in the case further shows that Tom Gillstrap fired the fatal shot, and the theory of the state was that a conspiracy existed between defendant Bob Thompson and the said Gillstrap to kill the deceased, and that Bob Thompson, while not immediately present when the fatal shot was fired, encouraged the defendant Gillstrap in furtherance of their common design to kill the deceased. On the part of the defendant it was contended that there was no conspiracy, and that he was not present at the time of the killing, but that he was at Mrs. Clark’s boarding house when the fatal shots were fired. We think that the effect of this evidence was to prove that the defendant was not at Mrs. Clark’s boarding house when the fatal difficulty occurred. With the exception of the last answer of the witness the evidence was proper as against the objections made. If this court is going to reverse a conviction because a witness may voluntarily state improper matters and when such improper testimony is promptly excluded by the trial court, no conviction could stand. As soon as this objectionable testimony was given it was excluded by the court and the jury were instructed not to consider it in their deliberations. This was all the court could have done.

Under the first assignment of error, counsel for appellant further complains of the action of the court in refusing to sustain the obj ections of the defendant to the following testimony:

“Q. Miss Iola, did you see Tom Gillstrap that day any time before the killing? A. I did. Q. Where? A. At the hotel. Q. Did you hear any conversation between him and anyone else, with reference to Clint Pruitt? By Mr. Vertrees: We object because it’s between Tom Gillstrap and someone else, and don’t have any connection with the defendant, Bob Thompson. By the court: Objection overruled. By Mr. Vertrees: We except. Q. Did you hear a statement made by him? A. I heard him and Mrs. Clark talking at the table, in the dining room, and I came in with a cup of coffee for him, and I heard him tell Mrs. Clark that it would be an honor to him or anyone else to kill Clint Pruitt. By Mr. Vertrees-: I move that that answer be stricken out, as having no connection with the defendant, Bob Thompson. By the court: Do you expect to show the connection, Mr. Cruce? By Mr. Cruce: Yes, sir. By the court: I will overrule it then. By Mr. Vertrees: To which ruling of the court the defendant excepts.”

It is true that at the time that this evidence was introduced the state had not offered any evidence of a conspiracy between appellant and his co-defendant, Tom Gillstrap, to kill the deceased, and the evidence was admitted upon the promise of the state to connect this testimony with the defendant. We think that this is a dangerous practice, and should not be encouraged. If the state is permitted to get incompetent evidence before a jury upon the promise of a prosecuting attorney to connect it with the defendant, and he fails to do so, impressions may be made upon the jury which it would be difficult, if not impossible, to destroy by instructions from the court that they should not consider such testimony. In the case of Sturgis v. State, 2 Olcla. Cr. 385, this court said:

“In the case of Devore v. Territory of Oklahoma, 2 Okla. 565, 31 Pac. 1092, it was held that such evidence might be introduced before there was any evidence of such acting'together by the defendant and the persons whose acts and statements were so admitted in evidence, upon the promise of the county attorney that such acting together will subsequently be shown.”

To prevent what we conceive to be questionable practice in the future, we would advise the tidal courts against pursuing this course. The safe rule is to require some evidence of such acting together before the acts and declarations of others concerned in the commission of an offense are admitted in evidence, when such acts were not committed or statements were not made in the presence of the defendant.

If it is made to appear to this court that incompetent and damaging testimony has been introduced against a defendant upon a promise of a prosecuting attorney to subsequently connect this testimony with the-defendant, and this connection is not made, we would feel strongly inclined to reverse a conviction upon the ground that the jury may have been influenced by such improper testimony,' notwithstanding the instructions of the court that they should not consider it. ‘ We know that promises to connect testimony are often made in good faith when through over-zeal counsel may be mistaken as to the effect of the testimony by which they expect to make this connection. Upon the other hand, it gives attorneys who are indifferent as to the means by which they get a verdict an opportunity to inflict irreparable injury upon their opponents. If trial courts will persist in allowing testimony to be prematurely introduced upon the ground that the competency of such testimony will be made to appear, they do so at their peril. If the competency of the testimony is subsequently made to appear, the error will be immaterial and harmless, but if this is not done and the testimony is material and damaging to a defendant, we doubt if any instruction by a trial court could do away with the injury which has” been done to a defendant by such testimony, and a new trial should be granted. In this case the error of the court in admitting the testimony as to statements made by Tom Gillstrap was cured by testimony which was afterwards admitted, and which clearly proved a deliberate and cowardly conspiracy between Gillstrap and the defendant to kill the deceased. The error of the court, therefore, in prematurely admitting this testimony became immaterial and harmless.

Second: The only serious question in this case grows out of the following statement which we find in the record:

“Now on this the 28th day of October, 1910, the evidence in the case of the State of Oklahoma v. Robert Thompson was concluded, and whereupon the court immediately commenced reading his charge to the jury, and thereupon the attorneys for the defendant asked permission of the court to be allowed to examine and inspect the charge for the purpose of objecting and excepting to such part thereof as they might deem objectionable, whereupon the court informed the attorneys for the defendant that they could take a general exception to the charge as a whole, and did not submit said charge to the attorneys for the-defendant.”

Section 20, of art. 2, of our Constitution provides that in all criminal prosecutions the accused “shall have the right to be heard by himself and counsel.” This clearly means that in criminal prosecutions in Oklahoma the defendant has the right to be heard upon all matters and questions which are material to his defense, and that it is error for a court to refuse to allow counsel for a defendant in a criminal case to be heard upon the law of the case as well as upon the facts of the case. In the case of Boutcher v. State, 4 Okla. Cr. 586, this court said:

“Counsel for the defense have the right to be heard in the trial court upon the law as well as upon the facts. This is fair to all parties concerned, and is necessary to the proper administration of justice. It gives the judge an opportunity to correct any errors which he may have made, and it gives the county attorney an opportunity, if he thinks the charge of the court is erroneous, to join with the defendant in requesting that such error be corrected. If counsel desire to make objections to the instructions which the court proposes to give to the jury, and requests permission to do so, it would be error on the part of the trial court to refuse to give counsel such opportunity.”

But even if it were not for the constitutional provision above quoted, par. 5, of sec. 6823, of Snyder’s Comp. Laws of Okla. 1909, clearly contemplates that counsel for a defendant, whenever they so desire, should be given by the trial court an opportunity to be heard upon the questions of law involved in the instructions of the court to the jury. Said section is as follows:

“When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. If the questions of law involved in the instructions are to be argued, the court shall direct the jury to withdra-w during the argument, and after the argument, must settle the instructions, and may give or refuse any instruction asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by the judge, if modified, modification shall be shown in-the instruction, and by refusal to give instructions or the modification thereof, shall be deemed to be excepted to. When the instructions are thus settled, the jury, if sent out, shall be recalled and the court shall thereupon read the instructions to the jury.”

We believe that the administration of justice would be greatly promoted by the recognition on the part of the trial court of the constitutional and statutory right of a defendant to be heard upon questions of law as well as upon questions of fact, and that thereby the reversal of many cases would be avoided and much time and expense would be saved to the state. Experience teaches that even the wisest and best men are sometimes mistaken in their views. It matters not how able and learned a judge may be, he cannot always without the assistance of counsel prepare instructions which will fully and correctly present all the issues involved in a case' to the jury. Independently of the constitutional and statutory provisions above quoted, prudence and justice would suggest that it would be safest and best before submitting instructions to a jury to call upon counsel for both sides to point out specifically what objections, if any, they may have to such instructions, and to request them to suggest such additional instructions as they may think are necessary. It is true that this will take a little time in the trial of each case, but we are of the opinion that it would save a great deal more time by preventing mistakes and the reversal of convictions which would thereby be avoided. But even if this is nut true, the question of time should not be considered where the administration of justice is at issue. We must all concede that no man knows everything and that even the most humble and ignorant man we may meet on the streets knows more about some things than we do. It is within the experience of all judges that valuable suggestions often come from the most unexpected sources. When a man is on trial for his liberty or life, there should be no undue haste. The proceedings should be conducted with deliberation, and every opportunity should be afforded both parties for furT nishing information as to the matters involved, either as to facts or law. We therefore earnestly recommend that the trial courts of this state in criminal cases, before instructing the jury, afford counsel for the defense a reasonable opportunity to be heard upon the law, as we are of the opinion that the refusal to do this when requested is error; and we also suggest that whenever the right to be heard upon the law is refused counsel for a defendant, that this should appear by proper recitals in the record as was done in this case. It does not, however, necessarily follow that a failure to comply with such a request should in every case result in the reversal of a conviction. Two things must concur before this court will set aside the judgment of a lower court: First, there must be error in the proceedings of the lower court; second, it must appear from the record that the defendant has suffered some'injury from such error. This is our settled policy. See Byers v. Territory, 1 Okla. Cr. 698. The effect of the refusal to allow counsel for the defendant to be heard upon the law of the case when they request this right, will be to cause this 'court to carefully scrutinize the instructions given, and if we find that the trial court has omitted to correctly and fully instruct the jury as to every principle of law applicable to the case, or that any of the instructions given by the court to the jury are erroneous and may have misled the jury in arriving at a verdict, to the injury of appellant, then the judgment of the lower court will be set aside and a new trial granted. In other words, where the trial court refuses to permit counsel for the defendant to be heard upon the law of the case, the instructions given will, by this court, be carefully examined for errors, both of omission and commission, and if any such errors are found they will be ground for a reversal of the judgment, whether excepted to or not, if in the light of the entire record it appears that such errors may have operated to the injury of the appellant. We will, therefore, treat each paragraph of the instruction given as though exceptions had been properly saved to it. Save in one instance we regard the instructions given as an admirable exposition of the law applicable to the facts of this case. The portion of the instructions which we regard as erroneous is paragraph 14, which is as follows:

“The defendant has interposed in this case as one of his defenses what is known in law as an alibi, that is, that the defendant was at another place at the time of the commission of the crime, and the court instructs you, gentlemen, that such a defense is proper and legitimate, but, you are instructed, that when the defendant interposes an alibi as a defense it becomes the duty of the defendant to introduce a sufficient amount of evidence in support of his alibi to reasonably satisfy you that he was elsewhere at the time of the commission of the offense, but the burden is not upon the defendant to establish the same to your entire satisfaction. All the evidence bearing upon this point should be carefully considered by you, and if after a careful consideration of all the evidence, you believe that the defendant has successfully established an alibi, or have any reasonable doubt as to whether the defendant was in some other place when the crime was committed, you should give the defendant the benefit of the doubt and find him not guilty.”

There are authorities which sustain this instruction, and we presume that in the hurry of the trial the court adopted this instruction from some of these authorities. We cannot, however, give it our approval. In our judgment it is contradictory, illogical, and utterly inconsistent with the true philosophy of the law. In every criminal trial the burden is upon the prosecution to establish by legal evidence and beyond a reasonable doubt every material allegation contained in the indictment or information. The participation of the defendant in the crime committed is a material allegation and must be proven by the state beyond a reasonable doubt. When the state has introduced sufficient evidence on this point to sustain a conviction, it is the duty of the defendant to introduce sufficient testimony, not to reasonably satisfy the jury of his innocence or to sufficiently establish his defense, but simply to introduce sufficient evidence to raise a reasonable doubt upon this question in the light of all the testimony in the case. This instruction positively informed the jury that it was “the duty of the defendant to introduce a sufficient amount of evidence in support of his alibi to reasonably satisfy you he was elsewhere at the time of the commission of the offense.” This is incorrect in two particulars. First, it confines the jury to the consideration of the testimony of the defendant upon the subject of alibi without reference to the testimony on the part of the state as to this matter. In other words, it mattered not what the state had proven or failed to prove, the defendant could only be acquitted where he interposed the defense of an alibi upon the strength of his own testimony upon this question. Second, it required that the testimony introduced by the defendant should reasonably satisfy the jury that he was elsewhere at the time of the commission of the offense. Neither of these propositions is the law. The second paragraph in the instruction is erroneous because it required the jury to believe that the defendant had successfully established an alibi before they could acquit him. It is true that the court then in the alternative stated that if the jury had reasonable doubt as to whether the defendant was at such other place when the crime was committed, they should give him the benefit of the doubt and find him not guilty. To a mind trained to the use of legal language and skilled in making fine distinctions, the latter charge being in the alternative would authorize a jury to acquit the defendant upon the ground of reasonable doubt alone. But it must be remembered that juries of the country have had no such training, skill, or experience. The incorrect statements contained in this instruction were contradictory to and might have been regarded by the jury as limitations upon the last instruction given. Where the court charges upon the subject of alibi it should instruct the jury:

“That the defendant has interposed in this case.as one of his defenses what is known in law as an alibi, that is, that the defendant was at another and different place at the time of the commission of the crime. The law is that such a defense is proper and legitimate, and that the jury should consider all of the evidence bearing upon this point, whether introduced by the state or the defendant, and that if .after a careful consideration of all the evidence in the case the jury entertain a reasonable doubt as to whether the defendant was in such other place when the crime was committed, then and in that event the jury should give the defendant the benefit of such doubt and acquit him.”

While the instruction given is clearly erroneous, yet the law of alibi was not applicable to the facts of the case. Under our law all persons who are concerned in the commission of an offense, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, are principals. The charge of the court upon this phase of the casé was as favorable to the appellant as the law permits, and it was upon this ground that he was convicted by the jury. It rvas therefore immaterial as to whether the defendant was actually present or not when the fatal shot was fired, and the law of alibi was not involved in the case. The error of the court in the instruction upon the subject of alibi was therefore immaterial and harmless.

It is a general principle of criminal la\v that a defendant is entitled to be tried upon legal evidence alone, and to have his guilt determined by the jury upon correct instructions'as to the law, but it does not necessarily follow from this that every error in the admission or rejection of testimony or in the instructions of the court to the jury will be grorjnd for a reversal. If the law required absolute accuracy but few convictions could be sustained. It is doubtful if a hotly contested .and long drawn out criminal case rvas ever tried without the commission of some error of greater or minor importance. When it appears that an error has been committed in the trial of a criminal case, it must also appear that the error committed was of a material character and deprivéd the defendant of a substantial right before it will be ground for reversal. Mr. Webster defines “material” to be something “of solid or weighty character; of consequence; not to be dispensed with; important; specific ; especially law, such as does or Avould affect the determination of a case, the effect of an instrument, or the like; constituting a matter that is entitled to consideration, such as must be considered in deciding a case on its merits.” To determine as to whether or not the error in the instruction on the subject of alibi in this case could or did affect the determination of. the case by the jury, injuriously to -the appellant and was therefore material, it is necessary that we should consider all the testimony, and if we find therefrom that there is ground to believe that a different verdict might have been arrived at by the jury had they been correctly instructed as to the alibi, then it will be our duty to set aside the judgment and grant a new trial. But if the testimony clearly and conclusively shows that this error could not have influenced the jury to the injury of appellant, then the error becomes immaterial and therefore harmless, and will not constitute ■ground for the reversal of the case.

The first witness introduced by the state was Miss Iola Moore. After testifying as is hereinbefore stated, she said that shortly after 10 o’clock she heard the shots which resulted in the death of the deceased; that a few minutes after this, defendant with Tom Gillstrap and Pres Morgan came to the boarding house kept by Mrs. Clark, and that they all three went into Mrs. Clark’s private room and drank whisky there .and she heard the defendant say that if “I couldn’t beat that shooting, damned if I didn’t take out.”

Pres Morgan,- who had been jointly indicted with the defendant and Tom Gillstrap, and against whom the prosecution had been dismissed, was next placed upon the witness stand. He testified that he was at home in the town of Cornish on the night when the deceased was killed, and that Tom Gillstrap came to his house and that the witness accompanied said Gillstrap to the Commercial Plotel; that on his way to the hotel the witness secured a pistol from Dr. McCoy and carried it with him; and when he got to the hotel that the witness, Tom Gillstrap and the defendant all drank whisky together, and that their business in going to the hotel was to get some whisky to drink. That after drinking the whisky the witness, Tom Gillstrap and the defendant went out in town; that all three of said parties were armed with pistols; that said parties went to a restaurant and then returned to the hotel and all took another drink; that said parties again went out in town and found some horses hitched to the yard fence at the hotel, and that defendant said, “Let's turn those horses loose, they haven’t got any business being tied,” and that said parties then turned the horses loose; that the parties then went to a barber shop; that while they were there the parties who owned the horses discovered that they had been turned loose; that the parties owning the horses were the deceased Pruitt, a man named Crawford, and a man named Lee; that the parties who owned the horses went after them, and that the defendant and Tom Gillstrap followed the parties who were after the horses; that Cráwford went on in search of the horses, and that Lee and the deceased went back to town; that the defendant, the witness and Gillstrap then returned to the hotel and took another drink, and then returned to town and went in front of .a drug store, and the defendant then said, “I’ll go in and see Pruitt and find out what his business here is”; that the witness and Gillstrap hid themselves in an empty store building on the opposite side from the drug store; that in about 10 minutes the defendant came back and said that he had had a talk with the deceased, but that the deceased would not go any further than the door and that he, the defendant, could not find out anything and he, the defendant, couldn’t get the deceased to come .out of the house; and when the defendant reported this, that Gillstrap and the witness came out of the house from where they were hiding and went west below the restaurant, and the defendant went with them, and Gillstrap remarked that he was expecting trouble with the deceased and wanted “us to be near so that we could see it.” He said that he would have to kill the deceased or the deceased would kill him, and that he wanted “us to be there so that we could see it”; that the defendant and witness sat down on the south side of the street and remained there 10 or 15 minutes when Gillstrap came and told them to move across the street; he said that they might get shot if they stayed there; that the witness and the defendant went and sat on the porch of the barber shop about 25 minutes; that while they were sitting there the deceased and Mr. Lee came out of the restaurant; that someone came down the street meeting them, and when he met them he fired a shot; that it was very dark and the witness could not tell who it was who fired the shot; that Pruitt hollered when the shot was fired, and he and Lee ran off; that the witness and defendant then went across the street and met Tom Gillstrap and they all went to the hotei; that the defendant said something about those fellows running, and witness said, “We all got tickled about them running” and were “all laughing together”; that they went to the hotel and took another drink; that when they got to the hotel the defendant says to Gillstrap, “You are a damn poor shot,” and said, “If T couldn’t beat that I’d quit”; that after getting a drink the defendant, the witness and Gillstrap went to the restaurant with Charlie Clark, the man who was running the hotel; that said parties were feel'ing pretty good and were laughing about how the deceased and Lee ran; that at this time they did not know that Pruitt had been shot; that a brother of the witness came to him and said that the deceased was at the hotel and that he was shot all to pieces; that the defendant then said to Gillstrap, “Tom, I thougnt you missed him,” and Gillstrap then replied, “I know I didn’t”; that the defendant then left the witness; that before the defendant left and after they had learned that the deceased had been shot, Gillstrap said, “I’m the man that done the shooting,” and he said, “You and Uncle Bob stand pat”; that the witness and the defendant both said that they would do so; that before the shooting was done Gillstrap had said, “If any trouble comes up let me do the shooting and you men be the witnesses.” Gillstrap said, “I want to kill him; let me kill him, and you and Uncle Bob be the witnesses for me,” and they agreed to do so. The witness-further testified that when Gillstrap came to his house that night, he said that the deceased had come to town' and that he was-afraid to stay by himself, and that he wanted the witness to come and stay with him. This was before the witness borrowed the gun from McCoy.

Dr. Wilson testified that he was a practicing physician; that he saw the deceased about 10 o’clock the night of the difficulty at Dulaney’s hotel after he was shot; that defendant came in the room and walked up and looked at the deceased, and the deceased, said, “Uncle Bob, your'gang has murdered me”; and the defendant replied, “God damn you, you ought to die and I hope you will die”; that thereupon the witness shoved the defendant out of the door and told him that he couldn’t talk to a dying man that way; that the deceased was shot in the right lung, between the third, and fourth ribs; that the ball went clear through him, and that he died from the effect of the shot; that the deceased was suffering, and the witness told him that he had ^received a mortal wound and that he was going to die; that the deceased said, “Doctor, if I can live until morning maybe I can pull through.” The witness then advised him that he would not live longer than morning; that the deceased said, “In that case I want to make a statement.” He .said that Tom Gillstrap came •down the street and met him and shot him.

Scott Crawford, a witness for the state, testified that on the night of the killing he went to Cornish with the deceased and a man named Lee and reached there about dark; that someone turned their horses loose and the witnes went to hunt for them; that he found his horse and the horse of the deceased about a mile from town; that as he was returning with the horses he heard the shots; that he went on to town and found the deceased in a wagon-yard about 30 steps from Dulaney’s hotel; that the witness carried the deceased into the hotel; that the ■deceased told him that he was going to die; that he had been ■shot by Tom Gillstrap; that the defendant came to where the deceased was and deceased said, “Uncle Bob, I would rather that you would not look at me,” and the defendant said, “God damn you, I don’t want to look at you.”

Byrd Ashburn, a witness for the state,- testified that he saw the defendant after the shooting and heard him say to Gillstrap, ■“Didn’t he squawk like hell,” but the defendant didn’t say who he was speaking about; 'that the parties were just fixing to take a drink of whisky when he heard the defendant say this. The witness further testified that at the same .time he heard the defendant say that he, the defendant, and Gillstrap and Morgan were sitting on Bill Cornish’s porch when the shots were fired that killed the deceased.

Mr. and Mrs. William Cornish were introduced as witnesses on behalf of the state. They testified that they were on the street near where the shooting occuired and heard three shots fired; that they then went back into the restaurant, fearing that there would be more shooting, and each of them testified that they heard some one sniggling and laughing on the street. Mrs. Cornish testified that- there were three men who were talking together and laughing after the shooting. Mr. Cornish testified that he saw several men in the group but that his eyes were poor and that he could not tell how many.

The defendant placed Mr. and Mrs. Charlie Clark upon the witness stand. The substance of their testimony is that Mr. Clark was in bed asleep when the shots were fired; that after the shooting Mrs. Clark went into the bedroom where Mr. Clark was, woke him up and asked him about the shooting, and he replied that he supposed it was some boys taking Christmas; that at Mrs. Clark’s request, Mr. Clark got up and dressed and rolled a cigarette and smoked, and then started to go out to see what the shooting was about; that they then saw a light in the room of the defendant, and Mr. Clark called the defendant and requested that he go with him to see about the shooting; that the defendant came out of his room fully dressed and went with Mr. Clark to see about the shooting. Neither of them testified as to the whereabouts of the defendant at the time the shots-were fired, and their evidence as to the time when they saw the light in the room of the defendant is- so indefinite and uncertain that it does not raise the question of an alibi in this case.The shooting occurred not over a block and a half from the Clark boarding house. There is no evidence as to the size of the blocks. Neither was there any testimony to show that the defendant did not have ample time after the shooting to go into his room before he was called by the Clark witnesses. It was further proven on cross-examination of Mrs. Clark that the homicide took place in March, and that the defendant and Tom Gillstrap had been boarding with the Clarks since the preceding September, and that if either of them had any business or occupation the witness did not know what it was. The frequent allusions made in the testimony to playing poker and drinking whisky are strong-, ly indicative of the fact that the Clark boarding house was in fact a gambling and bootlegging joint. Under such surroundings these parties could not expect the courts and juries of the country to place much credence in their testimony, but be this as • it may, every word of their testimony may have been absolutely true and still it does not raise the question of an alibi. The only other witness who pretended to testify to an alibi was the defendant himself. He testified that he owned property in Texas and that he lived in Gainesville, but that while he had no property in Oklahoma, or any business here, he had been boarding since September with the Clarks in the town of Cornish. The killing occurred in March. When pressed on cross-examination as to his business he ■ replied that he traded a little, but did not tell of a single trade he had made. He did testify, however, that he had been playing poker during this time, but denied that he had charge of a room in which poker games were conducted. The witness testified that he was a friend of the deceased and that he was in his room at Clark’s boarding house when the fatal shooting occurred; that he was lying on the bed.' He testified that he had been lying there for about five minutes after the shooting before he was called by Clark. This is the most definite statement as to the time after the shooting when the Clarks claimed that the defendant was in his room; this would have given him ample time to reach his room after the shooting before the Clarks called him. That he was not a friend of the deceased is shown by the testimony of Dr. Wilson, who testified that he heard the defendant say to the deceased after he was shot, “God damn you, you ought to die, and I hope that you will die.” The witness Scott Crawford also testified that he heard appellant say to the deceased when deceased was lying on a cot in the agonies of death, “God damn you, I don’t want to look at you.” The defendant heard this testimony, and although he was on the witness stand himself, he did not deny it. The failure of appellant to deny this testimony amounts to an admission of the truthfulness of the statements of these witnesses. That the appellant was not in his room at the time the fatal shots were fired is conclusively shown by the fact that his son was at the hotel and, being anxious about his father, was crying and looking for him and was demanding to be allowed to go down town to hunt for appellant. If appellant had been at the hotel at the time the boy was hunting for him he certainly would have found him, for it appears that appellant’s room was within hearing distance of the office where the boy was. Appellant heard this testimony and did not deny it. Actions speak louder than words, and the failure of the appellant to deny this testimony was equivalent to the admission of its truthfulness, and that he was not at the hotel at the time the fatal shots were fired. Appellant álso heard the testimony of Byrd Ashburn who stated that after the shooting he heard the appellant say that he, appellant, Gillstrap and Morgan were sitting on Bill Cornish’s porch when the shots were fired that killed the deceased. Appellant heard this testimony and did not deny one word of it when he was on the witness stand. Appellant thereby tacitly admitted the truthfulness of these statements. Taking these undisputed facts in connection with the direct testimony of the state as to the participation of appellant in this crime, we do not believe that a sane, impartial, and self-respecting jury could be empaneled who would have acquitted the appellant upon the ground of alibi, even if the court’s instruction upon this question had been free from error. It would be an insult to the intelligence, .fairness, and integrity of a jury to even suppose that they would base a verdict of acquittal upon such testimony. But there is another, and if possible, a stronger and more conclusive reason why the conviction in this case should not be set aside on account of the error of the court in its instructions to the jury upon the question of alibi. Defendant was prosecuted not because he himself had fired the shot that killed the deceased, but because he had entered into a conspiracy with Tom Gillstrap and Pres Morgan to kill the deceased, and that in pursuance of this conspiracy Tom Gill-strap shot and killed the deceased. All of the testimony of the state was to this effect. This evidence on the part of the state was not denied by appellant. It was therefore immaterial to the guilt of appellant as to where he was at the moment the fatal shot was fired. Sec. 2045 of Snyder’s Comp. Laws of Okla. 1909 is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

Where a defendant is prosecuted for a crime upon the .ground that he did not in person commit the crime charged, but was concerned, in its commission, his presence at the time and place of the commission of the crime is immaterial, and the defense of alibi is not applicable to such cases. Taking this view of the case it would not have been error for the trial court to have refused to give an instruction upon the question of alibi, and therefore an erroneous instruction upon this subject, unless it was calculated to influence the jury to the injury of appellant, would not be ground for reversal. The error, therefore, of the trial court in the instructions to the jury upon the subject of alibi was immaterial and harmless.

We think that the fact that both Gillstrap and appellant were not sentenced to be hanged on account of their part in the brutal and cowardly assassination of the deceased is the highest possible tribute that could be paid to the zeal and ability of their counsel. That the deceased may have been a bad man cannot for one moment be considered. In the eyes of the law this would not afford the least justification or mitigation for the crime committed. No man has the right to take the law in his own hands and constitute himself sheriff, judge, jury and executioner, and of his own motion arrest, try, convict, and execute another man simply upon the ground that the man so executed was a bad man. If this was the law no man would be safe. Every man who amounts to anything has enemies, and it could always be proven by them that he was a .bad man. Even if the deceased was a bad man, it is certain that appellant and those acting with him did not give him a dog’s chance for his life. Deceased was unarmed and in a defenseless condition at the time that he received the fatal wound. It was proven that at this time his pistol was at the house and in the possession of Mrs. Clark, who tried to be a witness for appellant, and it was also proven that, the appellant knew this. Appellant and those acting with him lay in wait for an unarmed man, and finally killed him without giving him any warning or giving him the least chance for his life. We are only surprised that the jury did not inflict the extreme penalty of the law in this case.

A number of other questions are presented in the brief of counsel for appellant and are urged with great zeal and ability, but in the light of the entire record they do not amount to more than mere irregularities, and do not show that appellant was deprived of any substantial right to his injury. Therefore, it would be useless consumption of time and space to discuss them.

We find no material error in the record, and the judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


source: Caselaw Access Project

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text:
    B. M. LOYD v. STATE.
    No. A-1106.
    Opinion Filed June 6, 1911.
    (116 Pac. 959.)
    1. FORMER JEOPARDY — Discharge of Jury — Effect — Acquittal. Where a defendant is put upon trial in a court of competent jurisdiction upon an indictment or information sufficient to sustain a conviction, and the jury has been impaneled and sworn to try the case, and the jury is unnecessarily discharged without the defendant’s consent before they arrive at a verdict, such discharge operates as an acquittal of the defendant.
    2. SAME — Elements of Former Jeopardy. A defendant cannot twice be put in jeopardy of life and liberty for the same offense, but before jeopardy attaches each of the following conditions must exist: First, the defendant must be put upon trial before a court of competent jurisdiction; second, the indictment or information against the defendant must be sufficient to sustain a conviction; third, the jury must have been impaneled and sworn to try the ease; fourth, after having been impaneled and sworn the jury must have been unnecessarily discharged by the court; fifth, such discharge of the jury must have been without the consent of the defendant. When these things concur, then the discharge of the jury constitutes jeopardy and operates as an acquittal of the defendant, and he cannot again be placed upon trial for the same offense.
    3. HOMICIDE — Venue—Indictment—Place of Death. Where a defendant is charged with murder, the crime, if any, is complete when the fatal blow is struck or the fatal shot is fired, and the district or superior court of such county has jurisdiction to try said offense; and it is altogether immaterial as to whether or not the deceased died in such county, and the place of the death of the deceased need not be alleged, and, if alleged, such allegation would be surplusage .and need not be proven as alleged.
    4. FORMER JEOPARDY — Plea—Procedure. Where a plea of former jeopardy has been filed and does not involve a disputed question of fact, but merely presents a question of law for the determination of the court, it is not necessary to submit such plea to the consideration of the jury, but the court should pass upon the question of law presented, and either sustain the plea and discharge the defendant, or overrule the plea and place the defendant upon trial upon the merits of said cause.
    (Syllabus by the Court.)

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

    B. M. Loyd was convicted of manslaughter, and he appeals.
    Reversed.

      Jones & Green and D. D. Hartsell, for appellant.

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

It appears from the record in this case that at the January, 1909, term of the district court of Jefferson county, Okla., the defendant was placed regularly on trial in said court, charged with the murder of Ed Plenson, alleged to have been committed in said Jefferson county, and that the jury was selected, impaneled and sworn, and counsel for the state and counsel for defendant made their opening statements, and that Charlie Pickett, a witness for the state, was sworn and placed upon the stand, when the county attorney informed the court that he had discovered an error in the information, which alleged that deceased had died in Jefferson county, Okla., when as a matter of fact the deceased, after receiving the fatal wound in Jefferson county, -had been carried to El Reno, in Canadian county, for the purpose of being operated upon, and that the deceased died in Canadian county. Whereupon the county attorney requested the court to be permitted to amend the information by stating that the deceased died in Canadian county, state of Oklahoma. Defendant objected to this motion of the county attorney, and requested the court to instruct the jury to return a verdict of not guilty. The court overruled the motion to instruct the jury to acquit the defendant, and sustained the motion of the county attorney to amend the information. The court withdrew the case from the consideration of the jury and discharged them, and remanded defendant to the custody of the sheriff of Jefferson county, Okla., and set the case for hearing on a future day of the term, to all of which the defendant at the time excepted. The case came on to be heard again at the October, 1910, term of the district court of Jefferson county. Whereupon the defendant entered a plea of former jeopardy in which he alleged that he had already been placed in jeopardy on a valid indictment before a court of competent jurisdiction, and that a jury was impaneled and sworn and charged with his deliverance, which said jury was over his objection discharged, and that this was for the identical offense of which he is now charged. This plea set forth in detail the proceedings had upon the former trial of this cause. The state did not reply to the plea of former jeopardy. Therefore the allegations therein set forth were admitted to be true, and it was the duty of the court to pass upon the questions of law which were thus presented. The trial court overruled said plea of former jeopardy, to which the defendant at the time excepted. The defendant then declined to plead further in this case. Thereupon the court ordered that the plea of not guilty be entered for him, and the trial of the cause was proceeded with. By overruling the plea of former jeopardy, the court held that the matters of fact therein set forth did not constitute a bar to the further prosecution of the appellant for the same offense. If the trial court had been correct in holding upon the first trial that the information alleging that the fatal wound was inflicted in Jefferson county, and that the deceased died in said Jefferson county, and that a conviction could not be sustained upon proof that deceased had died in Canadian county, then the action of the trial court in discharging the jury without defendant’s consent would not have constituted jeopardy, and the defendant might have been legally tried upon a proper information or indictment for the same offense. But if the trial court was in error upon this question, then as -a question of law, upon the second trial of appellant, the trial court should have held that the plea of former jeopardy was good and was a complete bar to a second prosecution of appellant for the same offense. This is not an open question in Oklahoma. In the case of Schrieber v. Clapp, 13 Okla. 218, 74 Pac. 317, Judge Burford, speaking for the Supreme Court of Oklahoma Territory, said:

“The general rule is that the prisoner has been put in jeopardy when he has been put upon trial before a court of competent jurisdiction, upon an indictment or information sufficient to sustain a conviction, and the jury has been impaneled and sworn to try the case, and the jury is discharged without sufficient cause, and without the defendant’s consent; and such discharge of the jury, although improper, results in an acquittal of the defendant. Cooley, Const. Lim. (6th Ed.) p. 399; Clark’s Crim Law, § 174; 1 Bishop, New Crim. Law, 3, 821; Abbott’s Trial Brief, § 97; People v. Horn [7 Cal. 17], 11 Pac. 470; Lee v. State, 26 Ark. 260 [7 Am. Rep. 611]; Teat v. State, 53 Miss. 453 [24 Am. Rep. 708] ; Whitmore v. State, 43 Ark. 271; Williams v. Commonwealth, 78 Ky. 93; Jones v. State, 55 Ga. 625; Mount v. State, 14 Ohio, 295 [45 Am. Dec. 542] ; Helm v. State, [66 Miss. 537], 6 South. 322; State v. McKee [1 Bailey (S. C.) 651], 21 Am. Dec. 499; State, v. Wilson, 50 Ind. 487 [19 Am. Rep. 719] ; People v. Cage, 48 Cal. 323 [17 Ain. Rep. 436] ; O’Brian v. Commonwealth, 9 Bush [Ky.] 333 [15 Am. Rep. 715]; Hilands v. Commonwealth, 111 Pa. 1 [2 Atl. 70, 56 Am. Rep. 235]; Pizono v. State [20 Tex. App. 139], 54 Am. Rep. 511; People v. Barrett [2 Caines (N. Y.) 304], 2 Am. Dec. 239; Wright v. State, 7 Ind. 324; McCorkle v. State, 14 Ind. 39.”

This question is discussed with great ability and at length and all of the authorities are cited in the case of Gillespie v. State, 168 Ind. 316, 80 N. E. 835. After a full discussion of the entire matter, that court announces its conclusions as follows:

“The following cases and authorities are in harmony with our own decisions, as they hold or affirm the doctrine that in a criminal prosecution the unnecessary discharge of the jury, after it had been impaneled and sworn, without the consent of the defendant, operates as an acquittal. Commonwealth v. Fitz patrick (1888) 121 Pa. 109, 15 Atl. 466, 1 L. R. A. 451, 6 Am. St. Rep. 757; State v. Callendine (1859) 8 Iowa, 288; Hines v. State (1873) 24 Ohio St. 134; Helm v. State (1889) 66 Miss. 537, 6 South. 322; State v. McKee (1830) 1 Bailey (S. C.) 651, 21 Am. Dec. 499, and cases cited in notes; State v, Robinson (1894) 46 La. Ann. 769, 15 South. 146; Robinson v. Commonwealth (1889) 88 Ky. 386, 11 S. W. 210; People v. Cage (1874) 48 Cal. 323, 17 Am. Rep. 436; Ex parte Clement (1873) 50 Ala. 459; Bell v. State (1870) 44 Ala. 393; Ex parte Maxwell (1876) 11 Nev. 428; Whitmore v. State (1884) 43 Ark. 271; Ward v. State (1839) 1 Humph. (Tenn.) 253; O’Brian v. Commonwealth (1872) 9 Bush (Ky.) 333, 15 Am. Rep. 715; State v. Richardson (1896), 47 S. C. 166, 25 S. E. 220, 35 L. R. A. 238; Hilands v. Commonwealth (1887) 114 Pa. 372, 6 Atl. 267; State v. Sommers (1895) 60 Minn. 90, 61 N. W. 907; Scrieber v. Clapp (1903) 13 Okla. 215, 74 Pac. 316; People v. Dolan (1883) 51 Mich. 610, 17 N. W. 78; Ex parte Tice (1897) 32 Ore. 179, 49 Pac. 1038; State v. Steeves (1896) 29 Ore. 85, 43 Pac. 947; People v. Taylor (1898) 117 Mich. 583, 76 N. W. 158; Commonwealth v. Tuck (1838) 20 Pick. (Mass.) 356; Kepner v. United States (1904) 195 U. S. 100, 24 Sup. Ct. 797, 49 L. Ed. 114; Allen v. State (1906) [52 Fla. 1], 41 South. 593 [120 Am. St. Rep. 188], and authorities cited; Lee v. Smith (1870 ) 26 Ark. 260, 7 Am. Rep. 611; McDonald v. State (1891) 79 Wis. 651, 48 N. W. 863, 24 Am. St. Rep. 740, and authorities cited; People v. Ny Sam Chung (1892) 94 Cal. 304, 29 Pac. 642, 28 Am. St. Rep. 729; Gillett, Crim. Law (2d Ed.) § 31; 1 Bishop, Crim. Law (8th Ed.) § 1012-1014, et seq.; Clark, Crim. Law, p. 374; 12 Cyc. 270; 17 Am. and Eng. Ency. Law (2d Ed.) 584; Cooley, Const. Lim. (7th Ed.) 467, 468. Judge Cooley, in the work last cited, said: ‘A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been impaneled and sworn.’ ”

A few authorities do hold that a verdict of acquittal or conviction must have been rendered before a former trial can be pleaded in bar of a second prosecution for the same offense. But the Constitution of this state in mandatory terms deprives us of the power to adopt the reasoning of these cases. The latter clause of section 21, of article 2, of our Constitution puts this question at rest as follows: “Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” It does not say that no person shall be tried twice for the same offense, but the language is unequivocal to the effect that no person shall twice be put in jeopardy for the same offense. The word “jeopardy” has a clearly defined and fixed legal meaning, and that meaning is that when a person has been put in danger of a 'conviction, that this is jeopardy, and that it attaches whenever a defendant is placed upon a trial in a court of competent jurisdiction, upon a valid indictment or information, and a jury has been duly impaneled and sworn. This matter is so well settled and the authorities above stated are so conclusive that it would be a useless consumption of time for us to discuss the question further. It is enough for us to know that in such cases our Constitution forbids a second prosecution for the same offense, where jeopardy has attached upon the first prosecution.

The next question before us is as to whether or not the trial court was correct in holding that the information which charged that the fatal wounds were inflicted upon the deceased by appellant in Jefferson county and that the deceased died in said Jefferson county would not be supported by proof of the fact that deceased died in Canadian county, and that therefore a fatal variance would exist between the allegations of the information and the testimony in the case. If this ruling was correct, then appellant was not in jeopardy of this offense upon the first trial on account of the insufficiency of the information; but if the trial court was in error upon this matter, then the proceedings in the first trial of this cause were valid and the defendant's plea of former jeopardy should- be sustained. As to the sufficiency of the first information, the case of Moran v. State, 14 Okla. 549, 78 Pac. 113, is conclusive. Judge Hainer there said:

“It is next claimed that the court erred in permitting the territory to introduce testimony showing the deceased came to his death in the Indian Territory, and not in Oklahoma Territory. The indictment charges that the fatal shot was fired in Comanche county, Oklahoma Territory, on the 4th day of August, 1901, and that the deceased Joseph Philip Beemblossom, did then and there instantly die. The proof shows that the shot was fired in what is now Comanche county, Okla. T., on the 4th day of August, 1901, and that the deceased died from the effects of such wound at Rush Springs, Ind. T., above five or six hours after receiving the mortal wound, and that Rush Springs, Ind. T., is about two miles from the east line of Cómanche county, Okla. T. It is contended by the plaintiff in error that this constitutes a fatal variance between the allegations of the indictment and the proof, and that the jury should have been instructed that in the event they should find such facts to be true, then they should return a verdict of not guilty. In our opinion, the variance was not material.
“In Albright v. Territory, 11 Okla. 497, 69 Pac. 789, this court held that: ‘A person charged with the commission of the crime of murder must be indicted and tried in the comity where the injury which caused the death was inflicted, and it is not necessary to allege the place of death.’
“In State v. Bowen, 16 Kan. 476, Mr. Justice Brewer, in discussing this subject, uses the following language: Tt seems to us, without pursuing the authorities further, reasonable to hold that as the only act which the defendant does toward causing the death is in giving the fatal blow, the place where he does that is the place where he commits the crime, and that the subsequent wanderings of the injured party, uninfluenced by the defendant, do not give an ambulatory character to the crime, at least, that those movements do not, unless under express warrant of the statute, change the place of offense; and that while it may be true that the crime is not completed until death, yet that the death simply determines the character of the crime committed in-giving the blow, and refers back to and qualifies that act.’
“In United States v. Guiteau, 1 Mackey [D. C.] 498, [47 Am. Rep. 247], the Supreme Court of the District of Columbia' held that it had jurisdiction to try, convict, and sentence the murderer of Pres. Garfield within the District of Columbia, although the shot was. fired in the District of Columbia and the death occurred in the state of New Jersey. An application having been made to Mr. Justice Bradley, of the Supreme Court of the United States, for a writ of habeas corpus, in stating his reasons for refusing the writ he uses the following language: Tt is contended that'the murder was committed only partly within the District of Columbia and partly within the state of New Jersey, and therefore cannot be said to have been committed within the District of Columbia. By the strict technicality of the common law this position would probably be correct, although Lord Chief Justice Hale, one of the greatest criminal lawyers and judges that ever lived, used the following language: “At common law,” he says, “if a man had been stricken in one county and died in another, it was doubtful whether he were indictable or triable in either, but the more common opinion was that he might be indicted where the stroke was given, for the death was but a consequence, and might be found, though in another county, and if the party dies in another county, the body was removed into the county where the stroke was given, for the coroner to take an inquest super visum corporisThis case shows that in Lord Chief Justice Hale’s opinion the principal crime.was committed where the stroke was given, and that when the production of the dead body gave the jury ocular demonstration of the corpus delicti, the difficulty of jurisdiction was overcome. But to remove the doubt as to the power of jurors to try such a case,-it was enacted by the statute 2 and 3 Edward VI, c. 24, that the murderer might be tried in the county where the death occurred; and to remedy the difficulty where the stroke, or the death, happened out of England, it was enacted by a subsequent statute, 2 George II, c. 21, that the trial might be in the county where the stroke was given if the party dies out of the realm; or where the death occurred, if the stroke was given out of the realm; this, in effect, making the murder a crime in the county in which either the stroke was given or the death occurred.’
“The crime was committed when the ¿atal shot was fired and the mortal wound inflicted in Comanche county, Okla. T., and the death which occurred in the Indian Territory merely determined the character of the crime, and only referred back to and qualified the homicidal act. It follows that the jurisdiction of the crime was properly laid in Oklahoma, and not in the Indian Territory.”

We give our entire assent to the reasoning of Judge Hainer as above set forth. We think that the position of the Supreme Court of Oklahoma Territory upon this question is unanswerable. The crime, if any, was committed and was complete when the fatal blow was struck in Jefferson county, and the fact that the deceased died in Canadian county was altogether immaterial. The' death of the deceased from this blow merely determined the character' of the crime committed, and only referred back to and qualified the homicidal act. The trial court therefore erred upon the first trial in holding the information to be invalid, and in withdrawing the case from the consideration of and discharging the jury. This being true, appellant’s plea of former jeoparly should be sustained.

But in order that there may be no misunderstanding about this matter, we desire to state that before jeopardy attaches the following conditions must exist: First. The defendant must be put upon trial before a court of competent jurisdiction. Second. The information or indictment against the defendant must be sufficient to sustain a conviction. Third. The jury must have been impaneled and sworn to try the case. Fourth. After having been so impaneled and sworn to try the case the jury must have been unnecessarily discharged. Fifth. That such discharge of the jury must have been without the consent of the defendant. When those things all occur, then the discharge of a jury operates as an acquittal of the defendant. We will not undertake to decide as to what would constitute a sufficient cause for the discharge of a jury in all cases in order to prevent defendant from claiming that such discharge operated as an acquittal upon the ground of jeopardy. This must be determined upon the ground of necessity as it may appear in each individual case. Neither can we lay down any general rule which would be applicable to all cases as to what would amount to the consent of the defendant to such discharge. These questions can only be determined by the facts of each individual case as they arise. We only desire to be understood as deciding that in this particular case the discharge of the jury was unnecessary because the information was sufficient to sustain a conviction, and as the appellant demanded a verdict and reserved an exception to the action of the trial court in discharging the jury, it cannot be said that he consented to their discharge. There was error in the action of the trial court in overruling the plea of former jeopardy filed in this case. As this plea was based upon and set out the records of the district court of Jefferson county, and as there was no question as to the identity of the offense charged in both informations, it raised no question of fact to be submitted to the jury, and it should have been sustained by the trial court, and the appellant should have been discharged without the formality of a jury trial.

The judgment of the lower court is reversed and the cause is remanded, with directions to the district court of Jefferson county to sustain the plea of former jeopardy, and discharge the appellant.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    WILLIAM DALTON v. STATE.
    No. A-617.
    Opinion Filed June 6, 1911.
    (116 Pac. 954.)
    1. JURY — Trial by Jury — Number of Jurors. In all criminal trials in courts of record except county courts, in which a defendant is entitled to a jury, the jury must consist of 12 men. The right to demand in such eases a jury of 12 men is a constitutional right.
    2. JURY — Jury Trial — Number of Jurors — Constitutional Law. The provision in the aet creating and establishing superior courts, prescribing "that all misdemeanor cases shall be tried by a jury of six men instead of twelve” (proviso in section 1970, Snyder’s Stat.), is unconstitutional.
    3. JURY — Criminal Prosecutions — Waiver of Jury. Section 5435,-Wilson’s Stat. (section 6774, Snyder’s Stat.), providing that in criminal trials "issues of fact must be tried by a jury,” is repugnant to section 20, art 7, of the state Constitution, and therefore was not adopted as a law of the state.
    4. JURY — Jury Trial — Number of Jurors — Waiver. Upon a trial for a misdemeanor in a superior court, the defendant may waive his right to trial by a jury of 12 men, and with his consent may be tried by a jury of 6, but the record must expressly show his consent thereto.
    (Syllabus by the Court.)

      Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.

      The plaintiff in error, William Dalton, was informed against, tried, and convicted of the crime of having Unlawfully in his possession intoxicating liquors with the intention of selling the same. The trial was ha.d without objection before a jury composed of 6 men. He was found guilty, and on October 30, 1909, was sentenced to serve a term of 30 days in the county jail and pay a fine of $100 and costs, and brings error.
    Reversed and remanded.

      John A. Remy, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The only important question which the record presents is whether the court erred in the absence of an objection on the pai't of the defendant in impaneling a jury of only six persons to try the cause. Section 19 of the Bill of Rights provides:

“The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; but, in county courts and courts not of record, a jury shall consist of six men.”

In addition to the district courts and county courts provided for in the Constitution, the Legislature created and established in every county in the state having a population of 30,000 or more, and having a city therein with 8,000 or more, a court of civil and criminal jurisdiction coextensive with the county, to be known as the superior court of such county, which shall be a court of record, and providing that such superior court shall have and exercise concurrent jurisdiction with the district court and concurrent jurisdiction with the count)'- court in all civil and criminal matters except matters of probate. Act approved March 6, 1909, c. 24, art. 4, Snyder’s Stat.

The act further provides, section 1970, Snyder’s Stat.:

“The procedure in.said court shall follow the procedure that is or may be provided for the district court. The juries for said court shall be selected in the same manner as juries for the district court, and the jury commissioners of all counties in which a superior court is created by operation of this act, whenever they meet to make jury lists for the district court shall make an additional certified list of jurors of the same number as for the district court and mark the same, ‘Jury List No. 3, for the superior court,’ and shall deliver the same to the clerk of the superior court, and said clerk and the sheriff of the county shall select from said list the jurors for the superior court in the same manner as the sheriff and clerk of the district court select jurors for the district court. Juries in said court shall be composed of the same number of men, of the same qualifications as in the district court, and all laws relative to juries and jurors for district courts shall be, and are hereby made applicable to the said superior court. Provided, however, that all misdemeanor cases shall be tried by a jury of six men, instead of twelve, to be selected the same as juries in the district court.”

In the case of Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291, it was held that the superior courts created by act approved March 6, 1909, are not “county courts,” as the latter term is used in section 19, of the Bill of Rights, even when exercising jurisdiction concurrent with county courts, and the provision in the act prescribing “that all misdemeanor cases shall be tried by a jury of six men instead of twelve,” is unconstitutional and void.

Judge Richardson, delivering the opinion of the court, used the following language:

“It is a court sui generis. It has the jurisdiction of a district court, and also jurisdiction which the district court does not have. It has concurrent jurisdiction with the county court in certain matters, but not in all, and it has jurisdiction which the county court does not have. It is a court of record other than the county court. The county court referred to in section 19, of article 2, of our Constitution is the county court created by section 11, of article 7, of that same Constitution; and that court is the only court of record in this state in which a jury of six men may be used. The Legislature is powerless in the face of the Constitution to provide otherwise. The test is not the character of case to be tried, but the court in which it is tried. See People v. Luby, 56 Mich. 551 [23 N. W. 218], an almost identical case decided by Chief Justice Cooley, one of the greatest of constitutional lawyers. It may be that, tested by reason and logic, the provision should be otherwise; but that is a matter for the consideration of the people in their sovereign capacity of Constitution makers and amenders, and not for us. There is nothing more unreasonable or illogical in this procedure than there is in trying an action for $600 claimed as debt in the district court with a jury of twelve men, while the county court in an adjoining room is trying the very same character of case for the very same amount with a jury of six men. Under the Constitution twelve men constitute a jury in the superior court in all cases, and in civil cases and misdemeanors it requires the concurrence of at least nine jurors to render a verdict, and in felony cases the concurrence of the full twelve.”

Under the federal Constitution, art. 3, § 2, and the laws of Oklahoma territory (section 5435, Wilson’s Stat.), providing “issues of fact must be tried by a jury,” the right of a trial by jury could not be waived by a defendant in a criminal prosecution arising before statehood. ' And section 19, of the Bill of Rights, providing that “the right of trial by jury shall be and remain inviolate,” considered alone, would preserve the right of trial by jury as it existed at the time of the adoption of the state Constitution, were it not for the fact that our state Constitution further provides (section 20, art. 7) :

“In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury.”

Section 6774, Snyder’s Stat. (section 5435, Wilson’s Stat.), providing that “issues of fact must be tried by a jury,” is repugnant to the foregoing constitutional provision and therefore was not adopted under section 2 of the Schedule of the Constitution as a law of the state. It cannot be denied that the superior court had jurisdiction of the offense and the person of the defendant. Ex parte Whitehouse, 3 Okla. Cr. 97, 104 Pac. 372.

The constitutional clause prescribing a jury of 6 men for the trial of misdemeanors in the county courts, and the similar provision contained in section 1970, Snyder’s Stat., constitutes at least consent on the part of the state that the defendant may waive his right to a jury of 12, and consent to a trial by a jury of 6 men in a superior court for a misdemeanor. We have no doubt that with the waiver and consent by the defendant, made and shown by the record, a legal trial could be had in this case with a jury composed of 6 men.

“Where a constitutional right in a criminal cause is largely for the benefit of the accused or in the nature of a personal privilege, the law is well settled that an accused may waive such right.” (Starr v. State, 5 Okla. Cr. 440, 115 Pac. 365.)

Under the constitutional provision and the laws of this state, upon a trial for misdemeanor in a superior court, the defendant may have a choice of three modes of trial; either by a constitutional jury of 12, or by a jury of 6 persons, where he waives his right to a jury of 12, or by the court,- the state consenting.

The only statute prescribing how a jury -may be waived is section 5808, Snyder’s Stat. This provision of the Civil Code provides that a jury trial may be waived with the assent of the court “by written consent, in person or by attorney, filed with the clerk. By oral consent, in open court, entered on the journal.”

Section 20, art. 7, of our Constitution is identical with section 13, art. 4, of the Constitution of North Carolina.

In the case of Hahn v. Brinson, 133 N. C. 7, 45 S. E. 359, the court said:

“It is provided by the Code that a jury trial may be waived by written consent, in person or by attorney, filed with the clerk, or by oral consent, entered in the minutes, and that, when a jury trial is thus waived, the decision of the judge shall be filed with the clerk during the term of the court at which the trial takes place. * * * And as the requirements of the Code and of the rule of this court have not been complied with, we must hold that there was no agreement to waive a jury trial and consequently no consent to the rendition of judgment out of term because there is no legal evidence of the same.”

In the case of Farmers’ National Bank of Tecumseh v. McCall, 25 Okla. 600, 106 Pac. 866, 26 L. R. A. (N. S.) 217, our Supreme Court said:

“The Supreme Court of North Carolina has never held under such provisions of the Constitution and the enforcing statutes thereto that a jury .might be waived de hors’the record.”

It has been held by this court in the case of Cowden v. State, 5 Okla. Cr. 71, 113 Pac. 202, that this constitutional provision applies to criminal as well as civil cases, and is self-executing, and where the defendant waives a jury, the state consenting, all questions of fact and of law are for the court, and the court is authorized to try the question of the guilt of the accused under a plea of not guilty.

We are of opinion that it is incumbent on the state to show by the record that the defendant waived his right to a constitutional jury, and consented to be tried by a jury of six men. This is the law in civil cases, and it certainly cannot be said in reason that in criminal cases where the defendant’s liberty is at stake an express waiver of the right to be shown by the record is unnecessary. We are not willing to establish such a rule.

It is a questionable practice for nisi prius courts to take the initiative in holding statutes unconstitutional, and it is a matter of commendation that the superior court passed the important question of the constitutionality of this provision of the statute to the appellate courts.

Our conclusion is that for the reason stated the lower court erred in overruling the motion for a new trial.

The judgment is therefore reversed and the cause remanded to the superior court of Logan county, with direction to grant a new trial.

FURMAN, P. J., and ARMSTRONG, J., concur.