text:
    ADOLPHUS BUTTS v. STATE.
    No. A-2400.
    Opinion Filed May 18, 1916.
    (157 Pac. 704.)
    1. SEDUCTION — Evidence—Sufficiency—Promise of Marriage» In a prosecution for seduction under a promise of marriage, it is not necessary that the promise should have been expressed in any set form or in any particular language. It is sufficient if language was used which implied such a quomise, and was intended to convey that meaning, and was in fact so under stood by the prosecutrix.
    2. SEDUCTION — Prosecution—Pleading and Proof. Sexual intercourse “with an unmarried female of previous chaste character,” to which her consent is obtained by promise of marriage is sedue-, tion as defined by Penal Code, sec. 2423, Rev. Laws, and all of the elements of seduction as defined by the statute, including the previous chaste character of the prosecutrix must be alleged and proved to support a conviction.
    3. SEDUCTION — Evidence—Corroboration. Proe. ■ Crim. sec. 5886, Rev. Laws, provides that upon a ti;ial, “for having, under'promise of marriage, seduced and had illicit connection with an unmarried female of previous chaste character, the defendant cannot be convicted upon testimony of the person injured unless she is corroborated by other evidence tending to connect the defendant with the commission of the offense,” held, that under this statute the prosecutrix is only required to be corroborated as to the promise of marriage, and the illicit intercourse; held, further, the statute does not require direct and positive corroborative evidence, but simply such facts and circumstances as fairly tend to support the testimony of the prosecutrix.

      4. SEDUCTION' — Evidence—Corroboration. Upon a trial for seduction under a promise of marriage corroboration as to the fact that the prosecutrix was ‘ ‘ an unmarried female of previous chaste character,” is unnecessary; this allegation being simply descriptive of the person whom it was the purpose of the statute to protect.
    5. SEDUCTION — Evidence—Admissibility. Upon a trial for seduction under a promise of marriage, it is proper to admit evidence to prove the birth of the child as evidence of the fact of seduction.
    6. SEDUCTION — Evidence—Corroboration—Sufficiency. The corroborative evidence in this ease as to the promise of marriage considered and held sufficient to sustain the verdict.
    7. SEDUCTION — Character of Female — “Previous Chaste Character.” A female of “previous chaste character” is one who has not had sexual intercourse unlawfully, out of wedlock, knowingly and voluntarily.

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

    Adolphus Butts was convicted of seduction, and appeals.
    Affirmed.

      Blanton & Andrews, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and J. B. Harrison, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Adolphus Butts, hereinafter referred to as the defendant was tried and convicted for having under promise of marriage, seduced one Fay Dodson, an unmarried female of previous chaste character, and in accordance with the verdict of the jury he was sentenced to fifteen months imprisonment in the state penitentiary. From the judgment and sentence he appealed by filing in this court February 15, 1915,-a petition in error with case-made.

The evidence shows that Fay Dodson, the prosecutrix lived with her parents at Davis, and she became acquainted with the defendant in August, 1911. The defendant was engaged in teaching at the Hoover school house about seven miles west of Davis, and began keeping company with the prosecutrix in December of that year. From then until the following May he called on her at her home nearly every week. His custom was to come to Davis.each week on Friday evening and he would call on her that night and the Saturday and Sunday following. She was then under eighteen years of age. That the following school year he was engaged in teaching school at the Wynnewood View school, house, about nine miles from Davis, and while teaching there- his usual custom was to come to Davis on Friday evening each week and call on her and on the Saturdays and Sundays following until the end of his school term about May 1, 1913.

The prosecutrix testified that in May, 1913, he proposed, was accepted, and promised to marry her. That relying on his promise of marriage she consented and he had carnal connection with her. That they were to be married Christmas, 1913; that a few days before Christmas he went to Edmond to visit his parents. When he returned he said, “that he had got into it with a girl up there at Edmond, and he was afraid that she would put him in the penitentiary if he married; that he was going to take the girl at Edmond to Oklahoma City and have her operated on.”, He then told her they would get married the' coming Easter. That she made preparations to be married on Easter Sunday and later he told her that they could not get married until after his school was out; that after Christmas he called on her two or three times a week as before. That she had made all the necessary preparations for her marriage and when his school was out he said he had to go home and make arrangements there for them to live with his father and mother. That she told him her preparations for the marriage were complete; that she had made up all her clothes including her wedding dress as he had asked her to do; that he then wanted her to meet him at Oklahoma City and they would be married there; and she told him her parents would object to that arrangement; that at that time she was in the family way. That shortly after they became engaged she went to Midlothian, Texas, to visit her brother for a few weeks and the defendant wrote her that he was coming there to visit her; that he arrived there the following Sunday and visited her at her brother’s house several days ; that he wanted her to return with him and they would stop at Ft. Worth and register as man and wife, saying: “That there would be no harm in that, that lots of boys and girls did that way.” That this was his first improper proposal to her and she refused to return with him. That when she told him that she was pregnant he gave her some tablets to take. That after their first carnal connection she submitted to him nearly every time he called on her up to May 6, 1913, which was the last time she saw •him. That she loved him and believed 'that he was in earnest when he said he was going to marry her when she yielded to him the first time, and for that same reason she yielded to him thereafter; that she never did go with any other man except that she .went two or three times with a boy and no other man ever had sexual intercourse with her. That she was delivered of a child on the 5th day of November, 1913, of which the defendant was the father. On her cross examination she was asked to identify, about a dozen letters, some of them she admitted writing, but claimed that they had been changed, and others she denied. She testified that on the request of the defendant before he deserted her, she destroyed all the letters that he had written to her. Her parents testified to the attention of the defendant to their daughter and her preparaions for marriage, and there was other testimony to the same effect.

When the state rested counsel for .the defendant moved the court to direct the jury to return a verdict of not guilty, which motion was overruled and exception allowed. Adolphus Butts, the defendant, in his own behalf testified that his age was twenty-three' years; that he first met Fay Dodson in 1911; that two or three months after he met her he began keeping company with her; that it might be said that Miss Dodson and he were sweethearts; that his making love to her was nothing more than one would usually do while going witji a young lady, and he might have slightly expressed affection for her at times, but he never asked her to marry him, and he denied that he had ever promised to marry her; that their relations became illicit about April 1, 1912; that her parents were strict with her and they did not get out together very often. That she was passionate and he accomplished his purpose without difficulty and the same thing occurred seven or eight times before they went to Texas and occurred while there. That at her suggestion he got her the medicine, suppositories. That their illicit intercourse continued until January or February, 1913, that there was nothing ever said about their marriage until she became pregnant; that he never had any idea of marrying her, although he might have told her that-he loved her; that he went with other girls, but she was the only girl he ever ruined; that his guess would be that he had had intercourse with her fifty times prior to the time she claimed was the first. He did not deny that he was the father of her child.

It appears that in May, 1913, shortly after his school closed the defendant married another woman.

The appeal in this'case presents but one question which is deemed worthy of more than passing notice. It is insisted that the verdict and the judgment pronounced thereon are contrary to the law and evidence. The contention is grounded on the proposition that the testimony of the prosecutrix was not corroborated as required by law, and for this reason the court erred in denying the defendant’s motion to advise the jury to acquit the defendant when the state rested its case.

Our criminal code provides that:

Upon a trial “for having, under promise of marriage, seduced and had illicit connection with an unmarried female of previous chaste character, the defendant cannot be convicted upon testimony of the person injured, unless she is corroborated by other evidence tending to connect the defendant with the commission of the offense.” Section 5886 Rev. Laws.

To constitute the crime of seduction as defined by our penal code (Section 2423 Rev. Laws.) There must be seduction of and illicit connection with an unmarried female of previous chaste character under promise of marriage, and the requirement of the statute is that the prosecutrix must be “corroborated by other evidence tending to connect the defendant with the commission of the offense.”

In the case of Cluck v. The State, 9th Okla. Cr. 580, 133 Pac. 930, it is held:

“Under this statute the testimony of the prosecutrix must be corroborated as to the promise of marriage and illicit intercourse, but not as to her being unmarried and of previous chaste character.”

And see Harvey v. Territory, 11th Okla. 156, 65 Pac. 837.

' Proof of facts and circumstances which usually attend an engagement of marriage is sufficient for the purpose of corroborating the testimony of the prosecutrix, and the corroboration independent of the prosecutrix’s testimony need only amount to proof of those circumstances usually concomitants of the main facts, and which are sufficiently strong and pertinent to satisfy the jury of the truthfulness of the prosecutrix’s téstimony. In this case the carnal connection is admitted, but the promise of marriage is denied by the defendant. The prosecutrix testified positively that the defendant promised to marry her, and that by reason of his often repeated promise to marry her, he succeeded in seducing and having carnal connection with her. The corroborating circumstances relied upon by the state, independent of her testimony consist mainly of evidence of attentions of the defendant upon the prosecutrix in the character of a suitor for a period of nearly two years, during which time the parties kept company and acted as lovers usually do. Pie admitted that his attentions were unremitting for a year previous to December, 1912, when it is alleged that the offense was committed. During that interval he visited her two or three times every week, and escorted her to church and evidenced for her such partiality by his attentions as to furnish evidence from which the jury had the right to consider as bearing upon the alleged promise of marriage, and he continued to keep company with her for six months thereafter. Other circumstances are detailed in the evidence which the jury might properly regard as bearing upon the question of the alleged promise of marriage, all of which were competent in corroboration of this fact. It appears that this is a case where actions speak louder than words, and the question of the sufficiency of the evidence to establish the fact of a false promise of marriage in order to obtain her consent to sexual intercourse was for the jury.

It is also urged that the evidence wa's insufficient to show that,the prosecutrix was a female of.previous chaste character; that by her own admissions as indicated by the letters in evidence received by the defendant purporting to be from the prosecutrix, she had been unchaste in her previous intercourse with the defendant. The words used in the statute, “an unmarried female' of previous chaste character,” mean the same in law as in morals; that is actual personal virtue in distinction from a good reputation. However, where the defendant introduces proof of specific facts-tending to show unchaste character then the state may in rebuttal introduce evidence of her general reputation for chastity. A female of previous chaste character “is one who has not had sexual intercourse unlawfully, out of wedlock, knowingly and voluntarily.”

Marshall v. Territory, 2nd Okla. Cr. 136, 101 Pac. 139;

Castleberry v. State, 10th Okla. Cr. 504, 139 Pac. 132.

Under the statute the previous chaste character of the pros-ecutrix in a prosecution for seduction is a material element, of the offense and must be alleged and proved beyond a reasonable doubt, and in this case the court so instructed the jury. The law presumes that every female is chaste, but the presumption in favor of the chastity of the prosecutrix in a seduction case is overcome by the presumption of the innocence of the defendant. The proof that the prosecutrix was a female of previous chaste character need not be made by evidence directly upon the point other than the testimony of the prosecutrix, but may be shown prima facie, by presumptions from other facts. In this case it was shown as an undisputed fact that the prosecutrix had always resided with her parents and went in such society as the neighborhood afforded. This was competent evidence that she was of previous chaste character and the question of the sufficiency of the evidence to establish that fact was for the jury.

A careful examination of the record fails to disclose any material errors in the rulings upon evidence or the instructions of the court. In our opinion the evidence amply supports the verdict. A case seldom appears in criminal annals showing more depravity in the defendant or a greater outrage to common decency and public-morals. It is to be hoped that the effect of the conviction in this case will be to protect other girls, whose untutored wills might be overcome by seducer’s wiles. The judgment is affirmed.

ARMSTRONG, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    H. A. HARRISON v. STATE.
    No. 2519.
    Opinion Filed May 15, 1916.
    (157 Pac. 707.)
    1. INDICTMENT AND INFORMATION — Objections—Demurrer-Objection to Evidence. Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto as provided by our Code of Criminal Procedure (section 5791, Rev. Laws 1910). Our code further provides: ""When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 5799, Rev. Laws 1910. Under .this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is insufficient to raise the question.
    2. POISONS — Prosecution for Sale — Evidence. In a prosecution for unlawfully selling cocaine the evidence reviewed, and held sufficient to sustain the conviction.

      Appeal from County Court, Payne County; W. R. Jones, Judge.

      H. A. Harrison, convicted of selling cocaine, appeals.
    Affirmed.

      Weldon & Mitchell, for plaintiff- in error.

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

The plaintiff in error was convicted in the County Court of Payne county and his punishment fixed at a fine of two hundred dollars under an information which after alleging time and venue charged “one H. A. Harrison, then and there being, did then and there wilfully, intentionally and unlawfully sell and deliver to one George Henderson a quantity of cocaine for about the sum of twenty-five cents, the exact amount of money or consideration therefor being to the county attorney unknown, contrary,” etc. The prosecution was conducted under section 6843 Rev. Laws, which reads as follows:

“It shall be unlawful for any person, firm or corporation to sell, furnish or give away any cocaine, alpha or beta eucaine, opium, morphine, codeine, heroin, or any salt or compound of any of said substances, or their salts or compounds, expept upon the original written order or prescription of a -lawfully authorized practitioner of medicine, dentistry or veterinary medicine, which order or prescription shall be dated and shall contain the name of the person for whom prescribed, or, if ordered by a practitioner of veterinary medicine, shall state the kind of animal for which ordered and shall be signed by the person giving the prescription or order; such written order or prescription shall be permanently retained on file by the person, firm or corporation, who shall compound or dispense the article ordered or prescribed, and it shall not be again compounded or dispensed except upon the written order of the original prescriber for each and every subsequent compounding or dispensing. No copy or duplicate of such order or prescription shall be made or delivered to any person, but the original shall at all times be open to inspection by the prescriber and properly authorized officer of the law: Provided, however, that the above provisions shall not apply to preparations containing opium, morphine, codeine, heroin, or any salt or compound of the foregoing substances, and recommended and sold in good faith; each bottle- or package which is accompanied by specific directions for use, nor to powder of ipecac and opium, commonly known as Dover’s powder, nor to liniments or ointments when plainly labeled 'for external use only;’ Provided, further, that the above provisions shall not apply to the sales at wholesale by jobbers, wholesalers and manufacturers to retail druggists or qualified physicians or to each other, nor to the sales at retail by retail druggists to regular practitioners of medicine or dentistry, nor the sales made to manufacturers of proprietary or pharmaceutical preparations for use in the manufacture of such preparations nor to sales to hospitals, colleges, scientific or public institutions; and Provided, further, that all •prescriptions mentioned in this act (section) must be filled by legally registered pharmacists of the State of Oklahoma.”

The first assignment of error is that the court erred in overruling the defendant’s objection to the introduction of evidence on the information for the reason that the facts stated do not constitute a public offense. In support of this assignment it is argued that the information is insufficient for the reason that it fails to negative the various exceptions contained in said statute.

From the record it appears that the only objection taken or question raised as to the sufficiency of the information was merely the objection interposed when the first witness for the state was called to testify. We think a general objection of this kind is insufficient to raise the question argued. In the case of Stone et al. v. The State, 12th Okla. Cr. —, 155 Pac. 701, it is said:

“Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto as provided by our Code of Criminal Procedure. Section 5791, Rev. Laws. Our Code further provides:
‘When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.’ Section 5799 Rev. Laws.
Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. However, when the objection to an information for a defect of form apparent on the face thereof is raised for the first time by objection to the introduction of evidence, it comes too late, and the objection should be overruled if the facts stated constitute a public offense.”

It is sufficient to say that the general rule is stated in the case of Smythe v. State, 2nd Okla. Cr. 286, 101 Pac. 611, 139 Am. St. Rep. 918, wherein this court held that:

“It is only when the exception in a penal statute is so incorporated in or with the enacting clause of such statute as to constitute a material part of the definition or description of the offense that it need be negatived in the information; otherwise it will be a matter of defense. A negative averment to the matter of an exception or proviso in a penal statute is not requisite in an information, unless the matter of such exception or proviso enters into, and becomes a material part of, 'the description of the" offense.”

It is also contended that the evidence is insufficient to sustain the verdict. For the state W. E. Berrig, deputy sheriff testified that he followed George Henderson into what is known as the North End drug store in the old town of Cushing and saw the defendant pass the two boxes to Henderson and saw Iienderson pass the money over to the defendant; that he then went up to Henderson and told him he wanted the dope and Henderson handed him the two boxes of dope, which boxes were produced and properly identified. The evidence shows that one of the boxes contained “coke” and the other morphine.

For the defendant George Henderson was called as a witness and testified that on the day in question he found two boxes with a rubber around them and took them to the defendant to see what they contained and the defendant looked at them and told him one contained “coke” and the other morphine; that the druggist was up in front of the drug store and he could ask him; that he then started out • of the door and the deputy sheriff grabbed him and placed him and the defendant under arrest.

As a witness in his own behalf the defendant Harrison testified that his home was at McAlester; that he came to Cushing last August and was driving a team; that he had known Mr. Abbott, the proprietor of the drug store ten years at McAlester ancl being out of work Mr. Abbott told him to stay around there and help clean up and sell cigars and tobacco. That on the day of his arrest the witness Henderson came into the drug store and handed him two small boxes and asked him what they contained and he told him that he thought it was morphine and “coke” that he did not sell the boxes to Henderson.

The jur}r are the exclusive judges of the credibility of witnesses and the weight to be given to the testimony. Under the well settled rule that where there is a substantial conflict in the evidence and where there is evidence in the record upon which the verdict rendered by the jury may be fairly based, as in this case, this court will, not reverse the judgment on the ground of the insufficiency of the evidence. Finding no prejudicial error in the record the judgment appealed from is affirmed.


author: DOYLE, P. J.

text:
    KATIE MOSELEY v. STATE.
    No. A-2214.
    Opinion Filed May 15, 1916.
    (157 Pac. 708.)
    1. CONTINUANCE — Grounds—Absence of Witnesses. An application for continuance in a criminal case on account of the absence of witnesses which fails to show that due diligence has been used to secure the attendance of said witnesses and which does not show that the same facts cannot be proved by other witnesses is not sufficient.
    2. APPEAL — Discretion of Trial Court — Motion for New Trial. A motion for new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court and its ruling thereon will not be disturbed, except for an abuse of this discretion, the presumption being that the discretion was properly exercised.
    3. HOMICIDE — Evidence—Weight—Sufficiency. In a homicide case the evidence examined and held to sustain a verdict of manslaughter in the first degree.

      Appeal from Superior Court, Pittsburg County; W. C. Liedtke, Judge.

      Katie Moseley, convicted of manslaughter in the first degree, appeals.
    Affirmed.

      Arnote & Rogers, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Katie Moseley, herein referred to as the defendant was prosecuted for murder and convicted of manslaughter in the first degree and in pursuance of the verdict was sentenced to imprisonment in the penitentiary for the term of four years. To reverse the judgment she appealed.

It appears that all the parties 'concerned in the homicide charged were Choctaw Indians. That on September 20, 1911, an Indian ball game was being played a few miles south of Blanco, in Pittsburg county between the old Choctaw counties of Jacksfork on one side and Tubucksey on the other. The deceased, Gift Isaac was playing with the Tubucksey side; Indian women on each side were assisting in the game; all of the women carried handkerchiefs in their hands with which they whipped the players on their side while encouraging and urging them on. The defendant, Katie Moseley, was assisting on the Jacksfork side. During the game a fight occurred and Gift Isaac was stabbed. Ten days later he died.

The evidence for the state tends to show that Wilson Isaac, step-father of Gift Isaac, the deceased, had a quarrel with him over the game and Gift Isaac struck his step-father several blows with his ball sticks; just then another Indian took hold of Gift Isaac who was stripped to his waist, and while he was holding him the defendant, Katie Moseley stabbed Gift Isaac in the back just below the left shoulder; she had a handkerchief around her hand when she struck the fatal blow.

This in substance is the testimony of nine or ten witnesses for the state. Two or three of which testified positively that they saw the knife in the defendant’s hand under the handkerchief at the time the fatal blow was struck.

As a witness in her own behalf the defendant Katie Moseley testified that she was at the Indian ball game near Blanco; that she was for the Jacks fork side and was out in the ring cheering her side along like all the rest of the women when she noticed a crowd gathering at one side and heard some person say that some one was stabbed; that she started towards the crowd and then turned and went around to her hack; that she did not strike or stab Gift Isaac.

The testimony of numerous witnesses for the defendant tended to corroborate her statement that she was not the person who stabbed Gift Isaac. All of these witnesses testified that they did not see and could not tell who it was that stabbed Gift Isaac.

The first error assigned is the overruling of the motion for a continuance.

The alleged offense was committed on September 20. 1911. The information was filed in the District Court November 21, 1911. A trial was had September 14, 1912, which resulted in a mis-trial, for the reason that the jury was unable to agree upon a verdict. The case was then continued and set for trial September 17, 1913.

The affidavit to the motion for continuance on the ground of the absence of three witnesses, John Billie, Joshua Impson and Dr. Stringer, without whose evidence it is alleged the defendant cannot safely proceed to trial, shows that Joshua Impson lived near Jumbo, Pushmataha county, and that John Billie formerly of Pittsburg county had moved to Atoka, and that Dr. Stringer, who was'a witness on the first trial had just a short time prior to the second trial moved to Texas. That J'ohn.Billie and Joshua Impson would testify that they were present at the ball game when the fight occurred between Wilson Isaac and Gift Isaac, and that they were holding the combatants when some person stabbed Gift Isaac in the back; that they were acquainted with Katie Moseley and knew her well and that she was not in the crowd at the time Gift Isaac was stabbed; that they did not know who struck the blow.

It' appears from the record that these two Indian witnesses did not testify in the first trial and evidently the trial court was satisfied that due diligence to secure their attendance at the second trial was not shown. The affidavit is insufficient because, it does not show but that the same facts might be proved by other witnesses, and the record shows that the defendant introduced at least a dozen witnesses to support her theory that she did not do the stabbing and,was not in the crowd at the time the deceased received the fatal blow.

As a general rule a continuance should not be granted to enable the defendant to obtain cumulative evidence.

The absent witness, Dr. Stringer, who had removed to Texas, the record shows testified as a witness for the state in the first trial and was examined by both parties. The transcript of his testimony was read upon the second trial.

Our conclusion is that' the. application for continuance lacks evidence of good faith as well as that of due diligence and was properly overruled by the trial court.

The second error assigned is that the trial court erred in not granting a new trial on the ground of newly discovered evidence. In support of the motion for a new trial the defendant filed the affidavit of one J. N. Whiting, to the effect that .he saw the fight' and saw the blood when it began to trickle dowri the back of the deceased, and at that time he saw Katie Moseley coming towards the crowd; also the affidavit of the defendant to the effect that Rosie Irvin and Calvin Irvin informed her after she was convicted that they were present at the'time Gift Isaac was stabbed and were close enough to see who did it and that it was one ■Maulsie Reed who stabbed him.

This court by numerous decisions has held that the granting of a new trial on the. ground of newly discovered evidence is largely within the discretion of the trial court, and its ruling thereon will not be disturbed except for an abuse of this discretion, the presumption being that the discretion was properly exercised. On the record before us there is nothing to indicate that the court committed error in overruling the motion for a new trial.

Upon a careful consideration of the whole record we arc of the opinion that the defendant has had a fair trial and has no just cause of complaint. The judgment appealed from is affirmed with direction to the court clerk of Pittsburg county to issue forthwith a commitment in accordance with the judgment of the Superior Court of Pittsburg county herein as rendered on the verdict.

ARMSTRONG, J„ concurs.


text:
    ARCHA JACKSON v. STATE.
    No. A-2493.
    Opinion Filed June 3, 1916.
    (157 Pac. 945.)
    1. EVIDENCE — Relevancy—Flight. Evidence that the defendant escaped from custody and became a fugitive from justice is admissible as tending to show guilt, but the defendant may offer proof to show his reason or motive for such escape and flight.
    2. CORROBORATION — Statement Consistent With Testimony. Evidence of statements made previous to the trial by a witness consistent with his testimony is not admissible in support of his testimony.
    3. RAPE — Statutory Rape — Evidence. In a prosecution for statutory rape, evidence reviewed and held sufficient to support the verdict.

      Appeal from District Court, Tillman County; Frank Mathews, Judgex

    Archa Jackson was confided of the crime of rape and appeals.
    Affirmed.

      Wilson & Roe, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the District Court of Tillman county rendered on the 16th day of March, 1915, in pursuance of a verdict convicting the defendant, Archa Jackson of rape in the second degree, and assessing his punishment at imprisonment in the penitentiary for the term of one year.

The information charges that the defendant committed the crime of rape upon the person of Ruth F. Mollenkopp, a female over the age of sixteen years and under the age of eighteen and of previous chaste and virtuous character, and not the wife of the defendant.

The evidence shows that the prosecutrix, a school girl, lived with her mother and step-father in the town of Davidson; that at the time charged she was a few weeks over seventeen years of age.

She testified that she met the defendant for the first time on Saturday the 17th day of October, 1914, the next evening ' he called at her home to drive her to church and as they started off he told her that they would take a drive before going to church, and then drove out in the country a couple of miles,-returning to her home about ten o’clock that evening. That before they returned that night the defendant had sexual intercourse with her three times; that the acts were forcible and without her consent; that when they started off he gave her some chewing gum that had dope on -it and it made her drowsy and helpless; that when she returned she told her mother that the defendant had mistreated her and the next morning told her what had occurred. That the defendant was the only man that ever had sexual intercourse with her.

The mother of the prosecutrix testified that her daughter was in a dazed condition when she returned home and she said that the defendant had mistreated her. That the next morning her daughter told her what had occurred while she was with the defendant.

The evidence further shows that the, defendant was arrested the following Wednesday, and that day escaped from the custody of the arresting officer and crossed over Red river into Texas and was there the next day again taken into custody.

As a witness in his own behalf the defendant admitted the acts of sexual intercourse testified to 'by the prosecutrix but claimed that said acts of intercourse were with her full and free consent. He admitted, having the chewing gam but denied there was any dope on it. That he was a married man but had separated from his wife about a week after their marriage.

Elba Hopkins, a witness for the defendant testified that he was sixteen years of age; that in September, 1914, he met the prosecutrix one evening about sun-down in a blackberry patch near her home and had sexual intercourse with her.

On cross examination he stated that at that time he did not know that undef the law he could not be prosecuted for the crime of rape.

In rebuttal the prosecutrix testified that the testimony by Elba Hopkins was entirely false and without foundation, and several witnesses testified that the so-called blackberry patch was in plain view of several nearby houses.

The errors assigned and argued are based upon exceptions taken to rulings of the court rejecting evidence on the part of the defendant and question the sufficiency of the evidence to support the verdict.

It appears that when the defendant was testifying as a witness in his own behalf the following proceedings were had:

“Q. You heard the testimony of Mr. Castleberry, that after you were arrested and before you had made bond that you left there and went to Texas, is that a fact? A. Yes.
“Q. Why did you leave ? A. I was scared I guess. When I he brought me to town we had a conversation and he' told me,—
“Now the state objects to any conversation or anything Castleberry might have told him.
“Which is by the Court sustained.'
“To which the defendant excepts and states as 'follows:
“Comes now the defendant at this time and offers to show the reason for the defendant leaving the State of Oklahoma before the bond was made, and offers to show the following facts: That he was arrested by the undersheriff or constable, T. N. Castle-berry, and that on the way to town Castleberry told him that there was no hope for him; that he had a son who was charged with the same offense, and that he was sentenced to five years in the penitentiary, and that it didn’t make any difference whether the girl was of previous chaste and virtuous character or not; that he was guilty of rape if he had had intercourse with her.
“Which offer is by the court refused. To which.the defendant excepts.
“O. You say you went to Texas because you were scared? A. Yes.
“Q. What was you scared of? A. It was the first time I was ever arrested and I wanted to get to where my father was to make bond and Mr. Castleberry, told me,—
“Now the state objects to what Castleberry told him.
“Which is by the court sustained.
“To which the defendant excepts.”

We are of the opinion that there is nothing here that presents prejudicial error.

In the case of Robinson v. State, 8th Okla. Cr. 667, 130 Pac. 121, it is said:

“The reason why evidence of flight or an escape, after the commission of a crime, is admitted in evidence is, as has often been said, based upon observations of human conduct summed up in the saying that the wicked flee when no man pursueth. In other words, the fact of the escape is evidence of a consciousness of guilt. Of course, the presumption may be rebutted by evidence explaining the defendant’s reason for the escape.- Then it is for the jury to decide whether it was due to a consciousness of guilt, or to the reasons given by him. 1 Wigmore on Evidence, section 276.”

In this case it appears that the court permitted the’ defendant to testify that the motive which influenced him in making his escape was to get'to where his father was in order to make bond.

It is also claimed that the court erred in refusing to permit the defendant to prove a previous statement of the witness Elba Hopkins consistent with his testimony.

It appears from the record that the' witness Elba Elopkins was asked by counsel for the defendant the following question:

“Q. Now at any time before the charge was filed against Jackson had you told anyone about this occurrence?”

An objection by the county attorney to the question was sustained. No exception was taken to the ruling of the court.

Upon his cross examination he was asked who he had been' telling about what he was going to swear to and answered that he had told Abb Herrel before the case started. The defendant called Abb Herrell as a witness and without objection he was permitted to testify that three or four weeks before the defendant was charged with this offense the witness Hopkins had remarked to him “that he did business with this girl a night or two before that.”

He was the nasked:

“Q. Did he tell you the circumstances under which it occurred? A. He told me she called him 6ff the railroad track into the berry patch just outside of the right of way.
“Now the State objects to this testimony for the reason that it is incompetent, irrelevant and immaterial and hearsay and an attempt to bolster up the witness’ testimony.
“The Court: Objection sustained. The defendant excepts.”

Evidence of statements made previous to the trial by a witness consistent with his testimony is not admissible in support of his testimony. The effect of proof of previous consistent statements could only be to corroborate the testimony of the witness under oath by his own words uttered when under no such solemn obligation to speak the truth.

See Conner v. State, 18 Colo. 373, 33 Pac. 159, 25 L. R. A. 341, 36 Am. St. Rep. 295, and Rogers v. State, 88 Ark. 451, 115 S. W. 156, 41 L. R. A. (N. S.) 857.

Prof. Wigmore says:

“When the witness has merely testified on direct examination, without any impeachment, proof of consistent statements is unnecessary and valueless. The witness is not helped by it; for, even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it. Such evidence would be both irrelevant and cumbersome to the trial.”

Wigmore on Ev. vol. 2, sec. 1124.

The evidence offered was hearsay and clearly inadmissible. The objections made were therefore properly sustained.

As to the sufficiency of the evidence to sustain the verdict it is only necessary to say that as a witness the defendant admitted every fact necessary to his conviction, except the previous chastity of the prosecutrix which is a material element of the crime charged, and must be alleged and proved beyond a reasonable doubt and in this case the court so instructed the jury. The proof of the previous chastity of the prosecutrix in this case was ample and controverted only by the testimony of the witness Hopkins.

We are inclined to think that the palpable perjury of -the witness Hopkins, the only witness testifying for the defendant, exclusive of the defendant himself, gives weight to rather than detracts from the proof on the part of the state.

We find no error in the record justifying a reversal of the case, and the judgment of the court below is therefore affirmed.

ARMSTRONG and BRETT, JJ„ concur.


text:
    J. N. ROBBINS v. STATE.
    No. A-2511.
    Opinion Filed June 10, 1916.
    (157 Pac. 1027.)
    1. INTOXICATING LIQUORS — Prosecution — Information. An information charging an unlawful conveyance of intoxicating liquor must allege the place or point in the county from and to which such conveyance was made, if they are known, and if unknown, it must be so alleged.
    2. INTOXICATING LIQUORS — Prosecution — Information. The information after alleging venue and time charged that the defendant “did then and there unlawfully, knowingly and wil-fully in some manner, convey intoxicating liquor, to-wit: Whisky from some point in Beaver county to your informant unknown to the K. of P. lodge hall, a place then and there in Beaver county, Oklahoma. ’ ’ Held, not sufficiently direct and certain in not alleging the particular circumstances of the offense.
    3. INTOXICATING LIQUORS — Criminal Prosecution — Evidence. The evidence reviewed and held to be insufficient to justify & conviction, and the defendant entitled to be discharged, unless further incriminating facts can be proved.
    (Syllabus by the Court.)

      Appeal from County Court, Beaver County; John A. Spohn, Judge.

      J. N. Robbins was convicted of violating the prohibitory law and appeals.
    Reversed.
    J. W. Culwell, for plaintiff in error.

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

The plaintiff in error was convicted in the County Court of Beaver county on a charge of unlawfully conveying intoxicating liquor in said county on the 22nd day of January, 1915. The charging part of the information is as follows:

"In that he, the said J. N. Robbins did then and there unlawfully, knowingly and wilfully in some manner convey intoxicating liquor, towit: Whisky, from some point in Beaver County to your informant unknown to the K of P lodge Hall, a place then and there in Beaver County, Oklahoma, contrary to” etc.

For'the state, W. W. Murray, deputy sheriff testified that he was in the K. of P. hall, saw the defendant pick up an overcoat from a chair; that he saw the neck of a bottle sticking out of one of the pockets and he stepped up to the defendant and arrested him; that he did not know how the bottle got in the overcoat pocket, nor how it got into the K. of P. hall; that the bottle was about half full of whisky; that the occasion was a masquerade ball at the K. of P. hall in Beaver City.

For the defendant Frank Gadberry testified that he was with ' the ■part}''; that the defendant drove over in his car from Forgan to Beaver City; that the overcoat in question belonged to Charley Stanton, who was with the party; that when he was getting ready to dance in the hall he handed the overcoat to the defendant; that there was no bottle of liquor in the overcoat when he carried it to the hall.

As a witness in his own behalf the defendant J. N. Robbins testified that he drove the car from Forgan to Beaver City that evening and that Frank Gadberry and Charley Stanton and two other men rode over in the car; that with Gadberry and Stanton he attended a dance at the K. of P. hall, and there Gadberry handed him the overcoat; that he decided to take part in the dance and placed the overcoat on a chair, and after dancing he picked up the overcoat and Mr. Murray stepped up and arrested him; that if there was a bottle in the pocket of the overcoat, he did not know it. That he had no whisky and did not know how the bottle came to be in the, overcoat pocket; that he had on a fur overcoat that evening which was too big and heavy to carry around so he left it in the automobile.

On March 17, 1915, the court rendered judgment and sentenced the defendant to be confined in the county jail for one hundred and twenty days and to pay a fine of two hundred and fifty dollars and the costs.

The first assignment of error is that the court erred in overruling the demurrer to the information and the motion in.arrest of judgment. It is contended that the information is insufficient in that it is not direct and certain as regards the particular circumstances of the offense charged. It will be observed that the allegation of conveyance is, “from some point in Beaver county to your informant unknown to the K. of P. lodge hall, a place then and there in Beaver county.”

To be sufficient, the information should allege the city, town or place in Beaver county where the K. of P. hall was. located.

Our criminal code requires that; the information must contain a statement of the acts constituting the offense, and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. (Section 5739 Rev. Taws.)

The defendant has the right to have the charge against him thus stated to enable him to make his defense. Under the decisions of this court the demurrer interposed should have been sustained.

Sturgis v. State, 2nd Okla. Cr. 362, 102 Pac. 57;

DeGraff v. The State, 2nd. Okla. Cr. 519, 103 Pac. 538;

Porter v. State, 4th Okla. Cr. 654.

We are also of the opinion that the evidence is insufficient to show that the defendant conveyed or transported the liquor in question.

The only circumstance'in evidence which made possible the inference that the defendant conveyed the whisky was the finding of the bottle in a pocket of the overcoat, and it is undisputed that the overcoat belonged to another person. That it was possible for some other person to have placed the bottle in the overcoat pocket is apparent. “Where a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.” 1 Greenleaf Evd. 34.

Assuming that the defendant was innocent we fail to see how he co.uld have met the testimony for the state in any other way than by the testimony introduced in his behalf.

It appears from an examination of the instructions that the court failed to instruct the jury upon the law of circumstantial evidence. In our opinion, it would be destroying the presumption in favor of innocence of the defendant and would be subversive of the rule which requires the establishment of guilt beyond a reasonable doubt to allow this conviction to stand, and unless further incriminating facts can be proved the defendant should be discharged.

For the reasons stated the judgment is reversed with direction to sustain the demurrer to the information.

ARMSTRONG and BRETT, JJ., concur.


text:
      In re ARCHIBALD CLARK.
    No. A-2665.
    Opinion Filed July 13, 1916.
    (157 Pac. 1188.)
    Application of Archibald Clark for writ of habeas corpus.

    Case dismissed.

      J. H. Mathews, William Phieffer and Pruiett & Sniggs, for petitioner.

      R. McMillan, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an application for writ of habeas corpus to be admitted to bail, filed in this court on March 6, 191G. It is alleged in said petition that on the 20th day of February, 1914, petitioner was adjudged guilty by a jury in the District Court of Carter county, which said verdict fixed his punishment at thirty days in the county jail and a fine of fifty dollars for the alleged crime of maintaining a place for the unlawful sale of intoxicating liquors. That prior to the beginning of said trial at which said verdict was rendered petitioner was at liberty under a bail bond, and immediately after the rendition of said verdict he made application to the judge of the District Court for permission to remain at liberty on said bond until his motion for new trial could be heard and passed upon; that said application was refused; that the motion for new trial was filed within the time prescribed by law; then petitioner again applied to be allowed to give bond, and to have his bail fixed pending the hearing and determination of his motion for a new trial; that the judge of said court without any good or sufficient cause arbitrarily refused to ' fix bail bond, or to admit him to bail.

Petitioner further alleges that said motion for new trial has not been heard or decided; that judgment and sentence has not been pronounced upon him, and that he is unlawfully imprisoned and restrained of his liberty by the sheriff of Carter county under the order of said court.

Upon said application’bcing presented to the presiding judge, he held the showing made insufficient to warrant the issuance of a writ, but ordered that a rule to show cause why petitioner should not be enlarged on bail issue, returnable before this court the 11th day of March, 1916. Before the answer day it was shown to the court that said District Court made and entered an order allowing petitioner to be discharged upon bail fixed in a reasonable amount, and thereupon counsel for petitioner moved to dismiss his application. The cause is therefore dismissed.


author: DOYLE, P. J. BRETT, J.

text:
    GRANSDEN v. STATE.
    No. A-2156.
    Opinion Filed February 10, 1916.
    On Rehearing, June 17, 1916.
    (158 Pac. 157.)
    1. EVIDENCE — Self-Serving Declarations — Res Gestae. In a prosecution for murder, self-serving declarations of the defendant made about ten minutes after the homicide and iñ reference to it, held properly excluded as no part of the res gestae.
    2. REFUSAL OF INSTRUCTIONS COVERED. Refusal to give instructions substantially covered by the instructions given is not error.
    3. HARMLESS ERROR — Instructions. When the instructions taken and considered together embrace the law of the case, though one of them may be erroneous, still for such error a judgment of conviction will not be reversed, unless it shall appear from the whole record that it was prejudicial to the substantial rights of the defendant. >

    4. HARMLESS ERROR — Instructions — Reasonable Doubt. An instruction defining “reasonable doubt” as “a doubt for which there exists a reason in the minds of the jurors, founded upon the facts and circumstances in proof in the case, and is a state of mind of which an .ordinarily intelligent man could - readily give an explanation, consistent with the facts disclosed by the evidence and the law as given to the jury by the court,” while improper, was not of sufficient consequence in this case to constitute reversible error.
    5. HOMICIDE — Repelling of Assault •— Self-Defense. A person assaulted is justified in using so much foree as is necessary to his defense; and to repel a simple assault the person assaulted is not authorized to attack his assailant with a deadly weapon, and he is not justified in doing acts calculated to destroy the life of his assailant, unless the assault is of such a character as to excite his fears, as a reasonable man, of danger to life or great bodily harm, and if his assailant retreats in good faith, and he pursues and kills him with a deadly weapon, the killing cannot be justified on the ground of self-defense.
    6. HOMICIDE — Manslaughter—Sufficiency of Evidence. Evidence in a homicide case considered, and held sufficient to sustain a conviction of manslaughter !in the first degree.
    ON REHEARING.
    7. TRIAL — Instructions—Applicability to Case. Where the unimpeachable physical facts squarely contradict the words of the defendant upon the witness stand, and show the theory of his testimony to be absurd, courts are not required to ignore sueh physical facts and give instructions not in harmony with them, but absolutely subversive of the theory they mutely and unalterably declare.
    8. TRIAL — Instructions—Rule of Evidence. The court by its instructions is not required to invite a doubt, where nothing can bo more unreasonable than to suppose that one can exist.
    9. “REASONABLE DOUBT” — -“Doubt”—Instructions. The expression “reasonable doubt” is its own best definition, and a “doubt” of the guilt of a defendant, honestly entertained, is a reasonable doubt.

      Appeal from District Court, Greer County; G. A. Brown, Judge.

    W. Ii. Gransden was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    The information charged the defendant with having, on the 2nd day of May, 1913, in Greer county, killed and murdered one J. K. Tytle, by shooting him with a pistol. Upon the trial of the case the defendant was convicted of manslaughter in the first degree, and was sentenced to be imprisoned in the penitentiary for the term of 10 years. The evidence shows: That the defendant owned and kept an automobile garage at Granite in Greer county. That the deceased lived on a farm near Brinkman, some 7 or 8 miles northwest of Granite, and owned two automobiles, one a large red car, and the other' a small roadster. On the Monday morning prior to his death the deceased had brought the large car to the defendant’s garage for repairs; the cam shaft being broken, which necessitated the sending of the shaft out of town for the proper welding. It was sent out on Monday, and was received back on Thursday at about noon.. On Friday morning the deceased and his son Roy came to Granite in the roadster and spent the day, until about 4 o’clock in the afternoon, assisting in the repair work on the large car; the deceased being anxious to have it ready for use on the following day. At that time the deceased and his son Roy returned to the farm in the roadster. After supper the deceased and his two sons motored back to Granite in order to get the large car, arriving there about 7 o’clock. McClannahan was still working on the repairs, and continued to do so until after 9 o’clock, receiving assistance from the deceased, his two sons, and the defendant.
    No unpleasantness had been manifested during the day between the deceased and the defendant, but that evening a difficulty arose. The defendant wanted to take the magneto of the car under repair apart; the deceased insisting that he should not do so, as the instructions he said from the manufacturers forbid this as a condition precedent of their guaranty of proper service. About half past 9 o’clock it was discovered that Mc-Clannahan had for the second time placed the cam shaft wrong in the machine, requiring it to be again taken from the machine for proper revisement and requiring considerable time. The defendant ordered that work cease for the night, and that the garage be closed. To this the deceased objected, insisting that the repairs must be finished that night, saying that the machine had already been detained too long. This brought on the altercation which resulted in the tragedy. Aside from the defendant and the deceased, the only eyewitnesses to the tragedy were Roy Lytle, age 18 years, Barney Lytle, age 16 years, sons of the deceased, and John McClannahan and James F. Brown, employes of the defendant, who worked in his garage. The testimony of these 4 eyewitnesses as to the circumstances attending the shooting is substantially the samej allowing for difference in their relative positions and their natural feeling and relations towards the deceased and the defendant.
    Roy Lytle testified: That the first trouble occurred that evening over the magneto, about 10 minutes before the shooting, and the defendant left the garage, saying that he was going to supper. When he returned he said he was going to close the garage, and his father said, “It will cost you $5 a day for every day” his car was in there. The defendant said, “You can just charge; I am going to close up.” That his father struck the defendant on the right cheek with his left hand, and the defendant stepped back and drew a pistol; his father, walking toward the defendant, told him to shoot; the defendant presented the pistol and pulled the trigger; it snapped; his father, saying, “Don’t shoot!” turned and ran out on the sidewalk and turned north. The defendant followed him out and shot him in the back; his father fell and said, “Don’t shoot me any more, John; that is enough; get 'a doctor quick.” That those were his last words. That he stooped to pick up his father, and the defendant said, “If you touch him I will shoot a hole through you.” That his father was in his shirt sleeves, and was unarmed, and did not have a pistol about his person. That their little car stood in the street south froin the door of the garage.
    The testimony of Barney Lytle was substantially the same as that of his brother Roy.
    John McClannahan testified that he worked for the.defendant; that he went home that evening about 7 o’clock, to tell l-'-wife that he would be working late at the shop that night; that they were all working on the car, and the defendant took witness’ car and left,- saying he was going to supper; that when he came back he ran the car into the garage; the deceased at the time was talking to Jimmie Brown; that there has been no trouble up to that time; that shortly after he heard the deceased call the defendant a blue-bellied Yankee, and he heard a lick, and he got up from the car where he was working, and saw the defendant pull a gun, and the deceased ran out on the street, pursued by the defendant; that he heard a shot, he went out, and the deceased was lying on the sidewalk,. 6 or 7 feet from the dooma}'. On cross examination he was asked if he heard the deceased use the term “son of a bitch” that evening; he said he did not.
    Abe I-Iackett testified that he heard the shot and ran to the garage, reaching there about a minute later; the deceased was lying on the sidewalk, and the defendant said, “That is the notorious Jeff Lytle, that has been running the shops up here, and I beat him to it;” that the deceased was then living, but died in a few minutes.

      G. B. Patterson testified that he was standing on the sidewalk on Main street near thé garage, and saw the deceased.come out of the building; that he was stooping forward and came out pretty fast; that he was about 10 feet from him, and a man named Ryan told him to leave, and as he was leaving he heard a shot, and looked and saw the deceased fall forward on his face; that he was then about 15 feet from the deceased.
    Dr. Nunnery testified that he was called, and reached the deceased about the time he died; that his death was caused by a gun-shot wound; that the bullet entered the back between the two shoulder blades, and, passing upward, lodged in the neck, under the left ear.
    For the defendant:
    Joe Flynn testified that he was in the garage that evening about 8 o’clock, fixing and cleaning up his car; that he heard the deceased say, “Your hide will not hold shot;” that he walked up ■and said to them, “Don’t have no trouble in here;” that the deceased picked up the magneto and said to witness, “It came in there running all right, and if they would let it alone it would run all right when they went out;” that Mr. Janeway instructed him not to “let anybody monkey with the magneto, only to send it back to the factory.” He was then asked to state some of the things that the deceased said, and answered that he heard the expression, “God damn you, don’t go into that magneto;” that he could not be positive as to whether the deceased used the term “son of a bitch;” that the defendant said, “Well, Jeff, I was going to see what way that magneto rotated, so I could use the car;” that the defendant then took his car and left, and witness took his own car and left.
    J. F. Brown testified that he worked for the defendant by staying at his garage nights: that he was there that night when the defendant went to supper, and while the defendant was gone the deceased said to him “that he wouldn’t work for such a man; that he was too low down and no account for a man like me to work for, and he wouldn’t do it;” and witness told him that he was staying there, that the defendant had hired him, and he had to do as he told him; that when the defendant came back the deceased commenced to argue with him, and called him a son of a bitch, and slapped the defendant in the face with his hand, and then they stepped apart, and the defendant pulled his pistol and snapped it, and the deceased ran out the door, and the defendant followed him with the gun, and he heard the shot.
    Jasper Mesmdre testified that he was a justice of the peace at the town of Granite; that he went to where the shooting accurred, and searched the roadster car standing in front of the garage, and found a 45 caliber Colt six-shooter, with all the chambers but one loaded.
    John W. Baker testified that the deceased told him thát evening that he would kill the defendant unless the latter got his car out by 10 o’clock. It is not shown that this statement was communicated to the defendant prior to the shooting. On cross examination of this witness it was proved that he had been twice convicted of bootlegging; that he told Doc Holley, who was the first person to inform him of the killing, that he was surprised that there was any trouble at all between them, and admitted to having a conversation with G. W. Baker about the killing the morning after it occurred, in which witness said to Mr. Baker that this was one case he would not be a witness in, “as he did not know a damn thing about it.” He also admitted that the defendánt had advanced money for his expenses to come from Texas to testify.
    As a witness in his own behalf the defendant testified that on Thursday before the killing the deceased told him that “he used to be a pretty bad man around here;” that when McClanna-han was at supper that evening the deceased said to him, “God damn you, don’t you touch that magneto; if you touch that magneto, I will fill your hide so full of holes that it won’t hold shucks; now, God damn you, that car came in here running; if you don’t get it out of here running I am going to kill youand that he called the defendánt a “God damned blue-bellied son of a bitch.” He further testified that about 9 o’clock he went home to supper; that, apprehending trouble with the deceased, he put his pistol in his pocket, and returned to the garage, and found that McClannahan had put the shaft in wrong the second time, and, as it would be impossible to again remove and replace the shaft within reasonable hours, he directed the garage to be closed for the night. The deceased said, “What is the matter, can’t you get it out ?” and he informed him that it was impossible to get the car ready that night; that the deceased advanced on him, inviting him to hit him, carrying his right hand in his hip pocket, and finally the deceased with his left hand slapped him on the right jaw, and then jumped back a few steps and put his hand in his hip pocket; then he pulled his pistol out, intending to shoot the deceased in the arm, but the pistol snapped, and the deceased said, “It won’t shoot;” and he said, “Yes it will;” that after the gun snapped he threw the cartridge out and said to the deceased, “Take your hand off that gun, or I will kill you;” that the deceased seemed to be tugging away at the thing whatever it was, in his hip pocket, but could not get it out, and ducked around the corner of the big door, and he followed him out with his gun in his hand, and the deceased tried to get around the brick pillar; that just as he got around the pillar the deceased got his gun loose, and witness shot him; that he tried to hit him in the shoulder, and the deceased dropped to the ground on his hands; that his son Roy ran up and took the gun from his father and placed it in the small car standing in the street in front of the garage.
    The defendant also offered as a witness W. C. Johnson, the deputy sheriff, who arrested him for the purpose of showing by such witness, as a part of the res gestae, that the defendant had said when arrested that Roy Lytle, son of the deceased, had approached his father’s body and removed therefrom a pistol, and had secreted the same in. the Lytle roadster standing in front of the garage. This testimony was excluded from the jury by the court, upon objections by the state that the same was merely a self-serving declaration, and not part of the res gestate; it being in evidence that the defendant was not arrested until about 10 minutes after the shooting.
    In rebuttal 6 or 7 witnesses qualified as character witnesses, and testified that the general reputation of the deceased as a peaceable, law-abiding citizen in that community was good.

      B. L. Tisinger, of Mangum, and B. B. Van Dyke, of Granite, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. Z. Moore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

(after stating the facts as above). Plaintiff in error, W. H. Gransden, was tried for the murder of J. K. Lytle. The jury returned a verdict finding him guilty of manslaughter in the first degree, leaving his punishment to be fixed by the court. On the 2nd day of August, 1913, the court rendered judgment, and he was sentenced to be imprisoned in the penitentiary for the term of 10 years.

The first and second assignments of error are the usual ones: That the verdict was contrary to law and to the evidence, and that the court erred in overruling the motion for a new trial. The third assignment is : ’ .

“The court erred in not permitting to go‘to the jury the testimony of W: C. Johnson, a witness for the defendant, to the effect that when he placed the defendant under arrest, about 10 minutes after the homicide, that the defendant told him that he would find the pistol of the deceased in the little car of the deceased, where it had been placed by one of the boys of the deceased, the same being a part of the res gestae; and also corroboration of the evidence of the defendant, and of the witness of the defendant, Jasper Mesmore, who testified that he found the pistol under the seat of the little car.”

(1) We think the court properly rejected the testimony of the witness Johnson on the ground that the declarations of the defendant at the time were self-serving and incompetent for any purpose.

It appears from the record that before the arrival of Johnson, and after the death of his victim, he made several statements to others, and several witnesses testified that the defendant was calm at the time of their arrival on the scene prior to the arrival of Johnson. There is nothing remarkable that the defendant should have known that there was a gun in the Lytle car; he had probably seen it, as the car had been in front of his place of business nearly the whole day. It is more remarkable that if the deceased had had a Colt’s 45 caliber pistol in his hip pocket, and being in his shirt sleeves, that the defendant or his employes who were working with the deceased on the car would not have noticed it before the shooting. On the undisputed facts the defendant’s statements to the witness Johnson formed no part of the res gestae. The testimony offered was therefore not admissible. See Birdwell v. United States, 10th Okla. Cr. 159, 135 Pac. 445.

(2) The defendant requested two instructions, which the, court refused to give, and allowed exceptions. The court, among ■ other instructions, gave the following, to which exceptions were taken:

“11. A person who is unlawfully attacked by another is not bound to retreat in order to avoid the necessity of injuring his assailant, or of killing him, if it reasonably appears to him to be necessary in order to save his own life, or to avoid serious bodily injury by the person killed; and the person so unlawfully attacked has the right to stand his ground and use such force as reasonably appears to him necessary to repel the attack upon him, and if the person making such attack is killed under such circumstances, the killing will be justifiable in self-defense; and it is not necessary to the right of self-defense that the danger should in fact exist; and if it reasonably appears to the defendant from all the facts and circumstances in the case that danger exists, he has the same right to defend against it and to the same extent that he would have were the danger real.
“12. When an unlawful attack has heen made upon a person by another, and the person making the attack is killed, in determining whether the killing was necessary and in self-defense, the nature and apparent purpose of the attack, the intention with which it is made, the existence or appearance of danger, and the extent thereof, the amount or degree of force necessary and sufficient to be used to avoid the apparent or threatened danger, and all the facts and circumstances in the case must be viewed and considered by the jury from the standpoint of the person doing the killing at the time thereof, and from no other standpoint, and if, when viewed from his standpoint, it appears that he might reasonably have believed the killing, or the act which resulted in death, was necessary to prevent death or great bodily harm to himself, the killing will be justifiable.
“13. But you are further instructed that while one unlawfully attacked has the right to use such force as under the circumstances reasonably appears to him necessary and sufficient to repel the attack and avoid injury to himself, he will not be justified in using greater force than so reasonably appears to him necessary and sufficient to avoid the danger apparently intended to be inflicted upon him, and if h'e uses greater force than so reasonably appears necessary to avoid death or great bodily injury to himself, and thereby kills the person who made the attack, or if the killing is committed after it reasonably appears to him that the person who made the attack has abandoned the same, and that danger to himself no longer exists, then the killing will not be justifiable, and the person who did it will be guilty of manslaughter in the first degree.
“14. You are instructed that insulting and abusive language will not justify or excuse homicide.
“15. You are further instructed that homicide cannot be justified or excused on the ground that the person killed, prior to the killing, had committed a mere assault and battery upon the person who did the killing, but when, at the time of the killing or just prior thereto, the person killed committed an assault and battery upon the person who did the killing, this may be taken into consideration by the jury in determining whether it reasonably appeared to the person who did the killing that he was at the time in danger of death or great bodily injury at the hands of the deceased.
“19. If you find and believe from the evidence beyond a reasonable doubt that the defendant is guilty of murder or of manslaughter in the first degree, but you have a reasonable doubt as to which of said offenses he is guilty, you must give him the benefit of the doubt and find him guilty of the latter offense,' to-wit, manslaughter in the first degree.
“21. The defendant, while testifying as a witness in his own behalf, admitted that he. shot and killed J. K. Lytle at the time and place alleged in the information, and claims that such killing was in his own self-defense. And in this connection you are instructed that if at the time of, or immediately before, the killing, the deceased made an attack upon him with a pistol, and that from the manner and nature of such attack, and from all the facts and circumstances in the case, it reasonably appeared to the defendant that the deceased then and there intended to shoot and kill, or seriously injure him, the defendant, and he shot the deceased, believing at the time he did so it was necessary to avoid such apparent or threatened injury to himself, then you will find him not guilty and so say by your verdict, and unless you find from the evidence beyond a reasonable doubt that the killing was not done under the circumstances herein just stated, you must acquit the defendant.
“24. The defendant in a criminal case is not required by law to prove his innocence, but the burden is upon the state to prove his guilt of the offense charged against him. He is presumed to be innocent of such charge until his guilt thereof is established by the evidence beyond a reasonable doubt, and in case the jury, after a careful consideration of all of the evidence in the case, have a reasonable doubt as to the defendant’s guilt, they must acquit him and return a verdict of not guilty.
“25. The jury are instructed that a reasonable doubt is a doubt for which there exists a reason in the minds of the jurors, founded upon the facts and circumstances in proof in the case, and is a state of mind of which an ordinarily intelligent man could readily give an explanation, consistent with the facts disclosed by the evidence, and the law as given to the jury by the court.”

It is contended that the court improperly instructed the jury on the law of self-defense; that instruction No. 11 is prejudicial, “In that it impresses upon the minds of the jury that the defendant would have the right to simply stand his ground,” and that it should have included the concluding paragraph of the defendant’s requested instruction No. 2, which is as follows:

“And in such' case the defendant was not compelled to retreat, but had the right to pursue his adversary until he found himself out of danger, and if in the conflict between them, under the circumstances described, the defendant killed the deceased, such killing is justifiable.”

We think instructions No. 11 and No. 12 sufficiently covered the law of self-defense under the facts and circumstances appearing in evidence in this casé, and that the instruction requested was properly refused. There was no evidence tending to prove that after the deceased turned and fled from the defendant endeavoring to make his escape, that the defendant was at any time in danger of bodily harm, or had any reason to apprehend such clanger.

(15) To repel a simple assault the person assaulted is not authorized to attack his assailant with a deadly weapon. He will not be justified in doing those acts that are calculated to destroy the life of his assailant, unless the assault is of such a character as to endanger his life or inflict on him great bodily injury, or to excite his fears as a reasonable man that such would be the result of the assault. If his assailant retreats in good faith, and there are no reasonable grounds for apprehending danger from him, the pursuit of him is not justifiable, and if under such, circumstances he is pursued and killed, the killing cannot be justified on the ground of self-defense. Michie on. Homicide, 42$. The law limits him to such acts as are necessary or apparently necessary to self-defense.

In support of the other exceptions taken to the court’s instructions, counsel complain that they are insufficient in that:

“There is not included therein or elsewhere in said instructions, any instructions to the jury as to what consideration to give insulting and abusive language as used by the deceased toward the defendant just prior to the homicide.”

Under any circumstances passion caused by mere words cannot reduce homicide below the crime of manslaughter in the first degree. The defendant can only complain of errors which may have affected his rights.

In support of other exceptions taken counsel complain that the instructions given do not cover the law of communicated and uncommunicated threats previously made by the deceased against the defendant as tending to show the feeling of the deceased toward the defendant. It appears from the record no such instructions were requested by the defendant. We think the instructions as given by the court were sufficiently broad and comprehensive as to fairly cover these points. The defendant having failed to request more specific instructions on these points, waived the same, and therefore the omission to give such instructions was not error.

(.4) Finally it is insisted that the court erred in giving instruction No. 25, defining “reasonable doubt.” By numerous decisions of this court it has been held that an instruction which states that by the term “reasonable doubt” is meant a doubt for which a reason may be given, is erroneous. Harris v. State, 10th Okla. Cr. 417, 137 Pac. 365, 139 Pac. 846; Morgan v. State, 7th Okla. Cr. 45, 121 Pac. 1088; Abbott v. Territory, 1st Okla. Cr. 1, 94 Pac. 179, 16 L. R. A. (N. S.) 260, 129 Am. St. Rep. 818.

(6) While we do not hesitate to condemn this instruction, still we do not think it constitutes reversible error in this’ case, because the guilt of the defendant was so- clear and palpable from the evidence that no question of doubt could arise. It may be safely said that with this exception the instructions given were far too favorable for the defendant. Our Procedure Criminal provides that:

“Upon a trial for murder,'the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” Section 5902, Rev. Laws.

See Boswell v. State, 8th Okla. Cr. 152, 126 Pac. 826; Lumpkin v. State, 5th Okla. Cr. 488, 115 Pac. 478; Culpepper v. United States, 4th Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668.

(3) This court has often held that when the instructions fully and fairly covered the law of the case when taken and considered together, though one of them may be erroneous, still for such error the judgment will not be reversed, provided it shall appear that no prejudice has resulted by reason of such erroneous instruction.

B. L. Tisinger, of Mangum, B. F. Van Dyke, of Granite, and H. H. Hagan, of Oklahoma City, for appellant.

(9) In Nelson v. State, 5th Okla. Cr. 369, 114 Pac. 1124, it is said that:

“An instruction defining reasonable doubt should not be given by the trial courts of this state, except upon proper request by defendant.”

We do not think that the term “reasonable doubt” is of such unknown, uncertain, or uncommon signification that a definition by the court in its charge to the jury is called for. Language that is within the comprehension of persons of ordinary intelligence can seldom- be made plainer by further definition. It has been said that, “the expression itself seems to comprehend the whole subject-matter, ‘reasonable doubt,’ ” and that the phrase is its own best definition, and any attempt to define the phrase is likely to leave in the minds of the jury, “a reasonable doubt as to what a reasonable doubt is.” Jurors are presumed to have common sense, and to understand common English, and all persons who possess the qualifications of jurors know that a “doubt” of the guilt of the defendant, honestly entertained, is a reasonable doubt.

Having considered the errors assigned, we should add in conclusion that upon the whole record we are satisfied that no exception taken by the defendant upon the trial is of any force, although it appears that the defendant was there, as he has been here on the appeal, exceptionally well represented.

The conviction meets with our approval, and, finding no material error in the record, the judgment rendered upon the verdict is affirmed.

FURMAN and ARMSTRONG, JJ., concur.

On Rehearing.

R. McMillan, Asst. Atty. Gen., and A. R. Garrett, Co. Atty., of Mangum, for the State.

BRETT, J.

This case comes up on petition for rehearing. There is one proposition raised by the petition for rehearing which deserves, and has received, our most careful consideration. This is the failure of the court to instruct the jury specifically, upon the defendant’s theory as to why he shot his fleeing adversary in the back.

(7) The difficulty which resulted in the shooting occurred in a building which faces west. Four feet in front of this building were two brick pillars, which supported a protruding roof. These pillars were each 17 inches square and located one to the north and the other to the south of the front door. The defendant testified: That when the difficulty arose the deceased advanced upon him and slapped him on the face with his left hand, and was at the same time tugging a pistol in the right hip pocket with his right hand. That he stepped back and drew his pistol and snapped it at deceased. That deceased then hastily retreated, going out the front door and toward the north pillar in front of the building, still tugging at his pistol with his right hand, trying to get it out of his right hip pocket. That he believed deceased was retreating for the purpose of taking shelter behind the brick pillar, and intended to shoot at him from that place of vantage. That he stepped out upon the sidewalk to the southwest of the front door, and before deceased had reached the pillar he saw the handle of his pistol, and instantly fired the fatal shot, believing it was necessary to do so to protect his own life. The fatal bullet struck the deceased in the back, about midway between the shoulder blades, and he instantly fell to the pavemeht.

The defendant requested the court to instruct the jury as follows:

“If the jury believe that the deceased at the time of the homicide intended and endeavored to take the life of the defendant, oí-do him serious bodily harm, or that the defendant, from all of the evidence and all the facts and circumstances surrounding him at the time, viewed from his standpoint, had reasonable ground to believe that his life was in imminent danger from the deceased, or that the deceased intended and was attempting to do him serious bodily harm, the defendant was justifiable in shooting the deceased to repel the attack. And in such case the defendant was not compelled to retreat, but had the right to pursue his adversary until he found himself out of danger, and if in the conflict between them, under the circumstances described, the defendant killed the deceased, such killing is justifiable.”

This requested instruction was refused; and the defendant insists that he was entitled, under his own evidence, to this instruction or a similar one, which would tell the jury that if they believed that the defendant thought the deceased was retreating to take cover behind this brick pillar, and from that vantage ground shoot him, that he was justified in pursuing him and shooting him to prevent such action on the part of deceased. This proposition was very skillfully and ably argued by counsel for defendant, in an oral argument on the petition for rehearing; and we were strongly impressed that it might not be without merit. But a careful examination of the record shows that the unimpeachable physical facts so squarely contradict the testimony of defendant that the court was justified in refusing to give this instruction.

The evidence shows that the deceased passed out the front door, and went between the wall and the brick pillar to the north of the door, and was shot down northwest of this pillar. He had passed between the wall and this pillar, which .necessitated his •going on the east side of the pillar, and as he emerged from the northwest side of the pillar, and was going north, with his back toward defendant, defendant fired the fatal shot. If the defendant surmised in the first instance that it was the purpose of deceased to take shelter behind this pillar as a vantage ground, that supposition vanished, or would have vanished in the mind of a reasonable man, when he saw the deceased pass by this pillar and emerge to the northwest of it, still retreating, with his back toward him.

Besides, it developed in the evidence, and stands undisputed, that the deceased was left-handed. And it is a matter of common knowledge that a left-handed man would carry his gun in a left-hand pocket, accessible to the dextrous hand, and would use that hand in drawing his gun, and when engaged in a deadly combat. There were others who saw deceased strike defendant with his left hand, but none of them saw him tugging at a pistol with his right hand; and that fie would be doing this, under the undisputed evidence that he was a left-handed man, is contrary to the common experience of men. No pistol was found upon the body of deceased; and the attempted explanation of defendant that the son of deceased took a pistol from his hand is absurd, since all the witnesses, including the defendant himself, testified that, the instant deceased fell, defendant covered the son with his revolver, and refused to allow him to administer to or touch the body of his dying father. And we believe the doctrine to be sound that when the unimpeachable physical facts squarely contradict the words of the defendant .on the witness stand, and show the theory of his testimony to be absurd, that “courts are not required to ignore such physical facts and give instructions not in harmony with them,” but absolutely subversive of the theory they mutely and unalterably declare. State v. Gilmore, 95 Mo. 554, 8 S. W. 359, 912.

(8) A court by its instructions is not required to invite a doubt, where nothing can be so unreasonable as to . suppose that one can exist. A court is not required to stultify itself by basing its instructions upon the defendant’s words in preference to his acts. “The latter are the true exponents of his intention, and they furnish the only safe key to his motives.” State v. Bryant, 102 Mo. 24, 14 S. W. 822; State v. Turlington, 102 Mo. 642, 15 S. W. 141; State v. Anderson, 89 Mo. 312, 1 S. W. 135. And in the language of the court in State v. Tucker, 232 Mo. 1, 133 S. W. 27:

“It seems to us that this is, if there ever was, a casfe in which a court and jury could say that the statements of the defendant so contradict the physical facts, and his conduct is so unreasonable and inconsistent with the experience of mankind, that the court was not bound to believe him and instruct the jury on his testimony.”

And yet the court in this case, out of an abundance of fairness and precaution, instructed the jury that:

“When an unlawful attack has been made upon a person by another, and the person making the attack is killed, in determining • whether the killing was necessary and in self-defense, the nature and apparent purpose of the attack, the intention with which it is .made, the existence of appearance of- danger, and the extent thereof, the amount or degree of force necessary and sufficient to be used to avoid the apparent or threatened danger, and all the facts and circumstances in the case must be viewed and considered by the jury from the standpoint of the person doing the killing at the time thereof, and from no other standpoint, and if, when viewed from his standpoint, it appears that he might reasonably have believed the killing, or the act which resulted in death, was necessary to prevent death or great bodily harm to himself, the killing will be justifiable.”

Under the facts in this case we do not believe that the defendant was entitled to more. , The defendant bases his right to the special instruction requested on the doctrine of this court as announced in former cases, and cites Courtney v. State, 10th Okla. Cr. 589, 140 Pac. 163; McIntosh v. State, 8th Okla. Cr. 469, 128 Pac. 735; Payton v. State, 4th Okla. Cr. 316, 111 Pac. 666, and Douglas v. Territory, 1st Okla. Cr. 584, 98 Pac. 1023. But the doctrine above announced is not in conflict with the holding in the above-cited opinions. In Courtney v. State, supra, the holding js that:

“The accused, ip a criminal case, is entitled to instructions defining the law applicable to his theory and covering his defense, if there is competent evidence tending reasonably to substantiate such theory.”

And this is in substance the holding of each of the above cases cited, and is sound, and is in no way in conflict with what is said in this opinion.

The petition for rehearing is denied.

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


text:
      In re E. H. H. GATES.
    No. A-2768.
    Opinion Filed June 22, 1916.
    (158 Pac. 289.)
    "Where a party is arrested and brought before a municipal judge, charged with the violation of a city ordinance, and upon arraignment enters a plea of not guilty, and the municipal judge without hearing any evidence to support the charge, finds him guilty and sentences him to pay a fine and in default of the payment thereof commits him to the city jail and he is so imprisoned, held, upon a petition for writ of habeas corpus, such judgment of conviction void, and the imprisonment illegal and without authority of law.
    Application for writ of habeas corpus by E. H. H. Gates.
    Petitioner discharged.

      John J. Carney and C. T. Gibson, for petitioner.

      B. D. Shear, City Counsel of Oklahoma City, for respondent.
   DOYLE, P. J.

This is a petition for writ of habeas corpus filed for setting at liberty E. H. H. Gates. The writ was granted, returnable before this court June 21, 1916.

The petitioner avers that he is restrained of his liberty and is unlawfully imprisoned in the city jail of Oklahoma City by W. B. Nichols, chief of police of said city.

It is further averred in the petition that on the 17th day of June, 1916, petitioner was making a spee&i in the evening of said day on California avenue, one of the streets of Oklahoma City, and he was arrested by H. W. Meder, a police officer of said city and was then and there informed by said Meder that he was arrested because the chief of police of Oklahoma City had forbidden any public speaking upon either First street, Main street, Grand avenue, or California avenue, which are streets within said city, and that thereafter to-wit, on the 20th day of June, 1916; your petitioner was tried before John W. Choate, acting municipal judge of Oklahoma City, and was fined ten dollars and costs and was committed to the chy jail of Oklahoma City in default of the payment of said fine and costs.

It was further averred that no legal testimony whatever was introduced against petitioner in the trial of said cause for the reason that the only witness called and sworn in the trial of said cause was sworn by Frank Watson, an attorney, who was not authorized under the law to administer said oath.

In obedience to the writ respondent produced petitioner and filed his return, which admits that the oath administered to the sole witness for the state was not administered by a person authorized to administer oaths.

In the case of ex parte Walton, 2nd Okla. Cr. 437, 101 Pac. 1034, it is said:

“Where there is a judgment, sentence, and, commitment, the record must show that a plea of guilty was entered, or that evidence to support the complaint was offered. One or the other is iimp,eratively required to give the justice jurisdiction of the accused, in order that the justice may have authority to pronounce judgment and sentence, and issue a commitment thereon. The recitals of the record shows that in the proceedings had there was no plea entered, and there was evidence offered. While this court is disposed to regard tolerantly any mere technical irregularities, or defects of form in proceedings before justices of the peace, it would be going too far to hold the record in this case to be sufficient to support a judgment of conviction, sentence, and commitment. Justices of the peace acting as police judges in the towns of this state for the trial of offenses, under .the town ordinances, are controlled by the provisions of procedure criminal, except where it is otherwise prescribed by statute.”

The undisputed facts, as they appear from the petition and the return thereto, are that no person was properly sworn as a witness and no evidence was offered to support the .complaint following the petitioner’s plea of not guilty.

We are. therefore of the opinion that said judgment of the municipal court in -said cause is void and that the petitioner is illegally restrained of his liberty and is entitled to his discharge, and it is so ordered.

ARMSTRONG and BRETT, JJ., concur.


text:
      Ex Parte LOOPER.
    No. A-2770.
    Opinion Filed July 1, 1916.
    (158 Pac. 290.)
    1. BAIL — Habeas Corpus — Burden of Proof. Upon an application for writ of habeas corpus to be let to bail after commitment for a capital ofíense by an examining magistrate,. the burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution.
    2. BAIL — Habeas Corpus — Sufficiency of Evidence. Upon this application, the evidence considered and bail denied.
    Application of James Rooper for writ of habeas corpus, to be let to bail.
    Bail denied.

      John R. Polland and T. T. Varner, for petitioner.

      R. McMillan, Asst. Atty. Gen., and R. P. White, Co. Atty. of Ive Flore County, for respondent.
   DOYLE, P. J.

In this proceeding the petitioner, James Eooper, by his attorneys has presented to this court a verified petition wherein he alleges that he is unlawfully imprisoned and restrained of his liberty in the county jail of Re Flore county, at Poteau, by the sheriff of said county. That the cause of his said restraint is that he has been committed to the said county jail by P. H. Green, justice of the peace, acting as an examining magistrate upon a preliminary examination held by him at Poteau on the 9th day of June, 1916, upon an information charging petitioner with the murder of one James W. Piale, in said county and state 'on the 30th day of May, 1916.

Petitioner avers that he is not guilty of the crime of murder ás charged in said information and that upon the evidence introduced at said preliminary examination together with the affidavits-of certain other persons which are presented herewith it is shown that the proof of his guilt of the charge of murder is not evident nor the presumption thereof great, and that therefore petitioner is entitled to be let to bail pending the trial of said charge.

It is also shown that the petitioner applied to the judge of the District Court of De Flore county for a writ of habeas corpus to be admitted to bail, and on the 17th day of June, a hearing was had thereon and bail was denied.

The evidence for the state taken upon the preliminary examination shows that about seven P. M., on the 30th day of May, the petitioner did kill and murder one James W. Hale, by shooting him twice with an automatic shot-gun; that the shooting occurred in the kitchen of the house owned by the deceased and occupied jointly by the petitioner’s family and the deceased._

The petitioner in his affidavit admits the shooting but claims that it was done in his necessary self-defense.

It is also shown that there was a previous difficulty arising out of the rental contract under which the defendant occupied the house of the deceased.

We have examined the record and without entering into a discussion of the facts we deem it sufficient to say that upon a careful consideration of all the evidence presented in support of the application, we are of opinion that the petitioner is not entitled to be admitted to bail as a matter of legal right. It is therefore considered and adjudged that the writ be denied and bail refused.

ARMSTRONG and BRETT, JJ., concur.