text:
    G. N. LOWDERMILK v. STATE.
    No. A-1806.
    Opinion Filed February 4, 1915.
    (145 Pac. 1110.)
    1. EMBEZZLEMENT — Evidence—Best and Secondary — Record, (a) The fact that there is a record of the election of certain officers of a lodge does not preclude the state from proving by other competent evidence the fact that one acted in such capacity.
    (b) If a person assumes to act in the capacity of a lodge officer, is so recognized by the members thereof, and receives and disburses the money of the lodge, proof of these facts is sufficient to sustain a conviction for the embezzlement of the funds, of the lodge as an officer of the same.
    2. INDICTMENT AND INFORMATION — Pleading and Proof — Appeal — Harmless Error, (a) It is the duty of the county attorney to introduce proof of facts sufficient to establish all the material allegations set out in the information presented by him, in the manner and form as charged, and in keeping with the rules of law.
    (b) The fact, however, that a county attorney fails of efficiency or through oversight to comply with the rules of law strictly construed, does not justify this court in permitting a criminal to escape punishment when such criminal has been deprived of no substantial right and is clearly guilty of the crime charged.
    (c) The admission of incompetent evidence does not necessarily justify the reversal of a conviction when there is competent evidence in the record which conclusively establishes the guilt of the accused, and no defense whatever is offered.
    (Syllabus by the Court.)

      Appeal from District Court, Latimer County; W. H. Brown, Judge.

    G. N. Eowdermilk was convicted of embezzlement, and appeals.
    Affirmed.

      Jones & Lester, for plaintiff in error.

      Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, G. N. Eowder-milk, was convicted at the March, 1912, term of the district court of Latimer county on a charge of embezzlement, and his punishment fixed at imprisonment in the state penitentiary for a term of one year and one clay. This appeal is brought in an effort to secure a reversal of the judgment of .conviction.

The information charges that the plaintiff in error, while acting as the financial officer of Gowan Lodge No. 79 of the Ancient Order of United Workmen, embezzled the sum of $130, funds of the lodge which he came into possession of through his official connection therewith. The testimony clearly shows that he was acting as financial officer of the lodge in question in the capacity charged, received the money in question, and appropriated the same to his own use. The only contention advanced by his counsel is that the court erroneously permitted certain oral testimony to be introduced ro show his official relation to' the lodge, instead of requiring the introduction of lodge records. There was no testimony introduced on behalf of the plaintiff in error. A number of witnesses testified that they were members of the lodge and that the plaintiff in error was secretary and financial officer of the lodge. His signature was identified, and receipts he had given members of the lodge for dues were introduced.

Counsel earnestly urge this court to reverse this judgment on the ground that the records of the lodge showing the election of the plaintiff in error to the position of financial officer should have been introduced. The county attorney should have been prepared to introduce, and should have introduced, this record. However, other competent proof in the form of receipts signed by the plaintiff in error in his own handwriting, in the absence of any denial on his part or by any one for him that the receipts spoke the truth, was sufficient to establish the fact that he had held himself out as such officer, and as said by this court in the case of Ex parte Winters, 10 Okla. Cr. 592, 140 Pac. 164, 51 L. R. A. (N. S.) 1087, if he was' financier and secretary enough to collect the money of the members of this lodge and embezzle it, he was financier and secretary enough to go to the penitentiary for perpetrating such a public wrong. It was sufficient in this case for the state to show that the plaintiff in error acted as such officer and received and receipted for money as such officer, and embezzled the same after he had come into the possession thereof. The question of his lawful election as an officer of the lodge in question was not material. If he acted as an officer thereof, received and embezzled the money thereof, in the manner and form as charged, then he was properly convicted. The laws of this state do not tolerate any such crookedness.

While the foregoing is the law of this jurisdiction, county attorneys who prosecute under the character of information set up in this record should exercise diligence to introduce all the records essential to make out their case as charged. The fact, however, that the county attorney fails of efficiency or through oversight fails to comply with the rules of law strictly ^construed does not justify this court in permitting a criminal to escape punishment when he has been deprived of no substantial right and is clearly guilty of the crime charged. The admission of incompetent evidence does not justify the reversal of a conviction when competent evidence conclusively establishes the guilt of the accused, and when no defense whatever is made. It is clearly shown by the testimony in the record that members of this lodge paid to the plaintiff in error the assessments and dues provided by the by-laws governing the institution; that he accepted the money and issued receipts therefor as secretary and financial officer thereof; that he unlawfully appropriated the money to his own use — and nobody denies these facts.

The trial was without prejudice, and the conviction proper.

The judgment of the trial court is therefore affirmed.

DOYEE, P. J., concurs. FURMAN, J., absent.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    JOHN W. APPLEBY v. STATE.
    No. A-1726.
    Opinion Filed February 15, 1915.
    (146 Pac. 228.)
    1. EVIDENCE — Evidence of Other Offenses — Admissibility. The general rule is that, when a defendant is put upon trial for an offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense, and proof of his guilt of other offenses is incompetent and inadmissible, except for the purpose of showing intent, motive, or guilty knowledge.
    2. NEW TRIAL — Ground—Misconduct of Counsel. When the record discloses that counsel for the state, in the prosecution of a person charged with crime, has been guilty of conduct calculated to arouse the prejudice or passion of the jury and prevent the accused from having a fair and impartial trial, a conviction had should be set aside by the trial court, and a new trial awarded.
    (Syllabus by the Court.)

      Appeal from County Court, Woodward County; Clyde H. Wyand, Judge.

    John W. Appleby was convicted of a misdemeanor, and appeals.
    Reversed and remanded for new trial.

      William A. Briggs, for plaintiff in error.

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

The plaintiff in error was convicted on an information, the charging part of which is as follows:

“On the 1st day of December, 1911, at and within the said county and state, did then and there openly, unlawfully, and willfully carry a deadly and dangerous weapon, to wit, a shotgun, loaded with gunpowder and leaden bullets, with the avowed purpose of injuring, to wit, shooting another person, to wit, J. N. Hargis, Thomas Green, and Charley Linsey, contrary to,” etc.

On the 16th day of February, 1912, the court pronounced judgment, and in accordance with the verdict of the jury sentenced the defendant to confinement in the county jail for the term of 90 days, and that he pay a fine of $100.

To reverse the judgment the defendant appeals.

The learned counsel for the defendant has devoted his argument principally to a discussion of the errors assigned upon rulings of the court admitting evidence tending to show the commission of other crimes by the defendant and misconduct on the part of the prosecuting attorney in asking questions relative to other supposed crimes committed by the defendant. It appears from the record that C. W. Kinsey testified as a witness for the state to facts tending to establish the offense charged. On redirect examination he was asked the following questions:

“Q. Mr. Appleby wasn’t hunting in January, 1911, when he drew that gun on his boy? (Objection made and sustained.) Q. Do }rou remember the occasion when Mr. Appleby was shot by his son down there in 1911? A. I do not.”

The defendant, as a witness in his own behalf, denied the essential parts of the testimony given by the witnesses for the state. On cross-examination he was asked the following questions:

“Q. Now, I want to ask you if it isn’t a fact that for the last six months you have been living in a state of adultery with Mrs. Potts. A. No, sir. (Objected to as being incompetent, irrelevant, and immaterial.) By the Court: The question has been answered. Q. You know Mrs. Potts, don’t you? A. Yes, sir. Q. She is a widow woman living down there? A. Yes, sir. Q. You have been stopping there a good deal. A. Yes, sir. Q. How many rooms are there in that Potts house? A. Two. Q. Who lives there besides Mrs. Potts? A. No one but Mrs. Potts. (Objection made and sustained.) Q. You are in the habit of getting' intoxicated. A. I get intoxicated sometimes; yes, sir. Q. You have had-that habit as long as you have had the habit of carrying that gun haven’t you? A. Yes, sir; all my life; ever since I have been grown. Q. I will ask you if you have ever brought any action in any court to keep Tom Green and Hargis from keeping your children from you. (Objection made and sustained.) Q. When did your wife put you under a peace bond? A. I don’t remember the date. Q. Wasn’t it in September, 1910? A. I don’t remember. Q. You went down to Richmond and had a shooting match; didn’t you draw that same gun on your son Bob and tried to shoot him just about a year ago? A. I never done any such thing. Q. You were then under a peace bond? A. No, sir. Q. Plow many times have you been arrested for disturbing the peace in that neighborhood in the last three years ? A. Three times.”

We are of the opinion that the effect of the evidence was to present to the jury testimony relating to another assault on some other occasion, and to the commission of the crime' of adultery, having no connection with the offense charged in the information, all of which tended to prejudice the minds of the jury against the defendant in reference to the offense for which he was on trial. It is never competent to show that the defendant was guilty of an independent crime, not connected with or leading up to the offense for which he is on trial, except for the purpose of showing intent, motive, or guilty knowledge, and this evidence was not proper or competent for that • purpose. The general l-ule is that when a defendant is put upon trial for an offense, he is to be convicted, if at all, by evidence which shows he is guilty of that offense, and that, under ordinary circumstances, proof of his guilt of other offenses is incompetent and inadmissible.

This court has more than once condemned the asking of •questions by the prosecuting attorney intended to bring out incompetent evidence.

In Pickrell v. State, 5 Okla. Cr. 391, 116 Pac. 957, it is said:

“A person accused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the verdict of the jury, shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.”

In the case of Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101, it is held:

“When the record discloses that counsel for the state, in the prosecution of a person charged with crime, has been guilty of conduct calculated to arouse the prejudice or passion of the jury and prevent the accused from having a fair and impartial trial, a conviction had should be set aside by the trial court, and a new trial awarded.
“The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that is either not true or not capable of being proven if true, is wrong, and such conduct of counsel is not cured because the court sustains objections to the questions.
“In jury trials incalculable harm is often done by counsel in asking known incompetent questions in the hearing of the jury and thereby forcing the adverse party to object to them also in the hearing of the jury, which manifests a fear of the incompetent questions, and gives emphasis to the harmful matter they are supposed to contain.”

While the testimony offered for the state tended quite strongly to support the allegations in the information, the testimony in behalf of the defendant contradicted the evidence of the state, and left a close question of fact to be considered by the jury. Under such circumstances we cannot say that the incompetent evidence admitted and the improper questions propounded to the defendant by the prosecuting attorney in the course of his cross-examination were not prejudicial to the substantial rights of the defendant.

For the reason stated, the judgment is reversed, a new trial awarded, and the cause remanded.

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


author: DOYL/E, P. J.

text:
    JESS HUMPHREY v. STATE.
    No. A-2186.
    Opinion Filed February 16, 1915.
    (146 Pac. 230.)
    1. HOMICIDE — Submission of Issues — Manslaughter in Second Degree. In a prosecution for murder, the defendant, as a witness in his own behalf, admitted that he killed the deceased, and his defense was that he committed the act in self-defense. Held, that the court properly refused to submit to the jury the question of the guilt or innocence of the defendant of the crime of manslaughter in the second degree. •
    2. APPEAL — Harmless Error — Disqualification of Juror. As a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause, which existed before the juror was sworn, but which were unknown to the defendant until after conviction, unless it appears from the whole case that the defendant suffered injustice from the fact that the juror served in the case.
    3. JURY — Disqualification of Juror — Waiver. A known ground of disqualification of a juror, before or during the progress of the trial, is waived by withholding- it, or refusing or declining to raise the objection until after verdict.
    (Syllabus by the Court.)

      Appeal from District Court, Seminole County; Tom D. McKeown, Judge.

    Jess Humphrey, convicted of manslaughter in the first degree, appeals.
    Affirmed.

      Ozven H. Rives, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYL/E, P. J.

The plaintiff in error was informed against for the crime of murder alleged to have been committed by killing Jess Doolin by shooting him with a pistol. Upon his trial the jury returned a verdict finding him guilty of manslaughter in the first degree, but failed to agree upon the punishment. The court rendered judgment and sentenced the defendant to be confined in the penitentiary for the term of seven years.

This case is here for the third time. Humphrey v. State, 3 Okla. Cr. 504, 106 Pac. 978, 139 Am. St. Rep. 972; Id., 8 Okla. Cr. 449, 128 Pac. 742.

We have carefully read and examined the evidence and proceedings upon this trial, and are satisfied that the defendant had a fair trial, in which all his rights were' protected. We will, however, briefly notice the assignments of error relied upon to secure a reversal of the judgment.

The state’s evidence shows: That, in the afternoon on the day of the homicide, Ben Potter, a neighbor of the defendant, accompanied by his two sons, Earl and Clyde, Jess Doolin, and Babe Doolin, went fishing on Tittle river, near Sasakwa. That the defendant had suggested that Potter come by his house, and perhaps that he would go too. That as Potter passed by the defendant’s house he hallooed to the defendant. After the party arrived at the river, Ben Potter and Jess Doolin went across the river to get some fishing poles. While they were gone, Marshall Humphrey, a son of the defendant, and Babe Doolin had a fist fight, after which Marshall Humphrey left and went home and told his father about his fight. That the defendant gave his son Marshall a knife and said something to him about cutting Babe Doolin. After this Marshall Humphrey, Winston Humphrey, and Jess Humphrey, Jr., sons of the defendant, went to the river. Winston Humphrey approached Babe Doolin, who way lying down, and commenced kicking him in the ribs, and they commenced fighting. Jess Humphrey, Jr., said to his brother Winston, “Scratch the son of b-hs eyeballs out.” At which remark Jess Doolin slapped him, shoved him down, and sat on him. Ben Potter put his hand on Jess Doolin’s back, and said, “Don’t hit that boy.” Jess Doolin said, “Make him put his knife up;” and Ben Potter'said, “He is not going to hit you with that knife.” Jess Humphrey, Jr., then put his knife up. About this time the defendant Humphrey appeared and asked Jess Doolin why he slapped his boy, and saying, “I will learn you how to slap one of my boys,” presented his pistol, and fired; the bullet striking Jess Doolin near the nose. He shot a second time, the ball entering under the shoulder blade. After he was shot Jess Doolin made an attempt to reach the Winchester of Ben Potter, which was lying on the bank several steps away. Potter grabbed the Winchester about the same time. They both “tusseled” for the gun; Doolin finally securing it. About that time he staggered and fell dead.

The defendant, as a witness in his own behalf, testified: That an Indian boy came to his place that day, bringing a horse which he asked the defendant to do some work on. That he did the work and gave the knife he was using to his son Marshall and told him to take it to the house and wash it. That in the meantime his son had been to the river, had the fight with Babe Doolin, had come back and told his mother about it, and he and his brother Winston had started back to the river, and his wife had sent Jess Humphrey, Jr., to overtake them and bring them back. That he asked his wife where the boys were, and she said, “I think they have gone down on the river to have a fight with Babe Doolin.” That he then went to the river with Louis Curtain, and saw Jess Doolin strike his boy in the mouth with his fist. That Ben Potter was standing about four feet from Jess Doolin. That he said to Jess Doolin, “Any man that will beat up a boy like that is a damn son of a b-h.” That Jess Doolin grabbed for the Winchester in Potter’s lap, and was trying to cock it, when he fired the first shot. That he fired the shots to keep Doolin from shooting him.

The foregoing facts are more or less amplified by the witnesses. What conflict of testimony there was between the witnesses for the state and for the defendant was for the jury to consider and decide. It is contended that the court erred in one of the instructions given. The charge of the court should be considered as a whole. Updike v. State, 9 Okla. Cr. 133, 130 Pac. 1107; Nutt v. State. 8 Okla. Cr. 266, 128 Pac. 165. After an examination of all the instructions in the case, and considering the charge as a whole, we think 'the law of the case was fully and correctly stated in the charge of the court.

It is also contended that the court erred in refusing to give an instruction on manslaughter in the second degree. In a prosecution for murder, the court should submit the case to the jury for consideration upon every degree, of homicide which the evidence, in any reasonable view of it, suggests; and it is the duty of the court to say, as a matter of law, if there is any evidence that would tend to reduce the degree of the offense to manslaughter in the second degree. Cannon v. State, 1 Okla. Cr. 600, 99 Pac. 622. The question is: Does the evidence in the case show, or tend to show, any of the elements or ingredients of manslaughter in the second degree? A careful examination of the record discloses that there was no such evidence offered. That the defendant killed the deceased he did not deny; and his defense was that he committed the act in self-defense.

Finally it is contended that the court erred in overruling the motion for a new trial, because said motion was verified by the oath of the defendant, and therein was the following statement:

“Ninth. That one of the jurors sitting upon the trial of this cause, to wit, E. S. Gates, is a cousin by blood to the witness Ben Potter, who was the most material witness who testified for the state in this cause, and whom the testimony shows was present at the time of the homicide and carried to the scene of the difficulty and furnished to the deceased the Winchester, which was being used in making the assault by the deceased at the time of the homicide; that the defendant’s counsel during the discussion of the evidence was compelled to and did criticize the testimony of the said Ben Potter, cousin, as aforesaid, of said juror which the defendant has cause to believe and does believe offended said juror; and that thereafter his actions and conduct as a juror was prejudicial to the rights of this defendant."’

•The record shows that the jury returned their verdict on August 16, 1913. On the same day the motion for a new trial was filed, containing the statement above quoted. The only record showing that the jurors, including the juror Gates, were ever placed on their voir dire is as follows:

“Both sides announce ready for trial, and the clerk of this court proceeds to call the jury into the jury box as by law required. And now, both sides having waived or exhausted all right of challenge either for cause or upon peremptory challenge, the twelve jurors now in the jury box are accepted as a jury for the trial of this cause.”

It was not alleged in the motion that the defendant had no knowledge of the fact prior to the examination of the juror, nor is there any allegation that the juror corruptly qualified, nor any showing that he was interrogated as to this matter on his voir dire examination. We think this ground of the motion is totally lacking in every essential averment.

In Horton v. State, 10 Okla. Cr. 294, 136 Pac. 177, it is said:

“A defendant cannot sit supinely by and allow disqualified and incompetent jurors to be selected to try him, and then take advantage of his own indifference or negligence, nor can a defendant call upon this court to presume that he asked a juror certain questions, in the absence of a showing in the record that such questions were asked. A known ground of disqualification of a juror before or during the progress of a trial is waived by withholding it or refusing or declining to raise the objection until after verdict. See Queenan v. Territory, 11 Okla. 261, 71 Pac. 218, 61 L. R. A. 324; Id., 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Ed. 1175. We think it may be safely said that upon principle, if the defendant accepts a juror without availing himself of the right to examine such juror on voir dire, for the purpose of testing his impartiality, or without availing himself of the right to challenge him for cause, and it should be discovered after verdict that he was incompetent by reason of prejudice, the defendant would not be entitled to a new trial on that ground, under our statute.”

We have given careful consideration to the case, and can not discover that .the record contains any prejudicial error, or that any injustice has been done the defendant.

It follows that the judgment of the district court of Seminole county should be, and the same is hereby, affirmed.

FURMAN and ARMSTRONG, JJ-, concur.


author: DOYLE, P. J.

text:
    MAJOR WESLEY et al. v. STATE.
    No. A-1949.
    Opinion Filed February 23, 1915.
    (146 Pac. 450.)
    1. HOMICIDE — Murder—Sufficiency of Evidence. In a prosecution for murder, evidence examined, and held to sustain a conviction without capital punishment.
    2. SAME — Evidence—Res Gestae. Testimony as to a statement made by the deceased, shortly before and near the scene of the homicide, in the presence of the defendant, and following an altercation between the defendant and the deceased, both Creek Indians, which purported to be a statement in English of what the defendant in the Indian language had said to the deceased, which statement in substance was that the defendant told him that he was going to kill him to-night and put his body on the railroad track, held, competent and admissible as tending to illustrate the state of the defendant's feelings towards the deceased at the time of the homicide, and competent and admissible as a declaration of the deceased before the homicide sufficiently connected with the act as to form a part of the res gestae.
    (Syllabus by the Court.)

      Appeal from District Court, McIntosh County; Presley B. Cole, Judge.

    Major Wesley, Jonas Lewis, and Samson Lewis were jointly convicted of murder, and they appeal.
    Affirmed.
    The plaintiffs in error, Major Wesley, Jonas Lewis, and Samson Lewis, were jointly informed against for the murder of John Asbury, alleged to have been committed on or about the 3d day of November, 1911. It is alleged that they then and there, in the presence of each other, purposely, willfully, feloniously and with malice aforethought, and without authority of law, and with a premeditated design to effect the death of one John Asbury, did with force and arms an assault make on the said John Asbury with a certain sharp and dangerous weapon, to wit, a knife, and also with certain dangerous and deadly weapons, to wit sticks or clubs of wood, each being about the length of 30 inches, and of the diameter of two inches, and did then and there feloniously, willfully, knowingly, and unlawfully, and with malice aforethought, and with a premeditated design then and there to effect the death of the sa.id John As-bury, strike and beat and stab the said John Asbury with said knife and with sticks and clubs of wood, thereby inflicting several mortal wounds in and upon the head and body of him, the said John Asbury, of which said mortal wounds, strokes, and bruises he did then and there immediately die. They were tried jointly, resulting in their being found guilty of murder as charged and their punishment fixed at imprisonment in the penitentiary for life at hard labor. From the judgment rendered upon the verdict, the plaintiffs in error have appealed to this court.
    It appears that the plaintiffs in error are Creek Indians, and that the deceased was a full-blood Creek Indian. Near midnight of the date alleged, the body of the deceased was found lying between the rails of the Missouri, Kansas & Texas Railroad, nearly one-half a mile south of the Eufaula depot. The head, severed from the body, was lying outside the rails. Both feet had been cut entirely off, and were lying on the other side of the rails. On the body were several wounds, manifestly made by a knife. About 100 yards north from where the body was found, there was a large pool of blood, near the railway. Near this blood were found two split sticks of wood, about two feet long, with blood and hair on them.
    The plaintiffs in error, with one Joe Dick, and the deceased were seen by several persons in the vicinity between sundown and dark on that day. Joe Dick, another Creek Indian, was arrested charged with the crime. He turned what is termed “state’s evidence.” As a witness for the state, he testified: That he was with Johnson Lewis and John Asbury’s father and John Asbury near the railroad, not far from the power house in Eufaula. That Johnson Lewis and Asbury’s father went home. That shortly after he and John Asbury met Samson Lewis and Jonas Lewis, and soon afterwards they met Major Wesley. That Samson Lewis struck John Asbury in the breast with a knife, and Major Wesley knocked Asbury down with a stick of wood. Jonas Lewis also hit Asbury with a stick of wood, and in that way they killed him. Major Wesley then proposed to take the body and throw it on the track to hide the crime, and said, “I have been wanting to kill this fellow for a long time, and I have done it;” that, “People have accused me of killing people and laying them on the track, but they never have proved it on me yet.” That they pulled off their coats and carried the body about 70 yards down the track and placed it between the rails and put a bottle of whisky inside the coat in order to make it appear that Asbury was drunk, and had lain down on the track, and that a train ran over him.
    Samson Lewis, sworn as a witness in his own behalf, testified: That on the day of the homicide he was picking cotton for Major Wesley, and about 10 o’clock he went to town with Major Wesley and Henry Deer. That about 4 o’clock he was with Jonas Lewis, and they saw Joe Dick and John Asbury going out to some place near the railroad where they could drink some whisky unobserved. That, wanting to drink some of the whisky, they followed and caught up with them, and Joe Dick told them to go back. About that time Johnson Lewis and Jimsey Asbury joined the other two, and they went on, and he and Jonas Lewis came back and met Major Wesley, Albert Deer, and Henry McIntosh. That McIntosh called on them for money to buy whisky, and they refused to contribute, and McIntosh raised a row, and they had a little scuffle with him. That he then came uptown, and after dark he went over to the other side of the railroad to an eating place and was eating when Joe Dick came in and called him out, and said to him, “Can you keep a secret?” and he replied that he did not know about that, and Joe Dick said: “I have taken away the life of John Asbury, and it is that I wish to tell you. If you will keep it a secret, and not tell, I will buy some whisky for you, and'you can go and I will go my way.” That they went to a pool hall, and Dick bought the whisky and gave it to him, and they went out. Dick then said: “That person that I have killed I want to lay on the track, and I want you to help me do the work; if you don’t go with me and put this man on the track, you mean by that you will be wanting to tell on me.” That he became afraid of Dick and went with him. That they went to where Dick said the man would be found, and John Asbury was lying there. That Asbury got up, and Dick said: “I thought I had killed him, but it seems he is not dead. I will go and get a stick and finish him.” And he went and got a stick, and said, “Let’s go up here to the railroad,” and John Asbury said, “I don’t care to go on the railroad,” and he started south parallel with the railroad, and Dick said, “Let’s follow him,” and we caught up with him, and Joe Dick struck him down with a piece of stove wood. He struck him five times. He then threw the club away. In about five minutes Asbury seemed to revive, to come to life again, and Dick told witness to get him another club, and he told him he could not. find one. Dick then went and got another stick of stove wood and struck Asbury with it some five or six times. That he and Dick carried the body and put it on the railroad. A freight train came south and passed over it. They then went to see what damage had been done to the body, and Dick said it had not been mangled much, and he laid the body on the track in a different direction, and they went away. That they went to Anna Scott’s house, arriving there about midnight, and they would not let them in. That Joe Dick left him there, and witness, overcome with drink, lay down near the house and went to sleep. That after they were arrested and in jail Joe Dick said to him that “It seems to be pretty generally believed that Major Wesley did this killing, and, if you will aid me in attributing this crime to him, we can both get out of jail,’ and he told Dick that he could not do that. That Jonas Lewis and Major Wesley were not there when the killing occurred.
    The defense of the other two defendants was an alibi. Jonas Lewis, as a witness in his own behalf, testified: That he lived about four miles west of Eufaula at the home of Lumber Billéy, his father-in-law. Was in Eufaula that day, and, with Samson Lewis, followed Joe Dick and John Asbury to get some of their whisky. That Joe Dick told them to go back, and they returned. That Samson Lewis and I-Ienry McIntosh had a difficulty and in assisting Samson he struck McIntosh. That it was then about 5 o’clock and he started to walk home. That Major Wesley, following, caught up with him, and they both went on together. That about 7 o’clock they stopped at Lewis Mitchell’s-house to get some water. That they then went to Lumber Bil-ley’s, and he stopped, and Major Wesley went on. He denied any participation in the murder. That while they were in jail, Joe Dick said to him:
    “It seems that they are going to fix that murder on us; but, if you and the rest of us will claim that Major Wesley did the killing, you and the rest of us will get out.”
    Major Wesley, as a witness in his own behalf, testified that he lived about five miles west of Eufaula; that he was present when the difficulty took place between I-Ienry McIntosh and the two Lewis boys; that it was then about sundown, and shortly afterwards he started for home; that he overtook Jonas Lewis on the road, and they went on together; that they stopped at Lewis Mitchell’s house to get a drink of water, and when they reached Lumber Billey’s place Jonas Lewis went in and he went on to his house; that his wife and Henry Deer were there; that he was not present and had nothing to do with the murder of John Asbury.
    Henry Deer, Lewis Mitchell, Lumber Billey, and Silva Wesley, wife of Major Wesley, testified in support of the alibi.

      T%mier & Turner and Robertson & Kean, for plaintiff in error.

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

(after stating the facts as above). The main contention in this case is that the trial court erred in admitting incompetent evidence. Tom Plotner, a witness for the state, testified that he worked at the power house, situated near the Missouri, Kansas & Texas Railway, about a quarter of a mile north' from the point where the body of John Asbury was found; that on that day about sundown he stepped to the door of the power house, and saw Major Wesley and John Asbury, both holding a post that held a guy wire of the power house smokestack; that they were reeling around and holding to the post, and both seemed to be drunk and mad; that he could not understand their conversation, as it was in the Creek language; that Wesley motioned to Asbury up and down the railroad track and then put his hand up in Asbury’s face; that they walked up to him, and Asbury commenced talking to him. Over the objections of counsel for the defendants, he was permitted to testify to the following conversation with John Asbury:

“Q. State what John Asbury said to you? A. Well, he walked up to me there by the door, and said, ‘Did you hear what that damn son of b-h was saying to me?’ I said, ‘No, I didn’t understand his language.’ ‘Well, he said he was going to kill me and put me on the railroad track to-night.’ I says to him, ‘Johnnie, you had better go home.’ And he says: T am a pretty good man myself, by God! I have been in the pen.’ And he turned and went in the same direction following Wesley. The Court: How long after the other left before he said that? A. He commenced talking to me before the other fellow was out of hearing. Q. How far away had Major Wesley gone when he first — what was your statement about that? A. Major Wesley turned that way, going past the building, and I was standing in the door, and he walked up with Major and commenced talking, and said what Major had said, and Major was passing by. The Court: Objections overruled. Exceptions saved by the defendants.”

This conversation was objected to on three grounds: First. That it was a declaration of the deceased not made in point of time and sufficiently connected with the killing as to form a part of the res gestae. Second. That it was not made in the presence and hearing of the defendant. Third. Because the witness Plotner did not understand the language used by Wesley and Asbury, and any attempt to repeat in English any part of such conversation, even in the hearing of the defendant, was incompetent, because the defendant did not understand the English language. .

We think that the objections made were not well taken. The previous ■ relations of the parties, .their feeling and actions toward each other, and the circumstances immediately surrounding the homicide are admissible, and acts and declarations of the deceased before the homicide which are connected with any act leading up to the homicide so as to form a part of the same transaction are admissible as a part of the res gestae. The testimony shows that the defendant Wesley and the deceased at the time were going towards the place where shortly afterwards the murder was committed, and it is substantially shown that what the deceased said to Plotner was in the hearing of the defendant Wesley. There was no offer to prove that Wesley did not understand the English language, although, .later on, the record discloses that when Wesley testified he did so through an interpreter, but that fact of itself would not. constitute proof that he did not understand the English language. The court, in its discretion and for the purpose of expediting business, may have, on the defendant’s request, permitted this method of examination, where the language usually used by the witness is different from that employed in the court. The presumption must be, unless there is an affirmative showing to the contrary, that a person understands the prevailing language of the country.

It is also contended in behalf of plaintiffs in error that the trial court erred in permitting the county attorney, in the course of the cross-examination of the defendant Major Wesley, to propound to him the following question:

“Q. I will ask you if you wasn’t present at the time that John Asbury was killed, and if you didn’t assist in the killing, and when you struck him the last lick, you made this remark, ‘You accused me of killing another man and putting him on the track, and now they can accuse me of killing you and putting you on the track’ ?”

It appears from the record that no objection was made to this question, and no ruling of the trial court on the question of its propriety was requested, and no exception taken respecting it. Upon the record there is nothing presented to this court for determination. The witness Joe Dick testified as to statements made by the defendant Wesley at the time he says Wesley was striking the deceased with the club. Such declarations on the part of the defendant Wesley were clearly a part of the res gestae, and admissible as such.

It also appears from the record that the defendant AYesley as a witness was psked the following question by his counsel, Mr. Robertson:

“Q. Major, you were charged here two years ago with killing an Indian and putting him on the track and tried before the jury and acquitted, were you not? A. Yes.”

Under these circumstances, it cannot be assumed that the defendant Wesley suffered any harm oil his cross-examination of which he can now complain.

Finally, counsel for plaintiff in error complain of certain alleged prejudicial remarks on the part of the county attorney. The fourth ground of the motion for a new trial is as follows :

“That error occurred in said trial of said cause, because of misconduct of the county attorney in his closing argument to the jury in referring to the fact that Major Wesley, one of the defendants herein, was in the habit of killing people and putting them on the railroad track, and that the said Major Wesley had been so charged in another and different case, with the commission of the same sort of crime as was charged in this case. A verbatim statement of the county attorney’s remarks is not set out herein, for the reason that his argument was not taken by the official stenographer of said court, but that the above and foregoing was the substance of his remarks to the jury, and excepted to by the defendants.”

There is no recital in the case-made as to what these remarks were, and the record does not show that any objection was made, or exception taken at the time to any remark made by the county attorney. There is, therefore, nothing before this court to determine.

In Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766, it is said:

“But the statements of attorneys made in the argument of the case in open court in the presence and hearing of the judge cannot be shown to this court by affidavits either on the part of the state or the defendant. The argument of the cause to the jury is a part of the trial, and statements made therein, to be reviewed, must appear by a proper recital of fact in the case-made so that the certificate of the trial judge will be a certificate to the correctness of the recital. The judge must settle the case-made, and thereby determine what was said, so that his certificate will attest the truthfulness and correctness of the recital in the case-made. But the trial judge’s certificate does not attest the truthfulness of affidavits offered in support of or in opposition to matters alleged in the motion for a new trial.”

It is true, as counsel assert, that the case against the defendants depends in a great measure upon the testimony of an accomplice; but his testimony is sufficiently corroborated upon all material points, and we cannot hold as a matter of law that the evidence, if believed,- as it must have been, was not sufficient to warrant a jury of fair-minded men in reaching the conclusion evidenced by the verdict.

We have given this case careful consideration, and, while in some instances the state went to the full limit of the rules of evidence, we are not satisfied that any such error intervened as would justify a reversal of the judgment.

The judgment is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.