text:
    A. L. THURMOND, Jr., v. STATE.
    No. A-8822.
    July 19, 1935.
    As Corrected Aug. 20, 1935.
    (48 Pac. [2d] 845.)

      David Tant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with murder in two counts; was convicted on the second count of manslaughter in the first degree and sentenced to serve a term of four years in the state penitentiary.

The information, omitting the caption and signature of the county attorney, is as follows:

“In the name and by the authority of the State of Oklahoma, comes now Lewis B. Morris, the duly qualified and acting county attorney in and for Oklahoma county, State of Oklahoma, and on his official oath gives the district court in and for said Oklahoma county and the State of Oklahoma, to know and be informed that heretofore, to wit: on or about the 23rd day of August, A. D. 1933, in Oklahoma county, State of Oklahoma, A. L. Thurmond, Jr., whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and feloniously commit the crime of murder in the manner and form as folio ws to- wit:
“First Count
“That is to say, the said defendant in the county and state aforesaid, and on or about the day and year aforesaid, then and there being, did then and there while under the influence of intoxicating liquor, willfully, unlawfully and feloniously run, drive, propel and operate a certain automobile, to wit: a 1933 Buick coupe upon and over a certain public street in Oklahoma City, said county and state, commonly known as West Grand avenue, at a high and dangerous rate of speed, and in a reckless and careless manner, while under the influence of intoxicating liquor, and operating said automobile as aforesaid, he, the said defendant did, where Grand Avenue, in said Oklahoma City intersects Hudson street, unlawfully, wrongfully and feloniously drive into and strike one M. K. Beam, who then and there was attempting to cross Grand Avenue, with such force and in such manner as to then and there and thereby inflict upon the body of the said M. K. Beam certain mortal injuries so inflicted as aforesaid, from which the said M. K„ Beam did instantly die, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma ;
“Second Count.
“That is to say, the said defendant, in the county and state aforesaid, and on or about the day and year aforesaid, then and there being did then and there unlawfully, ■ willfully, wrongfully and feloniously run, drive, propel and operate a certain automobile, to wit: a 1933 Buick coupe upon and over a certain street in Oklahoma City, said county and state, commonly known as West Granel Avenue at a high and dangerous speed and in a reckless and careless manner imminently dangerous toi others and evincing a depraved mind, regardless of human life, and while so driving said automobile as aforesaid, he, the said defendant, did, where Grand Avenue in said Oklahoma City intersects Hudson street, unlawfully, wrongfully and fe-loniously drive into and strike one M. K. Beam, who- was then and there attempting to cross Grand Avenue, with such force and in such manner as to then and there and thereby inflict upon the body of the said M. K. Beam certain mortal injuries so inflicted as aforesaid, from which the said M. K. Beam did instantly die, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

The defendant was placed on trial on both counts in the information, and the court instructed the jury fully as to the allegations in the first count charging the defendant with driving a car at a high and dangerous rate of speed, and in a reckless manner, while under the influence of intoxicating liquor; and also on the second count as to the defendant driving, at a high and dangerous speed, and in a reckless, and careless manner, imminently dangerous to others, and indicating a depraved mind regardless of human life. The court further instructed as to manslaughter in the second degree, advising the jury that a killing by the act, procurement or culpable negligence which is not manslaughter in the first degree or excusable homicide is manslaughter in the second degree. The jury, after hearing the evidence and instructions of the court, failed to' find the defendant guilty on the first count in the information, or of manslaughter in the second degree, but returned a verdict of manslaughter in the first degree on the second count.

The question now to be decided by this court is: Is the evidence relating to the second count in the information sufficient to sustain the verdict and judgment of the court, and was the defendant accorded a fair and impartial trial as guaranteed to him by the Constitution and laws of this state?

The accident that caused the death of M. K. Beam occurred at the intersection of Grand avenue and Hudson street, Oklahoma City, Oklahoma county, Okla.

The first witness testifying for the state, a Mr. Craw-ley, stated:

“I am 36 years of age; on August 23, 1933, I was employed by the Y and Y Cab Company; about 12 or 12:3'0, on the 23d of August, 1933, I answered a call to the Col-cord building, on Grand avenue; I was going west on the north side of Grand avenue, when a beige colored Buick coupe passed me on the north side of the center of the street, at a speed estimated at about 30 miles per hour or faster; I had just passed Harvey street on the north side of the street car track; I picked up my passenger intending to go west to Walker, but on account of the jam at the corner I decided to make a left turn at Hudson; I looked up and saw a man lying in the street about where the street car tracks turn in the center of the street; had to turn my wheels real quick to keep from bitting him; I turned south and was almost stopped at that time; the Buick coupe darted north; I don’t know if the driver of the Buick got out of the car; I went on and delivered my passenger and when I got back they were washing up blood from the street; the Buick car when I noticed it was headed toward the Black Hotel, and just before I got there it started north, it could not have been more than 30 seconds; I was not acquainted with the deceased, and did not know A. L. Thurmond, Jr., at the time.
“I was just west of Harvey when the Buick car passed me going west on Grand avenue; at the time I was driving between 20 and 25 miles per hour; I guessed at the rate of speed the car was making that passed me; I could not positively say how fast it was going; it was going at least twice as fast as I was going; I was just guessing at my speed. I had driven about a block and a half when I heard the crash; we are allowed 25 miles an hour and I usually crowd it pretty close; there were no other cars on the street at the time that I saw; two cars were parked in front of the hotel, and a private car was standing in front of the interurban station; I did not see the car strike Mr. Beam; I did not know any one had been struck until I saw him lying in the street; the defendant was standing still in Hudson street Avhen I drove up; somebody said, ‘Don’t let that man get away.’
“Immediately after the Buick car passed me the car or brakes or something started to scream; I was about 75 feet behind the Buick. car from the terminal building up Hudson street; my speed was from 20 to 25 miles per hour; when I heard somebody say, ‘Stop the man, don’t let him get away;’ there was three or four men moving toward the Buick car at the time. The Buick car was standing still; after I heard them hollow a man started toward the car, and that is when he drove off.”

E. M. Fisher, testifying on behalf of the state, stated:

“I am 21 years of age, married, and have been working for the Grace Gleaners, at 326 West Grand, for about a year; was there on August 23, 1933, working at night; shortly after 12 o’clock I was standing in front of our place of business; I heard squeaking of brakes.
“Mr. Morris, county attorney: Mr. Fisher, you will have to talk louder.
“The automobile I saw at the place indicated, was going pretty fast; I don’t know whether it was 35, 40 or 45 miles; I did not know what kind of a car it was at the time but learned it was a Buick; saw Mr. Beam crossing the street; did not know his name at the time; he had passed in front of the shop going west, he did not go down to the corner, he turned about 15 feet west of our door; I don’t know how far it is from our door to' the corner; there are two hotel entrances, the building is about the same width; the man turned about here (indicating on a map) and went across the street.”

At this juncture the assistant county attorney, Mr. Grigsby, asked the witness:

“Q. You talked to' me day before yesterday about this situation? A. Over the phone. Q. No, at your place of business? A. No, not that I know of.”

Many other questions were asked by the county attorney with reference to a conversation the witness should have had with some one of the state officers:

“Q. You saw the auto strike the man? A. Yes, sir. After the car struck the man it swung around and hit a taxi; I did not know it was the Thurmond car at the time; the car then backed out and went north on Hudson.”

On cross-examination, witness stated he was standing in front of the shop' on Grand avenue, and Mr. Beam cut across, going in a northwesterly direction; the car that hit Mr. Beam was on the north side of the street car tracks on Grand avenue—

“I believe I saw a car going west on Grand avenne; I saw a car on Hudson come from the south into the intersection ; when I first saw the car that hit Mr. Beam it was just east of the terminal tracks as they turn into the terminal going west towards Hudson street. Mr. Beam was lying where a street car track stops, at the intersection of Hudson street and Grand avenue; I could not see from where I was standing where the car struck Mr. Beam; it seemed to me he was walking at a pretty fast pace; just before the car struck him he changed, he stopped and kindly hunkered, then lurched forward; he was going northwest and turned west, he then faced back north, lurched forward and increased his pace; the coupe was going between 30 and 45 miles per hour.”

On re-direct examination, witness was asked if he did not. recollect talking to the county attorney, and that he told him 50 or 60 miles an hour.

“Question by Mr. Grigsby, assistant county attorney: You recollect you told me 50 or 60 miles an hour? A. No, sir. Q. You did not make that statement to me? A. No, sir. Q. You did not tell me the man went by the corner and turned across? A. No, sir. At the time this man was struck there was a car coming east on Grand avenue and one going’ north on Hudson; the car that struck him was going west on Grand; I did not know at the time who was driving the car that struck Mr. Beam; the car that was going north on Hudson turned to the right and went west on Grand and another car was going east on Grand; I went in and called an ambulance; did not go out to the injured man; I was at the shop by myself at the time. Grace Gleaners are open all night and all day.”

Several other witnesses who heard the crash and saw the man after he was struck testify as to the action of the defendant after he struck the taxicab, showing some of the witnesses got his license tag number; while they were getting the tag number the defendant asked them to call an ambulance.

A witness for tbe state, J. W. Wallace, stated be remembered tbe nigbt M. K. Beam was killed at tbe intersection of Hudson street and Grand avenue — ■ “I was there that nigbt.” In describing the crossing of the street, Wallace stated:

“Pedestrians usually walk across here (indicating, on a map) and some cut across tbe corner; they don’t always go directly across tbe street; my car was parked on tbe north side of tbe street between tbe stop sign and tbe corner; I was standing next to tbe hotel entrance in a doorway; I saw a car coming, but did not notice tbe color until after the accident; I saw tbe car bit tbe man: be was about opposite tbe entrance to tbe Anchor Hotel by tbe drug store; I saw this man along here (indicating on a map); be walked about this way to tbe curbstone, stood there a few minutes, and it looked like be was going to turn across; he went back like be was. going to tbe drug store, tbe entrance of which is on tbe corner; be then walked on, but I don’t know whether be went down to tbe Grace Cleaners or not; later I noticed a man going across tbe street, I would say from tbe east side of tbe building in which the drug store is located; be stepped off the curb and I paid no more attention to him until I saw him on tbe north side of tbe street car tracks, in or close to the lane for pedestrians; as tbe car approached that struck him be made sort of a run to get across, made a step and then backed back, made a second step forward, and made a step or two tbe other way like a fellow will do in baste, trying to get away — at this time be was only about 15 to 18 feet from the Buick car; there were tracks to' show tbe brakes went on before it bit my car; tbe tracks showed all four wheels bad been set; tbe street bad been washed and tbe frogs were full of water and cars passing back and forth kept tbe street washed, and you could not tell one track from another; in fact I argued with tbe officer which track was which.
“The man was about crossing the street car tracks when I first observed him; after tbe man was bit I went out to where this car had stopped in the intersection when he put on his brakes where the collision took place, and it looked like it went around to the right; in turning and putting on the brakes his car turned into my car; the car was going like it was going to make a turn toward the curb so as to sorter dodge — pulling in closer than if he would be going straight, and the car hit my car at the rear and turned sidewise like this (indicating) — when the car stopped after it hit my car it was approximately facing north; I went out and spoke to the man and went around and got his tag number; he said to call an ambulance ; I called another man driving a cab and told him to call an ambulance; he told me to call an ambulance before I got his tag number, and told me again, I believe he told me the third time; I know positively he told me twice; I went over to where the man was lying, and the car drove away; I called the police station and reported the accident. I did not notice the man was under the influence of liquor; he talked like a man that was sober; I do not think he was drunk.”

On cross-examination witness Wallace stated Thurmond was driving straight when he first saw them, and swerved a little to the side; to the right, toward the curb when Mr. Beam began dodging back and forth, apparently in an effort to avoid hitting Mr. Beam.

“I know Mr. Beam balanced back and forth three or four times and he went back toward the center or south side of the car when he was hit; he seemed to- be confused; his making the movements is what attracted my attention; I had observed him crossing the street; I did not see him go up to the corner and come back to the east and start across the street; I did not observe him any more until I saw him dodging; he was crossing- the street in a way that is commonly known as jay-walking. I think I am competent to tell whether a man is drunk or under the influence of intoxicating liquor; when I spoke to the defendant at the time of the accident I did not see anything to attract my attention in that respect; he sat erect in his car and told me twice or on three occasions to call an ambulance.”

Mi*. Morris, the county attorney, on redirect examination propounded many questions to his witness; among other things, he wanted to know if the witness had ever told any one that defendant had told him to call an ambulance two or three times, and witness answered, “I think so, because it is an established fact that I did.”

The record further shows that about the time he asked them to call an ambulance, parties began to call out, to “get that man, and don’t let him get away,” and defendant backed his car out in the street and drove north on Hudson street.

The record is quite lengthy, the testimony on behalf of the state attempting to show the defendant was intoxicated at the time of the accident, a number of witnesses testifying they smelled his breath and that it had the odor of whisky; some of the witnesses testifying did not see the defendant until about 4 o’clock in the morning after the accident occurred around 12 to 12:30, stated they smelled the odor of alcohol on his breath. A doctor testified he was at the police station about 6 o’clock the next morning after the accident occurred and he smelled the odor of whisky on his breath.

■ In the introduction of the testimony on behalf of the state, the state at length introduced testimony showing that when the defendant went to the police station, to report, as he claimed, his car had been stolen, he was detained by the officers, and while so detained he refused to give them a statement about the accident, or to make any statement, or to sign any statement. The record shows one statement was prepared by an evidence man and others; tbe defendant glanced oyer it and tore it up; another was prepared and be crushed it and pitched it in the wastebasket.

It is further shown that while he was detained at the police station he asked to see a lawyer and to communicate Avith his family, and was denied that privilege.

The defendant introduced testimony to show he had been with a number of friends the afternoon and evening before the accident occurred, and that he was not intoxicated; he had had dinner at home with friends and they had gone different places and he had not drunk anything but two or three bottles of 3.2 beer.

The defendant testified in his own behalf detailing a,t length his movements the afternoon and evening prior to the accident and denied he was drunk or that he had been drinking any intoxicating liquors, in detail telling how he happened to be on Grand avenue; that he was driving at a rate of 25 to 30 miles per hour; when he got near the intersection of Grand and Hudson there were several cars passing one another and his attention was attracted to the cars, and when he discovered the deceased walking in the middle of the street, he set his brakes; that the street had been recently washed and was Avet and he could not stop or avoid striking the deceased; after he struck deceased his car bounced around and collided with a taxicab that was on the side of the street; some one came to the car and he told them to call an ambulance; the party Avent on around the car, and some one hollowed, “Get that man, don’t let him get away,” or words to that effect, and he feared personal violence and turned his car and drove up Hudson street and on to his home.

The defendant admits he ran the car he was driving into' the garage, took his father’s car and chauffeur and drove to Shawnee and back, arriving at home in the early morning before daylight; he found his car had been taken out of the garage and drove to the police station to report it as stolen when he was taken into custody and detained by the officers, the officers refusing to let him call his family, or an attorney. Defendant admits the officers tried to get him to make a statement and he refused to do so. He denied he was intoxicated at the time of the accident, and denies that he was driving at a greater rate of speed than 25 or 30 miles per hour. Defendant further denies he was driving in a reckless manner or at such a rate of speed as to endanger the lives of others.

Miss Mary Jane and Lois Olga King, and Chris King, each testify they were with the defendant the evening before the accident shortly after midnight, and they testify positively that defendant was not intoxicated and had not been drinking anything but some beer.

Opal Woden, testifying for the defendant, stated:

“I was employed at the Veazey Drug Store, at Eighteenth and Classen, on the evening prior to the alleged accident; I know A. L. Thurmond, Jr., and the King sisters; Mr. Thurmond, the King sisters, and Chris King came to the drug store, first Mr. Thurmond and Olga King drove up, and I went out to serve them and Mr. Thurmond asked me to wait, as there were other parties coming; shortly thereafter Chris King and Miss King came and got in the car and I took their order; I was on the driver’s side of the car; they were in a Buick coupe, with Mr. and Miss King in the rumble seat; I talked with Mr. Thurmond, and he was not drunk or under the influence of intoxicating liquor.”

On cross-examination the assistant county attorney, Mr. Grigsby, sought to show that the witness had made a statement that Mr. Thurmond was not at the drug store the evening testified to< by her, and questioned the witness at length seeking to establish by her that immediately after the accident she decided that Thurmond was sober.

“Question by Mr. Grigsby, assistant county attorney: You did not tell anyone he was sober? A. Sure, I did. Q. Who did you tell? A. Some policemen came out and questioned me the following night, I would not know who they were. They stopped me on Western, I was walking home. That is, two policemen spoke, I would say about two, I imagine there were five or six in the scout car. Q. Stopped you, where? A. On the corner of 12th and Western, I believe, about a filling station. I had not seen the policemen before that I know of. I was going home from work. Q. How were you dressed that night? A. I don’t remember. Q. I mean did you have on your apron? A. No, sir, had on my street clothes; it was about 11:30 the following night after the accident; one of the policemen got out of the car and stopped me and told me they had been to the drug store and the employer told them I had started home. I told the policeman what I knew about Mr. Thurmond being at the drug store and that he was sober; I got acquainted with Mr. Thurmond about seven months prior to' this time; he was a customer at the drug store and had a charge account; I have never seen him intoxicated. Q. You noticed that? A. I did not notice anything else. I had not remarked to anyone that night that he was sober. My recollection is that while at the drug store that night he drank a bottle of 3.2 beer; I do not remember the brand, the drug store carries several different brands; I do not know what direction he came from; Mr. Thurmond was driving the car; I did not see him leave; I served them from the driver’s side of the car as it was nearest the entrance to the building; I did not smell anything on his breath; I was close enough to take the order, up to the door of the car, standing as near the running board as I could.”

The record further shows that before the defendant closed his testimony Opal Woden was recalled for recross-examination by tlie state, and was questioned at length as to what she told the police officers the following night after the accident which caused the death of Mr. Beam. Among others, the following questions were propounded to the witness:

“Q. I will ask you if these officers did not ask you if Mr. Thurmond was not at the drug store where you worked that night, and you stated you did not see him? A. No, sir. Q. And if that officer was not Cliff Miers and Mr. Claud Tyler was present in the car when the conversation took place? A. I did not know the man. Q. Did you tell him Thurmond was not out there and that you did not see him? A. No, sir. Q. And you did not wait on him? A. No, sir.”

The record discloses that since she had testified for the defendant on the day previous, she had been introduced tó a man by the name of Cliff Miers, and that she had also met a man by the name of Claud Tyler.

“Q. When did that meeting occur? A. This morning. Q. Were you sent for? A. Yes, sir. Q. Those four people were there? A. Yes, sir. Q. Tell the court all that occurred; all that was.said? Mr. Grigsby: Objected to as incompetent, irrelevant and immaterial; that has nothing to. do with this case. Mr. Arnold: Yes, it has, they are going to bring the same two people in here; they have laid the predicate for impeachment. Mr. Grigsby: No, if the court please, we are not proving what was said upstairs, we are proving what she said to these officers out there, we wanted her to see these officers and she saw them.”

The record contains several questions, answers, and remarks of the court; among others, the following were made by the court:

“A foundation for impeachment could have as well been laid then as now, if that is the purpose of it. I will give ber an opportunity to tell what occurred. Mr. Grigs-by: What occurred in the county attorney’s office? The Court: Yes, sir, I think so, it probably ought to be sur-rebuttal.”

Again an objection was made, by Mr. Grigsby, the county attorney, and an effort made to prohibit this girl from telling what took place when she was taken to the county attorney’s office and confronted by the two officers, the county attorney, Mr. Morris, and Mr. Grigsby, assistant county attorney. The court advising the attorneys for the defense they could reach that later on. The state then called several witnesses, tending to show defendant had been around the Black Hotel the evening before the accident, and attempted’to contradict other witnesses who had testified, and after the state rested in rebuttal, the defendant called Miss Opal Woden and developed the following facts: That she was called to the county attorney’s office by some representative from the county attorney’s office. The county attorney objected to' the defendant going into that question, insisting that it was incompetent, irrelevant, and immateral, and not proper su'rrebuttal, the county attorney stating the whole testimony was she was called back and conferred with.

“The Court: The officers testified to it, and it would be one cross firing another, and it would be a matter for the jury to determine. Mr. Tant: Now, in going into all these details while I was in the county attorney’s office visiting Mr. Miers, the man who was there talked with me and said he was the man that talked to me on the street relative to the Thurmond matter; he said the girl that was there the night he went to the drug, store told him she was the girl that served Mr. Thurmond. Q. Did you tell him you did? The Court: It is not incompetent but is repetition.”

Again the defendant’s counsel asked a question. The county attorney objected. “Now, after all the conferences in the county attorney’s office, have you changed your mind about the testimony?” Objections were made; statements from the court that the question becomes argumentative; after the objections back and forth by the county attorney, the witness was excused.

The record is voluminous, and it would serve no useful purpose to- set it out in full. Many pages are filled with testimony not applicable to the crime charged, immaterial, and seemingly introduced for the purpose of trying to arouse bias and prejudice in the minds of the jury. Later on in this opinion, we will refer to. the question of evidence and the manner in which the examination of witnesses was conducted.

The defendant has assigned ten errors alleged to have been committed by the trial court, as follows:

“1. The court erred in overruling the demurrer of the plaintiff in error to the information filed herein.
“2. The court erred in overruling the demurrer of the plaintiff in error to the evidence introduced by the state.
“3. The court erred in refusing to grant the plaintiff in error a continuance of said cause.
“4. The court erred in refusing to give the requested instructions of plaintiff in error.
“5. The court erred in giving to the jury instructions numbered 6, 7, 8, 9, IT and 12.
“6. The verdict of the jury is not sustained by sufficient evidence.
“7. The verdict of the jury is contrary to and in disregard of the court’s instructions.
“8. Errors of law occurring at tbe trial and excepted to by plaintiff in error.
“9. The court erred in permitting the state to introduce incompetent, irrelevant and prejudicial testimony.
“10. Misconduct of the assistant county attorney, Mr. Draper Grigsby, in making prejudicial remarks to the jury, and excepted to by the plaintiff in error.”

The defendant in his ninth assignment urges that the court erred in permitting the state to introduce incompetent, irrelevant, and prejudicial testimony.

A careful examination of the record presents a peculiar effort upon the part of the prosecuting attorney not followed up by testimony, showing conclusively that it was the desire and ambition of the prosecuting officer to try, if possible, to impress upon the jury the fact that the witnesses were not telling the truth. In one or two instances, a witness who was not testifying apparently to the satisfaction of the prosecuting officer was asked, “Didn’t you tell me the car was going sixty miles per hour?” and the witness answered “No.” Several other witnesses were asked similar questions and answered they had not made such statements to the prosecuting officer. Many others were asked if they had ever reported to any one they had seen the accident, and when they stated they had not, then the prosecuting officer would go into questions as to statements they had made contrary to what they testified to. In each of these instances the testimony was closed, and no effort was made by the state’s attorney to show that the witness had made the statements to him or other parties inquired about, thus leaving the question before the jury that in the mind of the county prosecutor the witness had made the statements inquired of, without any testimony except the questions of the county prosecutor. This kind of procedure cannot be approved by this court. When the county prosecutor interrogates a witness as to conflicting statements made to him, or to- other witnesses, if the witness denies the fact, the county prosecutor should be in a position to offer proof upon those questions ; otherwise the questions should not be asked.

In the testimony of Miss Opal Woden, who was a clerk in the Veazey Drug Store at Eighteenth and Classen, on testifying for the defendant, she stated that the defendant was at the drug store at a certain hour the night of the accident and a short while prior thereto-, and that she did not smell any intoxicating liquor on his breath. She also stated that as she was leaving her work the following night a police car drove up and stopped her, and one of the officers got out and asked her if she had seen the defendant at the drug store the previous night, and she says she told him that she had, and that he was not intoxicated; and she served drinks to his party. The record further discloses an unusual act upon the part of the county prosecutors: After Opal Woden had testified, without notice to defendant’s attorney or himself, Opal Woden is sent for and taken to the county attorney’s office and confronted by the officers whom it is claimed were the ones that talked to her on the night after the accident, and the county attorney and Mr. Grigsby, an assistant. It is needless to say why Opal Woden was taken to the county attorney’s office and confronted by these officers in the presence of the county attorney and his assistant, Mr. Grigsby, after she had testified, but any unbiased, thinking person would believe it was done for the purpose of trying to intimidate her and cause her to change her statements made while on the witness stand. If not for that purpose, why was she taken to the county attorney’s office? Those officers had the opportunity of seeng her at the courtroom and knew as well at the time she was taken to the county attorney’s office and confronted by them what she had told them, as they did after they had seen her on the street the night they talked to her. It was not a question of the officers identifying the witness, because she had admitted they talked to her. Only the question of contradiction was involved, and this court holds that the county attorney and his assistant, in their zeal to try to contradict and break down the testimony of the witness, Opal Woden, should not have taken her to the office and there, in the absence of the attorney for the defendant and defendant, confronted by the officers who were afterward called to testify and to contradict the testimony of the witness, Opal Woden.

The tenth assignment relates to the misconduct of the assistant county prosecutor, Mr. G-rigsby, in making prejudicial remarks to the jury regarding the defendant, his character and habits, and his actions after the accident.

Among other things, the assistant county prosecutor, Mr. Grigsby, said:

“This is a hit-and-run driver. I'don’t care what the evidence in the case has shown for the defendant or for the state. The facts are, this is a hit-and-run driver. You have heard of the hit-and-run driver. You have heard him talked about. He is here before you. He is here with his array of counsel. He has come to a court of justice prepared to meet the state’s witnesses. Mr. Arnold (interrupting) : If the court please, I wish to' object to counsel’s remarks as to what they have heard about him and what they have read about him. The jury promised not to- consider that. It is prejudicial. The Court: We will try to confine ourselves to the explanations of the evidence. Mr. Grigsby: I expect to be interrupted quite often in this argument. Mr. Arnold: We object for the same reason. Mr. Grigsby: I don’t expect to get to say much to you due to' the fact of the objections of counsel— Mr. Arnold (interrupting) : We make our objections. He may put them in at the end of the argument. The Court: It is the duty of the attorneys on either side in the argument to confine themselves to the facts and draw such inferences as you think proper and right, and whenever that is done, all right. Mr. Grigsby: May I proceed Avithout interruption? The Court: I hope so. Mr. Grigsby: I hope so. Mr. Arnold: May I have an opportunity at the close, I don’t want to have to get up here continuously and make objections, and if I may make them so we can keep our record. Mr. Grigsby: I expected this. I expected it when I saw Mr. Hommedieu as a witness. I knew that this was going to be a trial that I had never sat in the like before and it has been. The state of Oklahoma has to fight every inch of the way to get what it got. I want to say to you at the outset of my argument that until he took the witness stand, under the evidence in this case, he never told a living soul, not an officer, not a prosecuting attorney, not a policeman, that he ever— Mr. Tant (interrupting) : Just a minute. Mr. Grigsby (continuing) : —killed M. K. Beam. I expected this interruption all the way through. Mr. Tant: Yes, you are going to' get it until you confine yourself to the record. You are making statements outside the record and not according, to law. Mr. Grigsby: That is the evidence. I challenge the record. The Court: I didn’t think you were out of the record, but I will allow the exception. Mr. Tant: He states the defendant never made a statement. Mr. Grigsby: I am saying what he didn’t do. There is no* use continuing the argument on behalf of the state. They are taking the record and can take their exceptions and I think the state is entitled to that much consideration. I know he doesn’t want us to argue this case. Mr. Tant: We except to those remarks because we have the same right to make objections and the Criminal Court of Appeals has held that if we don’t make them at the time we waive them. Mr. Grigsby: You can have an objection to each and every word I say. Will I be interrupted? The Court: I hope yon will not. I said that before. Mr. Grigsby: I think the court can control this situation. I think the court has the power. The Court: I can’t keep them from objecting. I can overrule the objection. Mr. Grigsby: It is useless for the state to argue this case if we have got to be continually interrupted. Mr. Grigsby (in reply to statement of the court) : I know I am not. I have argued a thousand cases and I know what the purpose of this objection is. Mr. Tant: We save an exception to all of these remarks. The Court: Exceptions allowed.”

Mr. Grigsby, further in his remarks, said:

“He wants counsel. Does an innocent man need counsel in a criminal case if he is innocent? Do you need counsel if you are not guilty? I ask you to reason that in your minds. Do you need counsel if you did not commit the crime? Why is it necessary that you demand counsel if you are innocent and the man jumped in front of you and your car was in the garage at nine o’clock? I ask you why do you need counsel to do your talking for you when you have gone through highschool and to the university and majored in finance? You, who had majored in finance, you who had a silver spoon in your mouth since you were born, had every advantage— Mr. Tant (interrupting) : We object to that remark as prejudicial, incompetent, irrelevant and immaterial and not within this record. The Court: Overruled and exception allowed. Mr. Grigsby: Did we have a word from him? And I say to you as men of ordinary intelligence in life, that this is the instinct of a criminal. They wrote one statement for him. They gave it to you (referring to the defendant) and you tore it up. They wrote another one and you tore it up. The last one he did not tear up. I told you he is a common criminal; he is nothing else. When that car crashed into that body, knocked it 30 feet in the air, even Hommedieu did not change his testimony on that. Let us go on and see what kind of a man you are dealing Avith. I said he was a common hit-and-run driver and I don’t retract my statement. I don’t know bow many counsel be may employ or how many be has employed. I still say be is a common criminal with the instincts of a hit-and-run driver. Did you help to pick up> that lifeless thing and put it in the ambulance and let science try to bring it to life? No, you didn’t do anything. You are the same as an A1 Capone gangster. You kill them and let them lay where they fall. Mr. Tant: If the court please, I object to that line of argument. I don’t want to interrupt, but it is an effort to attack the character and reputation of this defendant. The Court: Overruled and exceptions. Mr. Grigsby: The officers were looking for him, and this little idol, this little pure man, did he tell the officers; did he tell anybody that he was the one? The answer, the echo is No,’ and I say to you that he has the instincts of a criminal. You, majoring in finance, called a lawyer, hut a criminal says mouthpiece, and mouthpiece means lawyer. Give me a mouthpiece. I won’t say anything. I say the common instinct of the criminal is the same, whether they wear a double-breasted suit or trick mustache or a tuxedo or overalls. It is the same. Give me a lawyer. Why is it that a man that is innocent asks for a lawyer? An innocent man never needs a lawyer. They never get to a jury. Only the guilty get to a jury. Call him a lawyer. He wanted a lawyer to say what he did. He wanted a lawyer to plead his cause, to tell you why he knocked that man 30 feet, that body rolled over and over, when the blood was running out of his mouth, nose, eyes and ears, he wanted a lawyer to tell why he did it. Turn him loose, let him go hack to the upper strata. Say to the man who has education, majoring- in finance, teller in a bank, you can kill them; you can run over them. I don’t want you to write a verdict of not guilty, but you would have the approval of the hit-and-run drivers, and that is what you did. Just a common hit-and-run driver with the instincts of a common criminal; they are there. I want to tell you this is the most arrogant, egotistical individual I ever saw in the courtroom. He took the witness stand under the direct examination of Ben Arnold and said he lied to the officers, lied to Mr. Cassidy. The jury is with me. Lied tO' Mr. Cassidy? Like it? He lied to them. What are you going to do about it? I know you are not going to turn him loose because no reasonable body of men will believe all of the story he put up here, but you are liable to go out here and say, what about a fine? If you have got any idea of fining him — I am just talking as your agent; I am subject to' being fired in five minutes. Lewis Morris can come in here and say ‘You are fired.’ I am through. I go to represent these hit-and-run drivers. Are you going to slap him on the wrist with a fine? I can almost pick out the foreman, but I am not; I might make the rest of you mad. Hommedieu makes a statement of 50 or 60 miles an hour. Hommedieu didn’t even identify you. What changed Hom-medieu? What made Hommedieu with his trick mustache •change? What made Fisher change? Is it- because you were rudely detained?
“A verdict in this case of not guilty means greed. Greed has usurped human rights. You did not know M. K. Beam. You never saw him, but you are just like a common criminal who kills and leaves his victim dying. Listen, I have defended these fellows. I have gone down and wanted to make their bonds and get them out. Listen, the police will say, we are not ready; they are under investigation. Do you think I jumped up and raised the devil with them? Do you think I said I was a lawyer; I am the mouthpiece? Do you believe you could do it? No, ‘Just at your convenience, Mr. Detective, Mr. Captain, Mr. Chief, just at your convenience.’ Listen here, I am not saying this man is guilty of manslaughter in the second degree; I am not saying he is guilty of manslaughter in the first degree; I am saying he is guilty of murder and sentence him for life. Listen, I am going to tell you something. Would they even slow down if you would write a verdict of guilty of murder in the first degree and say we find the defendant guilty and fix his punishment at life? Would that slow them down, would that? They would have a respect for the law that they have destroyed. It keeps running through my mind continuously from the time Ben Arnold got him up here and said, ‘Did you lie about it?’ ‘Of course, I lied about it. I didn’t have a lawyer.’
“Why does an innocent man want a lawyer? I will tell you lawyers are not dishonest as a rule; witnesses are not dishonest as a rule, but the almighty greed for the dollar mates them all dishonest. Both the little King girls perjured themselves like a lady. Chris King did his today just like a gentleman. Don’t you see how they wanted to make a mess out of that? Claude Tyler and Clint Miers say they went to that little girl and asked her if he was there and she said he was not. It didn’t happen. She came on the stand and so testified it didn’t happen. Who are you going to believe? Why should Claude Tyler perjure himself? Some people don’t have any respect for perjuring themselves. I have known Claude Tyler and Clint Miers for some time. They told the truth. It is passing strange she is not working down at Veazey’s now; she is up at Roach’s.
“I am going to leave this case up to you, gentlemen. I want you to understand that Lewis Morris regrets it the same as we regret prosecuting any man. It is a hard job to take a man and try to send him to the penitentiary, but that is the law. We took an oath to support it; you took an oath. If you violate your oath, why shouldn’t we? If we dismissed this case and wouldn’t file it we would be criticised for bribery; you know what the public thinks. I think you should write a verdict of life imprisonment. If there is any mercy or any favors or any clemency we have a chief executive for that purpose, but it is your duty to pass on the facts and circumstances and if you write a verdict of not guilty, think about that man hurling through the air three or four times and blood coming from his eyes, nose and mouth and never knew what struck him.”

The assistant county attorney, Mr. Grigsby, in his argument repeatedly and seemingly as viciously as it was possible for him to state, urged that the defendant was guilty or he would not have wanted counsel; that an innocent man did not need an attorney, and much of his argument is taken up upon the question of the defendant’s guilt or he would not have asked for counsel.

Section 20, of article 2, of. the Constitution of Oklahoma, in part reads as follows:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law.”

The same section further states: “He shall have the right to be heard by himself and counsel.”

In Howington v. State, 30 Okla. Cr. 243, 235 Pac. 931, this court held that the accused had the right to consult and to be fully advised by counsel of his rights and as to the consequences of his acts before entering his plea.

Section 2670, Okla. Stats. 1931, reads as follows:

“In a criminal action the defendant is entitled: First. To a speedy and public trial. Second. To be allowed counsel, as in civil actions; * * * and, Third. To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the court.”

Under the Constitution and laws of this state, the defendant is entitled to have an opportunity to consult with counsel at all stages of the proceedings, from the time he is arrested until the final disposition of the casé, and he does not have to make any statement to- the officers of the couid. He may sit mute and say nothing, and the fact that he does not make a statement to the officers is not and cannot be construed as evidence of guilt, and the state is not justified in arguing to the jury the fact that the defendant did not make a statement. The defendant cannot be compelled to testify, and if bis testimony is given, it must be voluntary upon bis part. This argument of counsel was calculated to arouse the passion and prejudice of the jury against the defendant, as the argument was not borne out by the law of the state.

It is next urged by the defendant that the assistant county attorney, Mr. Grigsby, by asking questions of his own witnesses and others on the witness stand if they had not made certain statements to the county attorney or other witnesses, and when the witnesses said they had not made the statements mentioned, the county attorney, Mr. Morris, and his assistant county attorney, Mr. Grigsby, failed to follow it up by proof showing that the statements inquired of had been made.

It is the duty of a public prosecutor to bring out all of the facts and to present all of the testimony that he has, but it is not a part of his duty to ask witnesses if they had not made certain statements out of court contrary to their statements made in court, and then when the witnesses deny they made the statement, fail to present testimony showing that they had made the statements inquired of the witnesses by the prosecutor.

This court cannot understand why in a prosecution of a criminal case a public prosecutor, in his zeal to secure a conviction, exceeds his authority under the law and asks questions and makes argument and remarks not borne out by the record,, in the presence of the court and the jury, calculated to arouse the prejudice and passion of the jurors to the prejudice of the defendant.

It is next contended by the defendant that the action of the county attorney, Mr. Morris, and his assistant, Mr. Grigsby, in sending out and having the witness Opal Woden, after sbe had testified for the defense in open court, taken to the county attorney’s office in the absence of the defendant and his attorney, and there interrogated and confronted by the county attorney, Mr. Morris, and his assistant, Mr. Grigsby, and the officers that had the conversation with her on the night after the alleged accident, was improper.

This court has no desire to criticize the officers of the court, and especially the prosecutors who tried this case, but we do feel that they acted improperly in having the witness brought to their office, after she had testified, and Avas confronted by the officers Avho- claimed to have had the conversation Avith her. This court cannot interpret the action of the county attorney’s office other than that it intended to have the witness taken to the office of the county attorney and there confronted by the officers Avho had the conversation with her to cause her to' change her mind and to correct the testimony she had given in the trial of the case. No other interpretation can be placed upon the action of the county attorney, Mr. Morris, and his assistant, Mr. Grigsby, when you consider the fact that the officers had had the conversation with the witness, Opal Woden, and she had admitted that she had talked to them and the question had been asked her if she did not make certain statements to the officers different from what she had testified to on the stand, and she replied that she had not. The officers kneAV then as well as they knew when they had seen the young lady in the county attorney’s office Avhat statements she had made to them that night, and Ave feel that it Avas an effort to embarrass, put in fear, or intimidate her, and force her to change her statement. It was unfair to the defendant and his counsel, and no part of the duty of the county attorney in the earnest and proper prosecution of this case.

It is next urged by the defendant that the assistant county attorney, Mr. Grigsby, in his argument to the jury, made statements and argued facts calculated to inflame the minds of the jurors and to bias and prejudice them against him, and that the argument and statements of the assistant county attorney, Mr. Grigsby, were not borne out by the record and prejudiced the defendant’s rights.

.Several times in the argument of the assistant county attorney, Mr. Grigsby, he referred to the defendant as a “common criminal,” “hit-and-run driver,” and finally, in a flight of oratory, he repeated that the defendant was a common criminal, and that he did not want to retract any statement he had made. He also stated to the defendant, “You are the same as an A1 Capone gangster.” He further continued to criticize and complain that the defendant had not made a statement up to the time that he went on trial.

So far as the record shows, this is the first time this defendant has ever been charged with a crime. The repeated charges of his being a “common criminal,” and “that he was the same as an A1 Capone gangster,” is not • borne out by the record, and no act of the defendant as shown by the record bears out these statements. You cannot be a common criminal when there is no showing that you have ever been charged with more than one erime. The statements quoted above are only a few of the many made to the jury in the argument by counsel for the state. Prosecuting officers are sometimes overzealous and appear to be carried away with the idea that they must secure a conviction, forgetting that their highest obligation is their duty to be fair alike to the state and the accused. In this case it is repeatedly referred to in the taking of the testimony and in the argument that the defendant liad, tbe opportunity of an education and bad majored in finance, and each time tbe reference is made, it is made in an insinuating manner, calculated to inflamé, bias, and prejudice tbe minds of tbe jurors.

In this case tbe prosecuting officers were learned, competent, and experienced lawyers, and fully conversant with tbe duties of tbe office of a public prosecutor. Such conduct as was indulged in by these prosecutors of experience is more, serious that if indulged in. by one not accustomed to' tbe duties of a public prosecutor. In this connection we do not want to be understood as saying that the prosecuting officers in this case were possessed of improper motives, and we do not believe they were, but it is perfectly apparent that they were more zealous than circumstances demanded or tbe law permits.

In Hager v. State, 10 Okla. Or. 9, 133 Pac. 263, in tbe third paragraph of tbe syllabus, this court said:

“Where the record shows that counsel for the state in a prosecution of a person charged with crime has been guilty of conduct calculated to arouse prejudice or passion against the defendant and to prevent the accused from having a fair and impartial trial, a conviction had will be set aside, and a new trial granted.”

In Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101, this court, in the second paragraph of the syllabus, division 0, states:

“However strong the prosecuting attorney’s belief may be of the prisoner’s guilt, he must remember that, though unfair trials may happen to result in doing justice in particular cases, yet justice so obtained is dangerous to the whole community. It matters not how guilty a person on trial charged with crime may be, he is entitled to a fair and impartial trial, and a judgment of conviction for murder, and the imposition of a life sentence, would be as great a wrong to society if unfairly secured, although the accused might be guilty, as it would for such person to go unwhipped of justice.”

In State v. Irwin, 9 Idaho, 35, 71 Pac. 608, 610, 6 L. R. A. 716, the Supreme Court of Idaho, citing numerous authorities and cases in which the conduct of the prosecuting attorney was questioned, and after stating some of the questions asked of the accused, said:

’” “Why, then, did he ask them and answering says, “and, if the questions and ansv ers did not help to strengthen the case against defendant, why did not the prosecution consent to have them siricken out? It is quite evident that the questions, and not the answers, were what the prosecution thought important. The purpose of the questions clearly was to keep persistently before the jury the assumption of damaging facts which could not be proven, and thus impress upon their minds the probability of the existence of the assumed facts upon which the questions were based. To say that such a course would not be prejudicial to defendant is to ignore human experience and the dictates of common sense.”

In this case the questions propounded to the witnesses insinuated that the witnesses had made statements to the prosecuting attorney and others contrary to what they had stated in court, and could have been made for no other purpose than to impress upon the jury the importance of the prosecution and to impress upon their minds the probability of the existence of the assumed facts upon which the questions were based.

In Cline et al. v. State, 57 Okla. Cr. 206, 17 Pac. (2d) 191, in the second paragraph of the syllabus, this court said:

“It is improper for prosecuting attorney to state Ms personal opinion as to the defendant’s guilt, or state facts not proved by evidence, or otherwise get before the jury that which amounts to his own testimony.”

The argument complained of was made by tbe assistant prosecuting attorney, Mr. Grigsby, in the opening argument, and it cannot be insisted by tbe state that it was in answer to anything brought out in tbe argument of counsel for tbe defendant. Tbe state, in presenting its argument, insists that tbe argument of tbe assistant county attorney complained of by the defendant was not properly objected to by tbe defendant at tbe time. Many of tbe most important statements made by tbe assistant county attorney in tbe presentation of bis argument were objected to by counsel for the defendant, overruled, and exceptions saved. Some of tbe statements made by tbe assistant county attorney, Mr. Grigsby, are fundamental, and tbe court should not have permitted tbe assistant county attorney to go outside of tbe record and to give bis views as to tbe guilt or innocence of the defendant, or to permit tbe assistant county attorney, Mr. Grigsby, to charge tbe defendant with being a common criminal, in tbe absence of any proof to sustain such a charge, there being no testimony in tbe record showing that tbe defendant bad ever been charged with any crime prior to the crime for which be was on trial, that be was an A1 Capone gangster, and that be was guilty of murder, and many other insinuating and inflammatory remarks, tbe personal views of tbe county attorney.

This court has repeatedly said that as a general rule, in order to malee improper argument available as a ground for a new trial, objection should be interposed at tbe time tbe prejudicial statements are made; after verdict it comes too late. This court has further said, however, there are exceptions to tbe rule, and where private counsel assisting tbe county attorney in bis closing argument abuses bis privilege and makes statements of prejudicial facts outside of tbe evidence and appeals to prejudices irrelevant to the case, it is the duty of the court to' stop him then and there, and it is error for the court not to> so direct the jury to- disregard such statements.

The court further said:

“It is the duty of trial courts to interfere of their own motion in homicide cases where counsel for the prosecution in argument to the jury abuses his privileges by commenting on matters outside the record, and outside the proof that are calculated to create prejudices against the accused.” Holcomb v. State, 16 Okla. Cr. 1, 2, 166 Pac. 755.

It is further urged by the defendant that the court erred in permitting the state to cross-examine its own witnesses without a sufficient showing being made that the defendant was taken by surprise.

“Every defendant in a criminal case is entitled to- fair treatment on his trial, and a prosecuting attorney should not be permitted to' ask questions which he knows to be illegal * * * or to make remarks in Ihe examination of a witness which contain unfair reflections upon the defendant.” Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365.

The record shows in his opening argument, and throughout the entire trial, the assistant county attorney expressed his belief that the defendant was guilty, that he was a common criminal the same as an Al Capone gangster, and many other statements not borne out by the record; also that the assistant county attorney made many other statements by insinuations and questions attempting to bias and prejudice the jury against the defendant. We believe the action of the prosecuting officer was highly improper and constituted gross conduct on his part. It manifested a disposition to disregard the legal rights of the defendant and exhibited a purpose to ignore the plainest principles of law in tbe trial of a capital case. Sueb insinuations, statements, and expressions, and tbe conduct of tbe assistant county attorney, Mr. Grigsby, coming at tbe time they did, and in tbe manner made, were bigbly prejudicial to tbe substantial rights of the defendant. While public prosecutors should not be restrained in fair argument, comment, or appeal to' tbe jury, they should not be allowed to state facts not proven, or to malte inflammatory appeal to tbe passion or prejudice of or to threaten the jury with popular denunciation if it should fail to convict tbe defendant. Tbe probable effect of such appeal is to divert tbe attention of tbe jury from tbe evidence, prejudicing them against tbe defendant, and preventing tbe exercise of sound dispassionate judgment upon tbe merits of tbe ease.

In this case tbe court overruled tbe objections made by tbe defendant, and by its action approved tbe method of taking testimony and tbe statements of the assistant county attorney. Tbe approval of tbe assistant county attorney’s action by tbe trial court intensified tbe effect of such prejudicial remarks. Where tbe remarks of tbe county attorney prejudiced tbe minds of tbe jury, for that reason alone tbe judgment should be reversed. Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467, and authorities therein cited.

A public prosecutor is presumed to act impartially in tbe interest only of justice. If be lays aside the impartiality that should characterize bis official action to become a heated partisan, and by vituperation of tbe prisoner seeks to procure a conviction at all hazards, be ceases to represent public interest which demands no victim and seeks no conviction through the aid of passion, sympathy, or resentment, and the only way to secure a fair trial is to set aside the verdict so procured.

The defendant was not accorded a fair and impartial trial as guaranteed by the Constitution and the laws of our state. It is not deemed necessary to discuss the other errors assigned by the defendant. For the reasons herein stated, the judgment of the trial court is reversed.

DOYLE, J., concurs. EDWARDS, J., not participating.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    CHARLES PRIEST v. STATE.
    No. A-8884.
    Aug. 30, 1935.
    (48 Pac. [2d] 859.)
    Wayne Wheeling, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of entering a building with intent to steal and carry away certain property contained therein, and was sentenced to serve a term of one year in the county jail.

The testimony on behalf of the state shows that O. D. Perrier owned a garage on the premises known as 3217 South Walker, in the city of Oklahoma City, Okla.; said garage was used at the time of the alleged offense for storage of certain property belonging to the said O. D. Perrier; some time prior to the night of the alleged offense a hole in the wall of the building had been opened by tearing off some boards on the side of the building opening on the alley; the following day after it was discovered a hole in the wall of the building had been opened, the owner and an officer set an alarm by stringing cords or threads on the inside of the garage building near the hole and attached it to a bell in the home of the owner of the garage; some time in the evening of the alleged offense the alarm went off and Mr. Sweet, an officer, rushed out to the garage, and just as he got to the garage the defendant was coming out of the hole in the wall of the garage.

The defendant admits he went into the garage, but states he went in to answer a call of nature, and when he found the garage was occupied, he turned and came out through the hole, intending to go on his way.

The testimony further shows that prior to this night some property had been changed around and placed near the hole in the building, but there was no testimony showing who did this, or that the defendant was ever in the building before the time he was caught coming out of the building.

The defendant admits entering the building; denies he opened the hole in the wall of the building; denies he had any intention of taking anything out of the building, and states positively bis reason for going into the building was to answer a call of nature, and when be found there was property in the building-, be came out of the building without answering nature’s call. This is in substance all of the testimony, both for the state and the defendant.

The jury by returning its verdict did not believe the statements of the defendant that he did not enter the building for the purpose of taking anything from the building, notwithstanding the defendant’s positive statement of what his intention was when he entered the building. No brief has been filed in the case, therefore, this court will look to the record as it finds it, and carefully consider the weight of the evidence and circumstances of the case, and the recommendation made by the jury in its verdict.

After due consideration of all of the facts and circumstances, we believe the verdict of the jury to be excessive, and that the ends of justice would be properly met by a modification of the judgment from one year in the county jail to imprisonment in the county jail for six months, and, as modified, the judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


author: EDWAEDS, J.

text:
    W. F. (Doc) WALTERS v. STATE.
    No. A-8829.
    Aug. 30, 1935.
    (48 Pac. [2d] 875.)

      J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWAEDS, J.

Plaintiff in error, hereinafter called defendant, on a charge of murder, was convicted in the district court of Oklahoma county, of manslaughter in the second degree, and was sentenced to serve a term of 4' years in the State Penitentiary. The information, in substance, alleges that defendant, while intoxicated, did drive an automobile in a reckless and careless manner against an automobile driven by one Claude Huberts in such a manner and with such force that he thereby inflicted mortal wounds on the body of Barnum Huberts and caused his death. It is undisputed that at the time charged, defendant, on the public highway, drove an automobile against another driven by Claude Roberts in a head-on collision and in such collision caused the death of Barnum Roberts, an occupant of the Roberts car. The collision occurred about 8 p. m. near a street intersection of Oklahoma City. Deceased was killed almost instantly. Claude Roberts and defendant were both injured. The state’s theory is that defendant was intoxicated at the time and was driving in a reckless and careless manner on the wrong side of the highway. It introduced considerable testimony in support of this theory. Defendant admitted taking a drink before the collision, but denied he was intoxicated, and testified ■he was driving only about 25 miles per hour, and attempted to explain the collision. He also introduced some supporting testimony in conflict with the testimony of the state.

Defendant argues that since the court instructed on murder and both degrees of manslaughter and the verdict is for second-degree manslaughter, that the jury did not believe the evidence tending to prove murder or manslaughter in the first degree, and that the verdict of second-degree manslaughter is not sustained by the evidence. This contention is not tenable.

Murder is defined by section 2216, Okla. Stat. 1931. Manslaughter in the first degree is defined by section 2223, Okla. Stat. 1931. Manslaughter in the second degree is any unlawful killing not included in the definition of murder and of manslaughter in the first degree. It is not defined in specific terms, but by the catchall definition of section 2228, Okla. Stat. 1931, which is:

“Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor- justifiable homicide, is manslaughter in the second degree.”

There are three degrees of unlawful homicide; murder and the two degrees of manslaughter. Section 3096 is:

“3096. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which is guilty.”

This section has been many times construed and applied by this court, and it is settled law the jury must fix tbe degree of the crime of which a defendant is convicted when the court submits to them the different deg'rees. The verdict will not be disturbed on the ground the jury found defendant guilty of a lower degree of the crime charged than that established by the evidence. It sometimes happens the jury, in arriving at a verdict, does so by a compromise and fixes a lower degree than the undisputed evidence may disclose. Some states have reversed convictions under such circumstances, but, with two exceptions, this court has held the error is in favor of the accused and is not ground for a new trial. The exceptions are: Leseney v. State, 13 Okla. Cr. 247, 163 Pac. 956, and Lovejoy v. State, 18 Okla. Cr. 335, 194 Pac. 1087. These cases have been criticized and have not been followed. Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526; Taylor v. State, 44 Okla. Cr. 58, 278 Pac. 1117. We are satisfied the law on this point is correctly stated in the following cases: Lytton v. State, 12 Okla. Cr. 204, 153 Pac. 620; Lazenby v. State, 18 Okla Cr. 83, 192 Pac. 1103; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519; Wilmoth v. State, 20 Okla. Cr. 453, 203 Pac. 1055, 21 A. L. R. 590; Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742; Taylor v. State, supra; Berry v. State, 54 Okla. Cr. 154, 18 Pac. (2d) 285.

Defendant argues that the court erred in his instructions defining and applying the law of criminal liability in a case of second-degree manslaughter caused by an automobile collision. No exceptions were taken to the instructions then given, and no request was made for any additional instructions. The assignment in the motion for new trial points out no particular charge, but is merely: “The court erred in giving instructions numbers 1 to 16 inclusive.”

No assignment is made in the petition in error on this point. It is well settled that in cases less than capital, errors, not jurisdictional or fundamental, unless incorporated in the motion for new trial, the ruling thereon excepted to and the error assigned in the petition in error, will not be considered on appeal. We perceive no material error. The case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


author: EDWARDS, J.

text:
    BILL CUMMINGS v. STATE.
    No. A-8882.
    Aug. 30, 1935.
    (48 Pac. [2d] 879.)
    W. C. Henneberry and A. C. Sinclair, for plaintiff in ' error.

      Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of robbery with firearms and his punishment fixed at 99 years in the state penitentiary.

At the time charged, two men entered the apartment of one Calmes and his wife in the city of Tulsa, in which at the time was also' one Griffin and his wife. These parties were threatened with drawn pistols and were robbed of some personal effects and f 138 in money. All these parties identified defendant as one of the two committing the robbery. The defense was alibi. Defendant had been convicted of a felony twice before, once in the state of Texas and once in this state, and had served time in the penitentiary in both states. The information charged the crime to have been committed on June 3d, and the testimony was to this effect, and the alibi was directed to the defendant’s whereabouts on that date. After the trial it developed the robbery actually occurred on May 27th. In his motion for a new trial, defendant, on the ground of newly discovered evidence, sets out this error of date and insists he should be granted a new trial to impeach the witnesses on this point. He attaches to his motion a copy of a police report made by Calmes just following the robbery, but in which his name has been misspelled as Colemare. This, defendant contends, prevented him from making a defense of alibi for the correct date of the crime. However, from the questions propounded to the witnesses by defendant’s counsel on cross-examination, it is evident he had a copy of the police report before him at the time, since he asked the witness Calmes, in detail, about the description given by him of the two persons committing the robbery, which questions were almost verbatim in the language of the police report. It is evident the jury believed the testimony of the four persons robbed and their identification of defendant as one of the participants in the robbery and did not believe the testimony of alibi. We fail to see how that situation would have been changed if the testimony had been directed to the different date. A new trial will not be granted to permit the introduction of impeaching testimony. Caple v. State, 3 Okla. Cr. 621, 105 Pac. 681; McKenzie v. State, 34 Okla. Cr. 233, 245 Pac. 1005.

It is argued the court erred in permitting testimony that certain of the witnesses were intimidated by telephone warnings that they should not testify. During the testimony of Mrs. Griffin, she was asked who had talked to her about the case. The court thereupon excused the jury and stated to' counsel in substance it had come to his notice that parties were appearing tO' intimidate witnesses and warned any such that this was a contempt of court and that he intended to investigate the matter and directed that a deputy sheriff be detailed to guard the witnesses. The trial proceeded, and the witness was then asked in substance why she did not answer a previous question, and she answered because of receiving so many threats over the telephone not to be a witness that she did not want to. No objection or exception was made. Defendant’s counsel, on cross-examination, then went into this matter and questioned her at length about it. Counsel for the state in argument made some reference to these circumstances. Defendant’s counsel made no objection nor motion to- withdraw or strike, but at the conclusion of the argument asked the court to declare a mistrial. With few exceptions, error in the argument of counsel, unless so gross as tO' amount to a fundamental error, must be excepted to and a request to strike made and exceptions taken to the adverse ruling, or the error will not be reviewed on appeal. Browder v. State, 16 Okla. Cr. 43, 180 Pac. 571; Cook v. State, 36 Okla. Cr. 285, 253 Pac. 1029.

It is earnestly urged that the punishment assessed is excessive and unreasonable, citing Sanders v. State, 48 Okla. Cr. 65, 289 Pac. 798. That case is based in part on a confession of error by the Attorney General. In other cases this court has reduced the punishment assessed for robbery. Bridges v. State, 39 Okla. Cr. 183, 264 Pac. 640; Brown v. State, 40 Okla. Cr. 1, 266 Pac. 491; Kelley v. State, 48 Okla. Cr. 1, 288 Pac. 1001; Cole v. State, 48 Okla. Cr. 220, 291 Pac. 141.

Upon consideration of the entire record, we are of the opinion that justice requires the punishment assessed be modified to a term of twenty years, and, as so modified, the case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur. .


text:
    CLYDE HOLFORD v. STATE.
    No. A-8877.
    Aug. 30, 1935.
    (48 Pac. [2d] 1082.)

      J. M. Roberts, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter called the defendant, was by information jointly charged, with John Williams and Howard Porter, with the crime of murder; was tried separately, convicted of murder, and sentenced to suffer death by electrocution.

The defendant was an inmate at the state penitentiary, at McAlester, at the time of the alleged killing, serving his second term; was 22 years of age.

The first witness called by the state stated his name was Jean Jordan:

“I was an inmate of the penitentiary on October 28, 1933, serving a term of 35 years for robbery with firearms; I was employed in the store room; on the date of the difficulty Billy Wilson, Lee De Lano and I were in the basement of the laundry about the noon hour; Billy Wilson worked in the laundry; Lee De Lano was a mechanic in the factory; while we were in the basement John Williams, Howard Porter and Clyde Holford, the defendant in this case, came into the room; Williams and Porter had knives and started toward De Lano, who picked up a stool and threw it at them, and picked up another and held it before him as he ran down the aisle of the cage in the laundry; Howard Porter threw an iron at De Lano ; De Lano had a knife open in his hand before the boys came in but I do not know if he had the knife after they came in; Clyde Holford, the defendant, did not say a word at the time, and if he had a knife I did not see it; all I saw Holford do was to come in with the other two. Emanuel Trammell was in there when the difficulty started but I did not see him any time during the fight.”

Emanuel Trammell, testifying for the state, in substance stated:

“I was an inmate on October 28,1933, serving time for robbery with fire arms; I recall the incident in which De Lano was killed; my attention was attracted to the difficulty when De Lano threw the stool; I saw Clyde Holford and John Williams, there, but the others I did not get a good glimpse of; I saw the boys kill De Lano, two. of them struck De Lano with knives and John Williams struck him with an iron; Clyde Holford had a knife but I did not know whether the deceased had a knife or not; after the deceased had been knocked down on the bed, the defendant in this case, Clyde Holford, pushed the deceased in the face with his crutch.”

Lige Hoffman, the undertaker, testified as to the location of the wounds, describing the cuts both in the chest and back, and stated that the deceased had a lick in the head.

Eddie Pace testified he saw the defendant and John Williams leaving the basement.

T. E. Hawks testified as follows:

“I was an inmate of the state penitentiary on October 28, 1933, serving time for burglary; I remember the occurrence of the stabbing of Lee De Lano; I had gone down on the elevator and walked back toward where the difficulty occurred; the first I saw or knew about the difficulty was when I saw Howard Porter enter where De Lano was eating dinner; he pulled a knife and started cutting him and a fight began; at this time John Williams entered; he had a knife; I did not see the defendant Holford do anything; John Williams picked up an iron and hit the deceased; all during the fight Clyde Holford stood in the doorway; Lee De Lano picked up a stool and threw it at Howard Porter, and John Williams then stabbed him in the back; De Lano ran to the back and Porter and Williams followed cutting at him. The defendant later followed Porter and Williams to the back and after the deceased was lying on his back .on the floor Holford struck the deceased on the head with an iron.”

Several questions were asked if he had not changed his testimony as to what he had testified in the preliminary, and the facts developed that since his testimony at the preliminary he had been made a trusty.

The state introduced testimony showing the kind of irons used in the laundry, showing an iron having blood or brain stains on it, which appeared to be hair, blood, and brain stains.

A cord similar to' the one attached to' the iron was also introduced in evidence. The warden and other witnesses were called and described how the cage in the laundry is inclosed and the method of entering the same. All of the witnesses called to show what took place at the time De Lano was killed were inmates serving a term for different crimes. The killing of De Lano is admitted.

The defendant in this case denied he took any part in it, and testified in substance as follows:

“I am the defendant in this case; I knew the deceased, Lee De Lano, during his lifetime only when I saw him; on October 28, 1933, I went to the laundry to see him and get a shot of morphine a moment before the whistle blew, which was around 11:2'0; the reason I went to De Lano for morphine I knew where I could locate him, and I knew he had it for sale; I had bought- it from him before, that is what I went down for, is to get the morphine; I went into the laundry and got the morphine and stepped back into' a cage to' cook it up; while I was in there cooking it up the ruckus started in the back end and I came on out; as I came out Jean Jordan met me at the stairs; Jean had a bar or pipe and tried to hit me with it, and Williams came along and I walked on out. By cooking it up I mean I was preparing it to inject, you have to dissolve it before you use it; when the ruckus started everybody was trying to get out of the laundry cage, and I thought something ivas wrong, and I thought I had better get out as I did not belong there, and I did not want to be caught there. I saw no part of the difficulty, nor did I take any part in it; I did not stab Lee De Lano, nor did I hit him with the iron. I never touched him or molested him in any way; that day before the difficulty I laid in that morning; by laying in, I mean I stayed in the cell that morning. They usually release us from the cell around 11:15; at this time I did not cell with either Howard Porter or John Williams; I saw John Williams when he came up behind me in the laundry, that is the only time I saw either one of them until I got on the yard; I came up out of the laundry, went through to the yard and stayed there until in the evening when they came and got me, and charged me with the crime; I learned Lee De Lano had been killed about a half hour after I came out of the laundry; I was in the yard when I found it out. When I met Jean Jordan on the stairway I defended myself with my crutch, I just held the crutch out to' keep him from getting to me with this bar; Jean Jordan was back with Lee He Lano when I went back in the cage but I never spoke to him; there was no words passed except I just paid for the stuff and walked out. Jean Jordan and Lee De Lano was back in the cage; I got the stuff from Lee and stepped up to the first cage; I was preparing it when I heard the commotion; I did not see anyone cutting De Lano; I could not see the other cage from where I was. I deny I was standing there and watching the fight; I knew nothing about it and had nothing, to do with it.”

The defendant, on cross-examination, stated he had been convicted of the larceny of an automobile, and of robbery with firearms; that he was twenty-two years of age, he stated he believed he had lost his six months’ good time for hijacking, and that hijacking in the penitentiary meant the same as it did on the outside, that is, taking a fellow’s belongings by force.

“I was in no way whatever involved in the difficulty. Prior to the killing of L>e Lano I did not know John Williams personally; I had known Howard Porter twenty or thirty days; I do not think he had been in very long; I do not know Lee De Lano, just knew him when I saw him; I had seen him ever since I had been in the penitentiary. I only took morphine when I could get it; I am not an addict; so long as I had any money I would usually find where it could be bought. I had not worked in the laundry; I did not see Howard Porter in the laundry; I saw Jean Jordan; I don’t remember seeing Billy Wilson. When I approached Lee De Lano, Jean Jordan and Lee were together in the back cage, in the first compartment; I did not see John Williams when I first went in; I saw him when I came out; I came into' the laundry by the rear door and went out up the stairway; I tried to get out at the door closest to me; I would have to walk clear around the cage to get out of the door I came in; John Williams had a knife when he came up behind me; that was the only knife I saw. I paid for the morphine I got with a canteen book. Yes, I met you in the warden’s office the afternoon of the stabbing; I refused to say whether I was in the laundry that day; I went out on the yard between the cell house and poker yard; they came out I judge about three o’clock and got me; I knew no reason why they should come and get me; when they took me down John Williams was down in the hole; they got Howard Porter the same time they got me; a runner came by hollowing our names and we both got up and answered the call practically at the same time. Yes, I met Jean Jordan as I was going out of the laundry room and he struck at me with an iron bar, he only glanced me once; he made several attempts to hit me and I grabbed hold of my crutch so he could not close in on me; I had never had a word with Jean Jordan; Williams came up behind me while I was having this trouble with Jordan; when Jordan saw Williams he backed off and I walked out; I don’t know what Jordan did after that. The only time now I am allowed a crutch is when I am brought over here, or by myself. I have had a crutch all the time until recently but in recent months I have not been allowed a crutch at all.”

Jess Cunningham, testifying in behalf of the defendant, stated:

“I am an inmate of the penitentiary at McAlester, doing time for murder. I knew Edward De Lano in the penitentiary ; I have seen Clyde Holford; I was present on the 28th day of October, 1933, when De Lano was killed; loud talking attracted my attention, and I noticed De Lano with a knife in his hand, and heard De Lano say to big John Williams, you are going to pay me or else. Williams told De Lano to give me an even break, that he did not have a knife, and he said, no, I have got you where I want you, and he struck at Williams; Williams stepped back and grabbed a stool and struck back and knocked the knife out of De Lano’s hand, and De Lano reached over on the table and got a smoothing iron and they began to fight. There were several there when Williams and He Lano began fighting; I did not see the defendant take any part in the fight; I was in the basement taking a bath when the fight started; the parties were west of me and I did not see them until I heard the noise; I did not see the defendant Holford there at all.” .

On cross-examination the witness stated:

“I knew De Lano was talking to Williams; he had a knife drawn and was looking right at John; when John picked up the stool and swung it at De Lano, I don’t know what De Lano did, I did not see the knife; I left right after De Lano got the smoothing iron; I do not know what became of the knife.”

W. J. Miller, testifying in behalf of the defendant, stated:

“I am an inmate of the state- penitentiary doing time for bank robbery; was in the penitentiary October 28,1933; I work in the brick yard and was in the basement of the laundry taking a bath at the time Edward De Lano lost his life; loud talking attracted my attention, then I saw De Lano jerk out a knife and make a run at Johnnie; Johnnie took up a stool and struck at him; they kept striking at one another and I left right away. I did not see the defendant, Clyde Holford, there at the time; when I left I did not see Howard Porter or the defendant Clyde Hol-ford there at the time; the first move I saw Lee De Lano started to run toward John Williams; Williams was standing near the table, and I believe it was the first one. Jess Cunningham was taking a bath; I don’t know which one left first, whether Jess left first or I left first. Jess Cunningham was recalled to identify the iron.”

Grady Mickle, testifying for the defendant, stated:

“I am an inmate of the state penitentiary; was working in the prison pants factory, October 28, 1933; I slipped out of the pants factory about 11:30 to go take a bath; there were seven or eight in the bunch; when I went down there was a bunch from the brick yard coming in, and there was one boy, De Lano- and a bunch behind the screen net; there was also one boy by the name of John Williams; when I went in De Lano jumped up and pulled a knife and told Williams, here is where he paid a debt, one way or the other; Williams told him he did not have any money or a knife but if he would wait until he got a knife I will pay you; He Lano said that is just where I want you; he struck at Williams and Williams grabbed the stool and swung it and knocked the knife out of his hand; He Lano ran toward the back and picked up an iron; Williams grabbed the knife; I cannot say just what happened right then, they were crowding around, and I turned and walked out; when I first saw He Lano- with the knife he was trying to get to- this boy Williams; Williams is here in the courtroom; I saw Williams strike at He Lano with a knife; He Lano- had a knife when Williams struck at him and knocked it out of his hand; then Williams grabbed the knife and He Lano- grabbed an iron; I could not tell what it was, it was standing or setting under or on the table when He Lano grabbed it; there were several boys in there, I did not know all of them; I did not see the defendant Clyde Holford take any part in the difficulty; I saw Howard Porter; I had gone down to take a bath but I had not yet taken it. I am 26 years of age; I am serving a term for robbery with firearms; I have been in the penitentiary before for burglary; I have been convicted of felony three times; I can’t say whether Jess Cunningham was there at the time or not; in ’34, first month, and twenty-third day, I was reduced to third class for stealing pants from the Seminole Pants Factory.”

Otho Key, testifying for the defendant, stated:

“I am an inmate of the penitentiary serving a term of twenty-five years for robbery with fire arms; I had a conversation with Edward 13e Lano, October 28,1333; he tried to borrow a knife from me, and said some boys had double crossed him about some money for morphine, and he was going to get the money or kill them; I told him not to do that; I think he said a boy called Big John; I knew him when I saw him; I have seen a man called Big John here in the courtroom today; when I saw Be Lano in the laundry he was back behind where they keep their clothing; when the gang went in to take a bath he came out from behind the cage with a knife in his hand; this boy picked up a stool and threw it at him, and I went back up in front of the cage; I did not see the knife after John Williams threw the stool at Be Lano; I turned around and went up to the office where Emanuel Trammel and a boy called Bed Bird was sitting in the office eating dinner.”

The defendant’s witnesses speak of Edward Be Lano and Lee Be Lano, which, as shown by the testimony, is one and the same party. Several of the witnesses testifying for the defendant claim the defendant took no paid in the difficulty but was present in the room when the difficulty started. The defendant denied he took any part in it. Some of the witnesses testifying for the state say the defendant pushed the deceased in the face with his crutch after he was down on the floor, and some of them say he struck him in the head with an iron.

All of the witnesses testifying are convicts in the penitentiary serving from one to three or more terms. The testimony is conflicting. To harmonize the same, if possible, was a question for the jury. The state’s witnesses claim Howard Porter, John Williams, and the defendant came down together to the laundry cage where De Lano and some one else was eating lunch, and it is apparent from the testimony, notwithstandng the conflict, that the defendant came into> the laundry with Williams and Porter.

Eight errors are assigned by the defendant as grounds for reversal of this case. The first error assigned is error of the court in overruling the defendant’s demurrer to the information. An examination of the demurrer shows that the information in clear and concise language states facts sufficient to advise the defendant of the charge against him. The demurrer to the information was properly overruled.

The eighth assignment is that the court erred in overruling defendant’s motion for a new trial. This assignment covers the remaining assignments of error. After a careful examination of the instructions of the court, we hold that the instructions of the court taken in their entirety correctly advised the jury as to the law applicable to the facts, and that the defendant was accorded a fair and impartial trial. The other errors complained of are without merit.

The defendant argues that the verdict of the jury is not supported by the evidence and is contrary to the law. With this contention we cannot agree. The testimony conclusively shows the defendant present with John Williams and Howard Porter at the time the assault was made on the deceased by Williams. There is a conflict in the testimony as to whether or not he took any part in the fight. If the jury believed the evidence on the part of the state, it was sufficient to sustain the verdict as returned by the jury. On the other hand, if it believed the testimony of the defendant, the defendant should have been acquitted. Evidently from the verdict returned the jury did not believe that defendant’s witnesses were testifying, to the truth, and by its verdict harmonized the conflict in the testimony and decided against the defendant and returned its verdict of guilty of murder, imposing the death penalty.

This court has many times held that where there is competent evidence which reasonably sustains the verdict and judgment, a conviction will not be reversed although the evidence may be conflicting or different inferences may be drawn from it. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Johnson v. State, 57 Okla. Cr. 239, 47 Pac. (2d) 605.

Section 3062, O. S. 1931, in part provides, that:

“On the trial of an indictment or information, questions of law are to be decided by the court, and the questions of fact to be decided by the jury.” Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737; Piazzi v. State, 13 Okla. Cr. 60, 161 Pac. 1176; 17 C. J. 267.

A conviction will not be set aside where there is some substantial evidence to support the verdict. Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198.

“Where the state’s evidence is sufficient * * * the judgment [on conflicting evidence] will not be reversed.” Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746.

After a careful study of the record, we hold that the facts are sufficient to sustain a conviction, but the facts and circumstances in the record are such that the extreme penalty of death by electrocution should not be imposed. Under the provisions of section 3204, O. S. 1931, this court has power to modify the judgment appealed from. We believe that the ends of justice will be met by a modification of the judgment from death by electrocution, to- life imprisonment in the state penitentiary, and the judgment is modified to life imprisonment in the state penitentiary, and as modified is affirmed.

EDWARDS and DOYLE, JJ., concur.