text:
    Ex parte HARLAN ARNETT.
    No. A-10379.
    March 24, 1943.
    (135 P. 2d 507.)

      Harlan Arnett, in pro. per.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus by one Harlan Arnett to secure his release from confinement in the State Penitentiary at McAlester.

No copy of the judgment and sentence pronounced against petitioner is attached to his petition and the petition does not recite the number of years for which he stands committed, the crime for which he was convicted, nor the court from which he was sentenced. It merely alleges in general terms that the petitioner’s conviction was unlawful because he had once been placed in jeopardy. and, secondly, that the court kept the jury together an unreasonable length of time in order to secure a verdict of guilty.

In Ex parte Shockley, 75 Okla. Cr. 263, 130 P. 2d 331, this court held:

“The writ of habeas corpus cannot be used to perform the office of a writ of error oh appeal, but is limited to cases in which the judgment and sentence of the court attacked is clearly void.”

See, also, Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549.

There are no sufficient facts stated in the petition which would justify this court in assuming jurisdiction to hear the matter.

The writ of habeas corpus is denied.

BAREFOOT and DOYLE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WILL SMITH v. STATE.
    No. A-9730.
    March 31, 1943.
    (135 P. 2d 1006.)
    For prior opinion, see 70 Okla. Or. 81, 104 P. 2d 1009.
    David Tant, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   PER CURIAM.

An opinion was rendered in this case on the 17th day of July, 1940, dismissing the appeal for the reason that no briefs had been filed, nor appearance made for oral argument at the time the cause was set for healing, as provided by the rules of this court. Mandate was issued on the 2'9th day of August, 1940, and on the 20th day of September, 1940, on application of counsel for defendant, an order was made recalling the mandate. No further action was taken until the 13th day of January, 1943, when a new mandate was issued and forwarded to the court clerk of Oklahoma county.

In tbe meantime, counsel for defendant had on the 19th day of October, 1940, filed a brief in behalf of the defendant, which was served upon the Attorney General. No reply brief has been filed by the state.

An examination of the record reveals that the brief filed by the defendant at the time the order was made on January 13, 1943, re-issuing the mandate, was not considered;

It is contended by defendant that the court erred in overruling the demurrer to the information. Defendant was charged with disposing of mortgaged property with intent to deprive the mortgage holder of his security. We have carefully examined the information and the authorities cited by defendant to substantiate his contention. We are of the opinion that the information was sufficient as against a general demurrer.

We have carefully reviewed the facts, and our attention has been called by defendant to- the fact that all of the mortgage indebtedness has heretofore been paid by defendant. Without further reviewing these facts in this opinion, we think that the ends of justice will best be met by modifying the judgment and sentence of 120 days' in jail, to a fine of |120 and costs; and it is therefore ordered that the mandate heretofore issued on January 13, 1943, be recalled, and that a new mandate issue immediately in compliance with the order here made.

The judgment and sentence of the district court of Oklahoma county, as modified, is affirmed.


author: JONES, P. J.

text:
    ELIJAH KIDD v. STATE.
    No. A-10074.
    March 31, 1943.
    (136 P. 2d 210.)

      Bill Mounger, Jack Cecil Wheeler, Everett F. Cap-shaw, and Glenn O. Morris, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Elijah Kidd, was charged by information duly filed in the district court of Logan county with the crime of murder, was tried, convicted and sentenced to death, and has appealed.

The information, in substance, alleged that the defendant, Elijah Kidd, and one Allen Anderson, without authority of law and with a premeditated design to effect the death of one Henrietta Jackson, did drive, operate and propel a 1936 model Ford V-8 coach against the body of the said Henrietta Jackson, then and thereby inflicting certain mortal wounds from which said wounds the said Henrietta Jackson did die on January 2, 1941.

Fred Streeter, Chief of Police at Guthrie, testified that early in the morning of January 2, 1941, pursuant to a call, he went to the 300 block on South Capitol Hill street in the city of Guthrie and there found the deceased, a colored woman, lying in the center of the street; that the body was in a pool of blood. He gave a description of the road at that point and testified to facts which indicated that the body had been struck and dragged about 20 steps. Some ornaments off of a car were found close to the body. A broken radiator ornament was found in the road with some hair matted in it and other pieces were scattered about. The body was taken to a funeral home in Guthrie and there held until the night of January 9th, when it Avas identified by one Walter Davis who had been brought to Guthrie by two colored officers from Oklahoma City. That on January 10 he saAV the defendant Kidd in the detective bureau in! Oklahoma City. That defendant, in the.first conversation had with Avitness, related that he had insurance on the life of Henrietta Jackson, payable to himself as beneficiary, and defendant further stated that he had hitchhiked to Guthrie and was there on New Year’s Eve, but specifically denied knowing anything, about the killing. That he brought the defendant to Guthrie and took him by the funeral home to view the body of the deceased. That when defendant saAV the deceased he said, “That’s Henrietta”, and that defendant raised his right hand and further stated, “I ask God to strike me dead if I had anything to do with this.” That the next morning the defendant told the witness that he Avas ready to sign a confession about the killing but that he would not say that he shoved the deceased in front of the car. The witness notified the county attorney that defendant desired to make a confession and he Avas taken to the county attorney’s office, where the proof showed that the defendant gave a statement Avhich was taken in writing and afterward signed and sworn to by the defendant. This statement is as follows:

“State of Oklahoma )
“County of Logan )
“Elijah Kidd, of lawful age, being first duly sworn upon his oath, states:
“I am also known as Reverend and Preacher Kidd. I have been warned by County Attorney Hugh J. Adams in the presence of Chief of Police Fred Streeter and Officer Allen Fields that anything that I say may be used in evidence against me and that I do not have to make a statement. I have been informed that I am entitled to have a lawyer present. I make this statement freely and voluntarily without being promised anything whatever. No force, fear or violence has been used on me and I am making this statement because it is the truth.
“About October 1,1940, Freddie Adams, Walter Davis and I planned to kill Henrietta Jackson so I could collect her $700 insurance which was made out to me. The deal was that I was to pay them $300 a piece and keep $100 for myself. They said the policy would pay more than $700. They said if I didn’t let them do> the job they would, tell on me . That is, if anyone else killed Henrietta they would tell about the insurance unless they got $300 a piece. About the last of October we made plans to kill Henrietta at Dunbar school on East Sixth street in Oklahoma City. We never put this plan in effect, however, since we couldn’t get together on how to divide the money. They wanted $600 and I wouldn’t consent to' give them that much. I agreed to split it four ways but they' wouldn’t agree to this. The fourth one was Allen Anderson, but they didn’t know this.
“Later on New Year’s day Allen Anderson and I made our plans to kill Henrietta Jackson. We talked the deal over on our way to Guthrie in Anderson’s car, a 1936 V-8 Ford. We left the city around 3:30 or 4 o’clock p. m. and arrived in Guthrie about 5:30 p. m. We decided to do' the job at night. We thought we would visit in Guthrie with Luke Ballard and Lela Ellis. We decided we would do the job that night and split the insurance money 50-50. We decided we would kill Henrietta Jackson around 12:30 or 1 o’clock a. m. January 2, 1941. We decided we would get Henrietta in the car and drive around until we found" a suitable spot and then he would nudge me. Then the plans were that I was to- get out of the car with Henrietta and he was to drive around the block and when he came back around I was to shove her in front of the car.
“When we got in to Guthrie "we visited the Ballards. Mrs. Ballard is my.wife’s aunt. We visited them for a while and left about 7:80 or 8 p. m. We took Luke Ballard, Mrs. Ballard and Maureen and Maxine with us and visited the colored school and listened to a concert by the colored highschool band. After the concert Anderson and I took the Ballards home, then we visited the skating rink, where they were having a colored dance. We paid a dime a piece to get in. We went there about 10; p. m. and stayed there about 30 minutes and then went back to Oklahoma City. We got back to the city about a quarter to 12. We went to< my house at 1506 Drury Lane and picked up Henrietta Jackson. We waited just long enough for Henrietta to .change her clothes. Then we — that is, Anderson, Henrietta Jackson and I — drove back to Guthrie in Anderson’s car, arriving in Guthrie about a quarter to 12 at night. We drove around Guthrie for about five minutes, and then when we got to where Henrietta was killed Anderson nudged me and I said to Henrietta, ‘We better get out here.’ She said ‘All right.’ Then Anderson drove south to' the comer and turned right then to the right again and drove two blocks north and then one block east and turned south again so he would have two blocks to gain speed. Anderson gunned the motor and must have been making around 60 miles an hour Avhen he approached Henrietta and me. Just as the car was about ten feet away I shoved Henrietta in front of the car. The- car struck her dead center and sucked her in. Then she fell and was drug by the car, I can’t say hoAV far.
“I got Henrietta Jackson to get out of the car and wait with me because she wanted to¡ meet Joe Armstrong, that is the young Joe Armstrong. She had seen his picture and wanted to meet him. I told her that he would be by there.
“After the car struck Henrietta I went out to where the body of Henrietta was and called her name twice. She didn’t answer and had been hit with such force that I was certain she was dead. I got in the car with Anderson and we started for Oklahoma City. We didn’t drive very fast, as we didn’t want to arouse suspicion. We stopped at one of the last stations on the east side of Division street as we were leaving Guthrie. We drove past the station and stopped and drove back north to the station’s drive and got some water in the car. I don’t know’ the man that waited on us. We then turned back south and drove out Highway 77 to Britton. I can point out the station where we stopped. Just before we reached Britton, we stopped and Anderson looked over the car. He said the grill was bent and the hound on the radiator was gone. He said, ‘I’ve got to get off the street with this car.’ He drove me on home arriving there about 3 p. m. Then -Anderson went on home. Anderson told me that he left the car that night parked in front of his home at 536 East Second street. He said he got up early the next morning and took the car to a garage. I don’t know where he got it fixed. He said it cost him $12. He •called me up and asked me to borrow the money, but I told him I didn’t have it. Anderson’s car was a two-door Ford V-8, colored black. The grill was bent in and. the radiator ornament, which had a hound dog fastened to it, was knocked off when Henrietta was hit.
“I had not been drinking and neither had Anderson or Henrietta.
“Elijah Kidd
“Subscribed and sworn to before me this 11th day of January, 1941.
“(Seal) Irene McClellan, Notary Public
“My commission expires: Feb. 15, 1941.
“Witnesses: Allen Fields
“Fred Streeter
“Hugh J. Adams
“Samuel K. Abrams.”

Dr. P. B. Gardner testified that he examined the body of Henrietta Jackson after her death. His investigation disclosed a fracture of the base of the skull, a fracture of the left arm above the wrist and that there were bruises and skinned places over her whole body, but worse on the left hip, both legs and the left shoulder. That in his opinion the deceased had met her death by reason of a blow at the base of the brain which fractured her skull.

B. G. Combs, justice of the peace, testified that shortly before daylight the morning of January 2, 1941, he was called to the 300 block on South Capitol Hill street to view the body of deceased. That she was lying with her face buried in a puddle of blood; her hair was matted with blood. That when he raised her head blood ran out of her mouth, nose and ears. That he found by her side a large, man’s handkerchief with 80 cents in it; that one of her shoes was lying on the left-hand side of the street and the other on the right-hand side. That the physical evidence showed that the deceased had been struck by an automobile and dragged about 25. steps to where she was lying when he saw her. That he made an official report as coroner after his investigation and his docketed report was that she had been killed by being struck by an automobile driven by an unknown driver.

R. C. Sutton testified that he was a salesman for the Washington National Insurance Company. That he met the defendant on September 3, 1940. That defendant stated he had a friend who didn’t carry any insurance and that he would take out a policy on her and pay it himself. That he did make out an application for insur-anee on Henrietta Jackson for a $375 policy. That the application was ent down by the office to $300, the premium payable at 20 cents a week. The defendant was named as the beneficiary in the policy. This policy was in force at the time of the homicide.

S. E. Myers testified that he was Superintendent of the National Life and Accident Company in Oklahoma City. That his company issued a policy of life insurance in the sum of $400 on Henrietta Jackson on September 2, 1940. That the policy was delivered to Elijah Kidd and he was named as the direct beneficiary. That the defendant Kidd paid the premiums on this policy.

John Miller testified that he was employed by the Simpson Auto Company in Oklahoma City. That on January 2, 1941, the codefendant, Allen Anderson, left a 1936 V-8 Ford coach at the garage for repair of all the fenders and the radiator grill. At the request of Anderson he put in a used grill, a new radiator ornament and straightened the right half of the hood. He identified the piece of a broken ornament removed from the Anderson car and upon being shown the broken ornament found by the officers at the scene of the slaying the record discloses that the piece of ornament found by the officers fitted the broken piece removed from the car by the mechanic.

Some other officers testified for the state, but their testimony was corroborative of that of the witnesses here-inabove set forth.

Lula Huddleston testified that she was defendant’s sister. That defendant, in a conversation with her the day he was arrested, but before his arrest, asked her' to phone Henrietta Jackson’s grandmother at Perry, Okla., and tell her to' go to Guthrie and identify the body of Henrietta Jackson, bnt that sbe refused to do so. That she suggested that defendant do the calling and defendant said, “Henrietta, had her beneficiary made to me and you know how people talk.”

Walter Davis testified that he had known the defendant about 10 or 11 years. That he had always known him as “Preacher.” That on December 10, 1940, he and Freddie Adams went to Elijah Kidd’s house. That Elijah Kidd and Adams went to the bathroom and closed the door and had a conversation which he could not overhear. That Adams told him. he was making arrangements with Elijah Kidd for a deal and that they were to meet again on December 17th. Upon being asked to describe the matter of the deal, the court sustained an objection by the defendant. That after the meeting with Kidd and Adams on December 17th the witness went to a deputy sheriff in Oklahoma City, and related what occurred. That the deputy sheriff told him to go back and talk to Kidd and get more of the details. That he and Adams returned to Kidd’s house about 8 or 8:30 p.m. on December 17th. That Kidd and his wife and the deceased, Henrietta Jackson, were present. That he and the defendant Kidd and Adams went out- of the-house and got into Adams’ car. That defendant stated, “I have a proposition and we can all make some money out of it,” and further stated: “I have got a policy on a girl, and it is made to me, it pays $300 for natural death and $600 accidental death, we can collect this money, and if we put her away for $100 we will have $250 apiece left. I says ‘What is your plans to dispose of her?’ And the defendant said, ‘Take her out on the road over here and make it appear it was a hit-and-run driver.’” The witness further testified: “I says to Kidd — in the meantime, this officer asked me if I knew the person named and P didn’t. And . I says to Kidd, ‘How do I know yon have a policy .on this lady, that yon are not just killing her for a grudge?’ And he says, ‘I will show you the policy from the Washington National Insurance Company.’ ” That he and Adams and Kidd drove around for quite awhile That they drove out east of Oklahoma City and Kidd picked out a place and suggested that they run over her there, hs it would look like it was accidental. That he and Adams objected and later they picked out a place on East Fourth street in the 1400 block which Kidd thought was ideal, as it was dark and downhill. That Kidd said: “When we bring her out here, you put me out on this comer and you go around the block, here, a block or two, and come back and have plenty of speed because I want to be damned sure she is dead. I says, ‘What excuse have you got to her to have her out here that time of night’, and he says, ‘She is in love with some boy by the name of Joe’, which could have been a ficticious name — ‘some boy by the name of Joe who lived in Guthrie, ¿nd I told her time after time I would bring her out to meet this boy and I will tell her we are waiting on Joe, and you can go around a block or two and come back and give a long honk’, and I objected to that, I didn’t want him to push her out in front of the wrong ear. I says, ‘Anybody driving an automobile and see people standing by the road are liable to honk,’ and I says, ‘I Avill honk three times’, and he says ‘All right.’ And we took Kidd back to Nichols Hills and asked him what time to pick him up and he said at 12:30, and Ave left.” That the witness came back and reported Avhat had happened to the officers, but upon objection by defendant he was not allowed to relate what the officers said or did upon being given the information. That Avhen he heard of an unknown negro woman being killed by an automobile he came to Guthrie in company of two negro officers from Oklahoma City and identified the body of the deceased at the funeral home at Guthrie.

The witness further related that the deputy sheriff wanted him to talk to the county attorney about Kidd’s proposal and that he stalled Kidd off a night or two while he was waiting to see the county attorney to see what the county attorney wished him to do1. That finally he could not get the officers to do anything and he told Kidd that he had backed out and would not help him with his plan.

The defendant testified in his own behalf that he was 3b years of age; a cook by trade; that he had formerly been a minister but had quit preaching seven or eight years ago; that he had been living in the servants’ quarters in Nichols Hills, adjacent to* Oklahoma City, for about a year and a half prior to his arrest on January 9, 1941. The defendant told of the chief of police coming from Guthrie to Oklahoma City after him and related that on their way back to Guthrie the officer asked him, “Ain’t you going, to sign,” and he stated, “I didn’t kill her, but I was with her when she got killed.” That the officer said, “You are a damned liar,” and struck defendant in the mouth. That he Avas placed in jail at Guthrie and mistreated by the officers Avho were trying to get him to confess. That a highway patrolman who was there at the jail stated: “I’ll take these handcuffs and knock your damn brains out.” That after he was brought down to the county attorney’s office he was not mistreated and that he did not tell the county attorney about the officers mistreating him. That he gave the county attorney the confession and signed it because he was still scared from the Avay the officers had treated him. That the officers told him Avhen they were taking him to the county attorney that if he did not act right they were going to take him back to jail and “whip hell ont of him.” The defendant then related that he and his codefendant, Allen Anderson, came to Guthrie the night of the killing and went to a dance for colored people. That when he returned home Henrietta .Jackson, the deceased, was at his house. That she was drinking and that he and Anderson and Henrietta drank a pint bottle of whisky. That deceased wanted another pint of whisky and he went after it. That deceased got to insisting, on going to see Joe and they drove down to Guthrie. That they drove around awhile and he saw that the deceased was pretty drunk and he suggested that they ride around until she got sober. That they were driving around over the streets of Guthrie and the deceased jumped on him and commenced fighting him. That he told Anderson to stop the car and let him get out with Henrietta and see if he could walk her around until she got sober. That he got out of the car with the deceased and Anderson drove off to get some water at a filling station. That while Anderson was gone the deceased got to hitting him and while they were' scuffling he saw Anderson returning in the car. That he tried to pull Henrietta off the road but she hit him with her purse and turned and started to run across the street and was struck by the car. That he did not shove her or push her in front of the car. That Anderson stopped after he had struck her and examined her body and saw that she was dead. That he and Anderson were nervous about what to do and that they decided the best thing that they could do was to go home and not tell anyone. He denied having the conversation with the witness Walter Davis, but admitted that Davis came to< his house with Fred Adams but denied that he talked to them at all about killing the deceased.

It is first contended that the court committed error in overruling the defendant’s motion for continuance on account of the absence of one Charley Hawkins, an alleged witness of defendant. The motion for continuance alleges that a subpoena ivas duly issued for the witness on February 10, 1941. It does not allege that the subpoena was served by the officer nor does the motion allege the present whereabouts of the witness, nor does it state any facts from which the court could conclude that the defendant might reasonably expect to have the witness present to testify at the next term of court. It does allege that the subpoena was issued for the witness at 2 North Klein street, Oklahoma City. The affidavit recites that the witness was present on the street and saw the occurrence Avhich resulted in the death of deceased. The facts which it is alleged the Avitness would testify are substantially the same as those related by the defendant in the trial.

At the time this motion Avas presented no proof was offered in support thereof, and it was overruled. Later during the trial and at the close of the testimony of defendant the testimony of certain Avitnesses was introduced both by the state and defendant in connection Avith the absence of this alleged witness. It appears that the court issued an attachment for this witness and a deputy sheriff Avent to the place of residence named in the motion and an investigation in that neighborhood disclosed that there Avere no parties who knew of the witness Hawkins. The deputy sheriff to whom the original subpoena was given also testified that he had been unable to find anyone by that name. The original subpoena was identified and it does not bear the indorsement of the district judge directing the appearance of an out-of-county witness which would have been necessary in order to have compelled his appearance even if he had been served.

The subpoena was not issued until February 10th, just seven days before the trial date.

The county attorney cross-examined the defendant concerning his information that the witness Hawkins would substantiate his story of the details surrounding the killing. In this examination the defendant could not remember the name of the man who had told him of the witness Hawkins, whether he was a blonde, brunette, or how he was dressed, and his testimony in general tends to support the contention of the county attorney that the affidavit concerning the witness Hawkins was interposed as a subterfuge in an effort to delay the trial.

In Simmons v. State, 68 Okla. Cr. 337, 98 P. 2d 623, we stated:

“No person is obliged to attend as a witness, before a court out of the county where the witness resides or is •served with the subpoena, unless the judge of the court in which the offense is triable, upon an affidavit of the county attorney, or of the defendant or his counsel stating that he believes that the evidence of the witness is material and his attendance at the trial necessary, shall indorse on the subpoena an order for the attendance of the witness.”
,“An application for continuance on account of the absence of a witness must show diligence has been used to procure the witness or his testimony.”
“In reviewing the refusal of an application for continuance on account of absence of a witness, the testimony taken at the trial is considered by this court for the purpose of determining whether the absent testimony was probably true, as well as whether it was material, if true.”

In the recent case of Presley v. State, 76 Okla. Cr. 120, 134 P. 2d 595, decided February 24, 1943, it is stated:

“A motion for continuance on the ground of absence of material witnesses should state the'facts with reference to the present whereabouts of the witnesses and the grounds of the expectation that the witnesses would be present at the next term of court, so that the court may determine from an examination of the instrument whether it is reasonable to expect that the witnesses could be procured for attendance at the next term.”

After a thorough consideration of the record with reference to this contention, it is apparent that the court did not abuse his discretion in refusing the application for a continuance.

It is next insisted that the court erred in allowing a confession made by defendant to be introduced in evidence for the reason, as contended by defendant, that the same was obtained by duress, fear of bodily harm, and a promise of mitigation as to the sentence to* be imposed.

Confessions made because of threats against the accused or through fear of bodily harm are inadmissible as evidence. Pressley et al. v. State, 71 Okla. Cr. 436, 112 P. 2d 809; Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Lucas et al. v. State, 26 Okla. Cr. 23, 221 P. 798.

The defendant gave oral statements to several parties concerning the details of the slaying and he signed a written statement in the county attorney’s office, a copy of which has been hereinabove set forth. When the county attorney first commenced to- question a state’s witness concerning a statement made by defendant, counsel for defendant interposed an objection. The jury was excused and the court heard the testimony of several witnesses. The jury was recalled and without the court making, a ruling on the admissibility of the alleged statements the trial proceeded without any objection on the part of counsel for defendant. Later some of the witnesses testified at length concerning defendant’s statements as to all of the ©vents surrounding the homicide. Never during any of this testimony was there an objection interposed that the statements made by defendant were not voluntary. The original objection which was made when the jury was excused was a general objection that the evidence was incompetent, irrelevant, and immaterial and was not an objection that the alleged statements were involuntary. Later, after testimony at length had been given concerning the various oral statements of defendant, the county attorney offered in evidence the written confession executed by defendant. Then, for the first time, counsel interposed the objection that the confession was involuntary. The written confession was merely a repetition of the statements which had been detailed at length by the witness Streeter without objection.

The defendant testified that one of the officers struck him and threatened him with bodily harm if he did not confess. He admitted, however, in his examination, that there were no threats directed at him while he was in the county attorney’s office, but that on the other1 hand the county attorney treated him very nicely, but he related that-he signed the confession because of his fear that harm Avould befall him when he was taken back to jail unless he did make the alleged confession. All of the testimony of the officers and other parties directly contradicted the testimony of the defendant that any threats or duress were used or promises made to the defendant to induce him to make a confession.

The court submitted to the jury for their consideration the circumstances surrounding the execution of the statéments, both oral and written, claimed to have been made by the defendant. No complaint is made concerning this instruction and we find that it thoroughly covers the established law on this question.

In Pressley et al. v. State, supra [71 Okla. Cr. 436, 112 P. 2d 813], it is stated:

“Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the' jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. If it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to1 the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.”

A close examination of the record discloses that there is very little discrepancy between the statements of the defendant as related by the officers and the testimony of the defendant as given in the trial. The defendant relates substantially the same state of facts on the witness stand as were detailed by the witnesses for the state with the exception of what transpired at the moment of the actual killing. And in connection with defendant’s written confession as to the actual killing, he did not claim that he made this part of the statement under duress, but merely denied remembering having, made such a statement. The trial court proceeded correctly in admitting the confessions in evidence and submitting the facts and circumstances surrounding them to the jury for the purpose of enabling them to judge what weight and value should be given them as evidence.

It is next contended that- the court erred in refusing the defendant’s requested instructions asking the court to submit the issues of manslaughter in the first and second degrees.

The instructions of the court should only cover the issues which are presented by the evidence, but they should cover all issues presented whether by the evidence of the state or defendant. The state contended that the defendant and Anderson killed Henrietta Jackson under a preconceived plan in order to secure the benefits of two insurance policies. The defendant claimed that he did not kill Henrietta Jackson. 1-Iis testimony on this point is as follows: “She ivas fighting and when the car approached she hit me and I hit her and then she throwed the pocket book at me and she went to run across the street when this car struck her.” The defendant denies that any act of his was in any way responsible for her death. If the jury had believed the testimony of the defendant, it could not have convicted him of any crime. If they believed the testimony of the state, then the defendant ivas guilty of murder. Under the evidence the verdict, necessarily must have been tha.t of guilty or not guilty of murder. The jury was evidently thoroughly convinced that defendant and his codefendant had deliberately planned and cruelly perpetrated the slaying, as they found him guilty and assessed the extreme penalty. Since there was no evidence which would have justified the giving of manslaughter instructions, the court properly refused to give them.

This being a homicide case with the penalty of death attached, this court has given the whole record the extraordinary and careful consideration which the seriousness of such a case demands.

There is some claim made by counsel for defendant in their brief that the punishment should be modified to life imprisonment. With this contention we cannot agree. This court may not exercise its powers to modify a judgment unless we can say from a review of the whole record that justice demands a modification and that the penalty assessed was probably arrived at by reason' of passion or prejudice. The jury was fully justified in arriving at the verdict which they reached, and we have found nothing in the record which would justify us in modifying the punishment imposed to life imprisonment. It was a coldly executed, premediated murder to satisfy the defendant’s greed for money. The defendant had no more regard for the life of the deceased than if she had been a stick or stone or any other inanimate object. This unlawful homicide is just such an offense at which our statute authorizing the infliction of capital punishment is directed. A human life has been wantonly and brutally taken by defendant and this court would not be performing justice or discharging the grave responsibility which rests upon us if the sentence of death was modified.

The judgment and sentence of the district court of Logan county is accordingly affirmed.

The date originally appointed for the execution of the defendant Elijali Kidd having passed pending this appeal, it is ordered, adjudged and decreed by this court that the judgment and sentence of the district court of Logan county be carried out by the electrocution of the defendant Elijah Kidd by the Warden of the State Penitentiary at McAlester, Oklahoma, on Tuesday, June 15, 1943.

BAREFOOT and DOYLE, JJ., concur.


author: BAREFOOT, J.

text:
    JOHN DUNSTON v. STATE.
    No. A-10134.
    March 31, 1943.
    (136 P. 2d 203.)
    J. W. Burrow, of Gage, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Willis Smith, Co. Atty., of Woodward, for defendant in error.
   BAREFOOT, J.

Defendant, John Dunston, was charged in the district court, of Woodward county with the larceny of domestic fowls, towit, six chicken hens, was tided, convicted and sentenced to serve two years in the State Penitentiary, and has appealed.

Defendant assigns as error that the verdict is not sustained by sufficient evidence; that it is contrary to law; that the verdict and recommendation of the jury appear to have been rendered under the influence of passion or prejudice, and that the verdict is contrary to and in disregard of the court’s instructions.

The evidence shows that Linzey Clem Avas the owner of 12 Rhode Island Red hens; that about 1 o’clock in the afternoon of Saturday, August 17, 1940, he and his Avife left their home in the country and went to Yici, about ten miles aAvay. No one Avas left at home while they Avere aAvay, and they did not return until about sundown. Soon after their return, they missed six of the hens. They examined the premises and found tracks of an automobile that had entered the yard during their absence. On Monday, August 19th, they Avent to a poultry house in Yici, Avliere Mrs. Clem positively identified three of the hens, and tentatively identified tAvo others.

The man who operated the poultry house testified that he purchased eight Rhode Island Red hens from the defendant on August 17th, and that Mrs. Clem identified five of hers out- of approximately 200 in his place of business.

The sheriff of Woodward county testified that he met Mr. and Mrs. Clem at the poultry house; that Mrs. Clem identified the hens and that he placed the five she identified Avith one other in a box and took them to the Clem home about dusk; that Avithin 20 Minutes after the hens Avere released, five of them had gone into the chicken house to roost, or on the nest, and that he took the other hen back to the poultry house. He was corroborated in this by the chief of police of the city of Woodward, who Avas present, and by Mr. and Mrs. Clem.

Charles Ellison testified that he lived about a mile and a quarter from the Clem place; that on the afternoon of August 17, 1940, the defendant drove past his house going east (the Clems lived about a mile east and a quarter south), and in about 15 or 20 minutes came back.

The defendant did not testify in his own behalf, and only placed one witness on the stand. That witness testified that he was working for the father of the defendant on the day in question; that he and the defendant worked together until about 11:30 in the forenoon, when they quit to go to town. That when they went to the house the mother of defendant told defendant she had caught some chickens and put them in a pen, and for him to take them to town; that while the witness was getting-ready, defendant told him he would go over to Linzey Clem’s and see about a fresno that Clem had borrowed and not returned; and that he left and was gone about 20 minutes. That after he returned, the witness helped him catch eight chickens that were in the pen, tie their feet together, and place them in the car.

While the testimony in this case is entirely circumstantial, the record ha,s been carefully examined and all the testimony therein duly considered, and we are of the opinion that the testimony is sufficient to sustain the verdict and judgment. The case appears to have been fairly tried. The instructions of the court correctly advised the jury as to the law to guide them in their deliberations upon the facts introduced in evidence. A charge upon circumstantial evidence was given. The jury was justified and warranted in finding the verdict they returned. This court will not pass upon the weight of the evidence in order to determine whether a defendant is guilty as charged, where the inference of guilt can be reasonably drawn from the evidence. This is a question for the determination of tbe jury. Lacy v. State, 61 Okla. Cr. 421, 68 P. 2d 878.

It is urged that the punishment imposed is excessive. There being no showing that the defendant has ever been guilty of the crime of larceny of domestic fowls or of any other crime, prior to this conviction, we feel that the demands of justice will be met by a reduction of the sentence from a term of two years to a term of one year in the State Penitentiary. Bouyer v. State, 57 Okla. Cr. 22, 43 P. 2d 153; Childs v. State, 68 Okla. Cr. 435, 99 P. 2d 539.

As so modified, the judgment and sentence of the district court of Woodward county is affirmed.

JONES, P. J., and DOYLE, J., concur.


author: ,BAREFOOT, J.

text:
    BENNIE JAMES VESTER v. STATE.
    No. A-10143.
    April 7, 1943.
    (136 P. 2d 205.)

      Amos I-Tall, of Tulsa, and H. A. Johnson, of Perry, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Judson H. Pierce, Co. Atty., of Perry, for defendant in error.
   ,BAREFOOT, J.

Defendant, Bennie James Vester, was charged in the district court of Noble county with the crime of murder, was tried, convicted, and sentenced to serve a term of 30 years in the State Penitentiary, and has appealed.

Defendant, in his brief, assigns as error: First, that the evidence is insufficient to sustain the judgment and sentence; second, that the sentence imposed is excessive and was rendered under passion and prejudice; and third, error of the court in refusing to give requested instructions, and in failing to give certain instructions.

The first assignment of error demands a brief review of the evidence, as revealed by the record.

Defendant, Bennie James Vester, was charged by information in Roble county with the crime of murder, it being alleged that he killed Vester Wilhelm by stabbing and cutting him with a pocket knife, on the 1st day of January, 1941, from which wounds so inflicted the said Vester Wilhelm died on the 4th day of January, 1941.

Defendant ivas a negro man 25 years of age, and the deceased was a United States soldier of the age of 20 or 21 years. Both were residents of the city of Perry, where the killing occurred. The defendant, on the night of the difficulty, had attended a picture sIloav at the negro high school, at Perry, and with a number of negro boys was returning to his home between 10 and 10:30 at night. They took a short cut across a vacant lot by the Cain Hotel. While passing, they encountered some soldier boys who were stationed at Port Sill, but who resided in Perry and were spending the Christmas holidays at home. One of the colored boys, 15 years of age, made a disrespectful remark about soldiers, which offended the soldier boys, who were standing by a car near the Cain Hotel. The first witness for the state, Glenn Jones, who was an eyewitness to all the proceedings, testified as follows:

“Q. State your name to the court and jury. A. Glenn Jones. Q. Where do you reside, Mr. Jones? A. 115 Third street. Q. Here in Perry? A. Yes. Q. How long have you resided in Noble county? A. Off and on about eight years. Q. How old are you? A. I am 20 now. Q. Twenty? A. Twenty years old. Q. Do your parents live in this county? A. Yes, sir. Q. Where did you go to school the last five or six years? A. Perry. Q. You attended the high school here, and part of the grade school? A. No, just the high school. Q. Are you now employed? Á. I am in the Army right now. Q. How long have you been in the Army? A. About six months. Q. Where have you been stationed? A. Port Sill. Q. Have you recently been moved? A. Yes. Q. Where to? A. Abilene, Texas. Q. You are in the regular training under the Defense Program, are you? A. Yes, sir. Q. With what particular military organization are you connected? A. I am with Battery C, 158 Field Artillery. Q. Were you acquainted with Tester Wilhelm in his lifetime? A. Yes. Q'. How long have you known him? A. I have known him about seven years. Q. Did he go to school at the same time you did? A. Yes. Q. Did you both play on the football team here. A. Yes. * * * Q. State to the court and jury what happened? A. There was a bunch of us up there dancing— Q. State who. A. Billy Smith, Junior Jones, Tester Wilhelm, Jowena Lacy and myself was there, a few other boys, I don’t remember all of their names Q. Relate what happened. A. It was around 10 o’clock or 10:15 we were getting ready to go back to camp— Q. When were you due at Fort Sill? A. We were due back in the morning, for reveille, and Junior Jones and myself went outside to get in the car and some colored boys came up and make a remark about a soldier— Q. Did you hear the remark? A. Yes, I heard the remark. Q. I wish you ivould state to- the jury what the remark was. A. He said something about a soldier with a bullet up his ass. Q. Then what happened? A. They went on up the street east. Q. You mean through that driveway? A. Through the driveway on the south side of Cain’s there, and they told us to come on up, and we told them to come on back down to where we were, and so, Vester at that time and Jowena Lacy— Q. Vester Wilhelm? A. Vester Wilhelm and Jowena Lacy were in the car on the south side of the driveway, and we stopped there and told Vester that ive were having some trouble with some colored boys up here, and so Vester got out of the car and went up the alley there at the corner on Fir just behind myself, and ive told them to come back down where we were, and they said ‘come on up there.’ In the meantime they had got on up to this colored church on the corner, and so they hollered and said they would meet us half way, so ive went on up half way into the street, up on Fir street, about half way, so they came back doivn. I noticed when they came down they all had clubs but the defendant, he never had anything that I could see, and we argued back and forth, I thought it was all over Avitbp we was getting ready to leave when Bennie Vester stepped up in the road in front of Vester Wilhelm and they started to arguing back and forth, and he told him he had a knife and would use it if he tried to start anything, and his brother, I think it was his brother, went up to Bennie Vester and grabbed him by the arm and told him to ‘come on, let’s go,’ I never thought anything about it, I thought it was all over with — (objection made and sustained as to Avhat he thought, and the jury instructed to disregard the last statement). A. About that time some of the kids came tip in a car, Raymond Sanders and Jowena Lacy, I don’t know, quite a few, I think about six or seven, I don’t know how many there were exactly, and they were standing back there along on the left side of the car— The Court: Who was? A. Bennie Vester and Vester Wilhelm. Bennie Vester was kind of to one side-lie would have to push him to one side to get to the car, they were arguing, and he pushed him, and when he pushed him, why he stabbed him, and Vester Wilhelm fell back against the back of the car1 — - The Court: Who stabbed who? A. Bennie Vester stabbed Vester Wilhelm, stabbed him, cut him with his knife and he started backing up and Bennie Vester followed him and he fell against the car and then he staggered over to the ditch, I don’t know, he stabbed him either two or three times and he fell in the ditch and they all ran. Q. All of the colored boys ran, you say? A. Yes. Q. Did this all transpire suddenly? A. Yes, sir. Q. Now, Glenn, which direction was Vester Wilhelm moving, or what was he doing at the time he started to get in the car? A. Well, they were facing about — Vester Wilhelm was facing about east, and Bennie Vester was in front of him, kind of to the right of Vester Wilhelm and the car was a little ways off farther east — the car was facing the east. Q. I mean, was Bennie Vester facing Wilhelm? A. He was looking west. Q. Facing Wilhelm? A. Yes. Q. Then as I understand it, Mr. Jones, when Wilhelm started as if he were going to get into1 the car he put his hand out and pushed the defendant? A. Yes. (objected to as leading, objection sustained). Q. Mr. Jones, did you, or to your knowledge any of the rest of you white boys, have any weapons of any kind there on that evening? A. N01, sir. Q. Was there any threats made by you or any of the other white folks against either of these colored folks? A. No', sir. Q. Was there any colored person injured there on that occasion? A. Not that I know of, no, sir. Q. Which direction did the colored boys go immediately after Wilhelm went down? A. Northeast, they all scattered out, but they all ran toward the northeast. Q. Back down the street? A. Back down the street toward the church house. Q. What did you folks do? A. Well, I went for a doctor, and some one went for the police, and some one stayed there with Tester. Q. :Some of them stayed there? A. Some of them stayed there, I went for the doctor myself, some stayed there with Tester Wilhelm to see what they could do for him. Q. As soon as it could be organized ivas Wilhelm taken to the hospital? A. Yes. Q. Did you see any blood on the ground? A. Yes. Q. Where was it, in relation to Wilhelm’s body? A. Well, there was blood where he had fell in the ditch, there was a lot of blood, and some blood on up east. Q. Was his body moved from where it first fell, up into the street? A. Yes, they moved him up into the street. Q. Was there blood there, too? A. Yes. Q. Well, ivould you say any considerable quantities? A. There was an awful clot of blood, yes.”

On cross-examination this witness testified that the three white soldier boys followed the negro boys for a distance of about half a block for the purpose of trying to get them to straighten out the statement that had been made about the soldiers. The negro boys came back about one-fourth of a block to meet the white boys. One of the soldiers went back and got some other white boys who came in a car. He testified that the boys would have probably tried to whip the negro boys if they could have, if the matter was not straightened out. He testified on his direct examination as to how the cutting occurred, that the defendant was standing with his hands in his pockets, that the argument was about over and that deceased asked the defendant to take his hands from his pockets and that he refused; that defendant’s brother took him by the arm and tried to get defendant to go away, but he jerked loose and refused to go. Just at this time deceased started to the car and pushed the defendant out of the way, and was stabbed and cut three times by the defendant.

This evidence was substantially corroborated in every detail by Dick Hall, 20 years of age, Robert William Foster, 20, Carl Wilson, 18, Billy Smith, 21, Quine Brengle, 21, Raymond Sanders, 20, and Kathleen Wright, 17 years of age. Each of the witnesses gave substantially the same evidence. All were friends of the deceased, and had previously gone to school with him at Perry, and were then attending different colleges and the University of the state.

Merle Harmon, sheriff of Noble county, testified to the arresting of the defendant on the night of the difficulty, and of securing from him a knife which the defendant stated he had used in doing the cutting and stabbing. He testified that defendant afterwards admitted that this was not the knife used, and directed the sheriff to1 his wife, who had the knife that he had used. The knife was given- to the sheriff, and introduced in evidence.

Defendant testified in his own behalf, and to a great extent corroborated the testimony of the state’s witnesses, except that he claimed the deceased struck him with his fist, and was continuing to strike him at the time that he cut and stabbed him. He testified that he opened the knife in his pocket, and demonstrated to the jury how it was done. His testimony was corroborated by Billy Williams, 17 years of age, by Calvin-Brown, 16, and Tommy Shelton, 16, who were present at the time of the difficulty. James Riley, the young boy 15 years of age who made the remark which caused the trouble, also testified, but he had run away and was not present at the scene of the difficulty. Defendant also introduced in evidence eleven character witnesses, who- testified to' his good character and reputation previous to this trouble.

From the above, it will be noted that the contention of the defendant that the judgment and sentence rendered in this case is contrary to the evidence cannot be sustained. There was a conflict in the testimony of the state and the defendant, but under the testimony of the defendant, he was not justifiable in cutting and stabbing the deceased, as he did.

With, reference to the judgment and sentence being excessive and rendered under the influence of passion and prejudice, we have carefully examined the entire record. This was an unfortunate and an unjustified killing. The evidence of the state and the defendant reveal that neither deceased nor any of his companions were armed at the time of the difficulty. No one suspected there would be a killing. A fight was all that was anticipated. No act of the deceased justified the defendant cutting or stabbing him. Defendant was 25 years of age, much older than the other colored boys with whom he was associated. When they procured clubs for the purpose of returning to meet the soldier boys, he opened his knife and had it in his pocket, and when deceased pushed him to one side for the purpose of entéring the car, he pulled his knife from his .pocket and stabbed deceased a,t least three times, one of the wounds being at or near the heart, and from the effects of which he died. The jury who heard the ease camp to the conclusion that there was not a premeditated design to commit murder by defendant, but found him guilty of manslaughter in the first degree and assessed his punishment at 30 years in the State Penitentiary. There is nothing in the record which causes us to believe that the punishment assessed is excessive or that it was rendered by reason of passion or prejudice. Under the facts as presented by the state, a. verdict of murder would be sustained. Evidently the jury took into consideration the evidence of defendant when a verdict was rendered finding him guilty of manslaughter in the first degree, and assessing his punishment at 30 years in the State Penitentiary.

Defendant requested 13 special instructions. These instructions are centered around the right of self-defense. We have carefully examined the instructions given by the trial court. The instructions given embodied practically every suggestion offered in the refused instructions, six of the requested instructions being given by the court. The instructions fully presented the plea of self-defense as applied to the evidence, and protected the right of the defendant in every way, and we find no error that would justify a reversal of this case. Trott v. State, 62 Okla. Cr. 52, 70 P. 2d 118; Daniels v. State, 68 Okla. Cr. 324, 98 P. 2d 68. Exception was taken by defendant to only one instruction. It is unnecessary to set out in full the requested instructions, and the instructions given by the court. It would unduly lengthen this opinion.

Defendant complains that the court did not instruct the jury upon the question of good character. A number of witnesses testified as to the good character of. the defendant. If defendant had requested the giving or had presented a written instruction to this effect, it would have been proper to give the same. It is not revealed that any such written request was made. Defendant cites only the case of Morris v. Territory, 1 Okla. Cr. 617, 99 P. 760, 774, 101 P. 111. In that case a written requested instruction was presented. The same was denied and the case was affirmed. In the opinion, by Presiding Judge Furman, the court said:

“The evidence of the character of the defendant, both for and against him, was before the jury. They were correctly instructed that the presumption of innocence and the doctrine of reasonable donbt were applicable to all of the evidence in the case. It would have been better for the court to have given an instruction upon character, embodying the views expressed by the Supreme Court of the United States in White’s case [White v. United States, 164 U.S. 100, 17 S. Ct. 38, 41 L. Ed. 365], hereinbefore quoted and approved. In some cases, it might be reversible error to fail to1 give such an instruction; but our statute requires us to construe laws liberally and in the furtherance of justice, and forbids us from reversing a conviction upon a technical error or an exception that does not affect the substantial rights of the defendant. In this case we do not believe that an intelligent and honest jury could be found who, with a due regard for their oaths, and the testimony and the law, could ever come to any other conclusion than that the defendant was guilty of murder. Under the statute, above quoted, and after a consideration of the entire record, we are constrained to hold that in this case reversible error was not committed by failure of the court to- instruct the jury upon the question of character.”

Tn the annotation in Oklahoma Statutes Annotated, 1941, Title 22, sec. 831, note 309, in quoting the case of Lumpkin v. State, 5 Okla. Cr. 488, 115 P. 478, it is said: v. State, 61 Okla. Cr. 18, 65 P. 2d 426; Short v. State, 74 Okla. Cr. 272, 125 P. 2d 227; Adams v. State, 62 Okla. Cr. 167, 70 P. 2d 821.

“Under subdivision 5. of this section, and section 856 of this title, the judg’e is required only to give in charge such matters of law as he thinks necessary for information of the jury in rendering their verdict, which instructions must be settled after the introduction of evidence is concluded, and, if counsel for accused desire additional instructions, they must reduce such instructions to writing and request that they be given, and a conviction will not be reversed where there is a failure to make such request, unless the Criminal Court of Appeals is of the opinion in the light of the entire record and instructions that, because of failure to instruct upon some material question of law, accused has been deprived of a substantial right.” Lee v. State, 67 Okla. Cr. 283, 94 P. 2d 5; Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795; Pulliam

In the instant case, the court instructed the jury upon the question of reasonable doubt, and upon the pre,: sumption of innocence, and under the facts, as above stated, we are of the opinion that it was not error for the court to fail to give an instruction as to the good character of the defendant when the same was not requested by counsel for defendant.

For the reasons above stated, the judgment and sentence of the district court of Noble county is affirmed.

JONES, P. J., and DOYLE, J., concur.


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    OSCAR DAVIS et al. v. STATE.
    No. A-9805.
    April 7, 1943.
    (135 P. 2d 997.)

      Wayne E. Wheeling, of Oklahoma City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., Houston E. Hill, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for the State.
   PER CURIAM.

The right of appeal is granted by law, and is a right that all persons convicted of crime in the courts of the state may- exercise. In other words, it is a privilege granted by the law to those against whom judgments of confinement or punishment by fine was rendered, which they may exercise at their opinion. When an appeal is once lodged in this court, and the cause submitted, unless good cause is shown to- the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. Nash v. State, 13 Okla. Cr. 211, 163 P. 330.

In the instant case there is no reason made to appear why the dismissal should not be ordered in compliance with the stipulation of the respective counsel.

It is therefore adjudged and ordered that the appeal be and is accordingly dismissed. Mandate forthwith.


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    MARIAN BILBREY v. STATE.
    No. A-10132.
    April 7, 1943.
    (135 P. 2d 999.)
    Frank Petree, of Altus, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Marion Bilbrey, was charged in the district court of Jackson county with the crime of driving an automobile on a public highway while under the influence of intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $150 and costs, and has appealed.

It is first insisted that the district court is without jurisdiction to enforce the judgment for the reason that the crime for which the defendant ivas tried and convicted was abated by virtue of the passage of House Bill No. 37, Session Laws 1941, 47 O. S. 1941 § 93, which amended section 10324, O. S. 1931, by providing that the first offense of driving while under the influence of intoxicating liquor shall be a misdemeanor. Jurisdiction for a first offense Avas lodged in the county court.

In support of this proposition counsel for defendant cite cases from Washington, Wyoming, and Texas which provide that the repeal of a penal statute without a saving clause operates as a bar to any further prosecution under the repealed statute. In Oklahoma, however, we haAre a constitutional provision which specifically applies to this situation. Article 5, sec. 54, of the Constitution is as follows:

“The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.”

In the case of Penn v. State, 13 Okla. Cr. 367, 164 P. 992, L. R. A. 1917E, 668, the first syllabus provides:

“Section 54, art. 5, Constitution, provides: ‘The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.’ Above section construed in part, and held, ‘that statutes repealing penalties for offenses committed in this state operate prospectively and are applicable only to offenses committed after the statute became effective.’ ”

In the opinion it is stated:

“The very minute this crime was committed the defendant became amenable to the law as it then existed. He then and there by his own voluntary conduct incurred the penalty of that law, and the constitutional provision aforesaid prevents the Legislature of this state from wiping out penalties for crimes committed prior to the tailing effect of a repealing statute. * * *
“We hold, therefore, that this defendant was subject to any penalty imposed by law for this crime on the date of its commission, and any subsequent statute repealing such penalty can only operate prospectively, and is applicable only to offense committed after the statute took effect.”

See, also, Lilly v. State, 7 Okla. Cr. 284, 123 P. 575, Ann. Cas. 1914B, 443; Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121; Drew v. State, 71 Okla. Cr. 415, 112 P. 2d 429.

The defendant next complains that the evidence is insufficient to sustain a conviction.

It is conceded that the defendant was alone In his automobile and drove it to the front of the police station at the time in question.

The complaining witness, who was the night policeman in charge of the office, saw the car parked so that it extended into the driveway of the fire station, walked out to the car of the defendant and, according to his testimony, saw that defendant was in an intoxicated condition, arrested him, and placed him in jail. The police chief, another policeman, and the county health officer saw the defendant in jail shortly after his arrest and they all swore that in their opinion he was drunk. An empty pint whisky bottle and a pint bottle half filled with whisky were found in the car of defendant by the arresting officer.

The defendant testified in his own behalf that a policeman had asked him to secure some information for him. That he had procured this information and drove up in front of the police station and honked for the purpose of telling the policeman what he had learned about the matter which the policeman had inquired. That he and Barnhill, the complaining witness, were personal enemies and when Barnhill came to his automobile, they started quarreling, whereupon Barnhill hit him in the head with a blackjack and took him into the city jail. The defendant admitted that he had drunk a bottle of beer or two but denied that he was under the influence of intoxicating liquor. The offense happened shortly before midnight.

A man who saw the altercation in front of the police station testified that he saw the defendant and the policeman fighting and followed them into the police station. He said the defendant did not stagger, but he refused to say whether, in his opinion, the defendant was drunk. Another witness for the defendant testified that he saw the defendant in a beer tavern shortly before he was arrested. That defendant was drinking a bottle of beer but that he was not under the influence of intoxicating liquor.

The only issue raised by the evidence was as to the fact of whether defendant was intoxicated. This was a disputed question under the testimony and was properly submitted to the jury.

It is further argued that the court committed reversible error in allowing the assistant county attorney to cross-examine the defendant and his mother by asking questions for the sole purpose of creating bias and prej u-dice in the minds of the jury against the defendant. Some of these questions asked defendant are:

“Q. You carry whisky in your automobile, don’t you? Q. As a matter of fact you make a habit of drinking whisky all the time, don’t you?”

When the defendant’s mother was on the witness stand she testified on direct examination concerning a bruise on defendant’s head which the defendant claimed had been inflicted by the policeman. On cross-examination she was asked:

“Q. Mrs. Bilbrey, Marian was causing you considerable trouble by drinking excessively, wasn’t he? Q. How many automobiles, Mrs. Bilbrey, has he torn up of his own?”

When a negative reply was given to this question the county attorney further asked:

“Mrs. Bilbrey, let me refresh your memory. Didn’t he have a wreck about 30 days ago in your automobile or his?”

From admissions made by defendant concerning the whisky found in his car there might be some basis for the questions asked him. There was no basis, however, laid in the questioning by counsel for defendant on direct examination which would justify the asking of the above questions on. cross-examination of defendant’s mother. After thoroughly considering the record, however, we are of the opinion that the only possible effect such questions could have had on the jury would have been to cause them to enlarge the punishment which they gave defendant.

There can be little question but that the defendant was driving his automobile while he was under the in-fluen ce of intoxicating liquor as charged, and the jury probably would have given the same punishment if the county attorney had not asked the improper questions. But because of the improper questioning of the prosecutor it is our opinion that the judgment and sentence should be modified by a reduction of the fine from that of $150 to a fine of $50, and that the judgment and sentence of the district court of Jackson county, as thus modified, is affirmed.

It is so ordered.

BAREFOOT and DOYLE, JJ., concur.


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    KATHERINE WALLACE v. CITY OF TULSA.
    No. A-10116.
    April 7, 1943.
    (135 P. 2d 1002.)
    Tom Durham, of Tulsa, for plaintiff in ■ error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and O. C. Lassiter, Asst. City Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Katherine Wallace, was charged in the municipal criminal court of the city of Tulsa with the unlawful possession of intoxicating liquor, towit, four and one-half pints of tax-paid whisky, was tried before the court, convicted and sentenced to pay á fine of $75 and serve 20 days in the city jail of Tulsa; and appealed.

A motion has been filed by the Attorney General to dismiss the appeal for the reason that the same was not filed in this court within the time provided by law.

It is revealed by the record that judgment and sentence was entered on March 28, 1941, and motion for new trial was overruled on April 1, 1941. Defendant was given 60 days within which to make and serve a case-made, the plaintiff ten days thereafter to suggest amendments, the same to be signed and settled upon five days notice by either party. The record does not reveal any extension of time. The appeal was filed in this court on July 31, 1941. This was 121 days from the date of overruling the motion for new trial.

The statute which provides the time allowed for taking appeals in misdemeanor cases is 3192, Okla. Stat. .1931, Okla. Stat. Ann. (1941) Title 22, § 1054, and is as follows:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered': Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days. In felony cases the appeal must, be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

This statute has been construed by this court many times, and it has been the universal holding that when the appeal is not filed within the time prescribed by the statute, this court is without jurisdiction to hear and determine the issues raised on appeal, and that the appeal will be dismissed. Prom the many cases, the following are cited as being more nearly in accord with the facts as they here appear: Freeley v. State, 4 Okla. Cr. 21, 109 P. 239; Steele v. State, 25 Okla. Cr. 226, 219 P. 429; Austin v. State, 55 Okla. Cr. 278, 28 P. 2d 1113; Emerson v. City of Tulsa, 59 Okla. Cr. 359, 61 P. 2d 1023; Swink v. State, 64 Okla. Cr. 466, 82 P. 2d 316; King v. State, 68 Okla. Cr. 145, 96 P. 2d 95.

We have read the record in this case and unhesitatingly state that the evidence of the city was wholly insufficient to support the judgment and sentence, and evidence was introduced which was incompetent as against this defendant. The judgment and sentence was increased because the defendant indicated an intention to appeal.

By reason of the facts above stated, this court is without jurisdiction to pass upon the merits of this appeal, and for the reasons above stated, the appeal is dismissed.

JONES, P. J., and DOYLE, J., concur.


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    OSCAR M. KENNEDY v. STATE.
    No. A-10120.
    April 14, 1943.
    (137 P. 2d 244.)

      C. B. Leedy, of Arnett, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Oscar M. Kennedy, was charged by information in the district court of Ellis county with the crime of driving an automobile while under the influence of intoxicating liquor, was tried, the jury returned a verdict of guilty and assessed the punishment at 60 days in the penitentiary, and a $20 fine, with a notation upon the verdict “with recommendation that sentence be suspended.”

It is insisted that the court erred in overruling the demurrer of the defendant to the evidence of the state, and in refusing to instruct the jury to return a verdict of not guilty for the reason that the evidence is wholly insufficient to sustain the allegations of the information.

On the date in question the defendant, his nine year old boy, and two other men were at the home of Fred Steinle which is just three-quarters of a mile from the Texas border. The defendant, his two companions and Steinle were all neighbors in that community.

Fred Steinle testified that he was called to a car in front of his house about 12:30 p. m. on July 6, 1940. That defendant, Boy New, Ogi German, and defendant’s small boy were in the automobile. That they had a friendly chat for a few minutes and while he was there defendant offered him a drink out of a bottle, supposedly of whisky. That he refused because he had just eaten his dinner. That while he was at the car defendant took a drink from the bottle. That he was busy at the time cutting wheat and soon left the men and returned to the wheat field. That he did not see defendant drive up to his place and did not see him leave. That he saw defendant again about 4 o’clock in the town of Higgins, Tex.

Mrs. Fred Steinle testified that she did not see the defendant the first time he came to their house. That defendant and his companions came back to their house about 3:30 the same afternoon. That she went to the door and Mr. New asked for Mr. Steinle and she told them that he was cutting wheat. That while she was standing in the door the defendant started cursing her. That when he started cursing she went back inside the house and closed the door. That they remained outside in the yard a half an hour before they left. That when defendant started to leave he backed up against some barrels and upset- them. She did not see him drink any whisky and did not knoAV whether he was intoxicated or not.

Esther Longhoover testified that she lives about five miles from Steinle’s place. That on Saturday, July 6th, she drove over to- Steinle’s about 4 o’clock p. m. When she arrived defendant was there sitting in a two-seated automobile with two* other men and a little boy. That Mr. New asked her to- come over and start the car. That when she went over there defendant commenced to curse her calling her “a damn little dirty Dutchman,” and using other profanity. That in a few minutes he drove the car off. When asked directly as to whether defendant had been drinking, she stated that she did not know, as she did not get close enough to him to determine that fact.

The 12-year-old daughter of the Steinles corroborated the testimony of Mrs. Steinle and Esther Longhoover as to the defendant being there and cursing.

At the close of the testimony of the state, the defendant demurred to the evidence for the reason that it was insufficient to sustain a verdict of guilty. Upon it being overruled the defendant rested his case without offering any evidence.

It is apparent that the evidence is wholly insufficient to sustain the charge set forth in the information. While the evidence of Fred Steinle shows defendant was drinking intoxicating liquor at 12:30, it was not proved that defendant was driving the automobile at that time. While the proof showed the defendant was' driving at 3:30 or 4 p. m. the proof was lacking as to his intoxication. The fact that he cursed and used profane names in front of the women and children was a circumstance to be considered by the jury, but it was not sufficient in the absence of other proof to sustain a charge that he was at that time intoxicated.

If the defendant had been charged under the provisions of section 2392, O. S. 1931, 21 O. S. 1941 § 1906, which makes it a misdemeanor to utter or speak obscene language in the presence of females or children, the proof Avould have been overwhelming as to his guilt.

One of the women testified that when defendant left the Steinle premises he drove toward Higgins, Tex., about three miles away. Fred Steinle testified that he saw the defendant at Higgins at 4 p. m., which was just a few minutes after lie had been cursing before the women. He does not testify that defendant was under the influence of intoxicating liquor at that time and details no facts from which such a deduction might arise.

The verdict is clearly against the weight of the evidence and apparently ivas influenced mainly because of the actions of the defendant in using the obscene and profane language in the presence of the women at the Steinle house. Such conduct on the part of the defendant was reprehensible, but he may not be punished for such conduct on a charge such as is herein presented. When all the circumstances - are viewed together, they do nothing more than raise a suspicion that defendant ivas intoxicated. There is a strong suspicion in the minds of this court that the defendant was under the influence of intoxicating liquor, but the conviction may not be sustained upon the ground of suspicion alone.

For the reasons hereinabove stated, the judgment of the district court of Ellis county is reversed and remanded. If the county attorney is able to secure additional evidence showing the intoxication of the defendant at the time he drove his automobile, then he is authorized to retry the defendant. If no other or additional proof may be presented, other than as shown by the record herein, it is directed that the action be dismissed.

BAREFOOT and DOYLE, JJ., concur.


text:
    OLIN ANDERSON v. STATE.
    No. A-10138.
    April 14, 1943.
    (137 P. 2d 254.)

      Joe S. Eaton and James K. Eaton, both of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Jack Pitchford, County Atty., of Okmul-gee, for defendant in error.
   BAREFOOT, J.

Defendant, Olin Anderson, was charged in the district court of Okmulgee county with the crime of murder, was tried, convicted of manslaughter in the first degree, sentenced to serve a term of 15 years in the penitentiary, and has appealed.

Defendant was jointly charged with one Jimmie Goff with the crime of murder of John Grayson, at or near Beggs, in Okmulgee county, on the night of June 19, 1937. A severance was granted and his codefendant, Jimmie Goff, was tried, convicted and sentenced to a term of life imprisonment in the State Penitentiary, which he is now serving.

Defendant was later tried, convicted of manslaughter in the first degree and sentenced to serve 20 years in the penitentiary. • He appealed to this court and on the 16th day of July, 1939, his case was reversed for the reason that the evidence was insufficient to sustain the judgment and sentence. Defendant was again tried, convicted of manslaughter in the first degree and sentenced to serve 15 years in the State Penitentiary, and this case is an appeal from that judgment and sentence.

Pending his first appeal, defendant executed a super-sedeas bond, and was at liberty. Since the date of his second conviction, June 13, 1941, he has been confined in the penitentiary of this state at McAlester, unable to make bond.

The first appeal is reported in the case of Anderson v. State, 66 Okla. Cr. 291, 91 P. 2d 794. The facts are fully stated in that case, and it will be unnecessary to review them here. It will only be necessary to consider the new evidence that may have been developed at his second trial.

The evidence at the second trial is practically the same as that of the first, with the exception that the co-defendant, Jimmie Goff, who had been convicted and is serving a life sentence in the State Penitentiary, was brought by the state and used as a witness in this case. That part of his evidence which is material as against this defendant is as follows:

“Q. After you got up there, what did you do? Did you dance yourself? A. No, sir, I didn’t. After we got up there, Olin bought two pints of whisky and we drank one and a half. Q. Whn drank out of this bottle, — the first pint he bought? A. Myself, Olin Anderson, Louise, Ethel Ragsdale, and James Cravatte. Q. Where did you drink this whisky? A. At the end of the platform. Q. You drank out of a pint bottle? A. Yes, sir, I did. Q. And you say you had the second pint later? A. We did. Q. Who furnished the whisky? A. Olin Anderson. Q. Who paid for the whisky when you were down at this Frances Smith’s home? A. Olin Anderson. Q. Did you have a pistol with you? A. I didn’t. Q. Did Olin Anderson have a pistol? A. He did. Q. Did you later see the pistol? A. I did. Q. What kind of a pistol was it? A. A .38. Q. What make pistol? A. I don’t know, sir. Q. Was it a long or short barrel? A. Seems it was a long barrel. I am not much of a judge. Q. Where did you first see that pistol? A. You mean after we arrived at the picnic? Q. Yes. A. He had it in his pocket. Q. He carried it up there with him? A. Yes, sir. Q. Did you later see the pistol on the picnic grounds? A. Yes, sir, I did, Q. Tell the jury about that. A. After we drank the last whisky he bought, Olin Anderson gave me the rest of the whisky and the pistol. Q. How much whisky was in the bottle? A. Half pint. Told me he was going to dance and said he would give me the whisky and the pistol. Q. What did you do with the whisky and the pistol? A. I put the whisky in my pocket and the pistol in the bib of my overalls. Q. Then what did you do? A. I walked out northwest of the platform, and stood out there under a tree, northwest of the platform, and after being out there a few minutes later, he came out where I was and asked me if I had any more whisky and I told him yes, and he says, ‘Let’s drink it,’ and then he asked me for the pistol, and I pulled it out and he loaded it. Q. When did he hand you the pistol? A. When we were drinking this whisky. Q. Did you know why he handed you the pistol? A. No, not at the time. Q. Did he say why he wanted you to hold the pistol? A. He didn’t. Q. You took the pistol? A. I did. Q. You drank this half pint of whisky? A. Yes. Q. What did you do with the pistol? A..I put the pistol back in my bosom after he gave it back to me. Q. Under the bib of your overalls? A. Yes, sir; under the bib of my overalls. Q. Did you go over near this stand which was located north of the platform? A. I don’t remember whether we went over that way or not. Q. Then later what happened in the way of him calling for the pistol or you handing him the pistol? Tell the jury about that. A. He asked me for the pistol after we drank the whisky, and he taken the pistol and loaded it and handed me the pistol back, and told me about him and Tang having a little trouble. Q. Who was Tang? A. I don’t know. Q. Is that the fellow they called ‘Tangle-Eye’? A. Yes, sir. Q. Did you later learn his. correct name was Tommy Williams? A. I don’t remember. I don’t know anything, about him. Q. Do you know whether he was the man in charge of the dance platform? A. I don’t. Q. You handed Olin Anderson the pistol; then what happened? A. He gave it back to me after he loaded it. Q. How many shells did he put in the pistol? A. I don’t know. Q. You saw him put some shells in the pistol? A. Yes, sir. Q. And handed it back to you? A. Yes, sir. Q. What did he say when he handed the pistol back to you? A. He said he and Tang had had a few words, and I asked him what it was about and he said something about dancing, and he says, ‘Let’s go back up on the platform,’ and I said, ‘All right,’ and did go with him. After we got up there, Tangle-Eyes says to Olin, ‘I asked you to get off the platform,’ and Olin says, ‘TO' hell with him,’ and I hit him, and Olin says, ‘Shoot the son-of-a-bitch!’, and I did. Q. When you first hit him over the head with the pistol, where was the pistol when you pulled it out? A. In the bib of my overalls. Q; Where was Tang, or Tommy Williams, standing on the platform when you first hit him? A. On the northeast corner. Q. You hit him over the head with the pistol? A. Yes, sir. Q. How many times? A. One. Q. Then what did he do? A. Throwed his hands over his face and run through the crowd. Q. Which way did he run from the platform? A. Northeast, as I remember. He just cut off and run through the crowd. I couldn’t tell much which way he was going. Q. Then what did you do? A. I just throwed it up and shot it, as far as I can remember. Q. How many times did you shoot it? A. Three times, that I can remember. Q. Then you went immediately to the car? A. We did.”

It is first contended by the defendant that after the reversal of this case by reason of the insufficiency of the evidence, the state did not have the right to retry him, and he should have been discharged.

This contention is based on section 3205, O. S. 1931, Tit. 22 Okla. Stat. Ann. 1941, § 1067, which is as follows:

“When a judgment against the defendant is reversed, and it appears that no offense whatever has been committed, the Criminal Court of Appeals must direct that the defendant be discharged; but if it appears that the defendant is guilty of an offense although defectively charged in the indictment, the Criminal Court of Appeals must direct the prisoner to be returned and delivered over to the jailer of the proper county, there to abide the order of the court in which he was convicted.”

In reversing the first case, the following language was used by this court [66 Okla. Cr. 291, 91 P. 2d 799] :

“We are of the opinion that the evidence did not justify this conviction, and the court erred in refusing to instruct the jury to return a verdict of not guilty.
“It is, therefore, ordered that the judgment of the district court of Okmulgee county be reversed.”

It would have been the better practice for us to have stated in that opinion that the case was reversed and remanded for a new trial, if in the opinion of the county attorney he had sufficient evidence other than was offered in the first trial, to sustain a conviction of the defendant, otherwise the defendant be discharged. Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; Id., 68 Okla. Cr. 348, 98 P. 2d 937.

The only case cited and relied upon by defendant to support his contention is the case of Harmon v. Territory, 9 Okla. 313, 60 P. 115. That case was decided by the Territorial Supreme Court on February 7, 1900. In the statement of the facts, it is said:

“This is an indictment found by the grand jury of Payne county in November, 1895, charging, the defendant, Henry Harmon, with an assault upon one Daisy Yantis with the intent to commit the offense of rape. The defendant was tried and convicted, and sentenced to five years in the penitentiary. An appeal was taken to the supreme court, and in January, 1897, the case was reversed and remanded. * * * The remanding order contained no instructions about the granting of a new trial.
“On November 23, 1897, the case was called up in the district court. The defendant objected to going to trial for the reason that, as the remanding order contained no instructions that the district court should grant a new trial, the district court had no power to do1 so, and try the case. This objection was overruled by the court. The defendant withdrew his plea of not guilty, and filed a demurrer. The court overruled the demurrer, and the cause was continued for the term.”

In passing upon this issue, the court- used the following language:

“The first assignment of error on which it is alleged by counsel for plaintiff in error that this cause should be reversed, is that it was improper for the district court to grant a new trial, and retry this cause, for the reason that the mandate or remanding order from the supreme court contained no specific instructions to that effect. We think it is the law that the mere remanding of a case to the district court by the 'Supreme Court, where the case is reversed by reason of the admission of improper testimony, or the rejection of competent and legal testimony, or for errors occurring during the trial, is sufficient authority for the district court to retry the case, as the intention of the supreme court that this should be done is manifest by the mere remanding of the case. And we think it was not error for the district court to' retry this case under the circumstances as shown by the records.”

The court did not pass directly upon the question where the reversal was by reason of the “insufficiency of the evidence.” But we have examined many authorities bearing upon this question, and have come to- the conclusion that the court had the right to- enter an order’ for the retrial of defendant, under the circumstances in thisi case, and that the overruling of the motion filed by defendant was not error. 24 C.J.S., Criminal Law, § 1952, pages 1135 and 1136; Kitchen v. State, 61 Okla. Cr. 435, 69 P. 2d 411; Id., 66 Okla. Cr. 423, 92 P. 2d 860.

In 24 C.J.S., Criminal Law, § 1952, it is stated:

“It is not a prerequisite to a new trial after reversal that the mandate specifically direct it; it may be had where the grounds of reversal and the general directions in the mandate impliedly indicate the intention of the appellate court to grant a new trial.” Citing People v. Ballard, 13 Cal. App. 511, 110 P. 351; State v. Clouser, 72 Iowa, 302, 38 N.W. 686.

The next question presented is, Was the evidence offered at the second trial substantially different from the evidence offered at the first trial, where it was held that it was insufficient to sustain the judgment and sentence, and of such weight and credit that the present judgment and sentence can be sustained by reason thereof?

In our former opinion we have fully discussed the evidence and applicability of the statute (sec. 1808', O. S. 1931, Tit. 21, Okla. Stat. Ann. 1941 § 172) with reference to “aiding and abetting.” Many cases are cited in that opinion, and a re-reading of them clearly demonstrates that they fully state the law with reference to when one may and does become a principal under our statute by aiding or abetting another in the commission of crime. It therefore becomes unnecessary to further discuss this question or cite further decisions.. It is only necessary to briefly refer to the facts as testified to by the witness Jimmie Goff, whose testimony has heretofore been set forth.

We are mindful of the rule that has so often been announced by this court that a verdict of a jury will not be set aside by this court where there is a conflict of the evidence of the state and the defendant, and where the evidence of the state is sufficient to sustain the judgment and sentence that the same will not be set aside on appeal. Also the familiar rule that the credibility of the witnesses and the weight to be attached to their testimony is a question of fact for the jury. A strict application of this rule would require an affirmance of this case. The question is, Do the facts here justify a strict application of these rules?

With reference to the testimony of the witness Jimmie Goff, the record reveals that prior to. his conviction in this case, he had been sentenced and served a term in the State Penitentiary for burglary. He had been released only six months prior to the time he killed the three parties at the picnic on June 19, 1937, for which he is now serving a life term in the State Penitentiary for the murder of one of them, having two other murder cases now pending against him and undisposed of in Okmulgee county.

At the time of his trial he took the witness stand and testified that he did not do any shooting on that night, but that the defendant Olin Anderson had the gun and did the shooting. At the present trial he took the witness stand and admitted that he had the gun and did the shooting, and that the defendant Olin Anderson did not fire a shot. He admitted that he had committed deliberate perjury at the time of his trial. In addition to this, his testimony with reference to the defendant loading and handing him the gun is contradicted not only by the testimony of the defendant, but by the two state witnesses, Louise Smith and May Ethel Ragsdale, both of. whom testified that they were with the defendant or near him at all times prior to the killing, and they at no time saw the defendant with the gun, or saw him hand it to the witness. These witnesses were used by the state, and therefore vouched for by the state. In passing, we will say that an examination of their evidence convinces one that they told the truth, and there was no attempt on their part to shield any one, or to testify falsely with reference to any facts connected with this case. Both of these witnesses, and the witness James Cravatte testified that Jimmie Goff had the gun from the time they left Okmulgee to go to the dance. None of these witnesses ever saw the defendant in possession of the gun prior to the killing. This evidence is also corroborated by the witness Katie Fork, who saw him get the gun before tliey left Okmulgee.

With the witness Jimmie Goff admitting that he committed perjury at the former trial; the witnesses for the state contradicting, his testimony given at this trial; his previous convictions,- and having served two terms in the State Penitentiary, this court is confronted with a serious question as to what action it should take with reference to the verdict rendered.

We wish to say that the record reveals that no promise of any kind was made to this witness by the officers with reference to any favor that might be granted him in the two murder charges now pending against him in Okmul-gee county, or with reference to his securing a pardon or parole; yet by the questions asked him and the answers made, it can readily be observed that it is his intention to apply for clemency, and that he has expectancy or hope of receiving aid, as he says, “from the citizens of Okmulgee county.” We again reiterate that nothing in this record reveals that the officers of Okmulgee county have promised or intimated any help or assistance would be given him in this effort.

After fully reviewing this evidence, and again reading, this record, we have come to- the deliberate conclusion that the liberty of this defendant should not be restrained for a period of 15 years upon the evidence' of Jimmie Goff.

We recognize the often repeated doctrines of this court, as heretofore stated, but we also recognize the fact that justice should be rendered one who is being deprived of his life or his liberty, and with this, thought in mind, we have come to the conclusion that the judgment and sentence rendered in this case should be modified to a term, of four years in the State Penitentiary. This is the minimum punishment provided for one found guilty of manslaughter in the first degree. This defendant has now served in the State Penitentiary from the 21st day of July, 1941,'to the present time. By being given credit for the time which he has served, his release may be had within a very short time.

The facts in the case of State v. Seymour, 7 Idaho, 548, 63 P. 1036, are very similar to the facts in the instant case. The majority opinion gives the argument on one side, and the dissenting opinion on the other side. Both sides have their merits. See, also, United States v. Murphy, D. C., 253 F. 404.

For the reasons above stated, we are of the opinion that the judgment and sentence of the district court of Okmulgee county should be modified from a sentence of 15 years in the penitentiary, to a period of four years in the State Penitentiary, and that defendant should be given credit for the time he has heretofore served, in compliance with the rules and regulations of the warden of the State Penitentiary.

As so modified, the judgment and sentence of the district court of Okmulgee county is affirmed.

JONES, P. J., and DOYLE, J., concur.