text:
    ELLIE PIERSON v. STATE.
    No. A-1973.
    Opinion Filed May 19, 1917.
    (164 Pac. 1005.)
    TRIAL — Instruction—Circumstantial Evidence. When the state’s casé-is based wholly upon circumstantial evidence, and the proof offered by the defendant discloses only facts which tend to exonerate him from the commission of the crime charged, an in- • struction on cireumsttntial evidence should be given by the court,, and it is error to refuse to do'so when it is requested.

      Error from District Court, McCurtain County; Summers Hardy, Judge.

    Ellie Pierson was tried upon a charge of murder,, convicted of manslaughter, and he brings error.
    Reversed-

      Ames, Chambers, Lowe & Richardson and T. Barnes, for plaintiff in error.

      G. M. Barrett, Co; Atty., for the State.
    The Attorney General and G. M. Barrett, Co. Atty.,. for the State.
   ARMSTRONG, J.

The plaintiff in error, Ellie Pier-son, was indicted by the grand jury of McCurtain county-in 1912, jointly with one John Flanagan, for the murder of S. B. Lyons,- a negro, in April of that year. Flanagan was never apprehended. The plaintiff in error was tried, in December, 1912, convicted of manslaughter in the first degree, and his punishment fixed at confinement in the. state penitentiary for a term of four years.

An elaborate statement of facts, as. they were developed at the trial, is presented in the brief of the plaintiff in error, the correctness of which is not challenged by counsel for the state. We therefore adopt the same, for the purposes of this opinion:

“George Lyons testified on behalf of the state' as follows: T am 15 years of age, and a son of the deceased. In the spring of 1912 the deceased was working at Broken Bow. On the Saturday night of the killing, defendant and a tall fellow, neither of whom I had ever seen before, •came to deceased’s camp. They came in, and defendant sat leaning against the bed, and the tall fellow went outside with deceased and' talked to him. They came back into the tent and got deceased’s hat, and the tall fellow .said that he had three cases of whiskey at the log camp, and he wanted deceased to go with them and help bring it to the camp where deceased stayed. As they started out deceased turned around and said, “Boys, I will be back after while.” We sat up and waited for him, but he did not come back, and we went to bed and to sleep. I next saw deceased on the following Monday. He was in the branch by the side of the railroad, dead. His throat was cut. Deceased was not drinking any that night. I do not know whether deceased bought anything from the two men that night or not. Deceased had about $50, but this was subsequently found under his pillow.’
“Cross-examination: Tt was the “tall fellow” who took deceased outside, and at no time did the defendant say anything.’
“S. L. Brock testified in behalf of the- state: T was not personally acquainted with the defendant, but had seen him several times. Deceased lived in the camp. I saw deceased after he was killed, close to the railroad about a quarter of a mile from where the latter lived. His throat was cut. I saw defendant and another fellow on Saturday evening before the killing about three miles out of Broken Bow going towards the front. Deceased lived at the front in a tent.’
“H. L. Stiff testified in behalf of the state: T was a constable and lived near Broken Bow. I did not see the deceased. I followed the defendant and Flanagan from Broken Bow to John Beavers’ house, where they spent the night; learned there that they had gone to Hochatown. At Hochatown I found that they had gone to Grannis, Ark. Defendant’s mother lived at Grannis; I went to Grannis and had a deputy sheriff there arrest defendant. I asked defendant where Flanagan was, and the latter replied that he didn’t know; guessed he was in Louisiana by that time, as he left that morning on the train. A little later defendant said that Flanagan was over at Frank Arnold’s, his brother-in-law. I went to Frank Arnold’s, and the latter said that Flanagan had been gone 30 minutes. Defendant made a statement to me in regard to the killing. He said they were down there in the pole camps; that Flanagan sold the deceased some whiskey, and when the latter got his pocketbook out to pay for it, Flanagan saw he had some money, about $17, and when it got dark Flanagan decided to get deceased out and relieve him of that money. So he decoyed him off to carry some whiskey he had hid and got him out and searched him, and found that deceased didn’t have any money, and Flanagan got mad and beat him around there awhile, and defendant heard the negro struggling, and said to Flanagan, “Don’t kill him!” and Flanagan said, “I have done killed the son of a bitch now”; that Flanagan threw the body in the branch; that they went to Broken Bow, from there to Bob Beavers’, thence to John Beavers’, from there to Hochatown, and thence to Arkansas.’
“Cross-examination: ‘Defendant never stated that he had anything to do with the killing, but said that the other fellow did it. He never said that he had taken any part in decoying the negro off or in killing him. He said he was sitting on the spur a few feet away from Flanagan. He said that Flanagan threw him in the branch. Defendant voluntarily returned with me from Arkansas.’
“Here the state rested, whereupon the defendant introduced the following evidence:
“R. L. Beavers, Jr., testified on direct examination: ‘I know the defendant, and have seen Flanagan. Some time during the night in which Lyons was killed Flanagan and defendant came to my house and knocked on the door and I got up and let them in.’ The defendant at this time offers to prove by the witness that on the night of the killing, between 9 and 11 o’clock, the defendant, with the said John Flanagan, came to the witness’ house with the said John Flanagan, and there in the presence and hearing of the defendant stated to the witness that he didn’t care to sleep any that night; that he had killed a negro down on the front, and was leaving the State of Oklahoma; that the defendant had to go with him; that the defendant took no part whatever in the killing, and defendant in no way was responsible for the killing. (State objects. Objection sustained, to which defendant excepts.) I had no talk with defendant that night, but the next morning, when Flanagan stepped into another room to comb, defendant said, “Well, you heard .what we had to say last night, and it is true; I want you to get the officers as quick as possible and follow us; I will try to get him to go to Bob’s tonight, and you go there; and if I don’t and go on to Arkansas, you will find him' there.” I was unable to find Mr. Stiff, who was an officer, but I told Mr. Byrd, the city marshal, about it, and he gbt Mr. Stiff; and Stiff, Mr. Gravis, the night marshal of Broken Bow, myself, and another man went to my father’s on the request of the defendant to follow them there. We did not find them there. The other men went to Hochatown, and Stiff and I went on to Arkansas. We found the defendant at Granis, Ark., but did not find Flanagan.’ .
“Cross-examination: T told Mr. Byrd about it either the next day or the day following. He was the only one I had told. I told him before I heard of any reward being offered. I had heard nothing of the killing except what Flanagan and the defendant told me at my house.' We found the defendant at my uncle’s about two miles from Grannis Willis Hungate brought him there. We were looking for Flanagan. I had known the defendant about all my life. That was the first t’me he had stayed at my house since I was married. I had known Flanagan about a month or six weeks.’
“Redirect examination: ‘I went with the officers to try to catch Flanagan, and the defendant went with us. Defendant told Mr. Stiff that he had better hurry up, as Flanagan might get word of their presence. When we got pretty close to the house Mr. Stiff told the defendant it would be best for the latter to go in the house and get Flanagan out, if he could, and we would waylay him and arrest him. The defendant went in the direction of the house. We couldn’t see the house from where we were. The rest of us stayed together. Flanagan was gone. The night when Flanagan came to my house he was wet. He threw away his socks at my house. He had a blood stain on his shirt front.’
“Recross-examination: ‘After the defendant came back, we went on up to the house. We were not more than 25 or 40 steps from the house when the defendant went up to it, but the house was in the woods.’
“John Beavers testified in behalf of the defendant as follows: T live about ten miles from Broken Bow. I kñow Ellie Pierson. I was ' introduced by him to a man named Flanagan, sometimes called Johnson. This was about the time the negro Lyons was killed. Flanagan, or Johnson, had on an undershirt and a coat. He had no overshirt and no socks. I gave him a shirt and a pair of socks.’
“Johnnie Beavers testified in behalf of the defendant as follows: T live at Grannis, Ark. Know the defendant. Was introduced by him or my uncle to a man named Johnson' about the time the negro Lyons was said to have been killed. This was at my uncle', John Beavers’, house. I was out hunting, and when I got in that evening they were there.. They said they stayed at Bob Beavers the night before. They stayed at Uncle John’s that night. I tried to have a private talk with the defendant, but whén we started anything the other fellow always went with ■ us. I had no opportunity to talk to him privately until the next evening. He tóld me thén that if the officers came to Uncle Bob’s to tell them to be at Hochatown that - evening, and to tell them to come on, and if they were not there, to come on to Grannis, Ark.; that he was going on home, and he expected them to be at Uncle Bob’s when he got back.’
“Cross-examination: ‘I had known the defendant about all my life. Never met Flanagan until that evening. Defendant is not related to the Beavers family in any way.’
“R. L. Beavers, Sr., testified in behalf of the defendant as follows: ‘I live at Grannis. I know the defend-ánt, and remember the time he was arrested. The defendant said he wanted the officers to be certain to catch Flanagan if he assisted them; that he was afraid for his life, and would do all he could. He said for them to hurry on up there. I didn’t go. Mr. Stiff, Bob Beavers, Mr. Hungate, and the defendant went.’
“Tom Fulson testified in behalf of the defendant as follows: T live at Idabel, and work at Broken Bow; know S. B. Lyons and have seen defendant. I saw Flanagan, Johnson, or Burk, as they called him, at Adams’ stave camp <m the night of the killing. My tent and Lyons’ tent were close together. About sundown on the evening of the killing this man, known as Burk, was at Lyons’ tent. I saw him sell Lyons a pint of whiskey. The defendant was not there. Lyons and I bought a pint between us, each .paying half. Lyons had $20.20, and three coppers. He pulled his money out, and this fellow that sold the whiskey said, “I will show you how the boys count this greenback.” He took it and folded it, and. he says, “I will show you how, when you want to draw one opt, you can puli' it out,” and he folded it and gave it baek to him. That was the first time I ever saw the man; to know him. He was outside of the tent. The defendant was not there. The man looked like he was full. I never saw him any more.’
“Cross-examination: T saw the defendant and this man together near Brock’s tent before the man sold the whiskey.’
“Ellie Pierson testified in his own behalf as follows: ‘I live at Grannis, in Polk county, Ark.; I knew Flanagan, or Johnson, in a way; I wasn’t personally acquainted with him. On the evening of the killing I had started to the * front to get a j ob of work, and I saw him as I passed the depot. He asked me where I was going, and when I told him he said, “Well, I was intending to go down there, myself; if you don’t mind, I will go along; you will have company whether I do or not.” We walked together to the front. When we got to the tent we separated. I ate supper at Sam Brock’s tent. ' Brock and his partner were there. After supper we went into the rooming tent and sat down. Flanagan, or Johnson, or Burk, whatever his name is, stepped out and was gone 15 or 20 minutes, and he came back and said, “Kid, come go with me; 1 am going down here after some whiskey; there is a negro out here going to bring it to me.” I said, “Well, I will go up that way; I am going to Sample’s to stay all night; I suppose I will just go along.” I walked along with him, and the negro Lyons went with us; I did not know his name then. As we went up the railroad Flanagan said to me, “This negro is the slickest bootlegger ever come over the pike.” The negro said, “Yes, cap; never have cotch me.” We reached the log camp, and I said, “I guess I will stop here.” Flanagan said, “No, come on and go with me; it is just a little way, and we will get a drink of whiskey.” I told him I didn’t care for any whiskey; I didn’t drink; very seldom. He said, “Come on, any way.” I went on down with him. We went down the track about a quarter of a mile from the log camp. Then he said to me, “You stay here on the track, and we will go down and see this fellow, and get the whiskey.” I waited on the track. While they were gone down there talking I heard them quarreling. I heard this fellow Flanagan say, “Come on in with that money, nigger.” The nigger said, “No, white folks, I left it at the house.” He said, “Come on in with that money, nigger; if you don’t I will kill you.” I said, “I wouldn’t do that.” He said, “What the hell is it to you?” I said, “Nothing.” He said, “I have done killed' the son of a bitch.” I heard him throw something in the branch. I never left the track. Then he came back to me. He said, “You have got to leave this state with me.” I asked him what that was for. He said because he was afraid he would be arrested and I could cause him trouble, and he had to get out of the state with me. He said, “If you don’t, if you make any .attempt to get me into trouble or have me arrested, I will kill you.” I went on with him. He said, “We will go to Broken Bow tonight and stop, and you can sleep some.” He had a gun; an automatic pistol.' He told me of several crimes that he had committed; he said that.he was wanted in Georgia for murder. In Jacksonville, Fla., for bank robbery, and in some place in Arkansas for highway robbery. When he told that I had to go with him or h[e would kill me, I believed the statement, and I went with him through actual fear of losing my life. We went to Bob Beavers’ and stayed all night. I slept some; he didn’t go to bed at all. The next morning we went in to wash, and as he stepped into another room to comb I said, “You heard this man’s testimony last night; we are going through the country to Grannis, Ark.; I am going to try to get him to stay at your father’s house tonight. You get the. officers and come on and arrest him.” He went on. We stayed that night at old man John Beavers’, about nine or ten miles from Broken Bow. Flanagan’s shirt had blood on it, and he pulled it off and threw it in a creek. I next left directions for the officers at Hoeha-town, six or seven miles from John Beavers’. From Hochatown we went to Grannis, Ark. I got away from Flanagan at Frank Arnold’s, two miles from Grannis. I' then went to Grannis to notify the officers before I went to my. home. I searched for-and Hungate; they were both out of town; Hungate came back late that evening. I told him about the man and the killing, and that the man was at Frank Arnold’s. He said, “Well, we will go down there.” Hungate went and ate supper; he then came back to town, and he and I then went to Bob Beavers’, Sr. There we found Henry Stiff and little Bob Beavers. They talked about how to arrest Flanagan. They were afraid of him, I suppose. I told them they had better hurry up, as he might get away; so they tried to get old man Bob Beavers to go along with them. They walked together, and they stopped I suppose 50 or 75 yards from the house. They sent me up to, the house to get him out. They were afraid of him. I went up and called for him. Mr. Arnold came out, but Flanagan did not. I took no part whatever in the killing. I . was not off the railroad track. I had nothing to do with selling the whiskey. I would say that Flanagan was half drunk that night. He talked quite a little.’
“Cross-examination: T had known Flanagan only about two weeks; had not been intimately associated with him. Had not gone to and from the front with him, and I did- not say I had in the statement I made to you. I ' had been to Broken Bow only once before. He did not go with me; he was there when I got there. I did not see Flanagan call the negro out of his tent. I did not go to the negro’s tent or go in. I did not say in the statement I made to you, and which your stenographer took down, that the first time I saw the negro was when Flanagan called him out of the tent. I said the first time I saw the negro was when Flahagan called me out of the tent. The negro was standing outside, between his tent and Sam Brock’s. We did not go very far; probably.half a mile.’
“Mr. Barnes: We have no objection to him intro-duc'ng the whole transcript in evidence.
“The transcript Was then introduced, and was in substance as follows: ‘My name is J. E. Pierson. The man’s name who cut the negro’s throat is Flanagan. He goes by the name of Johnson. He lives at Wyandotte, Ga. I have known him about four or five weeks. I first got acquainted with him at Broken Bow. He stayed around there at first one place and then another. He took this negro out, and I suppose he first sold him a pint of whisky. The negro was about half drunk. He had some whisky up the track and he told the negro he wanted him to go up there and take that down for him, and asked me to go with them. . We got up there and sat down and were talking, and directly he jumped on the negro about something, got into á quarrel, and he told him to come on in with that money, and commenced kicking him, and kicked him in the head. The negro commenced begging, and said he had left the money at the house and would go get it, and he said, “No, you have it now.” And they were scuffling and talking, and he knocked him down, and grabbed his knife, and cut his throat. He told me, “You see what I have done, don’t you?” And I said, “Yes”; and I told him at the start, and he said, “Come on with me or I will'kill you”; and I said, “No, you won’t; let the negro alone”; and he just turned around to me and said, “What is it to you?” And after he had killed him he tore my shirt off, and I said, “Don’t do that; I don’t intend to hurt you over it”; and he said, if I would not say anything about it he would let me alone, and we went on up to George Beavers’ and stayed all night, and I said we had better go and give up, and you can swear self-defense. He had a cut place on his vest; he either put it there or the negro cut at him. He threw the negro in the branch. He went through his pockets, and he told me he must have left that money at the house; said he had $17; said he saw it when he got that whiskey. It was done Saturday night,, and we stayed all night at Bob Beavers’ that night. We went to old man Bob Beavers’ the next morning-and stayed there that night. From.there we went to Hochatown, and stayed all night with Chesley Allen. Then we went to Grannis and spent the night at Frank Arnold’s, my brother-in-law, and the next morning I went •home. That was Tuesday night. Flanagan 'stayed around there; he told me he was going back to my brother-in-law’s- and I gave him all the money I had, and he was afraid I would turn him in, and he would not get away from me until there at Hochatown. We came back to Bob Burk’s, and he told Bob Beavers that he had killed this negro, and that I had nothing to do with it. He would go to the penitentiary 20 years before he would let me suffer for it; he also told Bob Burk that. The officers got me in town at the depot. Flanagan was two miles south of town; said he was going to stay all night at my brother-in-law’s, and leave next morning. I haven’t seen him since. He is a tall man, about six feet, dark brown hair, red complected, smooth-faced, scar on left jaw just below his eye, jawbone been broken with a pair of knucks, scar.about two inches long. He weighs about 175 or 180 pounds. He said he was going to Louisiana on freight trains. My brother-in-law sent my little brother down there, and this fellow got hold of him and got sort of afraid and left there. My brother said he got a freight train at Mena, and would get a hack line out through the country. That would throw him out by Hot Springs, but he is wanted at Hot Springs under a $500 bond. He has gone by the name of Sinclair, besides his other names; he told me all about it. He has broke several jails. I have been gambling some at Broken Bow. Flanagan told me that he was an old whiskey maker. I am under bond to appear in court in Arkansas, being ■ charged with robbing the Grannis bank. I was raised at Grannis, and used to go to school to Judge Barnes. I will be 25 years old on the 23d day of this month. I first saw the negro at Broken Bow. The first I saw of him he went to a tent and called him o.ut. A fellow named Tom Johnson, not this man, w.as running the gambling house in the front of a tent. This fellow Johnson and I were together. I got with him in Broken Bow. Kirby, Ed Cole, and Will Reese are on my bond in Arkansas. I came over here without requisition papers; never ,saw a warrant or' nothing. Mr. Stiff told me he would get me bond if I would come over here. Flanagan said he was wanted at Wyanter or Winder, about four miles from Atlanta, Ga., under the name of W. V. Flanagan. I. don’t know who he killed there; he said his mother’s farm and his brother’s farm are both up for his bond the 16th of this month. He is very talkative and pretty bad to drink. He didn’t say how long he had been wanted in Georgia, but said his trial was set for the 16th of this month. Said he couldn’t afford to go báck there; said if he got away he was wanted in Tennessee for highway robbery, and in Jacksonville, Fla., for murder. He is a bank robber and train robber. He is about 35 years or 36 years old. He broke jail in Oklahoma once; I think he said it was at Tulsa. He says there is no jail that will hold him. The officers stopped about 50 or 75 yards from the house and got me to go up there and call him out, and they were going to step up and arrest him while I was talking to him. He had nothing except what he had on. His whiskey was white whiskey without labels on it. He told me it was corn whiskey. My trial at Mena is set for Monday or Tuesday. Flanagan had between $15 or $20. He said the negro had two $5 bills, and one $10 bill, but said he did something with it. I don’t know whether he got it or not. About the first there was to it, he sat down by the negro and commenced feeling in the negro’s pocket, and the negro told him to quit, and the negro then taken out his knife, and Flanagan jumped up and grabbed his knife away from him and shut it up and put it back in the negro’s pocket, and they were setting down, the first thing I knew he jumped up and commenced kicking the negro, and said, “Come on in with that money,” and kicked him, and the negro said, “White folks, I left it at the house, and I will go get it”; and he said, “No, you won’t,” and kept kicking at him. He kicked one of the heels off his shoes, and went to Hochatown and bought him a pair of vi'ci shoes in old man Burk’s store. He had on a gray suit of clothes and flannel shirt. He tore his vest up after he said the negro cut it and threw it away. I let him have $3.’
“H. L. Stiff testified in rebuttal in behalf of the state as follows: T know little Bob Beavers. I saw him in Broken Bow on Monday after the killing on Saturday. He did not say anything to me about Pierson and Flanagan having been to his home on Saturday night.’ ”

This is a fair resume of all the testimony introduced at the trial.

The first assignment of error, and the only one we shall discuss, is based upon the proposition that the court erred in refusing to give an instruction upon circumstantial evidence. It appears that counsel requested the court to Instruct upon this proposition, and submitted a form of Instruction, giving the jury the law upon this phase of' the case. The sufficiency and form of the instruction is criticized by counsel for the state. An examination of the same, however, and an examination of the record discloses clearly that it was sufficient to call the court’s attention to the fact that this issue was in the case, within the viewpoint of the defendant, and was sufficient to raise the question for review. In fact, the instruction as requested, or rather instructions, in poorer form than the one requested; have been given and approved in many recorded cases. It appears that the trial court declined to give the instruction, not upon the ground that it was Insufficient in form, but upon the ground that ah instruction upon circumstantial evidence was not proper in the case. It is well settled in this jurisdiction that if an instruction requested is not in proper form, but is sufficient to call the court’s attention to a material issue, it is the duty of the court to formulate and submit to the jury a proper instruction, when the record clearly indicates thát no undue advantage of the court is sought. See Roberson v. United States, 4 Okla. Cr. 336, 111 Pac. 984; McIntosh v. State, 8 Okla. Cr. 469, 128 Pac. 735; Rutherford v. Unified States, 1 Okla. Cr. 194, 95 Pac. 753; Hendrix v. United States, 2 Okla. Cr. 240, 101 Pac. 125; Sies v. State, 6 Okla. Cr. 142, 117 Pac. 504; Inklebarger v. State, 8 Okla. Cr. 316, 127 Pac. 707; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102.

The law requires the trial court to submit the issue or guilt or innocence, by proper instructions, giving the jury the rule when the state relies solely upon circumstantial evidence for a conviction. In this case, the state had no other testimony. The proof offered on behalf of the defendant does not exempt this cause from the rule. The defendant testified in his own behalf and gave a complete account of the homicide. His testimony does not in any way strengthen the state’s case, but to the contrary absolves. him from participation in, or willful concealment of, the crime.

Other questions raised have' been determined in former opinions. We will therefore forego a discussion of them.

For the error indicated, the judgment is reversed, and the cause remanded for a new trial.

DOYLE, P. J.-, and BRETT, J., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    ROBERT ALLEN v. STATE.
    No. A-2483.
    Opinion Filed May 19, 1917.
    (164 Pac. 1002.)
    1. TRIAL — Remarks of County Attorney. Remarks of tbe county attorney in bis argument will be considered and construed in reference to tbe evidence, and in order to constitute reversible error tbe impropriety indulged in must bave been sucb as may bave improperly influenced tbe verdict.
    2. APPEAL — New Trial — Fundamental Error. Where tbe guilt of tbe appellant is clearly and conclusively established, and there is no good reason to believe that upon a second trial an intelligent •and honest jury could, or would, with reason and .propriety arrive at any other verdict than that of guilt, a new trial will not be granted except for fundamental error.

      3. TRIAL — Misconduct of Jury — Use of Intoxicants. The use of small quantities of whiskey or other intoxicants mixed with curative drugs, or diluted and used strictly for medicinal purposes, by jurors when not deliberating upon the verdict, is not such misconduct as will vitiate the verdict and authorize the granting of a new trial, where it appears that such jurors were in no way incapacitated thereby for the proper performance of , their duties. Bilton v. Terr., 1 Okla. Or. 566, 99 Pae. 163, distinguished.
    4. TRIAL — Misconduct of Jury — Statute. Record examined as to other alleged misconduct of jury, and held not reversible error in this ease.

      Error from Superior Court, Oklahoma County; - Edward Dewes Oldfield, Judge.

    Robert Allen was convicted of murder and sentenced
    to imprisonment for life, and he brings error.
    Affirmed.

      Pruiett, Sniggs & Tripp, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

A statement of facts will not be necessary for a determination of the questions presented in this appeal, except -to state that the evidence upon the part of the state shows a willful, premeditated and intentional killing without any justifiable or excusable cause, while the defendant claimed either that he was too drunk to know what he was doing, or else killed the deceased in self-defense. The defendant’s testimony is conflicting as ■ to which theory of defense he relied upon. The theory of temporary insanity as well as self-defense was covered by the court’s instructions. The sole errors relied upon relate entirely to alleged improper argument on the part of the assistant county attorney and improper conduct of the jury while impaneled and considering the evidence in the case. The first alleged error relied upon for a reversal is the improper conduct and argument of the assistant county attorney. The excerpts from said argument contained in the brief of plaintiif in error which are claimed to be improper and prejudicial to this appellant are as follows:

First. “You took the life of a man who was there defenseless. You know it, Allen. You were there. You know it.”

This remark was objected to by counsel for the appellant, and that part of the argument “You know it, Allen,” was by the court promptly stricken, and the jury admonished not to consider it.

Second. “If you went home to your wife and little children and told them what you had heard from the witnesses, what would their conscience tell them?”

Counsel for appellant made the following objection to this line of argument:

“Note our exceptions to that argument as not legitimate and not germane to the case.”

Third. “No, you would not say that child’s conscience told it wrong. Don’t go home and have a child tell you those things.”

To the foregoing statement the following objection was interposed by counsel for appellant:

“We object to This kind of argument as being made for the purpose of arousing prejudice only.”

Fourth. “Go home and look your dear wife in the •face. When you speak to her and she says,. ‘John, what did you do in the face of that testimony,?’ You do not have any doubt of his guilt.”

To the foregoing counsel for appellant objected as follows :

“We object as not germane or legitimate argument, not relevant and note our exceptions.”

Fifth. “Let’s go beyond the personalities in this case and get down to' the real issues. There is no politics in this case. Pruiett took it out when he discovered a man with a John Fields button on.”

To the foregoing remark ■ counsel for the appellant excepted as follows:

“Note our exceptions to that argument.”

After which the county attorney continued as follows:

“I don’t care for your exceptions. Who brought that into this case? Not a man on the jury will say that I brought it in here. Where does it cut any figure anyway? Be courageous, men.”

Whereupon counsel again excepted as follows:

“Note our exceptions to the argument of counsel as being highly improper.”
“By the Court: Just a minute, Mr. Choate,'gentle-men of the jury, these arguments of counsel both for the state and the defendant in regard to politics having entered into this case; the court fails to see where any politics has entered, and fails to see where it is relevant or should be commented upon by counsel for the state or the defendant either one. You will therefore disregard all statements of counsel in regard to politics having entered into the case, the same being impertinent and not properly before you.” .

The foregoing excerpts from the brief of counsel for the appellant and the record itself contain all the statements of the assistant county attorney alleged to be improper, and the rulings of the trial court thereon. It will be noted that although there was no request on the part of counsel for the appellant that the court withdraw any of this argument from the consideration of the jury the court of its own motion, however, did withdraw certain portions of this argument from the jury and instructed the jury not to consider it. The assistant county attorney engaged in a line of argument which is not to be commended, and we agree with counsel for the appellant that the argument made had a tendency to appeal to the passion and prejudice of the individual members of the jury. However, it is not such argument as the making of it is a ground for a new trial under the statutes of this state. In our opinion, this argument could have been cured by its withdrawal from the consideration of the jury by the trial court, and counsel for the appellant ' should have requested its withdrawal in order that the court might have cured the error, if any. This was.not dohe. Counsel at the time only saw fit to object and take an exception without any ruling by the trial court upon the impropriety of certain of these remarks. Others the trial court, of its own motion, as heretofore indicated, saw fit to withdraw and .admonish the jury not to consider. It is not every species of impropei argument that justifies this court in reversing a judgment of conviction. The argument may be improper, but the proof of guilt may also be so overwhelming that it is evident that upon á second trial an impartial and intelligent jury could arrive at no honést conclusion except that of guilt. That is the situation in this case. The proof upon the part of the state when considered in connection with the' evidence of the defendant is so convincing and conclusive that it is readily to be seen that a verdict of guilty of murder was the only logical conclusion that an intelligent jury could have arrived at "in this case. It would be an imposition upon the law-abiding citizens of this state and an unjust burden upon the taxpaying public to reverse this judgment because of these alleged errors in the argument where no request was made to have the trial court withdraw the remarks from the consideration of the jury. It is not the rule in Oklahoma that error presumes injury, but this court is required to examine the entire record carefully and determine from all the facts and circumstances surrounding the case (where the error is not fundamental — i. e., such as involves the violation of some express constitutional or statutory right of the defendant) whether the error complained of has probably resulted in a miscarriage of justice. This cannot be said to be true in this instance, because of the conclusive proof of the guilt of this appellant.

We hold, therefore, that where the guilt of the appellant is clearly established, and there is no good reason to beieve that upon a second trial an intelligent and honest jury could or would with reason and propriety arrive at any other verdict than that of guilt, a new trial will not be granted except for fundamental error.

It is also contended that the jury, while considering the evidence in the case, drank whisky. The evidence in support of this alleged ground for a new trial is substantially as follows: It appears that after the jury was impaneled and while the evidence was being introduced the court took a recess over Thanksgiving Day, and on said day the jury was kept together, in charge of a sworn bailiff, a part of the time being located in a room at a hotel in Oklahoma City. One of the jurors was sick, and on the recommendation of his physician was told to take a little quinine and whisky. In some manner, not disclosed by the record, this juror procured a half pint of wh'sky, and mixed the quinine with it, and during Thanksgiving Day, while the jury was not considering the evidence, this juror drank the greater part of such mixture. It appears also that another juror drank two drinks of this mixture on that day. On the next morning before going to the trial this sick juror took one drink of the whisky and quinine.

The foregoing is the misconduct complained of. Counsel for appellant rely largely upon the decision of this court in the case of Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163, in which it was held:

“The use of intoxicating liquor as a beverage by a juror during the trial and consideration of a capital case will vitiate a verdict of guilty, and entitle the accused to a new trial.”

It will be noted that in that case the intoxicating liquor was used as a beverage, while in this case it was prescribed as a medicine and used upon the advice of a physician. In the Bilton Case the whisky was drunk at a time when the jury was considering the evidence. In this case the whisky and quinine was taken at a time when the jury was not considering the evidence, but during , a recess occasioned by the happening of Thanksgiving Day. It also appears from the Bilton Case that the decisions upon which that holding of this court rests are based upon the use of intoxicants after the jury had retired to consider of its verdict. The drinking of whisky or any other intoxicating beverage by the jury or by any member thereof should not be tolerated, and the bailiff in charge of a jury should be very careful to guard against the reception and .use of such intoxicants by the jury.

The. Bilton Case, we think, is distinguishable from this case. First, in that in the Bilton Case the jury used whisky as a beverage and drank considerable quantities of it throughout the progress of the trial, while in this, case only two members of the jury partook of whisky mixed.with quinine as a medicine, and that during a recess in the trial, and it is not shown that-the effect of such mixture deadened the sensibilities of the jurors to-any extent whatever, or rendered either of them incapable of the proper performance of their duties. Further, it is not contended in this case that after the jury retired to consider _ of their verdict any intoxicants, were consumed by any member thereof. In the Bilton. Case it was shown’ that certain members of the jury drank whisky at a saloon “while hearing this case and deliberating upon their verdict.” So that it may be readily seen that the facts in the Bilton Case are very dissimilar to the facts in this case.

The Supreme Court of Iowa, in the case of State v. Morphy, 33 Iowa, 273, 11 Am. Rep. 122, distinguishes in fact and principle the case of State v. Baldy, 17 Iowa, 39 (cited with approval in the Bilton Case), as follows:

“It is next assigned as error that the court refused to set aside the verdict of the jury on the ground that one of the jurors drank intoxicating liquor during the progress of the trial. The affidavits as to the fact that the juror did so drink are not set out in full in the abstract. So far as we are able to determine the circumstances upon the abstract and arguments they are, that one of the jurors, not in the habit of drinking, was ill during the trial, and took for medicinal purposes, without medical advice or prescription, some brandy and blackberry balsam or mixture; that it was done during the hearing of the case and not after the jury retired. There is no showing or claim that its effects were intoxicating or other than remedial; nor is it shown that the facts concernng it were not well known to defendant and Ms counsel at the time and before the cause was .submitted to the jury. The case is not, either in its facts or principles, within State v. Baldy, 17 Iowa, 39, nor Ryan v. Harrow, 27 Iowa, 494 [1 Am. Rep. 302], and there was no error in the action of the court in this re.spect.”

The facts in the Morphy Case are very similar to the facts in this case. In the case of Gilmanton v. Ham, 38 N. H. 114, the use of a small quantity of brandy by a juror for medicinal purposes is held not to be error where his disease is real and manifest, and the use of brandy had been previously prescribed by a physician. This later case distinguishes the principle previously announced by that court in the cases of State v. Bullard, 16 N. H. 139, and Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323 (cited with approval in the Bilton Case), although the former decisions were not mentioned. In Gilmanton v. Ham, supra, the court said:

“We see no sufficient cause for setting aside the verdict, in the conduct of the juror in drinking a small quantity of brandy, which, upon the evidence before us, he must be holden to have taken only and strictly as a medicine, previously prescribed by his physician, as a remedy for the disease under which he was manifestly laboring at the time, and net as a beverage. It was taken by him alone, apart from and without the knowledge of any of his fellows, in good faith, as a remedial agent for a serious and troublesome malady. The facts found, by the case do not seem to us to differ substantially in effect-from what they would háve been if the juror had carried in his pocket a vial of medicine for the relief of the difficulty under which he was. suffering, and had taken a dose of it on one of the numerous occasions when he was obliged, as the consequence of his illness, to leave the juryroom. His disease was real and manifest, and not feigned; the juror was not in the habit of using spirituous liquors; he requested the officer to obtain the small quantity of brandy for him, as the medicine prescribed by his physician for the disease under which he was palpably suffering; he drank it privately as a medicine, and not as a beverage, after his mind was made up in the ’ case; and it is impossible to conceive how, under the circumstances, the defendant can have suffered from the influence of the liquor upon the judgment of the juror, or what injurious influence can be exerted on the community as the result of such an occurrence. There would not seem to have been anything in the conduct of the juror, as disclosed by the case, which can rightfully be regarded as imprudent or injudicious, much less deserving the severe reprehension and rebuke which would be involved in setting aside the verdict on that account.”

A similar distinction is made in the case of Pope v. State, 36 Miss. 121, wherein it was held:

“The introduction by the bailiff of intoxicating liquors, in a sufficient quantity to produce drunkenness, into the room where the jury in a felony case are deliberating upon their verdict, is illegal and improper; and if nothing more appear, the verdict will be set. aside upon the ground that the jury were thereby exposed to an improper influence; but if it appear that such liquor was used by only one of the jury, who was sick, and that he' was not intoxicated thereby, the presumption which would otherwise arise against the purity of the verdict is rebutted, and it will not be disturbed.”

Other cases to like effect are State v. Cucuel, 31 N. J. Law, 249, and People v. Romero, 12 Cal. App. 466, 107 Pac. 709.

While there appears to be a direct conflict in the' authorities as to whether or not the use of intoxicating liquors as a beverage by members of the jury during the progress of the trial and while deliberating upon the verdict is of itself sufficient ground for granting a new trial, there appears to be a uniformity of modern opinion to the effect that the use of small quantities' of whisky or other intoxicants mixed with curative drugs, or diluted, and used strictly for medicinal purposes by jurors is not 'such misconduct as will vitiate the verdict and authorize the granting of a new trial, where it appears that such jurors were in ho way rendered intoxicated or incapacitated for the proper performance of their duties. There is an affirmative showing in this case that neither of the jurors who partook of whisky and quinine was in any way incapacitated thereby.

Finally it is contended that other misconduct of the jury should reverse this judgment. This assignment of error refers to the fact that during recesses taken during the progress of the trial the jurors were permitted to have access to certain local newspapers concerning statements of other homicides committed in Oklahoma county while the trial of this case was in progress, and also during a recess some of the jury saw the sheriff come into the courthouse carrying a hat and two butcher kniyes, and one of the jurors spoke to him and asked him if that was all he got, and he replied, “No, I got one dead one and five live ones.” It is asserted that this conduct was such as to greatly prejudice this defendant and deprive him of a fair and impartial trial. While the conduct of the juror ih yelling to the sheriff as he was passing through the courthouse is subject to criticism, and is such as the trial court should always rebuke should attention be called to it, nevertheless we cannot , see wherein this defendant’s substantial rights were prejudiced thereby. Our statutes (sections 5899, 5900, and 5937, Rev. Laws 1910); provide that there shall be no communication with the jury after it has been impaneled and sworn to try the case by any person on any subject connected with the trial itself, and if such a communication is had it is ground for new trial, and the verdict should be set aside. In this case it is shown conclusively that no person was permitted to communicate with the jury upon any subject connected with the trial, and it is also shown that the newspapers which the jurors were permitted to read contained no statement with reference to this particular trial; that such matters were torn or cut out of the papers before they were handed to the jurors. No statutory right of this defendant therefore was violated, the jury did not discuss these outside matters in any way, and it does not appear that the defendant was probably injured by such alleged misconduct; but on the other hand the testimony of the persons called by the defendant in support of the motion for new trial, in our .opinion, shows that no injury was occasioned this defendant by any of these matters set forth in the motion.

Where the evidence is so conclusive and convincing of the guilt of the- defendant of the degree of crime of which the jury found him guilty, before this court may set such' a judgment of .conviction aside it must clearly appear that the defendant has been deprived of some constitutional or statutory right, or that the errors complained of have probably resulted in a miscarriage of justice. In this case, it is our firm conviction, not only that there has been no miscarriage of justice and the defendant has been deprived of none of his constitutional or statutory rights, but also that the conviction of murder received at the hands of the jury was the only honest verdict which an intelligent and unbiased jury could have found under the evidence.

For the reasons given, the judgment of the superior court of Oklahoma county is affirmed.

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


author: DOYLE, P. J.

text:
    WILLIAM MURPHY et al. v. STATE.
    No. A-2487.
    Opinon Filed May 19, 1917.
    (164 Pac. 1000.)
    TRIAL — Severance—Discretion of Court — Review. Under Procedure Criminal, sec. 5878, Rev. Laws 1910, when two or more defendants are jointly prosecuted for a misdemeanor, the granting or refusal of a severance rests in the discretion of the court. The exercise of such discretion is reviewable; but, to be reviewed, the case-made or bill of exceptions must show' an application for severance setting out sufficient grounds therefor, and supported' by affidavits or oral testimony.

      Appeal from Superior Court, Muskogee County; H. R. Thurman, Judge.

    William Murphy and Mrs. R. T. Kane were convicted of a violation of the prohibitory law, and they appeal.
    Reversed as to defendant Murphy, and affirmed as to defendant Kane.

      W. W. Momyer, for plaintiffs in error.

      P. Freeling, “Átty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case jointly charged that Will Murphy, Mrs. R. T. Kane, and R. D. (Dudie) Minter did on the 23d day of February, 1915, knowingly' and unlawfully have the possession of certain intoxicating liquors, to wit, seventeen pints of beer and three small drinking glasses full of whisky, with the intention then and there on the part of them to sell the same. When the case was called for trial the county attorney dismissed as to the defendant Minter, whereupon each plaintiff in error orally moved the court for a severance of the case against them, and a separate trial thereof, which motions were by the court overruled. The trial proceeded, and they were convicted, and their punishment assessed at a fine of $50 and 30 days’ confinement in the county jail. From the judgments rendered on the verdict they appealed.

The first error assigned is that the court erred in refusing to grant a severance. Under our Procedure Criminal:

“When two or more defendants are jointly prosecuted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.” (Section 5878, Rev. Laws 1910.)

In Steen v. State, 4 Okla. Cr. 309, 111 Pac. 1097, this court said:

“The exercise of the discretion here given to the trial court in granting or refusing a severance in a misdemeanor case is reviewable; but, to make the same the subject of review, the case-made or bill of exceptions must show an application for a severance setting out some unusual and extraordinary condition or state of facts in connection with the case which would materially prejudice the rights of the applicant in a joint trial, and this must be supported by affidavits or oral testimony, and it may be controverted by the state in the same way. In the absence of such showing on the part of the applicant the trial court cannot know and is not required to anticipate that a situation will arise in the trial justifying a severance. The fact that the trial does subsequently develop such a situation is immaterial; and unless such application is filed and thus supported, there is nothing before the court calling for the exercise of the discretion given it.”

In the case at bar the record fails to show upon what ground the plaintiffs in error based their demand for a separate trial. It follows that the motions for separate trials were properly overruled.

The only other assignment of error in the case may be considered under that of the insufficiency of the evU dence to support the verdict and the judgments. The substance of the testimony of the state’s witnesses, J. D. Robbins, R. D. Hughes, and Doyle Jay, deputy sheriffs, was that on the day alleged -they went to the second floor of the Alaska Building, in Muskogee, where Mrs. Kane was conducting a rooming house, and in an ice box in one of the rooms found seventeen pint bottles of beer and a tray with three glasses on it, partly filled with whisky; that while they were removing the liquor Mrs. Kane knocked the glasses off the tray; that at the time there were three men in another room across the hallway; that Dudie Minter was there. Witness Robbins testified that shortly after Will Murphy appeared and said he did not want us to arrest the woman this time, and that it was his place. The state also introduced in evidence a certified copy of the records of the United States internal revenue collector for the district of Oklahoma, showing that Mrs. R. T. Kane had paid the special tax required of retail liquor dealers for six months, commencing January 1, 1915, and that her place of business was her rooming house.

As a witness in his own behalf William Murphy testified that he did not own or ever have any interest in the building or the rooming house; that he called there when the officers were raiding, and had a conversation With the witness Robbins, wherein he offered to make bond for Mrs. Kane, or do anything that would keep the officers from taking her to jail; that he did not say that he owned the place; that he went there in answer to a telephone call from Mrs. Kane; that she was arrested and wanted him to make bond for her. Mrs. R. T. Kane, as a witness in her own behalf, testified that she was the proprietor and sole owner of the Elks’ rooms; that the beer in question, was placed in her ice box by the men who were sitting in her parlor room and the glasses contained ginger ale; that the .men said they were going to order a lunch and drink the beer; that her retail liquor dealer’s license was secured because the collector had told her that she would have to have a revenue license to sell near beer or anything like that. Dudie Minter testified that he resides at the Elks’ rooms; that Mrs. Kane owned the place, and he knew that the defendant -Murphy had no interest in the place.

As to the defendant Murphy, we are of opinion that the evidence is insufficient as a matter of law to sustain the verdict finding him guilty, and for this reason the judgment of conviction is reversed as to Murphy. However, we are unable to see any ground upon which the judgment against the defendant Mrs. Kane should tie reversed. Finding no material error in the record, and there being, evidence sufficient to sustain the verdict against her, the judgment as to Mrs. R. T. Kane will be affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    O. P. GANT v. STATE.
    No. A-2549.
    Opinion Filed May 19, 1917.
    (164 Pac. 999.)
    APPEAL AND ERROR — Conviction—Reversal. When all of the evidence introduced at the trial of a criminal case, considered together, is sufficient to authorize a legitimate conclusion of guilt by the jury, a judgment. of conviction will not be reversed on appeal.

      Error from County Court, Jefferson County; Ben F. Saye, Judge.

    0. P. Gant was convicted of violating the prohibitory law, and he brings error.
    Affirmed.

      Bridges & Vertrees, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, 0. P. Gant, was convicted at the July, 1915, term of the county court of Jefferson county, on a charge of having unlawful possession of intoxicating liquors with intent to sell the same, and his punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days. An appeal was duly prosecuted to this court.

The only proposition urged in the brief is that the judgment is contrary to the evidence.

It appears that plaintiff in error is a farmer, living near Waurika, and at the time of the charge was building a residence, pending the completion of which he was living in a tent near by; that he went to Byers, Tex., and got two' barrels of beer and brought them home. On the day he arrived with the beer, a deputy sheriff living at Ardmore telephoned the sheriff of Jefferson county to be on the lookout for a wagonload of intoxicating liquors. A deputy from the sheriff’s office picked up the trail of the wagon, which led to the camp of the defendant. When they arrived at his place he told them that he had two barrels of beer and had bought them for his own use. Some argument was had, and the deputies agreed to leave the beer until the plaintiff in error could come into town and see the sheriff. He came into town the following morning, but the sheriff was absent. He then returned to his camp. The deputies again visited the camp, and could find only five bottles of beer. When defendant was questioned concerning the disposition of the beer, he told them it had been stolen. One witness testified that he bought beer at a tent located in the direction of where the tent of the plaintiff in error was admittedly situated; that he made a check for the same payable to O. P. Gant. This witness declined to identify the plaintiff in error as the person from whom he purchased. He was a very reluctant witness, and was apparently endeavoring to shield the plaintiff in error.

One of the other witnesses who was in the party at the time was a very unwilling witness, and gave no incriminating evidence, but admitted being in the party.

The plaintiff in error produced a number of witnesses in his own behalf, who testified that they had worked on the house he was building as carpenters and paper hangers; that they had seen beer and had drunk beer there, but had never seen any sold at any time. One of the witnesses testified that he worked there in April; that another tent was located near by the Gant tent some! time during May, but that it was not there at the time the offense was said to have been committed.

The plaintiff in error himself testified, admitting that he had the beer. He denied selling any; denied knowing the state’s witnesses; denied receiving a check payable t.o his order for beer. He admitted telling the. sheriff’s deputies at one- time that the beer had been .stolen and at another time that it was in a pond. He said that one of his small children took the beer out of the barrels and put it in the pond while he was gone to town to see the sheriff; that he used the beer instead of drinking wáter on. account of the fact that there was no drinking water nearer than a mile, and, further, that ■ some physician had advised him to use beer on account of the ill health of his wife.

We are unable to agree with counsel that this conviction is contrary to the evidence. The testimony offered by the plaintiff in error in his defense, taken together with the facts offered by the state, raised an issue exclusively for the jury to determine. The testimony of plaintiff in error is such that the jury was warranted in scrutinizing carefully this transaction. It is a most unreasonable and unbelievabe story that an ordinary farmer would drive 15 or 20 miles to get two barrels of beer at a cost of $25 to be used for drinking water, instead of hauling a barrel of water, which would cost nothing, the distance of a mile. It is not unreasonable for people in ordinary circumstances to drink beer in lieu of tea or coffee with their meals, or even more frequently, but to ask a jury of intelligent men to believe that an ordinary farmer suspended the use of water altogether, and substituted beer, was presuming a little too much. When this kind of defense to a charge of having the unlawful possession of liquor with intent to sell same is made and a conviction follows, the judgment will not be disturbed, on appeal.

Talcing all of the facts disclosed by the record together, we are of opinion that the judgment of the trial court should not be reversed on the ground that it is-contrary to the evidence.

The jury saw and heard all the evidence, observed-all of the witnesses on the stand, and were citizens of' the same community, and probably neighbors to the accused. They found, under their oaths, that he was guilty of having this liquor in his possession with intent to sell the same, and the local court approved their verdict. The-circumstances and proof offered are such that this deduction was legitimate.

Affirmed.

DOYLE, P. J., and MATSON, J., concur.


author: • MATSON, J.

text:
    TOM THOMAS v. STATE.
    No. A-2718.
    Opinion Filed May 19, 1917.
    (164 Pac. 995.)
    1. APPEAL AND ERROR — Verdict on Conflicting Evidence — Conclusiveness. The jury is the exclusive judge of the weight of the evidence and credit to be given to the witnesses. Where there is a direct -conflict in 'the evidence, or it is such that different infer- ■ enees may be properly drawn from it, the jury’s determination will not be interfered with upon the ground that the evidence is insufficient to sustain a conviction, where there is competent evidence from which the jury could rationally conclude that the appellant was guilty.
    2. HOMICIDE — Evidence—Dying Declaration. The deceased, as part of his dying declaration, made the statement, “Those negroes shot and robbed me.” Held, that such statement was admissible-in a dying declaration.

      ■3. . TRIAL — Requested Instruction. Whore an instruction requested by the defendant is not in proper form, but pertains to a material issue in the case, made by the evidence, the court should give a correct instruction, if he has not otherwise instructed upon that issue. After suc-h request, it is error for the court to refuse to instruct upon such issue.
    4. EVIDENCE — Contradictory Statements by Codefendant. Contra- ' dictory statements made by a codefendant after the commission of the crime, not shown to have been made in the presence or hearing of the defendant being separately tried, are in no sense original evidence against the latter. Where such statements relate to material matters and proper foundation is laid, they may be shown and may be considered by the jury only for the purpose of affecting the credibility of the witness making them. And when requested it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent substantive evidence againslt or in favor of the defendant, but only for the purpose of affecting the credibility of the witness.. Refusal of the court to instruct upon this issue after such re-' quest is error.
    5. NEW TRIAL — Grounds—Receiving Evidence Out of Court — Statute. Where evidence introduced at the trial consists in part of the testimony of witnesses given at the preliminary examination and reduced to writing, and such evidence is attached. to other written evidence of witnesses examined at the preliminary examination and not produced at the trial, and after retiring to deliberate upon its verdict the jury makes a demand for that portion of such evidence introduced at the trial, the court should see that such evidence is detached from that not introduced before permitting the jury to have it. Where this is not done, and the jury is permitted to have access to that evidence given at the preliminary examination not introduced at the trial, and such evidence is damaging to the defendant, the substantial rights of the defendant have not been properly safeguarded. It is a ground for new trial for the jury to receive evidence out of court other than that resulting from a view of the premises.. Section 5937, Rev. Laws 1910.

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

    Tom Thomas was convicted of murder, and sentenced to imprisonment for life, and brings error.
    Reversed .and remanded.

      Tom Thomas was convicted in the district court of Seminole county for murdering one George Gammill, and his punishment fixed at imprisonment in the state penitentiary for life. The alleged offense occurred on the 7th day of February, 1915; this defendant being informed against in conjunction with John Cudjo, Robert Cudjo,. George Cudjo, all three of whom were cousins of his, and Jim Thomas, a brother of his. The killing occurred at' night on a public highway close to the home of this defendant, and in the Little River country of Seminole-county. The facts and cicrumstances surrounding the homicide are about as follows:
    George Gammill, the deceased, and Claude Allen, his: brother-in-law, at whose home the deceased was staying-at the time, lived about five miles from the place of the killing. It appears that on Sunday morning, February 7, 1915, the deceased came to Allen’s house with a suitcase full of whisky, and stayed there with Allen and his family until about 4 o’clock in the afternoon, when Gam-mill suggested that they go down in the Thomas neighborhood, and try to sell some of the whisky. They started out afoot, and reached the home of Abe Thomas,, the father of Jim and Tom Thomas, about 7 or 8 o’clock at night. It was 'then dark, and Gammill .stood at the gate and hallooed. Jim Thomas came to the door and Gammill asked him if he wanted to buy some whisky. He answered, “Yes,” and asked them to come into the house. Gammill and his companion, Allen, then went into the south room of the Thomas house, carrying the suitcase of whisky. In a very short time Tom Thomas came in and shortly after Tom Thomas arrived the three Cud jos came. The Thomases and Cud jos were all ne-groes. Gammill and Allen were white men. They sat around in the room for a few minutes, and Gammill and Allen took the suitcase of whisky out into the yard. Jin; Thomas followed them, and wanted a bottle of whisky. Gammill produced a quart bottle of whisky from the suitcase, and' Jim Thomas took it, but did not pay for it, and when requested to pay promised Gammill that he would pay him for the whisky before he broke the bottle. Tom Thomas came out into the yard, and also wanted a bottle of whisky, which Gammill produced from the suitcase; but Tom Thomas also did not pay for the whisky, and made the same promise to Gammill that his brother Jim had made. A short time thereafter Robert Cud jo came out of the house and wanted a bottle of whisky, but by this time Gammill had become suspicious, and requested Cud jo to produce the money for the whisky before he would give it to him. Cudjo apparently did not have any money, and became somewhat incensed, at this time pulling a quart .bottle out of his pocket, which bottle was about half full of whisky, and remarking to Gammill, with an oath, “that he didn’t care, he had whisky any way.” Immediately thereafter these three negroes gathered together and began whispering to each other, but what was said by them could not be understood by Allen and Gam-mill. Allen then suggested to Gammill that they had better get away, they would likely have trouble, and Gam-mill said that he would go back into the house, and did so. Allen picked up the suitcase of whisky; and went out in the yard near the fence. In a short time Gammill again came out to Allen, but again returned to the house to collect for the whisky. At this time Allen' took the grip ' of whisky, and started south from the Abe Thomas home down the road in the direction of where Tom Thomas lived, which was about 100 yards southwest of Abe Thomas’ residence. Allen proceeded down the road a distance of about 100 yards, and stopped in the road. In a short time Jim Thomas and George Gammill came down to where Allen was, and stopped a short distance, five or ten steps south of Allen. Immediately thereafter three negroes came up behind Allen, and stopped about five steps north of him. Gammill and Jim Thomas were whispering to each other, and immediately Jim Thomas called Tom Thomas, who apparently was not among the negroes present at that time. Allen says that when he started down the road south with the suitcase of whisky he saw somebody running down the road ahead of him, but did not know who it was. After Jim Thomas called for Tom Thomas some negro came out to the road to where these parties were standing, and came up to Claude Allen with a drawn pistol in his hand, and pointing it at Allen, picked up the suitcase of whisky and started to back away to the north with it. At this time Allen called to Gammill, who faced around, and thereupon the negro with the pistol fired a shot at Gammill. Gammill dropped to his knees and pulled a revolver, and returned the fire four or five times. After the shooting all the negroes had disappeared; also the whisky could not be found. Allen says that the person who came up with the revolver and fired the shot to the best of his knowledge was Torn Thomas, and that the three negroes who came down and stood behind him were the Cudjo negroes. This shooting occurred about 10 o’clock at night. Gammill lived until 8 o’clock the next evening. Before his death he made some dying statements, in one of which he said that he believed “Tom Thomas shot him; that it was either Tom Thomas or John Cüdjo; that those negroes had shot him

      and robbed him.” After the shooting all of these negroes gathered at the house of Gibson Payne, another negro, who was distantly related to them. None of them lived at Payne’s residence. A deputy sheriff went to Payne’s house about 11 o’clock the night of the shooting and arrested Robert Cudjo. None of the others were arrested at that time, but Jim Thomas and George Cudjo and Tom Thomas were arrested the next day. In the meantime John Cudjo had fled, and up to the time of the trial had never been apprehended. It was the contention of the defendant that John Cudjo killed Gammill, and, while the defendant did not take the witness stand in his own behalf, he produced George Cudjo as a witness, and George swore that John was the man who did the shooting.
    From the foregoing statement of facts it is apparent that it was the theory of the state that Tom Thomas shot and killed George Gammill on this occasion, or, if Tom Thomas did not fire the fatal shot, the killing was a result of a conspiracy between all of these negroes to rob George Gammill of the suitcase of whisky, and to kill him if necessary to accomplish that purpose; that all the negroes were present at the scene of the killing, and had so located themselves as to be in a position to perform their part, whatever that might be, to carry into effect the purpose of the conspiracy, when necessary. The theory of the defendant was that John Cudjo, the fugitive, killed Gammill, and that the evidence on the part of the state to prove a conspiracy was insufficient to connect this defendant with it.

      Orwig & Moore, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. M'cMillcm, Asst. Atty. Gen., for the State.
   • MATSON, J.

(after stating the facts as above). It is first contended that the court erred in refusing to direct the jury to return a verdict of not guilty for the reason that the state failed to make, out a case against this defendant by sufficient evidence. It is not necessary to enter into a lengthy discussion of the merits of this contention; • The foregoing statement of facts, to our mind, discloses evidence sufficient, if believed, to authorize the jury to convict this defendant either upon the theory that Tom Thomas himself fired the fatal shot, or upon the other theory that he was a coconspirator with the one who • did kill Gammell. and as such' aided ' and abetted in the •killing. The rule is well established in this jurisdiction that' the weight of the evidence is for the jury, and where 'there is: any evidence in the record which, if believed, is sufficient 'to authorize a conviction under the law this court will not disturb' the judgment because of insuf- ■ ficient ■ or conflicting evidence. It is true that this is a murder case, and the penalty imposed' is severe; but the province of an appellate court is to determine questions of law and to establish-principles of law by which'fair ■ and'impartial trials may be had. It is just as essential that courts abstain from invading the province of the'jury as it- is essential that the jury be guided by the law as •given by the court. In no other way can justice be fairly administered. If trial and appellate courts were con-stántly invading the province of juries in this state, the "jury system would become a farce and of no protection whatever to' the accused. It is only in cases where this court' can say, as á matter of law, that there is no competent evidence supporting the charge, that the judgment of conviction will be reversed.

There is evidence in the record fully sufficient to authorize the jury to conclude that the appellant was guilty. Our investigation need go no further, except to determine whether or not the jury was influenced by improper motives in reaching a verdict. Bishop v. State, 9 Okla. Cr. 175, 130 Pac. 1178; Maggard v. State, 9 Okla. Cr. 236, 131 Pac. 549; Caple v. State, 3 Okla. Cr. 621, 105 Pac. 681.

It is also contended that the court erred in admitting incompetent, irrelevant, immaterial, and hearsay evidence offered by the state and duly excepted to at the timé, which evidence the defendant requested the court to instruct the jury not to consider, which request was by the court denied, and to which ruling of the court the defendant at the time excepted. This assignment of error relates to certain testimony of one Ed Weisman, a deputy sheriff, who was introduced by the state in rebuttal. It was attempted to be shown by Weisman that the defendant’s witness George C.udjo had made certain statements to Weisman at the time of his arrest contradictory to his testimony upon the witness stand, and at the time Weis-man was first called to testify the court sustained the objection of defendánt’s counsel to this testimony on the ground that proper foundation had not been laid for its admission. Thereafter the court permitted the state to place the witness George Cudjo upon the witness stand for further cross-examination, and the state did lay the proper foundation for impeaching Cudjo by Weisman. So that the only question left to be determined is whether or not the statements alleged to have been made were material. George Cudjo in his direct examination testified that John Cudjo, his half-brother, fired the fatal shot that killed Gammill; that he was close to him, and saw the shot fired, and recognized his brother John at the time. For purposes of impeachment he was asked if he did not state to Weisman, in substance, at the time that Weis-man arrested him, the following: “I don’t know who' did the shooting of that boy up there. I did not know anything about that shooting up there, or did not know anybody was shot.” He was also asked if at any time the night of his arrest or the next day he told Ed Weis-man that John Cudjo did the shooting. It requires no argument to convince a person of ordinary intelligence that this evidence was material. Cudjo at the time of his arrest stated that he did not know who did the killing. At the time of the trial he stated positively that John Cudjo did the killing. It was a material inquiry, according to the theory of the defendant, as to who fired the fatal shot, and it became relevant, .therefore, for the state to contradict the only witness who took the stand for the defendant arid testified that John Cudjo fired the shot. Counsel for defendant concede that a witness may be impeached by evidence tending to show contradictory statements on material matters, but contend that this evidence was immaterial. With this contention we firmly disagree. It was material to prove that either the defendarit or one of his codefendants fired the fatal shot, and where a witness makes contradictory statements as to that fact he may be impeached by showing the same. It is not necessary to cite authorities in support of this principle which has béen repeatedly recognized by this court.

It is also contended that the statement made by the witness George Cudjo, and upon which he was impeached, to wit, “I am going to Wewoka for a.long long time,” addressing his remarks to the people at Gibson Payne’s home, at the time of his arrest, was immaterial. We think that it was proper to contradict this witness by showing that he made this statement, which he denied. It tended to discredit him, and was material in disclosing a state of mind on his part at the time of his arrest, shortly after the homicide, which indicated his connection with the homicide and knowledge of its commission, indicating that he was concerned in the conspiracy that resulted in the death of Gammill, and understood why he was being arrested. The defendant had produced this witness, who testified to a state of facts which indicated that neither he nor the defendant was in any way connected with the killing, or had any knowledge that Gam-mill was to be robbed at that time. It certainly tended to discredit the testimony that he had given to that effect, and for that reason, in our opinion, it was sufficiently material for impeachment purposes.

But the serious question in connection with this evidence is the refusal of the trial court to instruct the jury to limit its consideration of same solely as tending to impeach the witness George Cudjo. Counsel for defendant d'd not request an instruction directly covering this matter, but did request the court to give the following instruction:

• “You are instructed that the state has wholly failed to prove that a conspiracy existed, and in this connection you are instructed not to consider any statements of witnesses, except for the purposes of impeachment of other witnesses, concerning what was said or done, unless the defendant were personally present and heard what was said. And you are further instructed in this connection, a conspiracy not having been proved by the state, that before you can find the defendant guilty you must find beyond a reasonable doubt that he fired the shot that took the life of George Gammill, the deceased.”

Said instruction was properly refused because of' reasons heretofore given, to the effect that there was evidence before the jury sufficient to submit the question of conspiracy.

But that portion of said instruction which reads, “and in this connection you are instructed not to consider any statements of witnesses, except for the purpose of impeachment of other witnesses; concerning what was said or. done, unless the defendant were personally present and heard what was said,” certainly directed the court’s attention to this impeaching evidence sufficiently to require the court to give a proper instruction covering the purpose for which it should be considered by the jury. This the court entirely failed to do.

It has been held that “where an instruction * * * is not in proper form, but pertains to a material issue in the case as made by the evidence, the court should correct it and give it in proper form, if he has not otherwise instructed upon that issue; and after such request it is error for him to fail or refuse to give an instruction upon such issue.” Roberson v. United States, 4 Okla. Cr. 337, 111 Pac. 984; McIntosh v. State, 8 Okla. Cr. 469, 128 Pac. 735; Morris v. Terr, 1 Okla. Cr. 619, 99 Pac. 760, 101 Pac. 111; Fairgrieve v. State, 10 Okla. Cr. 109, 134 Pac. 837. It was the duty of the court, after this request, to instruct the jury that such contradictory statements could only be considered by them for the purpose of affecting the credibility of the witness George Cud jo, and for no other purpose. These contradictory statements by George Cudjo were in no sense original evidence against this defendant, but the jury was left open to consider them for any purpose it might have seen fit. This was error, and especially prejudicial to the -defendant in this case because his entire defense was based upon the testimony of this witness.

In Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57, this court held:

“When contradictory statements made by a witness are admissible in evidence for the purpose of impeaching him, they must be confined to contradictions of the testimony of the witness which are injurious to the party seeking to impeach him, and it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent, substantive evidence against or in favor of the defendant, and that the jury can only consider such contradictory statements for the purpose of affecting the credibility of the witness, .if they decide that such statements do have this effect, and that it is unlawful for the jury to consider such statements for any other purpose.”

The refusal of the trial court to instruct the jury on the purpose for which alone this testimony was receivable requires a reversal of this judgment.

Other matters are urged in the brief of counsel for defendant in error which appear to be well grounded, especially that the jury was permitted to have access to certain testimony, given at the preliminary examination, of witnesses who were not examined on the trial. It appears that the entire transcript of the testimony given at the preliminary examination was upon request allowed to be taken to the jury room for the purpose of permitting the jury to read certain, portions of such evidence introduced upon the trial both as original and impeaching evidence. While it is not clearly shown that'the jury considered or read any of this evidence except such as was introduced upon the trial of this case, it is clearly evident that the opportunity to receive and examine other evidence than that received in court was afforded. This should not be permitted under any circumstances.

The second subdivision of section 5987, Rev. Laws 1910, makes it ground for new; trial for the jury to receive evidence' out of court other than that resulting .from a view of the .premises. Sections 5912 and 5913, Rev. Laws 1910, provide:

“On retiring for deliberation the jury may take with them the written instructions given by the court, the forms of verdict approved by the court, and all papers which have been received as evidence in the cause, except that they shall not take copies of such parts bf public records or private documents as ought not, in the opinion of the court, to be taken from the person having them in possession.”
“After the jury have retired for deliberation, if there be a disagreement between them as to any part of-the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have ~5een called.”

Had there been a disagreement between jurors as to any testimony introduced other than' the documentary evidence, the jury should have been'returned into court and the evidence read to them. And where the evidence is written or documentary, and is attached to other such evidence not introduced on the trial, it should be.detached from that not introduced before the jury is permitted to take the same to the jury room. The foregoing statutes should be strictly complied with, as it is a substantial right of the defendant to have the jury kept free from any improper influences while considering its verdict ai well as during the entire progress of the trial.

Another matter which is complained of, and will, in all probability, likely arise on a retrial of this charge, is that the court erred in admitting that part of the dying declaration of Gammill in which he said, “Those negroes shot me and robbed me.” It is contended that this evidence should have been excluded because it was nothing more than the opinion of the deceased, and the deceased, if living, would not have been permitted to testify to such effect. There seem to be two rules upon this question: First, the strict rule which is followed by some courts to the effect that it is indispensable that the dying declaration should consist solely of facts, and not of conclusions or opinions; and, second, the liberal one that opinion rule is not necessarily applicable to dying declarations.

The latter rule is pointed out by this court in the case of Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003. The doctrine is well established in this state that matters like this should be construed liberally. This rule is laid down by Prof. Wigmore in his work on Evidence, sec. 1447, as follows:

“The opinion rule has no. application to dying declarations. The theory of that rule (post, sec. 1918) is that, wherever the witness can state specifically the detailed facts observed by him, the inferences to be drawn from them can equally well be drawn by the jury, so that the witness’ inferences become superfluous. Now, since the declarant is here deceased, it is no longer possible to obtain from him by questions' any more detailed data-than his statement may contain, and hence his infer-enees are not in this instance superfluous, but are indispensable.”

Numerous cases are cited in the note to this section which disclose that expressions very similar to the one here made by the deceased have been admitted, such as the following:

“He cut me for nothing.” “He killed me for nothing.” “I know that one of the two shot me.” “You have killed me without cause.” “They have murdered me.” “He shot me down like a dog,” etc.

• — all of which contain certain expressions of opinion and conclusion on the part of the deceased. Applying the liberal rule, therefore, which we hold to govern in this state, it is our opinion that the statement aforesaid made by the deceased in his dying declaration was admissible.

The contention that because whisky is contraband property in this state, as against the state and its officers, others are entitled to rob and murder in order to obtain possession of it from one who is using it unlawfully is wholly without merit. Neither robbery nor murder may be justified'or excused on such a ground.

For the reasons given the judgment of conviction i§ reversed and the cause remanded. The warden of the state penitentiary is instructed to surrender the defendant to the custody of the sheriff of Seminole county upon proper demand at said penitentiary.

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


text:
    JOE LANCASTER v. STATE.
    No. A-2557.
    Opinion Filed May 24, 1917.
    (164 Pac. 1152.)
    TRIAL — Evidence—Barden of Proof. Tlie burden is on the .state to-introduce proof sufficient to establish the guilt of a defendant who is being tried upon a criminal charge beyond a reasonable doubt; and, when this is not done and when all the proof fails to so establish guilt, a judgment of conviction should be reversed.

      Appeal from District Court, ■ Atoka County; R. W. Higgins, Judge.

    Joe Lancaster was convicted of larceny of domestic animals, and appeals.
    Reversed.

      Ira J. Banta, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Joe Lancaster was convicted at the June, 1915, term of the district court of Atoka county, ón a charge of larceny of domestic animals and sentenced to serve five years in the state penitentiary. The information charges Lancaster jointly with Ed Smith with the larceny of a black mare, the property of Charley Christopher. Separate trials were had.

The proof indicates that Smith lived near Chockie in Atoka county; that Christopher also lived near the same place. Lancaster lived near Canadian, and at the time of the alleged larceny was engaged in picking cotton' for a tenant on the farm of J. F. Riley near Canadian: Lancaster lived in a tent near or adjoining a small house in which his brother, Jess, was living. Some time in October, 1914, a stranger rode up to the camp and asked for feed for the black mare in question, a colt and a young mule. The plaintiff in error, Joe Lancaster, had started to work. His brother, Jess, was talking to the stranger when he went away. Within a day or two a deputy sheriff from Atoka went to the Lancaster place, and in a cedar flat near by found the mare, colt, and young mule.

Ed Smith, who was also prosecuted for the theft, was apparently in possession of the stock. No one ever saw them in the possession of . the plaintiff in error, Lancaster, and no one testified to any incriminating facts against him further than a statement by the person for whom he was working, to the effect that he .would need his money to pay Smith for a horse which he expected Smith to bring him. Nothing indicates that he was ever in the community where the owner of the black mare lived, or that he ever had anything to x do with her at any time. None of the state’s witnesses connected Lancaster with the theft directly 01 indirectly. It may be that he was implicated or concerned in the unlawful taking of the mare, but the state wholly fails to prove facts capable of supporting the judgment of conviction upon this charge. The most that can be said of the testimony •Is that it generates a suspicion that he knew something concerning the transaction. This, however, does not warrant the sending of a man to prison for a term of five years, or any other term. The burden is on the state to prove beyond a reasonable doubt that the accused is guilty of the crime charged. Unless this is done, the verdict and judgment of guilty are contrary to the law and the evidence.

When there is any testimony tending reasonably to establish the crime charged, the question of guilt or innocence under our practice is for the jury to determine, but when there is no testimony offered or considered, by the jury from which a legitimate conclusion of guilt can be drawn, then it is the duty of the court to reverse the judgment of conviction on the ground that the same is contrary to the law as well as the evidence.

The judgment is reversed.

Mandate is directed to issue forthwith.

DOYLE, P. J.., and BRETT, J., concur.


text:
    OLIN GLAZE v. STATE.
    No. A-2491.
    Opinion Filed May 26, 1917.
    (165 Pac. 211.)
    ]. LARCENIf — Larceny or Live Stock — Statute. Section 2652, Rev. Laws 1910, defines “larceny” as the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof. Under this definition, a conviction for the larceny of live stock accomplished by fraud is authorized.
    2. APPEAL AND ERROR — Conviction—Affirmance. When all the evidence introduced at a trial fairly warrants a conviction and no prejudicial error of law is disclosed, a judgment of conviction will be affirmed.
    3. SAME — Harmless Error — Inaccurate Instructions. When instructions given by the court are poor in form but free from prejudicial error, the judgment will not be reversed on the ground that they are not precisely accurate.

      Error from District Court, Caddo County; Will Linn, Judge.

    Olin Glaze was convicted of larceny, and he brings error.
    Affirmed.

      H. W. Morgan and Giddings .&. Tripp, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Olin Glaze, plaintiff in error, was convicted at the February, 1915, term of the district court of Caddo county, on a charge of larceny, and his punishment fixed at three years in the state penitentiary., The information charges the larceny of two head of cattle, the property of- J. C. Childers. Oklahoma Giles was jointly charged, but separate trials were held.

The proof on behalf of the state discloses the following state of facts: J. C. Childers lived about three miles east of Carnegie in Caddo county, and was a farmer. Olin Glaze, plaintiff in error, and Oklahoma Giles lived near by, and were horse traders. In January, 1915, Giles came to the home of the prosecuting witness and inquired for a bull, and was informed that the witness had a bull, a heifer, and a cow for sale, and was told by Giles that plaintiff in error, Glaze, would buy them. Witness priced the two yearlings at $70. Giles told h.'m that he did not think Glaze would pay the money, but had a mare to sell; that he, Giles, wanted the .mare, and that if the witness would' trade the two yearlings for the mare, he, Giles, would pay $72.50 for the mare, and he said he would go and get Glaze and have him br'ng the mare over. Glaze rodé the mare over, and asked the witness if he had some yearlings to trade for the mare. Witness told him he did not. There was quite a- little talk about trading the mare for the yearlings. Witness refused to. trade the yearlings for anything, unless he knew he was going to ■ get the money, asl he d’d not want to trade, but wanted to sell. An effort was madé to induce the witness to go in search of Giles with a view of getting the money from him for the mare. He would not go, but after considerable persuasion let his son go with Glaze and told both of them that there would be no trade unless he got the money; that if Giles did not have the money, that would be-the end of it. About an hour later Giles and Glaze and the boy came back and wanted witness to go to Carnegie to get the money. He got in the buggy with Giles and drove off. Glaze appeared to be on horseback. After going some little distance, a brother-in-law of Giles overtook them with a story, which proved to be untrue, that Giles’ wife and baby had been crippled in a runaway. Giles got out of the buggy, "got on a horse, and started off. As he rode away, prosecuting witness asked him what he was to do, and Giles told him to meet him in Carnegie the next morning. He was told that witness would meet him there. He then said: “Maybe not tomorrow; I will see you soon” — and went on away. The brother-in-law of Giles got in the buggy and drove the witness home. When they got home, the yearlings were gone. This occurred on Thursday. Neither Giles nor the plaintiff in error said anything further about the matter, nor did either of them bring the money to pay for, the yearlings. On Monday the witness went after the' money again, and was told by Giles that he did not have it, that he had expected to get the money from his father, but that the money had been spent. Witness was never paid.

Newton Childers, son of the prosecuting witness, corroborates the testimony of his father. In addition, he says that when he went with Glaze to find Giles, Glaze told him, Giles, that the old man (meaning the prosecuting witness) would not let the cattle go until he got the money; that Giles said, “Let’s go and see the old man,” which they did, and after the prosecuting witness and Giles left to go to Carnegie that Glaze and he, without, instructions to do so, got the cattle and drove them over to Glaze’s place. He rode the mare, and when he got over there started to pull the bridle off and leave her, whereupon Glaze -told him that he had better keep her,* that she might be all he would ever get for the cattle.. Witness did not know what to do, and rode the mare back home because Glaze told him to.

Pearl Childers, daughter of the prosecuting witness, testified to hearing the conversation between Olin Glaze, Oklahoma Giles, and her father concerning the yearlings and their desire to trade the mare for them and that her father declined to consider any trade of any kind, and said the money was what he wanted, and in speaking to plaintiif in error said: “When you get the money, Olin, you get the cattle, and not before.”

Witness E. C. Kelley for the state testified to having a transaction with the defendant Glaze and Oklahoma Giles, in which the two parties, working together, fleeced him out of a horse. It was a similar transaction to the one had with Childers.

The evidence clearly indicates that the plaintiif in error, Glaze, and his codefendant, Giles, were working together in a scheme to defraud the farmers of the community out of their property.

Witness Wesley Bees .for the state testified to facts corroborating the testimony of Kelley as to the manner in which he was defrauded.

Witness. Bogle for the state testified to a similar transaction, wherein he was defrauded by the same parties.' Apparently this witness got $5 for a horse worth $125 through the fraudulent conduct of these men.

The testimony in behalf of the defendant given by himself and his witnesses attempted to establish the contention that the mare was traded outright for the yearlings in •question, and therefore he had committed no crime.

The jury found against the plaintiff in error, and convicted him of larceny.

A careful reading of the record by any fairminded man would not permit of any other conclusion than that of guilt. This plaintiff in error and Giles, without doubt, had conspired together to defraud the prosecuting witness out of his property. The proof of similar transactions by them which tended to show the manner in which they were conducting their business and the system which they used in defrauding the citizens of the community was competent.

It is contended by counsel for the plaintiff in error that the proof shows no violation of the statutes of this state. With this contention we cannot agree. Section 2652, Rev. Laws 1910, is as follows:

“Larceny is the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof.”

This definition is broad enough to cover the charges in this case; in fact, was intended for just such transactions. The proof clearly establishes the crime of larceny by fraud.

There is ample law, as well as ample facts, to support this judgment of conviction.

It is next complained that the court erred in giving instructions Nos. 9 and 10, which are as follows:

“No. 9. You are instructed, gentlemen of the jury, that there has been submitted for your consideration testimony relative to other trades entered into by the defendant in conjunction with others, wherein certain property was alleged to have been obtained by fraud or stealth. This evidence, gentlemen of the jury, is submitted to you for your consideration as the same may or may not tend in determining whether or not the defendant obtained the property described in the' information, from the prosecuting witness, J. C. Childers, by fraud or stealth, with the intent to deprive the owner thereof, and for said purpose only.
“No. 10. You are instructed, gentlemen of the jury, if you believe from the evidence in this casé beyond a reasonable doubt that the defendant, acting in conjunction with others, by fraud or stealth and with the intent to deprive the owner thereof, obtained possession of property of parties other than the prosecuting witness, J. C. Childers, and that the same constituted a part .of a plan of the defendant in obtaining possession of said property, with the intent to deprive the true owner thereof, then you might consider such facts as a circumstance in arriving at the intent of the defendant at the time of obtaining possession of the property for which he is prosecuted, and as to the guilt or innocence of the defendant of the crime charged.”

These instructions might be improved iipon in. form, but there is nothing in them prejudicial to the substantial rights of the plaintiff in error.

.Again, counsel complain of the court’s action in admitting testimony of the witnesses, Kelley, Bees, and others, in reference to other similar transactions. This testimony was properly admitted. There is no question but that these parties were in a conspiracy to obtain property by fraud. In the case at bar their efforts were successful, as they appear to have, been in a number of other instances. The law of this state protects the law-abiding citizens from conduct of this kind.

The judgment is entirely righteous, and the record is without prejudicial error.

Affirmed.

DOYLE, P. J., and MATSON, J., concur.