text:
    CHARLES EVANS v. STATE.
    No. A-1099.
    Opinion Filed September 14, 1912.
    (126 Pac. 586.)
    1. HOMICIDE — Self-Defense—Justification. One who kills another under an apprehension of death or great bodily harm from assault must have been free from fault in bringing on the difficulty in order to justify the homicide.
    2. SAME — Mutual Combat-^-Self-Defense. Where the killing was done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the defendant cannot justify on the ground that it was committed in self-defense, and it will be manslaughter at least, unless the defendant can prove that before the mortal stroke was given he had refused any further combat and retreated as far as he could with safety, and that he killed his adversary of necessity to save his own life or his person from great bodily harm.
    (Syllabus by the Court.)

      Appeal from District Court, Jefferson County; Roy V. Hoffman, Assigned Judge.

    Charles Evans was convicted of manslaughter, and appeals.
    Affirmed.
    The plaintiff in error, Charles Evans, hereinafter referred to as the defendant, was informed against for the murder of Bert Gibson, on the 2d day of May, 1910. Upon his trial the jury returned a verdict of manslaughter in the first degree and assessed his punishment at 18 years5 imprisonment in the penitentiary. October 27, 1910, judgment was pronounced and entered in accordance with the verdict. From this judgment the defendant appealed by filing on April 17, 1911, in this court a petition in error with case-made.

      The defendant admitted the killing, but claimed the same was done in his necessary self-defense. The salient facts which led to the killing were about as follows: Bert Gibson, the deceased, during the year 1910 was a tenant under the defendant on a farm in the northern part of Jefferson county. Between the tenant house, occupied by Gibson, and the defendant’s house, was a pasture of about 50 acres. The defendant’s stock, nine horses and four cows, ran in the pasture with. Gibson’s stock, a horse and a mule. A couple of. months prior to the homicide they had some difficulty over the defendant’s stock trespassing on Gibson, which resulted in one or two lawsuits. There was evidence that each party had made threats against the other, and the evidence discloses the fact that there was a very bitter feeling between them. On the morning of the tragedy the defendant put his hired man to work digging post holes for a fence to divide the pasture, and thereby separate the stock. Gibson ordered him to stop and gave him a note telling him to take it to the defendant, wherein he demanded that his part of the pasture should contain eight acres for each horse. The hired man returned with the defendant and his brother and the defendant’s wife, and they commenced to build the fence. Gibson objected, and an altercation occurred. That afternoon after the fence was' practically completed and without a gate for Gibson to take his stock out, Gibson took an axe and commenced chopping down the fence at a point about T5 yards from where the defendant, his wife, brother, and hired man were finishing the fence. Thereupon the defendant went to where Gibson was tearing down the fence, and after some words shot him through the body. Gibson ran a short distance and fell. Several of the neighbors appeared and carried him to his house, where he died about 7 o’clock that evening.
    The main witness for the state was the widow of the deceased, who was present at the time he was shot. She says that when her husband began hacking the fence the defendant came running toward them and asked him what he was doing and commenced shooting at him and fired five shots. Her testimony taken from the transcript is in part as follows:

      “Q. What did you do? A. I got between him and Mr. Evans. Q. How is that? A. I got between him and Mr. Evans —tried to keep him from shooting him. Q. To try to keep him from shooting him? A. Yes, sir; he jerked loose from me. The Court: Speak loud. A. As soon as ever he got loose from me he broke and run. Q. Did he have the ax in his hand? A. Yes, sir; he throwed it down. Q. Did he throw the axe down before Mr. Evans got to him? A. Yes, sir. Q. Throw the axe down and broke to run? A. Yes, sir. Q. Do you remember how many shots were fired? A. Yes, sir; five. Q. When he began shooting, what did you do? ■ A. Mr. Evans? Q. Yes, I say when Mr. Evans began shooting, what did you do? A. I got between him and Bert. Q. I mean after your husband ran? A. I ran after him.”
    Claud Best was a witness for the state and testified that he was working for Charles Evans, the defendant, and helped to build the fence, and was working on the fence when the shooting occurred; that they were 50 or 75 yards from where the deceased was knocking down the fence. His testimony taken from the transcript is in part as follows:

      “Q When he went to knocking on the fence, what Did Mr. Evans do ? A. He went down and told him to stop. Q. He went down and told him to stop? A. Several times. Q. Was Mrs. Gibson there? A. Yes, sir. Q. What did Mrs. Gibson do? A. She was just standing around there when he was knocking the fence. Q. I mean, what did Mrs. Gibson do when Evans went up and told him to stop ? A. I did not see her do anything, only Mr. Evans pulled his gun, and she jumped in front of Bert and got him by the arm. Q. When Mr. Evans drew his gun, she jumped in front of Bert and got him by the arm? A. Commenced backing up when he throwed his gun. Q. Throwed his axe down? A. He ran backwards and then turned and went forwards. Q. What did Mr. Evans do? A. Why, he commenced shooting at him as soon as Mrs. Gibson got out of the way so he would not shoot her. Q. When Mrs. Gibson got out of the way, he went to shooting? A. Yes, sir. Q. Did Mr. Evans follow him? A. Mr. Evans followed him seven steps.”
    On cross-examination he stated:

      “Q. What was Bert a-doing with the axe? A. Knocking down the fence. Q. Did Bert do anything else with the axe? A. He throwed it towards Charley. Q. When? A. When Charley pulled his gun. Q. Before Charley shot? A. Yes, sir. Q. What was Mrs. Gibson doing? Whose arm did she catch? A. Bert. Q. What did Bert have in his hand when she caught him? A. I don’t believe he had anything when she caught him. He had throwed the axe, and she ran in between Mr. Evans and Gibson then.”
    John McElroy, E. H. Lyons, Dick Cotton, James Lyons, and Allie Perkins testified that as a dying declaration the deceased said that:
    “He was tearing down the fence to let his horses through, Mr. Evans had fenced his horses up, fenced his horses out; never left him any gate, and he was tearing down the fence to get his horses out, and Mr. Evans come up while he was taking them out and shot him.”
    Taylor Barber testified that about 10 days before the day of the homicide he heard the defendant say in the presence of his brother, Ed Evans, that he would run Gibson off or kill him; at that time he had a gun with him.
    Eor the defense, Mrs. Annie Evans, wife of the defendant, testified that on the morning of the tragedy she went to Gibson’s house and started their hired man to digging post holes for a fence to separate their stock from Gibson’s stock; that shortly afterwards the boy came and said that Gibson had stopped him from building the fence; that her husband hauled out some posts, and she went with him; that Gibson met them and said the pasture was not big enough for his stock and called her husband a coward and everything but a gentleman; that Mr. Gibson grabbed her husband while he was in the wagon, and Mrs. Gibson grabbed hold of Mr. Gibson and dragged him off, and she and her husband returned to their home; that after dinner Mr. Evans and her brother and Claud Best, their hired man, and witness returned with the wagon and started to build the fence. The witness then testified as follows:
    “Q. When in that day did you see Mr. Gibson again? A. Well, he come home just as we was a fixing the wire onto the first' — setting the last post where it left the tree. Q. Which direction did he come from? A. He come from the northeast; he come up the east string of fence. Q. Came up the same fence you was building? A. He come up the string of fence and come inside and went right straight to the house, and then he come back down and told Mr. Evans he should 'not build the fence. Q. Go on and tell what happened between them. * A. We went on up to work, to tighten the wire to the last tree, and he walked up to us. Mr. Evans’ brother was scaling a tree to tack the wire, and Mr. Gibson walked up close to him, and he says, ‘It takes a devil of a lot of.you people to build a fence.’ Mr. Evans says, ‘We are just going to put up the fence, that is all,’ and he turned and went and sat by a log, and all pf us started back down to the north to commence setting the posts again and tightening the wire. He got up and started. He said, ‘I will see whether you will build a fence or not.’ And the next time I-seen him he was coming from the house with an axe and went down to the tree where the posts was setting there, and hit the wire, the best I could tell, on the south side of the trees where there wasn’t any posts between us and the tree, and went on the other side of the tree and commenced hitting. Mr. Evans was pretty 'close down, and I heard him say something; seemed like he asked Mr. Gibson not to tear his fence down, and he went up, and Mr. Evans was right close to him, and he said something again. I was not close enough to hear what he said, and Mr. Gibson quit cutting on the fence and drawed the axe, and started towards Mr. Evans, and I saw Mr. Evans had his arm that way (indicating), and Mrs. Gibson sprung in and screamed, and Mr. Gibson drawed the axe and advanced on Mr. Evans, and at that time I heard the gun. Q. What else did you see A. And he shot right quick, and the next time why it kind of shocked me, and then when I realized what was going on I seen Mr. Evans was turning around, and Mr. Gibson was going the other way, and I .went to Mr. Evans as quick as I could, and he sa)rs: ‘Well, I am in trouble. What will I do?’ I says, ‘I guess you will have to go and give up, and let the law take its course,’ and we went and got in the wagon.”
    Eouis Harvill, called as a witness for the defendant, testified that he heard the deceased say: “I don’t want to catch Mr. Evans up around my place anywhere. Me and him can’t both live on the same place.” That this was in March, after the trial over the cattle trespass, and that he went and told Mr. Evans what Gibson had said.
    J. A. Fisher testified that the deceased told him “that he and Evans could not live on the same farm until fall; one or the other was liable to die before fall.”
    These were the only witnesses called by the defendant.
    The defendant testified on his own behalf, and denied that he had threatened to take the life of Gibson, and stated that he had been informed that Gibson had threatened to kill him, and for that reason he purchased a pistol about the time the deceased sued him for the trespass. He further testified, as taken from the transcript:
    “Q. Well now, Mr. Evans, on the day of the trouble, when was the first time that ^you went over .there near Mr. Gibson’s premises that day? A. The 2d day of May. Q. I mean what time of day? A.'About 11 o’clock. Q. What did you go over there for ? A. Hauled a load of posts and distributed them along the ground where I was aiming to build the fence. Q. Did you see Mr. Gibson while he was over there? A. Yes, sir. Q. Did you have any talk with him? A. Yes, sir. Q. What was it? A. He told me I could not build it, and he come out there and jumped on me and blackguarded me and wanted me to come off, and put his hands up like that, and said, T would just like to slap your jaw.’ He told me to come down in the woods with him away from the women folks and he would soon settle it. Q. Did you go? A. No. Q. Where was you when he was talking to you? A. In the wagon. Q. Just state what he did, if anything? A. Well, he grabbed me by the foot and tried to pull 'me out of the wagon, and he seen he could not do that, and he grabbed me by the hand and on the coat and tried to pull me out. Q. All right. What else? A. And he tried to grab the lines out of my hand and tried to pull over my team with me. Q. What did you do? A. I just set there in the wagon. Q. How did it end? A. And his wife jerked him back, and my wife pulled the lines out of his hands. Q. Where did you go? A. Me and my wife went right to the house. Q. Now, what time of day was this? A. Getting right at 12 o’clock. Q. Did you go back over there that day? A. Went back after dinner. Q. What did you go back to do? A. Build my fence. Q. Did you work on the fence? A. Yes, sir. Q. Without going into details, did Mr. Gibson come there that evening? A. He was gone when we went over there, and he come over towards Lyons northeast of where we was building the fence, come on and walked up to the house, so when we got there he was up there sitting on a log, and he said, ‘It takes ‘a devil of a lot of you fellows to build a fence,’ and I told him I was just aiming to build a fence was all. Q. What did you do? A. I went to work and built my fence, and he went over to the house and got the axe and started to cut it down. Q. What did you do? A. And then I told him not to cut my fence down, and I walked down to where he was at, and I told him again, five or six times, and he said: ‘You sons of bitches! Get out of here. I will kill every last one of you.’ And he come at me with his axe, and I drawed my gun. As he went to throw the axe, I fired it about the— Q. How many times did you shoot? A. Three, to the best of my knowledge. Q. How rapidly did you shoot him? A. Just as quick as possible. Q. Did you know where you hit him. A. I hadn’t any more idea than a rabbit. Q. You don’t know which shot hit him? A. No, sir. Q. Where did he go after you shot him? A. He started towards the house the last place I seen him. Q. Where did you go? A. I went to my wagon, went to meet my wife and went to the wagon. Q. Where did you go then? A. Home. Q. Did you see him any more? A. When I got up on the hill, I looked back and seen him laying in his wife’s lap in the north pasture.”
    The cause was submitted at the June term of this court.

      Gilbert & Bond, for plaintiff in error.

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

(after stating, the facts as above). The defendant was convicted of the crime of manslaughter in the first degree and adjudged to suffer imprisonment in the penitentiary for a term of 18 years. He appeals from such judgment and from an order denying a motion for a new trial.

The first assignment of error relied upon to reverse the judgment is the refusal of the trial court to grant him a continuance of the case on the ground of absence of material witnesses.

The application, omitting the formal parts, is as follows:

“By the witnesses J. M. Robinson and Freeman Robinson, the defendant expects to prove that about three weeks before the time of the homicide that each of said witnesses heard the deceased say that he intended to make this defendant and his brother eat the dirt before the year was ended, thereby meaning that he -would kill this defendant. That said testimony is material by reason of the fact that this and these and similar threats made against the defendant were communicated to this defendant prior to the time of the homicide, and at the time of the homicide the said deceased was making ah attempt to carry said threats into execution. That the defendant attaches hereto and asks that the process showing service on said witnesses has been made for them to be here in court on this date and asks that the same be made a part hereof. That the defendant believes the testimony of said witnesses is true. That he cannot procure it from any other source.”

It appears that the application was based on the absence of witnesses who had been subpoenaed, but were not in attendance, and that an attachment, which, so far as the record shows, was not asked, would have been sufficient to secure their attendance, had it been asked. The defendant was entitled to have attachments issue to compel the attendance of these witnesses, and to have the trial postponed until the attachments were executed. He did not ask for attachments, and no reason is given for the nonattendance of any of these witnesses. If attachments had issued and proved unavailing on account of sickness, absence, or other sufficient reason, then a different question would be presented. The application is defective in failing to show where these witnesses reside, or any probability of procuring their attendance at some future time; and the court could not determine from the application that there was any more probability of their obeying a subpoena at the next term of court than at the present term. Applications for continuances are always addressed to the sound discretion of the trial court; and no rule is more firmly established in this state than that'this court will not reverse a judgment of the trial court, upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it. Lee v. State, 7 Okla. Cr. 141, 122 Pac. 1111.

Clearly there was no error in refusing to grant the continuance.

. Error is assigned upon the rulings of the court in admitting and excluding evidence. No useful purpose would be served in discussing these in detail. Suffice it to say that we have carefully examined them and are satisfied that no errors were committed prejudicial to the defendant.

The remaining assignments relate to the instructions given by the court. The record shows that, when the instructions were read to the jury, only a general exception was taken as follows: “The defendant then and there in open court excepted to each and all and every one of the instructions.” It appears from the record that the attorneys representing the defendant on this appeal became connected with the case after the conviction. On this general exception several of the instructions are complained of in their brief, and the instructions with reference to self-defense are criticised. Taking the evidence relied upon by the defendant to be true, we think that it was legally insufficient to show justification. This being so, the instructions considered as a whole were more favorable to the defendant than the law requires. The defendant was not conducting himself lawfully, and the necessity for taking the life of the deceased arose, if at all, by the unlawful acts of the defendant. He returned that afternoon to the premises in possession of the deceased with the evident intention of building the fence by overcoming whatever force the deceased might offer, and-he went armed with a loaded pistol.

The threats testified to, and the altercation in the forenoon followed by fencing out the horses of the deceased, which no witness denies, and the defendant arming himself with a deadly weapon, and going to where the deceased was tearing down the fence, at least could be but a challenge to mutual mortal combat. And where the killing is done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the slayer cannot justify on the ground that it was committed iri self-defense.

Says Mr. Wharton:

“If the defendant in any way challenged the fight, and went to it armed, he cannot afterward maintain that in taking his assailant’s life he acted in self-defense. ‘A man has not,’ as is properly said by Breese, C. J., ‘the right to provoke a quarrel and take advantage of it, and then justify the homicide.’ Self-defense may be resorted to in order to repel force, but not to inflict vengeance. ‘Non ad sumendam vindictam, sed ad propul-sandam injuri&m.’ There is certainly no law to justify the proposition that a man may be the assailant and bring on an attack and then claim exemption from the consequence of killing his adversary on the ground of self-defense. While a man may act safely on appearances, and is not bound to wait until a blow is received, yet he cannot be the aggressor and then shield himself on the' assumption that he was defending himself. ‘And an adulterer caught in the act by the husband is guilty at least of manslaughter, if, in repelling a murderous attack by the husband, he kill the husband. But where the defendant, without an intent to take the deceased’s life, provoke the quarrel, this while it destroys the excuse of self-defense, does not, if the deceased’s attack put the defendant’s life in danger, militate against reducing the offense to manslaughter.” (1 Wharton’s Crim. Law [10th Ed.] par. 485.)

Where the killing is done in mutual combat, it will be manslaughter at least, unless the survivor can prove that before the mortal stroke was given he had refused any further combat and had retreated as far as he could with safety, and that he killed his adversary from necessity, to save his own life, or his person from great bodily harm.

If the defendant acts from fear of death or great bodily harm, he must be free from fault in bringing on the difficulty. The defendant in this case by his own unlawful acts brought on the difficulty, and, if there was a hostile demonstration on the part of the deceased, it was the duty of the defendant to employ all reasonable means within his "power, consistent with his own safety, to avoid the danger and avert the necessity of taking the life of his assailant. This is the law, and it is so stated in the instructions given. If we consider the matter in the most favorable aspect for the defendant, he is upon his own testimony guilty at least of manslaughter in the first degree.

The judgment of conviction is therefore affirmed.

FURMAN, P. J., and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: EURMAN, P. J.

license: Public Domain

text:
    MIKE THORNSBERRY v. STATE.
    No. A-1389.
    Opinion Filed September 14, 1912.
    (126 Pac. 590.
    1. APPEAL — Case-Made — Incorporation of Testimony. The fact that a stenographer’s notes may have been lost or stolen will not excuse the failure of appellant to incorporate the testimony upon his trial in the case-made, and cannot be considered as ground for a new trial.
    2. SAME — Instructions. Instructions must always be considered in the light of the evidence to which they apply; and where the testimony is not brought up on appeal an instruction will not be held to be erroneous if it would have been correct under any conceivable state of facts which may have been proven.
    3. SAME — Presumptions. We never presume error in the proceedings of a court of record, but, on the contrary, the presumption is that' the trial was regular and fair; and the burden is upon the party complaining of any ruling of the trial court to show that it was erroneous, and that he suffered injury thereby.
    (Syllabus by the Court.)

      Appeal from District Court, McIntosh County; R. C. Allen,, Judge.

    Mike Thornsberry was convicted for assault with a deadly weapon, and appeals.
    Affirmed.
    /. B. Lucas, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and H. A. King, for the State.
   EURMAN, P. J.

First. There is in the record no case-made or statement of the testimony given upon the trial. An attempt is made to excuse this upon the ground that the stenographer’s notes were stolen. That a stenographer’s notes may have been stolen cannot be recognized as a ground for granting a new trial. This question was expressly passed upon in the case of Dobbs v. State, 5 Okla. Cr. 479, 114 Pac. 360. This court there said:

“The mere fact that a stenographer may have lost his notes, or that they may have been stolen from him, would not constitute a valid excuse for a failure on the part of the appellant to prepare and serve a case-made. If it did, every judgment entered by any court of record would be at the mercy of the carelessness and dishonesty of the court stenographer. While the stenographer’s notes of the testimony constitute the most convenient means of perparing a case-made, yet they are not the only source from which a case-made may be prepared. Even when a case-made is prepared from the stenographer’s notes of the testimony, it must still be approved by the judge who tried the case, and he is not bound by such notes, but must still see that the case-made speaks the truth; and he may correct such case-made from memory, or from any source that may be satisfactory to him.”

Second. Complaint is made against some of the instructions given by the judge upon the trial of this cause. We have carefully read the instructions of the court and fail to find any fundamental errors therein. The instructions must always be considered in the light of the evidence to which they are applicable; and where the testimony is not brought up on appeal an instruction will not be held to be erroneous if it would have been correct under any conceivable state of facts that may have been proven. See Cohn v. State, 4 Okla. Cr. 494, 113 Pac. 217. We never presume error in the proceedings of a court of record, but, on' the contrary, the presumption is that the trial was regular and fair; and the burden is upon the party complaining of any ruling of the tidal court to show that it was erroneous, and that he suffered injury thereby. As was said by Judge Doyle in Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620:

“Error must affirmatively appear from the record. It is never presumed. Every presumption is in favor of regularity of the proceedings had upon the trial. The general rule, often announced by this court, is that the plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the lower court will be affirmed. In the absence of a transcript of the evidence, or any part thereof, in the case at bar, the presumption is that the evidence was amply sufficient as to the guilt of the defendant of the offense charged. The position assumed by counsel for the defendant is that, if error is found in the instructions, the judgment of conviction must then be reversed, whether such error operates to the prejudice of the defendant or not. Such is not the law in this jurisdiction. In many cases determined by this court, the contrary doctrine is announced. This court has often held that when the instructions as a whole, taken and considered together, embrace the law of the case, though one of them may be erroneous, still, for such error, a judgment of conviction will not be reversed, unless it shall appear from the whole record that it was prejudicial to the substantial rights of the defendant, or by reason thereof it seems probable that injustice may have been done. The instructions here, taken as a whole, substantially and fairly present the law of the case. That is sufficient, and for the reasons stated we shall not attempt to decide whether or not the instructions complained of were erroneous.”

The judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYRE, JJ., concur.


author: FURMAN, P. J.

text:
    DAN ANDERSON v. STATE.
    No. A-1307.
    Opinion Filed September 14, 1912.
    (126 Pac. 840.)
    1. APPEAL — Constitutional Law — Witnesses—Review—Presumptions —Briefs—Order of Trial — “Due Process of Law’’ — Compulsory Process for Witnesses — “Law of the Land.” (a) In- re Me-Naught, 1 Okla. Cr. 528, 99 Pac. 241, approved and reaffirmed.
    (b) The Criminal Court of Appeals never presumes error in the proceedings of a court of record. Two things must be shown by an appellant in a criminal case before a conviction will be reversed, viz., that error was committed during the trial, and that this error, unless jurisdictional, deprived the appellant of some substantial right, to his material injury.
    (c) It is the duty of' counsel for an appellant, upon appeal, to file a brief in this court, stating clearly the grounds upon which they rely for a reversal. This , brief must also contain an argument showing wherein the proceedings of the lower court were erroneous and how. appellant was injured thereby, and should also contain a citation of the authorities upon which counsel rely.
    (d) In cases where the extreme penalty of the law is pronounced against the appellant, this court will thoroughly investigate the record and give to appellant the benefit of any material error, which may have been committed, which operated to his injury, whether the same was excepted to at the trial, or properly presented in the brief of his counsel.

      (e) Where two or more defendants are jointly indicted and a severance is obtained, it is within the discretion of the trial court as' to which defendant shall be tried first.
    (f) The term “due process of law” is synonymous with “the law of the land”; and in criminal cases “the law of the land” necessarily means the law of the state where the offense is committed, and where the trial takes place.
    (g) In criminal cases in a state court, “due process of law” means a trial in a court of competent jurisdiction, before an impartial judge and jury, or • judge without a jury, upon an accusation, either by indictment or information, as the state may provide, charging the accused with the violation of some state law, of which accusation the accused must have notice in time to enable him to prepare for trial. This trial must proceed according to the established procedure or rules of practice in such state applicable to all such eases. . In other words, the defendant must have his day in court. The admission of evidence for or against the accused must be according to the established rules in such state in all such eases, and the punishment inflicted must be authorized by law.
    (h) The sixth amendment to the Constitution of the United States does not limit or control prosecutions in state courts; but it operates alone on prosecutions in United States courts.
    (i) The provision in our Constitution, giving a defendant the right to have compulsory process for obtaining witnesses in his behalf, has nothing to do with the competency of such witnesses when presented in court.
    2. EVIDENCE — Admission by Accused. The fact that a prisoner may be under arrest and in jail, and was not warned that any statement made by him might be used against him, will not in any manner affect the admissibility of any voluntary statement made by him which would otherwise be competent.
    3. WITNESSES — Examination—Privilege of Witness. Where a defendant is upon trial and offers the testimony of a codefendant jointly indicted with him for the same offense, it is not error for the trial court to refuse to compel such witness to answer any question, when the witness claims that such answer, will incriminate him, and declines to answer-upon this ground.
    4. HOMICIDE — Instructions—Applicability to Case — Sufficiency of Evidence, (a) The question of the sufficiency of the instructions and the action of the court in refusing to give special instructions requested must always be considered and determined by the facts of each case in which they arise.
    (b) For testimony which sustains a verdict for capital punishment, see statement in this ease.
    (Syllabus by the Court.)

      Appeal from District Court, Wagoner County; R. P. de GraffeUried, Judge.

      Dan Anderson was convicted of murder and sentenced to death, and appeals.
    Affirmed.
    The following is a statement ef the material testimony in this case:
    Ruff Gossett testified in behalf of the state: That he resided in the town of Coweta, in Wagoner county, Okla. That at the time of the homicide he was sitting on the north side of the door of his house. The first thing that attracted his attention was when the deceased, John Vannoy, attempted to enter his house. At the same time he saw appellant with a pistol in his hand, trying to shoot at deceased. Appellant fired the first shot just as deceased was attempting to enter the house. Deceased said, “Don’t shoot me about my wife.” Appellant made no reply to this. Just after the first shot was fired, appellant passed the door of the house of witness, accompanied by his co-defendant, Arbelle Vannoy. Witness then testified as follows:
    “Q. Will you please describe how he came into your door? A. Yes, sir; he came in grabbing hold of the left side of the door, and hollowing and jumping, and the shot was made as he entered the door, and he wheeled around the door facing toward the north side, toward where I was sitting, and I jumped up and told Anderson not h> shoot in my house; and he passed on down the street and got about 20 yards, and Vannoy went out, following him. He was going to get his wife, to get her to go home with him, and Anderson shot at him again about 20 steps; and when he drawed his pistol down Vannoy fell, and he missed him, and went on about 40 yards and got to a ravine and made another shot, and Vannoy dropped down in the ditch, and he missed him again. Vannoy tried to get out of the ditch, and Anderson started to shoot again, and he ducked under a little bridge crossing the ravine, and as he ducked under there Anderson shot at him and hit him in the leg, and as he came out from under the bridge he shot at him twice and missed him.”
    Witness knows the first shot fired by appellant hit the deceased just as the deceased entered the house of witness, as blood ran down on the floor. After appellant and Arbelle Vannoy passed the house of witness, deceased went out, saying that he wanted to get his wife to go home with him. Neither appellant nor Arbelle Vannoy made any answer to the request of deceased to have his wife go home with him, except that appellant shot at deceased a second time, when he was about 20 yards from the door. During the shooting Arbelle Vannoy was standing by the side of Anderson. Witness did not see any weapon in the hands of deceased at the time appellant was shooting at the deceased.
    J. B. Fletcher testified: That he was a practicing physician residing in the town of Coweta. That just after the shooting he saw the deceased, and found him suffering from gunshot wounds. One bullet entered at the first floating rib and ranged across his body to the top of the hip bone on the right side. The other bullet went through the left leg of deceased. Deceased died from hemorrhage, caused from the gunshot wound through his body. Deceased was shot between 6 and 7 o’clock one afternoon, and died at 7 o’clock next morning.
    Dave Scott testified: That he was a barber in Joe Henderson’s shop in the town of Coweta. That he remembers the occasion of the shooting of John Vannoy. That deceased passed the barber shop with his wife, Arbelle Vannoy. That appellant, Dan Anderson, was in the barber shop having his hair cut. That appellant went out to a ball game and came back to the shop about 9 o’clock, and said that some one had got shot. Witness quit work about 10:15, and went to the place and found -deceased shot and suffering from a wound. Witness stayed around there a good while, and then came back to the jail and found appellant in jail. Appellant then requested witness to go back and bring Arbelle Vannoy to jail to see him. Witness went and brought Arbelle Vannoy to jail, as requested by appellant. Arbelle Van-noy asked appellant how he was feeling. Appellant answered he was felling very well. She then asked him if he needed any money. He replied: “No; I have the dollar you gave me. I don’t need any more.” She then said to him: “Don’t worry; I will get a lawyer and get you out in the morning.” She ther said, “Do you need anything else?” He replied, “No, except a half pint of whisky,” and she asked witness if he would go and get it for him.
    Asburry Lee testified: That he resided in Coweta. That he got acquainted with deceased a few weeks before the shooting. Witness saw four shots 'and heard one. The first shot attracted his attention. On looking, the first thing he saw was the appellant shooting at the deceased. He saw Arbelle Vannoy with the appellant. He heard deceased say she was his wife. Witness described the shots he saw as follows:
    “A. All I saw was the shots he made. When he turned, he made a shot, and this old gentleman fell; and when he fell he got up again, and then he made another shot at him. He shot again, and then he made on and crossed the bridge south somewhere, and then he made another shot. Q. Who ran across the bridge? A. This gentleman here. Q. Call his name. A. Dan Anderson. ,Q. What happened after that? A. After he went acros-s the bridge there, this old gentleman went down to the bridge, and as he started to make to the sotith he jumped into the ditch. Q. Who? A. John Vannoy. And when he jumped into the ditch he made another fire, and as he shot that shot the old gentleman fell, and he went to shoot down upon him again, 'and that was the last shot. Q. After that last shot, what did the defendant, Dan Anderson, do? A. Started like he was going south, running, and came back to me, toward my house, and jumped over the fence there, where there was some jimpson weeds, reloaded his gun, and looked like he come to. himself, and broke across the field south and went around the lot there, and then taken south. Q. Did he say anything while he was there? A. Never heard him say one word. Q. How far away was he when he looked like he was loading his gun? A. About 50 yards. Q. Did you see what became of his woman, Vannoy? A. She went to a lady’s, house by the name of Maloney, and then came back to my house and said, ‘Don’t let him hurt me.’ ”
    Deceased did not have any weapon in his hand during the shooting that the witness could see.
    Mary Dee testified for the state: That she lived in the town of Coweta. That she was the wife of Asburry Lee. She then testified as follows:
    “Q. Tell us about the shooting. Just go ahead in your own words and tell us about the shooting. A. I was in the kitchen cooking supper, and I heard the shots, and my old man run out to see what it was, and this man,'Dan Anderson, and that lady were running down the road. Q. Whom do-you mean by that ? A. Anderson and' this lady oyer there. Q. Which one do you mean? A. That one with the pink on (indicating the defendant Arbelle Vannoy). Q. Arbelle Vannoy? A. I know that is the name. I never noticed her, but that is the one. Q. Who else was running down the road besides these two ? A. Her husband. Q. John Vannoy?' A. Yes, sir; and when I got out of the house I saw him fall down. And when I asked, ‘What is the matter?’ the old man went down, and he got up and come on down to the bridge, and they had crossed the bridge — Anderson and Arbelle Vannoy. And when he got to the bridge he fell, and he was crawling under the bridge, and Anderson fired and shot at him two or three times, and while he was under the bridge, and John Vannoy begged him, ‘Don’t shoot me no more/ and about that time he ran off. Q. Who said, ‘Don’t shoot me no more?’ A. John Vannoy. Q. Where was he? A. Crawling under the bridge. Q. Who was he talking to? A. Talking to Anderson. He was the only man there, and this woman, his wife. Q. Whose wife? A. Vannoy’s. He said, ‘Don’t shoot me any more.’ I did not know who he was at that time. Q. What then happened? A. He ran off — Anderson—and Arbelle came to my house after that.”
    Virgil Hurt testified: That he arrested the appellant, who admitted to him that he had done the shooting. He told witness where he (appellant) had hid the pistol. Witness went and found the - pistol in the place described by appellant.
    Randall Aytche testified: That on the day of the killing he met the- deceased and his wife in the town of Coweta. Witness also saw appellant about the same time. Appellant was then about'three feet from deceased and his wife. That he heard appellant say: “I will kill him. God damn him, I will kill him.”
    John Aytche testified: That he witnessed the shooting in which deceased lost his life. That the shooting was done by appellant. That witness saw deceased and his wife in the town of Coweta. They were coming down the streets of the town. Appellant was behind them. Deceased grabbed his wife’s purse and said, “Let’s go home to the children,” and she snatched loose and said, “You had better not hit me.” Appellant was about 40 feet behind them. “He sorter stooped and snatched out his gun and shot deceased as he jumped in the door.” All that deceased had done had been to grab the purse of his wife and say, “Let’s go home to the children.” Appellant did not say anything. He simply pulled out his gun and shot deceased as he went into the house. .When appellant pulled his gun, deceased saw it and tried to run into the house. Deceased did not have any weapon in his hands. Witness then proceeded to testify as follows:
    “A. He fired one when he went in the door, and Dan Anderson, ran down the road, and Vannoy run back out — and shot at him again, and he missed him. Q. After that first shot, what did Anderson do? A. lie ran down the road. Q. Which way? A South. Q. What did John Vannoy do? A. He ran back out in the street again. Q. While this was going on, where was the woman? A. She broke west and dropped her hat, and turned around and started towards Anderson. Q. When they ran down the road, who was in the lead? A. She was. Q. The woman? A. Yes, sir. Q. Where was Vannoy then? A. He was out in the street, coming on behind. Q. Who was second? A. Dan Anderson. Q. Was anybody behind Dan Anderson? A. Mr. Vannoy was behind, following him. Q. Now, where was the second shot fired? A. A little below Mr. Gossett’s house. Q. How far was Anderson from John Vannoy then? A. He was close to the spring, and Mr. Vannoy was a little past Gossett’s house. Q. Did Mr. Vannoy have anything in his hands then? A. No, sir; did not have anything. Q. Did you see any more shots? A. I never seen but the one more. Q. Where was that? A. He shot Mr. Vannoy; shot at him and missed him, and the bullet come by me. Q. What did you do then? A. I ran back into the back yard. Q.' In whose back yard? A. In our back yard.”
    Alsa Aytche testified in behalf of the state that she resided in the town of Coweta. She then testified as follows:
    “A. I was standing there counting the chickens, and Gos-sett’s house was right out there, and this lady and her husband— Q. This lady, Arbelle Vannoy, and what was her husband’s name? A. Yes, sir; and her husband’s name was John Vannoy. Q. Now go ahead. You say you saw them. What, happened after that? A. John catched Arbelle by the hand or pocketbook, and she jerked aloose and said, ‘Don’t you hit me,’ and John said: ‘You are going home to the little children. You have been away for six weeks.’ Q. Where was Anderson? A. Standing a piece from them. Q. Which way? A. Gant’s house sets this way, and Dan was this way. Q. How far away? A. Not very far. Q. About how far? A. I do not know exactly. Q. Was he as far as that wall? A. About as far as to that gentleman there. Q. About how many feet was that? A. About three feet I reckon (indicating about 15 feet). Q. 'Are you sure about that? A. I guess so. Q. Ever been to school? A. Yes, sir; been there six or seven months. Q. You have told some conversation or words that was said there. Now, was there anything more said? You said that the old man, John Vannoy, spoke to his wife. After that, what was done; what was said? A. Nothing more. This gentleman run up there and went— Q. Who? A. Dan Anderson run up, and this man turned loose and started in the door, and Anderson shot him. Q. Whom did Anderson shoot? A. John Vannoy. Q. Did this defendant, Anderson, say anything to Vannoy before he shot him? A. No, sir; never heard anything. Q. Did Vannoy say anything to the defendant, Anderson? A. No, sir. Q. Now, Alsa, did John Vannoy have anything in his hands? A. No, sir; he said he did not have even a pocketknife. Q. Where was John standing when Anderson shot him? A. Going into Gossett’s house. Q. Which way does the house face? A. His house was right there on the street, and my house was there. Q. You know which is east and west? A. Yes, sir. Q. Which way does Ruff Gossett’s house face; which way does the door face? A. The door is that way, right straight this way. Q. How far was Dan Anderson from Vannoy when he shot him? A. As close as I am to you. Q. You hear the defendant, Anderson, say anything? A. No, sir. Q. At the time of the shooting? A. No, sir." Q. Did you hear Van-noy say anything at the time of the shooting? A. No, sir; only what he said before, about telling her to come on and go home to the children. Q. Had John Vannoy— First, I will ask you, when John Vannoy was in the door of Ruff Gossett’s house after that shot, what became of Anderson? A. Fie ran on down the road. Q. How many times did Anderson shoot? A. I do not know how many times. I did not count them. Fie shot back once after he ran off, and after he got down to the bridge turned around and shot. I do not know how many times he shot. Q. Where was the first shot he fired? A. At Gossett’s. Q. Was there a second shot? A. Yes, sir; when he ran off down the road. Q. How did he come to shoot then? A. He just ran off, and that man Vannoy he came out, and it looked like he kept following him, and he just turned around and just shot back, and then he went on. Q. When Dan Anderson shot the second time, where was that woman, Arbelle Vannoy? A. She was going on down the road, and Anderson went after her. Q. Did you hear anything said then? A. No, sir. Q. After the second shot you have described, did you see any more shots? A. I seen them; but I was at my house, and they were at the bridge. I seen the fire. I did not go down there. Q. -Could you distinguish where the men were; where the defendant was and the man, Vannoy? A. I could see them about the bridge, a little piece off- from there; could see down there where they were. Q. Where was John Vannoy at that bridge? A. He was. down there. Q. Do you know what his position was ? A. No, sir. Do you know where he was down there with reference to the bridge? A. No, sir; I could not. I know he was down there. Q. Did you see where the woman went? A. Yes, sir; she went there too. Q. You see where Anderson went? A. Saw him going across the field down there after that. Q. At the time of this shooting and the difficulty, did you see anything in Vannoy’s hands ? A. No, sir; not a thing.”
    William Combs testified in behalf of the state: That he resided in the town, of Coweta. That he saw a little of the difficulty in which the deceased was killed. He heard some shots, and went out to see where they came from. He then testified as follows:

      “A. Why, t'he nigger that was doing the shooting, he was in the road, and this other nigger that got shot was- down by a little bridge. Q. What was he doing there? A. Looked like he was trying to get under the bridge. Q. Did you know any of the niggers? A. No, sir. Q. Recognize any of them? A. No, sir. I saw the nigger as or after he was shot. Q. You mean the man that was shot? A. Yes, sir. Q. That was the man that was' shot. Who was he? A. Vannoy. Q. You know Vannoy? A. No, sir. Q. Did you see the man after hé was shot? A. Yes, sir. Q. How many shots did he fire? A. Well, somewhere about five shots. Q. How many shots you see fired? -A. I believe something like three. Q. Can you just describe where the parties were and the circumstances of those three shots you saw fired? A. The fellow that was doing-the shooting was out in the road, kinder southeast of the fellow that was shot at, and the fellow V was shooting at was down under,* that is, when he made-first shot, he tripped under and fell, and then he shot at him again as he got up. Q. Then what happened? A. It seems like the fellow that was doing the shooting ran up and shot and ran off down the road. Q. What became of the man that was shot? A. He then got up and came on-toward the way the fellow ran off, and then he came back and went off west to where old man Lee lives. Q. You saw anybody else right there at that time? A. A nigger woman was down there. Q. Where did she go? A. Went over west to old man Lee’s. Q. Did you know that womaft? A. No, sir. Q. You ever see her before that day? A. No, sir. Q. When these two were.over at Lee’s, where did the man that was doing the shooting' go ? A. Why he went kinder southwest down the road. I did not see him any more.”

    Fannie Maloney, as a witness for the state, testified: That she resided in the town of Coweta. That she heard the report of the gun and went out and saw appellant. She then testified as follows:
    “A. He was shooting. Q. Where was he when he was shooting? A. He was on the north side of the bridge, and I seen him come on the south side. Q. At whom was he shooting? A. John Vannoy. Q. How many shots did you see? A. I only seen two. Q. When -you saw the two shots, where was John Vannoy standing, and where was this defendant standing? A. I said the first shot they were ■ both on the north side of the bridge. Q. How far is that from your house? A. I do not know. I guess 25 feet, I reckon. Q. Were you close enough —did you hear them say anything? A. No, sir. I heard the old man say; the last fire that was made, told the boy not to shoot him any more. That was when he was under the bridge. Q. Was there anybody else there beside Anderson and Vannoy? A. Yes, sir. Q. Who? A. Arbelle Vannoy. Q. Where was she? A. She was on the south side of the bridge. Q. On the south side of the bridge? A. Yes, sir. Q. How close was she to the defendant; Dan Anderson, when he was doing the shooting? A. I do not know how close she was. Q. Can’t you indicate? A. She might have'been about 10 feet from that gentleman sitting there.”
    George Robertson testified in behalf of the state: That he knows appellant. That appellant came to Coweta on the morning of the killing. That deceased and his wife were on the train with him. That witness saw deceased and appellant talking. That witness afterwards saw appellant talking with Arbelle Van-noy. Witness saw John Vannoy after he was shot. That h? had a conversation with him. Deceased said he was feeling awfully bad, and that he was going to die. Witness asked deceased what he had. Deceased replied, “Not a living thing.”
    J. J. Hughes testified: That he had a conversation with the deceased after he was shot. Deceased said he thought he would die. That deceased’s mind was clear, and he was perfectly conscious. That deceased made a dying statement, which was reduced to writing by the stenographer, and the notes transcribed next morning. This statement was read to the deceased after it was written down, and deceased consented to its correctness and requested certain parties to sign the tAme as witnesses.
    Polly Cook, a witness for appellant, testified:: That she was a sister of Arbelle Vannoy. That appellant had stayed last year at John Vannoy’s, working on his farm. That appellant left John Vannoy five or six weeks before the killing. That after appellant left the home of John Vannoy Arbelle Vannoy left, and was absent about a month.
    Appellant took the stand as a witness in his own behalf. He testified that his home was in Granberry, Tex. That he had been in Oklahoma a year before the killing. That he lived at the home of John Vannoy, who was his uncle. That appellant could not get along with John Vannoy and left his house, and finally went down in Texas. That appellant saw deceased and his wife in Coweta the afternoon of the killing. He called to them to stop. Deceased called back: “You black son of a bitch, you sold my land.” Appellant was then about two feet behind deceased. Deceased then wheeled around and said: “You black son of a bitch, I am going to kill you anyhow.” Deceased then ran at appellant, and appellant grabbed his gun and shot deceased. That appellant then broke and ran down the road. ' That the deceased followed him. That he turned around and shot the deceased again. Appellant kept on running, because he was afraid of deceased. That on the morning of the difficulty the deceased threatened to kill appellant, and appellant heard from other parties that deceased had threatened to kill him. On cross-examination appellant testified that he first met the wife of deceased at the home of her husband about a year before the killing. That after appellant returned to Texas he received a letter from Ar-belle Vannoy which included money. She wanted appellant to return to Oklahoma and be a witness in a land case. That appellant returned to Oklahoma as soon as he received the letter. The letter contained $10. That appellant met Arbelle Vannoy in Luther, Okla., to see about some land business. Her husband was not present.

      Will Hines testified in behalf of appellant: That his wife was a sister of Arbelle Vannoy. That he had been acquainted with appellant about a year and eight months. That witness saw appellant in Tulsa and warned him not to come back, because deceased had threatened to kill him. ITe further testified as to the general reputation of the deceased in the community in which he resided, and that he was regarded as being a dangerous man and habitually carried a gun.
    Pinkney Hines testified in behalf of appellant: That she was the wife of Will Hines. That appellant had lived with deceased. That she was a sister of the wife of John Vannoy; that the day before the killing she heard the deceased threaten to kill the appellant.
    Henry Cook testified for the appellant: That he married the sister of Arbelle Vannoy, and that he lived within two miles of the deceased, John Vannoy. That the deceased was a farmer. That he had known appellant a little more than a year. That appellant lived with Vannoy during the preceding year and made a cotton crop on his farm. That Arbelle Vannoy and appellant were at the home of John Vannoy about a month before the killing. During this time witness saw the deceased, John Van-noy. That deceased was at the house of witness, and witness heard deceaséd say that he was going to kill appellant. Witness heard deceased say this three or four times before the killing. That deceased was a large man, and weighed about 200 pounds. Pie was about six feet tall. That he was a very strong and active man. That appellant is a small man, weighing about 140 pounds. That the reputation of deceased as being a quarrelsome, violent, and dangerous man was bad.
    Will McFarland testified for appellant: That he was a brother-in-law of the deceased, John Vannoy. That the year before the killing appellant lived with Vannoy on his farm. That he heard deceased say that he was going to kill appellant. That the general reputation of John Vannoy in the community in which he lived as being a peaceable, quiet, law-abiding man was bad

      Dick Oxford, J. S. Dickey, J. J. Hughes, and John Davenport, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and B. M. Gallaher, Co. Atty., for the State.
   FURMAN, P. J.

(after stating the facts as above). The petition in error sets out 23 grounds upon which it is alleged that the judgment of the trial court should be-set aside and a new trial be granted. This was a joint prosecution against appellant, Dan Anderson, and Arbelle Vannoy for the murder of John Vannoy. When the case was called for trial, appellant, Dan Anderson, filed a motion for severance, which was granted by the court. Appellant then demanded that Arbelle Vannoy should be tried first. The demand was refused, and appellant excepted to the ruling of the court. Appellant was placed upon trial and found guilty of murder, and his punishment was assessed at death.

First. Counsel for appellant in their brief say:

“Defendant assigns that the court erred in compelling him to be tried first, after granting a severance, thereby depriving him of the evidence of his codefendant, Arbelle Vannoy.

“Article 5, Constitution of the United States, as amended, among other things, provides that ‘no person shall be deprived of life, liberty, or property without due process of law.’

“Article 6, Const. U. S., as amended, among other things, provides that in all criminal prosecutions the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor.

“Article 14, Const. U. S., among other things, provides that ‘no state shall deprive any person of life, 'liberty or property without due process of law; nor deny to any person the equal protection of the laws.’

“Article 2, sec. 7, Const. Oklahoma, provides that ‘no person shall be deprived of life, liberty or property, without due process of law,’ and in section 20, same article, among other things, provides that ‘in all criminal prosecutions the accused shall have compulsory process for obtaining witnesses imhis behalf.’ ”

If counsel for appellant had carefully considered the very able opinion of Judge Doyle, in the case of In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241, we do not believe that they would have presented this question. In McNaught’s case the question was as to whether a prosecution for murder by information constituted due process of law. We there held that it did. While our discussion was confined to the question there presented, yet the principles announced are decisive of the question now presented to us. But, as this matter has come up again, we will take a broader view and see just what due process of law means. That a state cannot deprive a person of life, liberty, or property, without due process of law, goes without the saying. It is not only embodied in the Constitution of the United States and of this state, but it is a fundamental principle of justice, independent of either Constitution. As we understand it, the assumption of counsel for appellant is that the refusal of the trial court to,place his codefendant, Arbelle Vannoy, on trial first deprived him of an opportunity of securing her evidence as a witness in his behalf, and thereby amounted to a denial to appellant of due process of law. But counsel for appellant did not attempt to discuss the question as to what constitutes due process of law, or favor us with either argument or authorities in support of the contention that placing appellant upon trial first amounted to a denial of due process of law; but they assumed the proposition in controversy, and substituted assertion for argument and authorities. We would therefore be at liberty to disregard and ignore this proposition altogether, because it is no part of the duty of this court to brief cases, as well as decide them. This court never presumes error in the proceedings of a court of record. Two things must be shown by the appellant before a conviction will be reversed, viz., that error was committed during the trial, and that this error, 'Unless jurisdictional, deprived the appellant of some substantial right, to his material injury. Unless such error is properly presented in the brief, a conviction will be affirmed. See Price v. State, 5 Okla. Cr. 147, 113 Pac. 1061. But, as the extreme penalty of the law has been pronounced against appellant, we feel it to be our duty to thoroughly investigate the record, and to give appellant the benefit of any material error that may have been committed which operated to. his injury, whether or not the same was excepted to at the trial, or properly presented in the brief. See Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467; Turner et al. v. State, 126 Pac. 452, decided at the present term.

In the consideration of this matter, the first question which presents itself is, What constitutes due process of law? In the case of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629, the Supreme Court of the United States declared that by due process of law was meant “a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial.” 2 Kent’s Commentaries, p. 10, declares that due process of law means law in its regular course of administration through courts of justice. The Supreme Court of New York, in the case of Taylor v. Porter, 4 Hill, 140, 40 Am. Dec. 274, declares that by due process of law is meant a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining title of property. Mr. Cooley, in his work on Constitutional Limitations, sec. 356, says that due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. In the case of Murray v. Hoboken Land Co., 18 How. 272, 15 L. Ed. 372, the Supreme Court of the United States declared that “due process of law” is synonymous with “the law of the land.” “The law of the land” necessarily means the law of the state where the offense is committed, and where the trial takes place. The prohibition of the federal Constitution cannot mean that a state must observe the due process of law of some other jurisdiction over which it has no control. It has accordingly been repeatedly declared that the phrase “due process of law,” within the provision of the Constitution restraining the depriving of a person of his liberty without due process of law, does not of itself require a trial by jury in states where the usage and statutes are otherwise. Montana v. St. Louis Mining & Milling Co., 152 U. S. 160, 171, 14 Sup. Ct. 506, 38 L. Ed. 398; Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L. Ed. 232; Walker v. Sauvinet, 92 U. S. 90, 93, 23 L. Ed. 678; In re Dowell, 169 Mass. 387, 47 N. E. 1033, 1034, 61 Am. St. Rep. 290; Garnett v. Jennings, 44 S. W. 382, 383, 19 Ky. Law Rep. 1712; State v. Wilson, 121 N. C. 425, 28 S. E. 554, 557; Attorney General v. Jochim, 99 Mich. 358, 58 N. W. 611, 614, 23 L. R. A. 699, 41 Am. St. Rep. 606; Cummins v. Cummins, 1 Marv. (Del.) 423, 31 Atl. 816, 819; McInerney v. City of Denver, 17 Colo. 302, 29 Pac. 516, 519; Pant v. Buchanan (Miss.) 17 South. 371.

In the case of Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L. Ed. 232, Mr. Justice Matthews, speaking for the United States Supreme Court, says:

“It follows that any legal proceeding in force by public authority, whether sanctioned by age and custom, or newly, devised, in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice must be held to be due process of law.”

In the case of In re Kemmler, 136 U. S. 448, 10 Sup. Ct. 934, 34 L. Ed. 519, Mr. Chief Justice Fuller said:

“Undoubtedly the amendment forbids any arbitrary deprivations of life, liberty, or property, and secures equal protection to all, under like circumstances, in the enjoyment of their rights, and in the administration of criminal justice requires that .no different or higher punishment shall be imposed upon one than is imposed upon all for like offenses. But it was not designed to interfere with the power of the state to protect the lives, liberty, and property of its citizens, and to promote their health, peace, moral education, and good order. Barbier v. Connelly, 113 U. S. 27 [5 Sup. Ct. 357, 28 L. Ed. 923].”

In the case of State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 55 S. W. 627, 48 L. R. A. 265, 77 Am. St. Rep. 765, the Supreme Court of Missouri said:

“And if ‘due process of law’ is to be defined as ‘the law of the land,’ designed to protect and preserve the rights of the citizen against arbitrary legislation, as well as against arbitrary executive or judicial action, then 'due process of law’ is denied when any particular person of a class or of the community is singled out for the imposition of restraint or burdens not imposed upon and .to be borne by all of the class', or of the conpr munity at large; unless the imposition or restraint be based upon existing distinctions that differentiate the particular individuals of the class to be affected from' the body of the community; and this question as to whether the persons thus designated constitute a natural or reasonable class -depends upon the validity or invalidity of the legislation the Legislature must determine upon-.”

An entirely satisfactory definition of “due process of law,” which would be applicable to and include all cases alike, cannot be easily stated. In criminal cases in a state court, “due process of law” means a trial in a court of competent jurisdiction before an impartial judge and jury, or before a judge alone, upon an accusation, either by indictment or information, as the state may provide, charging the accused with the violation of some state law, of which accusation the accused must have notice in time to enable him to prepare .for trial. This'trial must proceed according to the established procedure or rules of practice in such state applicable to all such cases. In other words, a defendant must have his day in court. The admission of evidence for or against the accused must be according to the established rules in such state in all such cases, and the punishment inflicted must be authorized by law.

Let us now apply these principles to the question in hand. Our statutes’ upon this subject -are as follows (Comp. Laws 1909) :

“Sec. 6830. When two or more defendants are jointly indicted '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.

“Sec. 6831. When two or more persons are included in the same indictment, the court may, at any time before the defendants have gone into their defense, on the application of . the county attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the state.

“Sec. 6832. When two or more persons are included in the same indictment, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, before the evidence is closed, in order that he may be a witness for his codefendant, submit its opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid.”

What was the law before these statutes were enacted ? Mr. Justice Story, in U. S. v. Marchant, 12 Wheat. 480, 6 L. Ed. 700, answers this question as follows:

“Where two or more persons are jointly charged in the same indictment with a capital offense, they have not a right, by law, to be tried separately, without the consent of the prosecutor; .but such separate trial is a matter to be allowed in the discretion of the court.”

In the body of the opinion the court examines the alleged right at some length, and concludes that it has “not merely the absence of any authority in favor of the matter of right, but the course of practice.” In later cases before the Supreme Court of the United States this decision is followed, and today in the federal courts codefendants have no absolute right of severance; but this matter is addressed to the sound discretion of the court. Of course, the question does not arise as to the order of trial, since there is no right of severance at common law; but this matter, if controlled by the court in its discretion, it naturally follows that the order of trial is within the sound discretion of the court. So extensive is this discretion that in a case where there were three defendants, and in a motion for severance, two of the defendants alleged that (1) the third defendant had been previously acquitted; (3) because the government relied on his acts and declarations made after the killing, and not in their presence or hearing; (3) because he was a material witness in their behalf. Upon this hearing, similar in all respects to the motion in the case at bar, the motion was overruled, and the Supreme Court, in the case of United States v. Ball, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300, follows the decision of Justice Story, already referred to, in these words:

“But the question whether defendants jointly indicted should be tried together or separately was a question resting in the sound discretion of the court below.”

Unless altered by statute, the rule is universal that where separate trials are granted on a joint indictment, as well as where several are separately indicted for the same offense, the prosecution may determine the order in which they shall be tried. Jones v. State, 1 Ga. 610; Patterson v. People, 46 Barb. (N. Y.) 625; State v. Nash, 7 Iowa, 347; People v. McIntyre, 1 Parker Cr. R. (N. Y.) 371; Shay v. Commonwealth, 36 Pa. 305; State v. Crank, 2 Bailey (S. C.) 66, 23 Am. Dec. 117.

In State v. Crank, 2 Bailey, 66, 23 Am. Dec. 117, decided in 1831 by the Supreme Court of South Carolina, the following is in the syllabus:

“The state has the right to elect which of two prisoners jointly indicted, severing in their defense, shall be first tried.”

In Jones v. State, 1 Ga. 610, decided in 1846, we find the following:

“On an indictment against several defendants, where separate trials are granted, the court will not control the discretion of the district attorney as to which of the defendants shall be first tried.”

Following this, in 1852, in People v. McIntyre, 1 Parker Cr. R. (N. Y.) 371, the court said:

“The statute secures to persons jointly indicted for a felony the right of separate trials, but does not give them the right to regulate the time or order of such trials. The public prosecutor controls and directs on these matters, subject to the discretion of the court in cases calling for interference; and such discretion would not be the subject of review on exceptions.”

In Allison v. State, 14 Tex. App. 402, decided in 1883, the Court of Criminal Appeals, second in ability to none, and noted for its strict enforcement of the technical rights of a defendant, says:

“A defendant has no right to demand that other defendants, separately indicted for the same offense, be first placed upon trial.”

It is true that the Legislature of Texas did subsequently enact a statute granting this right, thus sustaining our position that this matter, when not controlled by statute, is in the discretion of the court. In Texas and in Arkansas the statutes permit defendants jointly indicted, who have taken a severance, to select the defendant who will be tried first. This would be due process of law in Texas and in Arkansas; but we have no such statute in,Oklahoma. Therefore the Texas and Arkansas rule is not applicable here. Under our statute, where two or more defendants are jointly indicted and a severance is taken, or where they are separately indicted, it is in the discretion of the court as to which shall be tried first. We therefore hold that the refusal of the court to place Arbelle Vannoy on trial first did not deprive appellant of due process of law, and that such ruling is not subject to review in this court.

It was earnestly insisted in oral argument that, as the sixth amendment to the Constitution of the United States provides that in all criminal prosecutions the accused shall have compulsory process for obtaining his witnesses, and as the same provision is found in the Constitution of this state, the court should have compelled the trial of Arbelle Vannoy first, in order that appellant might secure her testimony on his trial. So far as the sixth amendment to the Constitution of the United States is concerned, it was never intended to limit or control prosecutions of the state governments in respect to their own people, but to operate on the national government alone. This was decided more than half a century ago, and that decision has been steadily adhered to since. See Barron v. Baltimore, 7 Pet. 243, 247, 8 L. Ed. 672; Livingston v. Moore, 7 Pet. 469, 552, 8 L. Ed. 751; Fox v. Ohio, 5 How. 410, 434, 12 L. Ed. 213; Smith v. Maryland, 18 How. 71, 76, 15 L. Ed. 269; Withers v. Buckley, 20 How. 84, 91, 15 L. Ed. 816; Pervear v. Commonwealth, 5 Wall. 475, 479, 18 L. Ed. 608; Justices v. Murray, 9 Wall. 274, 278, 19 L. Ed. 658; Bdzvards v. Elliott, 21 Wall. 532, 557, 22 L. Ed. 487; Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678; United States v. Cruikshank, 92 U. S. 542, 552, 23 L. Ed. 588; Pearson v. Yewdall, 95 U. S. 294, 296, 24 L. Ed. 436; Davidson v. New Orleans, 96 U. S. 97, 101, 24 L. Ed. 616; Kelly v. Pittsburg, 104 U. S. 78, 26 L. Ed. 658; Presser v. Illinois, 116 U. S. 252, 265, 6 Sup. Ct. 580, 29 L. Ed. 615.

So far as the provision contained in our Constitution is concerned, a different question is presented. The constitutional provision is that “in all criminal prosecutions the accused shall have compulsory process for obtaining witnesses in his behalf.” This only extends to the accused the right to have compulsory process for his witnesses. It has nothing to do with the competency of such witnesses when presented, and in no manner binds the state to assist in removing any disability on the part of the witnesses for a defendant. If the position assumed by counsel for appellant is correct, it would be within the power of persons to be tried for crime to empty our jails and penitentiary by having prisoners' confined therein, summoned as witnesses for the defense, and this could be done by “due process of law.” Admit their premises, and this conclusion would be inevitable. If the contention of counsel for appellant is true, then this appellant should not h_ave been tried until after the case against Arbelle Vannoy had been tried and finally disposed of, which might have resulted in an indefinite continuance of the case against appellant. Suppose that two or more defendants are jointly indicted, each of whom demands a severance and requests that the other be tried first, if the contention of counsel for appellant is true, then neither of such defendants could ever be tried, because each would have the right to have his case continued until the competency of his codefendant as a witness in his behalf had been established. Without disrespect to counsel for appellant, there is absolutely nothing in their contention. It simply shows to what desperate extremities lawyers are sometimes reduced in attempting to save and protect guilty men. It also shows how necessary it is for courts to go to the bottom of all questions presented. If lawyers would seriously consider the questions they present and examine the authorities upon which they rely, and would brief them carefully before their cases are submitted, they would relieve this court of a vast amount of unnecessary labor and greatly aid the court in disposing of the business before it. We do not object to doing the work, and always take great pleasure in the investigation of any legal question submitted to us for decision; but, owing to the crowded condition of our docket and the further fact that we are already worked to the limit of human endurance in deciding questions properly briefed, we feel that justice to the state requires that our time should not be taken up in investigating questions which hav|e not been properly briefed. We are therefore forced to give scant attention to questions which have not been properly briefed, unless the error is manifest and fundamental, or unless the case is one' of first magnitude.

Second. Counsel for appellant did not attempt, in their brief or oral argument, to present their second assignment of error. It has therefore- been abandoned. But, as this is a capital case, we have examined the record, and find that the second assignment of error is without merit. It will therefore not be discussed.

In their brief counsel group their third, fourth, and fifth assignments of error together and say:

“We think the court erred in permitting the witness Dave Scott to testify, over objection of defendant, to conversations between the defendant and the witness and Arbelle Vannoy at the jail in Coweta, Okla., several hours after the killing, and while the defendant was in jail, under arrest, and charged with the killing, had not been warned, and was under duress.”

This would have been a good objection 'in Texas, where counsel for appellant live; but it is not good in Oklahoma. The fact that appellant was under arrest and in jail, and had not been warned, is utterly immaterial where it appears that the convert sation was voluntary on his part, and was otherwise competent. The evidence was material as tending to show a motive on the part of the appellant to kill the deceased. Arbelle Vannoy was the wife of the deceased. The record conclusively established the fact that illicit relations had existed between appellant and said Arbelle Vannoy, apd the theory of the state was that the homicide in this case grew out of and was the result of such illicit relations existing between appellant and said Arbelle Van-noy. From the days of King David and Uriah, there has been no more prolific cause of murder than illicit love.

The sixth assignment of error is utterly without merit, and need not be discussed.

The seventh, eighth, and ninth assignments of error have been abandoned, and are without merit.

Third. The tenth assignment of error is that the court erred in not compelling appellant’s codefendant, Arbelle Vannoy, to testify in his behalf. When this witness was placed upon the stand by appellant, she declined to testify, upon the ground that she was also indicted for the offense for which the appellant was then upon trial. The record discloses the following touching this matter:

“Whereupon Mr. J. S. Dickey, counsel for the codefend-ant, Arbelle Vannoy, objected to the court compelling the co-defendant, Arbelle Vannoy, testifying in the case, as she was charged jointly with the defendant for the crime of murder of her husband, the deceased, as her testimony might prejudice her defense when she was tried upon the charge. Whereupon the court ordered the defendant Arbelle Vannoy to be sworn as a witness in the case and to take the stand. Whereupon Ar-belle Vannoy was duly sworn according to law, and testified as follows, to-wit:

“Direct Examination of Arbelle Vannoy.

“By Oxford: Q. What is your name?

“By the Court: Q: Are you the Arbelle Vannoy that is charged in this same information of the murder of John Van-noy? A. Yes, sir.

“Judge de Graffenried: The court desires to instruct you that you cannot be compelled by the defendant to testify to any facts in connection with this killing which would incriminate, or tend to incriminate, you of the murder of John Vannoy. In case you should be asked a question, the answer to which would incriminate, or tend to incriminate, you of the murder of John Vannoy, you have a good constitutional right to refuse to answer that question.”

Appellant’s counsel then asked said witness a number of questions, all of which she declined to answer, upon the ground that it would incriminate her, and appellant excepted to the action of the court in declining to force said witness to answer such questions. Did the court err in this ruling? This matter is discussed very fully by a great many authorities, and we may well begin with Wigmore, vol. 4, section 2270, under the heading “Who may Claim the Privilege — Party, Witness, Counsel— Effect of Erroneous Compulsion:

“The privilege is that of the person' under examination, and, like all other privileges, is intended for his protection only; consequently it does not concern a right of the party calling him.”

In Burr’s Trial, Robertson’s Report, 1, p. 243, Marshall, C. J., said:

“When a question is propounded, it belongs to the court to consider and decide whether any direct answer can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured • to him by law. If a direct answer to it may criminate himself, then he must be the sole judge of what his answer be. The courts cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judge would strip him of the privilege which law allows and he claims.”

This word from the authority of Wigmore, quoting Chief Justice Marshall, who decided the case referred to in 1807, is without doubt a settlement of the question.

In the case of State v. Edwards, 2 Nott & McC. 13, 10 Am. Dec. 557, a South Carolina case, we find:

“It is for the witness and not the court to judge whether his answer to a question will tend to criminate him. If it will form one link in the chain of testimony against him, he is not bound to answer; and the court should so instruct him as to -enable him to decide understandingly.”

In 1890, Mr. Justice Mitchell, in the case of State v. Thaden, 43 Minn. 253, 45 N. W. 447, said:

“After consideration of the question and an examination of the authorities, our conclusion is that the best practical rule is that laid down in some of the English cases and adopted and followed by Chief Justice. Cockburn in Reg. v. Boyes. To this we would add that, when such reasonable apprehension of danger appears, then, inasmuch as the witness alone knows the nature of the answer he would give, he alone must decide whether it would criminate him. This, we think, is substantially what Chief Justice Marshall meant by his statement of the rule in the Burr trial.”

Wigmore, in volume 4, section 2271, approves this in the following words:

“The summing up of Mr. Justice Mitchell leaves nothing to be added, and ought to remain the last word on the development of the rule.”

It is undoubtedly the better practice for the court to warn the witness as to the constitutional right not to incriminate.

In Davis v. State, 122 Ga. 564, 50 S. E. 376, we find the following:

“The better practice is not only to notify a witness that he will not be compelled to testify to anything that will criminate him, but also, when a particular question is asked, to warn him that the answer to such question might have that effect; and especially is this true where the witness belongs to an ignorant class.”

This case exactly fits the case at bar. A negro woman, ignorant in all things, is warned by' the court that she hás a constitutional right to refuse to -answer questions that might crim-inate her.

Again, in Mayo v. Mayo, 119 Mass. 290, the court says:

. “It is within the' discretion of the court and the usual practice to advise a witness that he is not bound to criminate himself, where it appears necessary to .protect the rights of the witness.”

The action of the trial court in not compelling Arbelle Van-noy to-answer the..questions asked her was strictly within the law. .

Fourth. There are a number of- assignments of error with reference to the refusal of the trial court to give requested instructions, and also with reference to instructions given, all of which 'we have examined carefully and we have read all of the instructions of the court, .All of-the questions presented have been previously passed upon by this court in other cases; and therefore it would be a useless consumption of. time to discuss them-again. The question of the sufficiency of instructions must always be determined by the facts of each cáse. An instruction might be erroneous as applied to a given 'state of facts, and . the same instruction might be sufficient under a different state of facts. Looking at the instructions in this .case from this standpoint, we- think that, they are substantially correct, and we do not see how appellant • could have possibly been injured by the instructions of the court. The jury evidently came to the conclusion that the appellant was criminally intimate with the wife of the deceased, and that this was the sole cause of the homicide in this case. In this opinion we concur. Deceased was unarmed at the time of the homicide, and his sole offense consisted in his endeavor to induce his wife to return home and discharge her ■duties as the mother of their children. For doing this, appellant assumed to constitute himself judge, jury, and executioner, and without giving deceased an opportunity to defend himself, he placed him on trial, sentenced him to ■ death, and executed him on the spot, and by so doing appellant forfeited his life to society. Appellant has been tried before an able and impartial judge. He was represented by counsel of his own choice. He had every opportunity afforded him by law to make his defense. The jury appear to have been entirely fair. We think the verdict at which they arrived is the only one which could have been rendered by an intelligent and honest jury. We find no material error in the ■case.

We were requested by counsel for appellant to modify the judgment, in the event of an affirmance, and reduce the punishment to imprisonment for fife. Section 6955, Comp. Laws 1909, .gives us the power to do this, yet we think that it would be an abuse of power if we in any manner interfered with the verdict in this case. The judgment of the lower court is therefore affirmed.

The time originally provided for the execution of appellant Laving expired, it is ordered that the judge of the district court of Wagoner county execute a warrant in due form of law, attested by the clerk of said court and under the seal of said court, to be delivered to the sheriff of said county, commanding said •sheriff to execute appellant, Dan Anderson, between sunrise and sunset on Friday, October 18, 1912, in accordance with law and the judgment of said court heretofore rendered.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYEE, J.

text:
    PONOKSY v. STATE.
    No. A-1222.
    Opinion Filed September 21, 1912.
    (126 Pac. 451.)
    INDICTMENT AND INFORMATION — Complaint—Information—Variance. When it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information, a motion to quash on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held ■ to answer is unavailing, and was properly overruled.
    (Syllabus by the Court.)

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

    One Ponoksy, alias Fleeing Wolf, was convicted of larceny of live stock, and appeals.
    Affirmed.

      Davis & Davis and C. Dale Wolfe, for plaintiff in 'error.

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

The plaintiff in error, Ponoksy, alias Fleeing Wolf, was convicted of stealing a cow, and was sentenced to be imprisoned in the penitentiary for one year and one day. The judgment and sentence was entered on April 29, 1911. An appeal was taken by filing in this court June 27, 1911, a petition in error with transcript of the record attached.

The information on which he was tried (omitting the formal parts) reads as follows:

“That Ponoksy, late of Seminole county, state of Oklahoma, did, in Seminole county, and in the state of Oklahoma, on or about the 25th day of September in the year of our Lord one thousand nine hundred and ten and anterior to the presentment hereof, commit the crime of stealing a domestic animal, in the manner and form as follows, that is to say: The said defendant did, on the day and date aforesaid, unlawfully, willfully, and feloniously take, steal, and carry away by fraud and stealth one cow and one calf, the same being then and there the personal property of S. L. Noland, without the consent of said S. L,. Noland, with the unlawful and felonious intent of him, the said Ponoksy, to then and there deprive the said owner thereof, and with the unlawful and felonious intent to then and there, appropriate the same for the use and benefit of him, the said Ponoksy, contrary to,” etc.

Upon his arraignment he filed a motion to quash the information for the following reasons: First, because the complaint filed before the examining magistrate stated no offense known to the law; second, he had no preliminary examination for the crime charged in the information, and hence the county attorney was without authority to file the information, and the trial court was without jurisdiction to try the defendant for the offense charged therein. The motion to quash was overruled, and exception allowed. The several assignments of error. are based upon this ruling of the.court.

The complaint filed before the examining magistrate charged that on the 25th day of September, 1910, one Ponoksy, “at and in the above named county and state, did unlawfully, willfully, and feloniously take, steal, and carry away one pale red heifer, branded N. N. on the right hip, the property of S. T. Maland, with the intent to appropriate the same to his own use, contrary to,” etc. A warrant was issued, and the defendant was arrested and brought before the justice, and the record shows, for his plea thereto, “he says that he is guilty and waives his right to- a preliminary examination”; that thereupon the case was continued; that on the next day the preliminary examination, was had, and witnesses were sworn and examined, and after hearing their testimony it was ordered that said defendant be held to answer said charge, and that he be admitted to bail in the sum of $1,000.

It cannot be doubted that the complaint on which the examining magistrate held the defendant to answer to the district court charged not only substantially, but almost in the identical language, the same crime for which the defendant was tried in the district court. The complaint filed before the justice cannot be said to charge no crime. It fully charges the stealing of a domestic animal. Probably the testimony of witnesses on the preliminary examination had by the state, after the defendant had waived the same and said that he was guilty, showed that the name of the owner was “S. L. Noland,” instead of “S. L. Ma-land,” and that the stolen animal was a cow, instead of a heifer. There is no variance between the complaint and the information as to the date of the offense, or crime charged. The state is not barred from holding an examination, even though a defendant waives his right thereto.

Section 6701 (Comp. Laws 1909) of Procedure Criminal provides:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

.Under this rule of criminal pleading, the name of the owner in the original complaint is not material, if the proof on the preliminary hearing discloses all the essential facts necessary to constitute the crime of which the defendant was charged by information in the district court. The examining magistrate held the defendant for the crime of stealing a domestic animal, and the information charges him .with the same crime. This is a sufficient compliance with the constitutional provision and the statute.

We think that it was never contemplated that the information should charge the crime in the same language, or word for word the same, as charged in the original information filed before the examining magistrate. In our opinion the contention of the defendant’s counsel is without merit, and the motion to quash the information was properly overruled.

The judgment is therefore affirmed.

FURMAN, P. J., and ARMSTRONG, J., concur.


author: DOYLE, J.

text:
    PETE HAMIL v. STATE.
    No. A-1330.
    Opinion Filed September 21, 1912.
    (126 Pac. 591.)
    EVIDENCE — Sufficiency. To sustain a conviction of crime, each and every material element must be supported by the evidence.
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court; John W. Hayson, Judge.

    Pete Plamil was convicted of violating the. prohibitory law, and appeals.
    Reversed.

      Lee P. Wilson. and B. G. Wilson, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and B. G. S.pil-man, Asst. Attys. Gen. (R. B. Gish, of counsel), for the State..
   DOYLE, J.

Plaintiff in error, Pete Hamil, was convicted in the county court of Oklahoma county, and sentenced to serve a term of six months in the county jail and to pay a fine of $500, on an information which jointly charged that:

“H. F. Blalock and Pete Hamil did in • Oklahoma county, and in the state of .Oklahoma on the 19th day of April, in the year of our Lord, A. D. 1911, commit the crime of having intoxicating liquors in their possession unlawfully, in manner and form as follows: That said defendants did on the day and year in the county and state aforesaid have in their possession, unlawfully, intoxicating liquors, to wit,, whisky and beer, with the intent and purpose on the part of said defendants, to sell, barter, give away, and otherwise furnish the same to parties unknown, in violation of the law, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.

“Sam HooicER, County Attorney.”

It is claimed that the evidence is insufficient to support the verdict, in that there is no evidence tending to show that this defendant had in his possession intoxicating liquors. The testimony on the part of the state is substantially as follows:

The first witness, J. C. Gilmore, testified that on April 19, 1911, he went to Dan Phillips’ barn, at No. 107 West California, and there bought two half pint bottles of whisky from the co-defendant, H. P. Blalock.

The second witness called by the state was the codefendant, H. F. Blalock, who testified that he had known the defendant for five or six months; that Plamil lived in the country, and he there worked five days for him, and sold a little whisky; and that he worked for Dan Phillips at the livery stable, 107 West California, for about two months. His testimony taken from the transcript is as follows:

“Q. Now, do you recall the instance of the officers coming down to 107 West California street on the 19th day of April, 1911? A. Yes, sir. Q. Did you have any transactions with those officers? A. Yes, sir. Q. Who directed you, if any one, to sell that whisky? A. Mr. Plamil. Q. Where did you get the whisky? A. Back in the back part of the establishment. Q. Was there any other whisky there? A. I did not see any more. Q. Just these two half pint bottles? A. Yes, sir. Q. What did Mr. Hamil say with reference to that? A. When they came down, he was laying down on the bed, and told or asked me to wait on them, and I went back and waited on them. Q. What did you get for doing that ? Did you get any money for selling them that whisky ? A. No, sir; not a thing.”

Cross-examined, he said he worked for the defendant about the 1st of February; that at the time of this transaction he was not in his employ; that he was working for Dan Phillips in the barn at that time.

This was all the evidence introduced tending to show possession on the part of the defendant Hamil. It is our opinion that the testimony of the witness H. F. Blalock, who turned what is termed “state’s evidence,” and testified in effect that he sold the whisky to the witness Gilmore because this defendant told him to, furnishes no proof of possession on the part of this defendant. His statement is a mere self-serving declaration. He does not testify that this defendant gave him the whisky to sell, or that at 'the time he was working for this defendant, of that he gave this defendant the money he received for it. His testimony that, when he worked for the defendant in the country, he sold whisky for him, was improperly admitted, as there is no proof that the defendant’s home was in Oklahoma county, and it is undisputed that this witness was in charge of Mr. Phillips’ barn in Oklahoma City, where he sold the whisky.

To sustain a conviction of crime, each and every material element must be supported by the evidence. The testimony in this case might be sufficient to support a conviction of the defendant on a charge of selling, but that is not the offense here 'charged. For this reason we conclude that there is not sufficient evidence to sustain a conviction.

Reversed and remanded.

FURMAN, P. J., and ARMSTRONG, J., concur.