author: DOYLE, Judge

text:
    David Atchison v. State.
    No. A-280.
    Opinion Filed December 11, 1909.
    (105 Pac. 387.)
    1. HOMICIDE — instructions — Request — Different Degrees — In a prosecution for murder, the court should instruct the jury on the law of each degree of homicide which the evidence tends to prove, whether it be requested on the part of the defendant or not, and it is the duty of the court to decide, as a matter of law, whether there is any evidence that would tend to reduce the degree of the offense to manslaughter in the second degree.
    2. INSTRUCTIONS — IRequests. An objection that the instructions as given by the court do not go far enough in stating the law of manslaughter in the first degree, held not prejudicial error, where the defendant fails to present to the court a more complete instruction with the request that it be given, and when the instructions taken as a whole fully and fairlv state the law of the case.
    3. HOMICIDE — Instructions. In a prosecution for murder, where defendant admitted killing deceased, and where the justification is that the homicide was committed in the lawful defense of his wife, upon reasonable apprehension of a design on the part of the deceased to do her some great personal injury and imminent danger of such design toeing accomplished, it is proper to instruct in the language of the statute that: “Homicide committed with a design to effect death is not the less murder toe-cause he perpetrator was in a state of anger.” And to further instruct that: "The jury are instructed that no provocation by words only addressed to the person killing or to another in his presence, however opprobrious or insulting, will mitigate an intentional killing, so as to reduce the killing to manslaughter, and although the jury may believe from the evidence that insulting epithets were used by the deceased to the wife of the defendant in the defendant’s presence, yet if the jury further believe from the evidence, beyond a reasonable doubt, that the defendant immediately thereafter shot and killed the deceased, then the defendant is guilty of murder, unless the jury shall further believe from the evidence that said killing was reduced to manslaughter or was justifiable upon other grounds, or by other causes than the use toy deceased of such opprobrious and insulting language. And in this connection I instruct you that if you •believe from the evidence in this case that the defendant, when he fired the shot which caused the death of Ruel Anderson, was in a heat of passion produced by opprobrious and insulting words directed towards the wife of the defendant and while so in the heat of passion slew the deceased, then the defendant would not be guilty of murder, but of manslaughter in the first degree, provided that yofi find further that the killing of the deceased was without design on the part of the defendant.”
    4. STATUTES — Construction—Evidence—Admissibility. • Appellate courts should carefully consider and guard against so construing the law that a proper rule of evidence would be perverted into a means of escape from the merited punishment of an offender.
    5. APPEAL — Harmless Error — Error Not Affecting Substantial Rights. Section 6957, Snyder’s Comp. St. 1909. prescribes that: “On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” The letter and spirit of the law is that, if the defendant has had a fair, trial, and if this court is satisfied that the conviction is sufficiently supported by competent evidence, and that the verdict against the defendant was not reached by error or as the result of passion or prejudice, the conviction should be affirmed.
    (Syllabus by the Court.)

      Appeal from District Court, Canadian County; John J. Carney, Judge.

    David Atchison was convicted of murder, and be appeals.
    Affirmed.
    David Atchison, plaintiff in error (hereinafter designated the “defendant”), was indicted in the district court of Canadian county on the 17th day of December, 1908, for the murder of Duel Anderson. Upon arraignment a plea of not guilty was interposed, Said cause came on for trial March 1, 1909. The jury returned a verdict finding the defendant guilty of murder, and assessed his- punishment at imprisonment for life at hard labor. A motion for new trial having been filed on March 6, 1909, it was by the court overruled and exception allowed. Whereupon the court pronounced judgment and sentence in accordance with said verdict. The defendant gave notice of appeal, and on August 5, 1909, there was filed in this court his petition in error with case-made attached; also, a stipulation on behalf of the defendant and the state requesting that the cause be advanced.
    The facts disclosed by the testimony for the state are, sub: stantially, as follows: The defendant, a man about 45 years of age, was living at the time of the tragedy with his wife and two daughters upon a farm in Mustang township, Canadian county, owned by Dr. Earp. He was farming the place upon the shares. The deceased, Ruel Anderson, a youth of about 18 years, the eldest son of a^vidowed mother, with a younger brother, moved about six- weeks before the tragedy on an adjoining farm, owned by -Dr. Earp. The houses on the tracts were about 300 or 400 yards apart. The deceased was a nephew of Dr. Earp, and was his representative in looking after the work stock, and to see that Dr. Earp received his share of the crops. Another house on the farm was occupied by Wesley Bejack, another tenant. There was. some discord between the defendant and the deceased over the crops, and ill feeling existed between them. Dr. Earp .came to the place a few days before the tragedy, and objected to defendant gathering the corn in patches all over the field, and informed defendant that the deceased was there to represent him in looking after his stock and after his interest in the crops. On Sunday, October 18th, the day before the tragedy, the defendant went to the town of Mustang, had his shotgun repaired, and purchased a box of shells loaded with No. 8 buckshot. He also purchased on that day a revolver which was loaded, and gave it to his wife. On Monday morning, October 19th, about 9 o’clock a. m., the deceased went to the house of the defendant for the purpose of informing him that a wagon which he wanted to use was ready for him. In a few minutes after his leaving, a daughter of the defendant came running to the deceased’s house and called his brother Tom to come up there. Tom-Anderson,.hearing her call, went to the defendant’s house, and there found his brother lying dead four or five feet from the doorstep, in a pathway that led from the back door of the defendant’s house southwesterly toward the house where they lived. He had been shot in the back of the neck with a charge of buckshot. His neck was broken, and death was instantaneous. The only eyewitness of the homicide were the wife and two daughters of the defendant.
    The testimony on behalf of defendant, in substance, is: That defendant moved his family upon this- farm about the first of March, 1908, and farmed the place under an agreement to be furnish with implements and teams, and he was to give one-half of the crop, share and share alike, for the use of the place, implements, and teams. That Dr. Earp was the owner of a farm near Piedmont. That he kept both places going, gloving work stock and some of his implements from one place to the other, which caused some interruption in defendant’s farming. That the conduct of deceased was such that defendant’s family were afraid of him. That he was overbearing and insolent in his conduct toward defendant and his family. That on the Thursday before the tragedy defendant’s eldest daughter took their horse and went over to the Bejack place 'to get Dr. Earp’s buggy. That the deceased informed her that she could not take the buggy. She returned home, and defendant then went to Bejack’s house to get the buggy.
    The testimony of Mrs. David Atchison, wife of the defendant, as to what then transpired, is as follows:
    “Q. Mrs. Atchison, you testified that the girl did not procure the buggy when she went over to get it that noon? A. Yes, sir. Q. .What was then done? A. Why, Mr. Atchison then went over to find out the reason why they could not get it. Q. What did you do? A. In the meantime I had went after a pail of water and was over there at the Earp house. Q. What transpired then? A. Well, I was on the porch getting the pail of water. The pump is right at the door, and Mr. Atchison was standing on the porch just outside, and he asked Bejack if he ivas going' to use the buggy that afternoon, and Bejack answered, ‘No.’ Then Mr. Atchison says, ‘Well, then I guess I will use it,’ and Bejack answered him, No., you can’t use it,’ and Mr. Atchison says, ‘Why?’ He says, ‘Because*you can’t,’ and Mr. Atchison says, ‘Did Dr. Earp say I could not use it?’ and Bejack answered, Ño, I say so,’ and Anderson spoke up and says, ‘I say so, too.’ Well, Mr. Atchison says, ‘If that is the case, I will hitch onto the buggy,’ and he took his horse out and was going to hitch onto the buggy, when Bejack run out of the house — • Q. You may state whether or not Mr. Anderson was there, and what he did. A. Yes, sir; Anderson was there, and he ran out with clinched fists and attacked Mr. Atchison. Q. State what happened. A. And as he — Mr. Atchison was on the opposite side cf the horse, and Anderson run around the horse and was taking him from the rear when I grabbed Anderson by the shirt collar, and held him, kept him from striking my husband, and I held him by the shirt collar until he broke loose. Q. Was any conversation there had, anything said? A. Yes, sir; he kept using — calling my husband the vilest names that can be called him, and saying, ‘I will kill him! I will kill him!’ And he kept repeating it, ‘I will kill him!’ And all the time adding this name and cursing. Q. After those threats, did he make any further attack on Mr. Atchison at that time? A. Yes, sir; he again attacked him in the same way coming up from behind him, and I caught him the second time. This time I got him by the throat and held him. Q. Yes. A. And then he turned on me, and he swore at me, and calling me vile names, and he said, ‘If you don’t leave me alone I will knock your head off,’ added with an oath at that time, and he drawed his fists and came right down in my face, just missing me, just missed striking me at that time. Q. What, if anything, prevented him at that time from going further? A. Bejack caught him and told him to behave himself.
    “Q. You may state what further occurred there, Mrs. Atchi-son. A. Well, he kept on abusing us and calling us names, and Mr. Atchison says, ‘Well, it is not worth quarreling about,’ and he says, ‘I will go home,’ and he told me to get my pail of water and come with him, and he took his horse and started towards the road. I went to the well to get my pail of water, and Anderson jumped up on 'the porch right in front of me with clinched ' fists, and he swore an oath and called Mr. Atchison a bad name, he said now I have got ithat * * * old * * * scared out, now I am Ooing to Avhip you, and I am going to whip all your family. I said, ‘Is that so/ He said, ‘Yes, I will kill laim,’ swearing and calling him this bad name, and he said, ‘I will kill him.’ 1 says, ‘If you kill him, you Avill have to kill me too.’ He said, ‘I Avill kill you. I would cut your heart out and throw it to the dogs.’ And Bejack was still behind him, and — well, I Avasn’t to tell what Bejack said. Q. What stopped him from further action? A. He ordered me off the place. Told me to go home and stay there, not to come back there again in fear of my life, on any condition not to come back again, or he would kill us, and I took the pail of water and went home and I never come back onUhe place. Q. What day was this? A. That was Thursday at noon. Q. Thursday at noon, Thursdav the 16th? A. I suppose it was. Q. The 15th of October? A. Yes, sir. Q. Had he ever made any other threats than such as were made there at that time? A. No, sir; none only the same kind of threats. Q. What did you next do? A. After Atchison and I went home, we went over and dug sweet -potatoes, or picked them up rather, and we discussed this affair between ourselves, and Ave made up our minds it was not safe for us to stay there, and we got our work in shape about 5 o’clock and we went home. Q What did you next do? A. Why, we were both in the house at the time, and we were getting ready to go to Mustang to see an officer, when Anderson came to our house horseback. He rode up to the front door on his horse, and he asked my oldest daughter if her father was home, and she didn’t know her father was in the house, and she answered him, ‘No.’ He just Avheeled his horse and rode to the back door, and he called her again, and he said, ‘Is your mother, at home?’ She said, ‘Yes, sir; mamma is here.’ He said, ‘Tell your mother I want to see her.’ Mr. Clark: Was that in your presence ? A. Yes, sir; I was there in the house, and she came to the other door, and says, ‘Mamma, Anderson wants to see you,’ and I turned to Atchison, and I said: T don’t want to see him. I don’t want to talk to him at all, because he will only insult us, insult me again.’ Atchison said: ‘See what he wants to say? Maybe he is sorry for what he done at noon and has come over to apologize, and, if he has, just let it go.’ I Avent to the door, and I said, ‘Good evening,’ to Anderson, and he replied to me, he says, ‘Why in hell Avasn’t them horses avatered and fed at noon/ ‘Well/ I says, ‘as far as their being watered was concerned, 1 ■ know they were watered, because they drank when we crossed the creek/ He swore at me, calling me a bad name, and he says, ‘Yon are a liar, and I can prove it by Bejack/ Then he kept on abusing me, and saying the horses was not fed, and he says, ‘Another thing I want to tell yon, I am coming over to-morrow morning, and 1 am going to measure np those potatoes/ I said: ‘No, yon are not going to come over here and measure up our potatoes. You haven’t any business on this place at all. We can attend to our own affairs/ He said, ‘I have business here, and you will find it out/ I said: ‘Anderson go off this place, and stay off this place and leave us alone. We don’t want no trouble with you at all. All we ask is to be left strictly alone/ He said': ‘What would you do if I would not go off from here? Would you shoot me?’ I said, ‘No, we are not -making any threats against, anybody.’ He swore an oath, and he says, T am making threats, and I intend to keep them.’ He says: ‘You can fetch an officer here and put me under arrest if you want to. I would just as soon be behind the bars as anywhere else.’ < 1 thought I would .make an appeal to his manhood. I said, ‘You ought to be ashamed of yourself to talk like you do, and, if you haven’t any respect for yourself, you ought to respect your mother.’ And he said, ‘Yes I have a mother,’ and he swore an oath, and, well, I am not going to repeat the words he called me; but, if his mother was the kind of person that I was, he would not own her. Q. That is what he said to you? A. Yes, sir; to me. * * *
    “Q. You saw the deceased!, Buel Anderson, the following Monday, did you? A. Yes, sir. Q. You may state under what circumstances? A. Well, it was in the morning just after breakfast, probably 8 o’clock, between half past 7 and 8. I was sitting in the kitchen by the west door, and I saw Anderson coming across our back yard coming up to our house. Q. He was afoot? A. Yes, sir; he was afoot. Q. Now you may state particularly about what he was doing? A. Why, he was walking towards the house with a — he had a knife in one hand, and a stick in the other. He was cutting a stick, and as he had been told to keep away a good many times, and I didn’t know what business he had there, I stepped to the door to prevent him from coming in, as was his habit of walking in the house without rapping or asking any permission, and I stepped to the door and stopped him just a few steps away, and asked him what his business was. Q. What reply did he make ? A. He said, ‘Why in hell ain’t yon out picking up sweet potatoes ?’ Q. You may state then what followed in its order. A. I told him, I said, ‘Anderson,’ I said, ‘haven’t you had trouble over here without coming back again?’ I said: ‘We would like you to go off this place and stay off from it. We don’t want no trouble with you. All we ask is to be left alone until our crop is gathered.’ And then he raised his knife in his hand, and he just commenced to swear at me, calling me vile names, and he says, ‘I don’t have to go off from here for the likes of you,’ and as he said that he made a leap in the middle of the door with his drawn knife, and I was standing right in the door, and I jumped back to the side, and my two daughters were in the kitchen at the same time. They both screamed. They saw it. They screamed, ‘Papa, come quick!,’ I screamed, ‘Oh! papa!’ Mr. Atchison was in the front room when he heard Anderson start to make this remark. He picked up his gun and come through the door, and he saw Anderson standing there with the knife in my face, and he fired his gun.”
    Maud Atchison and Amy Atchison, daughters of the defendant, testifying, reiterated the foregoing testimony.
    The defendant testified, in part, as follows:
    “Q. What did you next do after that? A. I went to the justice of the peace to try to have him arrested. * * * Q. You may state what you did in that respect, Mr. Atchison. 'A. I stated my case to the justice of the peace. * * * Q. Wait a moment, what time in the evening was it Thursday evening that you went to see the justice of the peace at Mustang? A. About 6 o’clock. Q. About 6 o’clock? A. Yes, sir. Q. Did you see Ruel Anderson that evening? A. Yes, sir. Q. Where? A. In the hardware store. Q. At Mustang? A. Yes, sir. Q. Now, after returning home what did you next do in the premises? A. On the premises? Q. No? A. On, well, this was in the evening. The next day I went to Yukon. Q. What for? A. To see a justice there. Q. Did you see one.? A. Yes, sir. Q. Did you transact "any other or further business there in Yukon ? A. No, sir. Q. When, if at all, did you see Mr. Farris at Yukon? I ask this simply for the purpose of fixing the date, as I am a little confused? A. That was Sunday. Q. That was the following Sunday? That is what I wanted to know. After seeing the justice of the peace at Yukon, what did you next do with reference to this matter? A. I went to see the prosecuting attorney up here in El Eeno on Saturday. Q. That was the next day, Saturday? A. That was the next day, Saturday. Q. You saw the county attorney? A. I saw the county attorney. Q. Talked with him about this trouble? A. Yes, sir. Q. Did you state the matter fully to him as it stood at that time? A. Yes, sir; I did. Q. What, if any, relief from it did you apply to him •for? Mr. Clark: That is objected to. The Court: Sustained. Mr. Gillette: To which we except. Q. Did you get any relief or assistance from that source? Mr. Clark: That is objected to. The Court: Sustained. Mr. Gillette, Jr.: Exception. Q. What was your object in applying to these several officers in the premises? Mr. McAdams: W~e object to it as incompetent. A. To avoid trouble. Mr. McAdams: Wait a minute — as immaterial and self-serving declaration. The Court: Objection sustained. Mr. Gillette, Jr.: Exception. Mr. Gillette: I desire to make the record show— The Court: Gentlemen of the jury, you are excused for five minutes. Mr. McAdams: Perhaps that is not necessary.”
    Dictated out of hearing of the jury:
    “Mr. Gillette, Sr.: The prosecution in this case has been permitted to show that shells, shotgun shells, were purchased in Mustang and a revolver there purchased, as a part of the state’s case, and as evidence of premeditation and deliberation in the commission of this act. The evidence sought to be shown by the above questions is in rebuttal of that fact, and intended to show that the defendant was seeking to avoid the difficulty, and, if he were permitted to answer, would show that he visited the justice of the peace at Mustang and at Yukon and the county attorney at El Eeno for 'the purpose of seeking legal aid in the way of peace bonds to avoid difficulty, and this evidence is offered in rebuttal of the presumption which arises by the proof on behalf of the state of the fact of the purchase of the shells and revolver, and we ask to have it admitted. The Court: The offer and request of the attorneys for the defendant of the testimony above set out is overruled. Mr. Gillette, Sr.: Note our exceptions.”
    In the presence and hearing of the jury:
    “Q. Well, you returned from El Eeno after seeing the county attorney? A. Yes, sir. Q. What time did you arrive at your home? A. About 11 o’clock Saturday evening. Q. About 11 o’clock? A. About that time. I didn’t have a watch. Q. What did you do next day? A. I went down to Mustang and saw the justice of the peace there, Mr. Dennis, in the morning. * * * Q. You may state, Mr. Atchison, what transpired at your place the next morning? A. Monday morning? Q. Yes, sir. A. Why, I was sitting, after breakfast — my wife and I got up and had breakfast, and after breakfast I was writing a letter, and while I was writing I heard Euel Anderson’s voice stating to my wife, ‘Why in hell ain’t you out digging sweet potatoes?’ My wife says: ‘Haven’t you made us Gnu ble enough? Why won’t you go away and leave us folks alone?’ He says, ‘We don’t have to take orders from you, and we -are not taking any orders.’ ‘Now,’ she says, ‘all we ask you to do is to go away and stay away.’ He says, I overheard, ‘I am not going for a God damned old son of a bitch like you.’ And while he was saying this, while I was overhearing it, I heard one of my daughters, X could not swear which one it was, but all three of the women folks seemed to yell at once, but I heard, ‘Papa, come quick!’ 1 jumped up, and as I was going through- the door I grabbed mv gun, and just as I was going through the door, I was coming as quick as I could, I saw Euel Anderson in front of the doo,r. I sees my wife jump back, and his hand was up that way reaching that way. I put up the gun as quick as lightning and fired without aipi. Q. Eesult of that shot was? A. Was fatal. Q. Was fatal? A. Yes, sir.”
    On rebuttal Wesley Be jack testified that he was present and heard all that was said at the time of the trouble over the buggy, and that the deceased neither assaulted nor threatened nor used language as testified to by the defendant and his wife.
    Mrs. Atchison testified that she went immediately to .the body of the deceased, and that she then noticed no knife. This was Before his brother had been sent for, or before any other person had appeared upon the scene. George Church, the officer who placed the defendant under arrest, testified that he arrived soon after the homicide, and, on being told that the deceased had drawn a knife, told the defendant that he had better take care of the knife, and he made a search for it, but could not find it, although the ground where the deceased fell was level and bare.
    Wesley Be jack testified that the deceased did hot own or carry a.--knife. To the same effect was the testimony of Hiram Earp. T. J. Yan Arsdale testified that he helped the coroner care for the body and did not see any knife.
    Witness Shnpe testified that he examined the clothes of the deceased and searched the pockets and found some smoking tobacco, some matches, a small poeketbook containing a pair of cuff buttons and a penny, also a piece of chewing tobacco. One side of the piece was square, and the rest looked like it had been bitten off, and that he found no knife.
    Gene Moore testified: That he was with the deceased on Sunday afternoon before he was killed; that deceased did not have a knife on that day; that deceased borrowed witness’ knife to trim his finger nails and then returned it. •

      Gillette, Libby & Gillette, for plaintiff in error.

      Charles West, Atty. Gen., Charles L. Moore, Asst. Atty. Gen., and B. G. McAdams, {ox the state.
   DOYLE, Judge

(after stating the facts as above). On the-morning of the 19th day of October, A. D. 1908, about 9 o’clock, Kuel Anderson was shot and killed by the defendant, David Atchi-son. At the time deceased was shot, he was near the back door of' the house in which the defendant lived. He was shot with buckshot; the charge entering the back of his neck. His neck was-broken, and death was instantaneous. It is very clear from the-evidence, and the physical indications at the place of the killing-showed convincingly, that the defendant, when he fired the fatal shot, was waiting with a formed design to kill and murder the deceased. He had fully prepared himself the evening before to. kill, and he shot upon sight. Unquestionably the homicide was a deliberate assassination. The previous preparation and physical facts rebut and absolutely repel the theory of justifiable homicide, in the lawful defense of his wife from an imminent felonious assault.

The defendant complains that there was material error in the trial of’ said cause to the prejudice of his substantial rights,_ in that the court erred in excluding material evidence offered by him, and that the court erred in instructing the jury. The defendant, testifying on his own behalf, was asked what efforts he made to avoid trouble with the deceased? He testified about consulting a justice of the peace at Mustang to have the deceased placed under a peace bond, and that the next day he went to a justice of the peace at Yukon and consulted him.' On the next day he went to El Reno and stated the matter to the county attorney. He ivas then asked: “What was your object in applying to these several officers?” Objection being sustained to this question, the court •excused tíre jury. Counsel for the defendant thereupon stated the purpose of the questions propounded, and what was expected •to be proved thereby. This was objected to and excluded by the court. The same proof was offered with the wife of the defendant •as a witness, and the same objection was sustained. No claim was made by the defendant that he believed himself in danger, or •that the killing was in his own necessary self-defense. His plea •of justification is that the killing was necessary in the lawful defense of his wife, as he had reasonable ground to apprehend a design on the part of the deceased to do her some great personal injury, and that there was imminent danger of such design being •accomplished. If, at the time of the overt act, the defendant did not in fact believe his wife in imminent danger from the deceased, the homicide was murder. The facts went to the jury that he had ■consulted certain officers for the purpose of securing a peace warrant. This was sufficient. An appellate court should carefully •consider and guard against so construing the law that a proper rule of evidence would be perverted into a means of escape from the merited punishment of an offender. What he said, and what the said officials said to him and his wife, would be merely self-serving declarations and hearsay.

The court instructed the jury as to the crime charged in the indictment, the plea interposed, and that the burden was upon the state to prove beyond a reasonable doubt the material allegations of the indictment and every element and ingredient of the crime charged on the presumption of innocence, and that the in-dietment was merely an accusation, and no evidence of guilt; defined the phrase, “a reasonable doubt,” and the terms, “homicide,” “murder,” “manslaughter in the first degree,” and “manslaughter in the second degree”; also, that homicide is justifiable when committed by any person in either of the following cases:

“First, when resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is; or, second, when committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to .do some great personal injury, and imminent danger of such design being accomplished.”

In all the court gave 19 instructions. On the defendant’s objections, exceptions were allowed to instructions numbered 8, 11, 12, 13, 14, and 15, as follows:

Instruction No. 8:

“You are instructed that homicide committed with a design .to effect death is not the less murder because the perpetrator was in a state of anger. (Excepted to by defendant as not being sufficiently full to give the jury a full understanding of the law on that question.)”

Instruction No. 11:

“If you find from the evidence in this case, beyond'a reasonable doubt, that in the county of Canadian, state of Oklahoma, on or about the 19th day of October, 1908, the defendant, David Atchison, shot and killed Euel Anderson with a shotgun, and that he fired the shot which killed Anderson without authority of law and with a premeditated design to effect the death of the said Anderson, you will then find him guilty of murder as charged in the indictment, and fix his punishment at death or imprisonment at hard labor in the penitentiary for life, in your discretion. (Objected to because the instruction ignores the last phrase of the statute defining manslaughter in the first degree and excludes the same from the consideration of the jury under the facts presented by evidence submitted'.)”

Instruction No. 12:

“If the killing of Euel Anderson was not justifiable as defined in these instructions, and you entertain a reasonable doubt ■as to whether the shooting of the said Anderson was done with a premeditated design to effect his death, and you do believe from the evidence beyond a reasonable doubt that the defendant fired the fatal shot while in the heat of passion, and with no premeditated design to kill the said Anderson, you will then find him guilty of manslaughter in the first degree. (Excepted to as not being sufficiently full to give a complete understanding of the law involved.)”

Instruction No. 13:

“The jury are instructed that no provocation by words only addressed to the person killing or to another in his presence, however opprobrious or insulting, will mitigate an intentional killing, so as to reduce the killing to manslaughter, and although the jury may believe from the evidence that insulting epithets were used by the deceased to the wife of the defendant in the defendant’s presence, yet if the jury further believe from the evidence, beyond a reasonable doubt, that the defendant immediately thereafter shot and killed the deceased, then the defendant is guilty of murder, unless the jury shall further believe from the evidence that said killing was reduced to manslaughter, or was justifiable upon other grounds, or by other causes than the use by deceased of such opprobrious and insulting language. And in this connection I instruct you that if you believe from the evidence in this case that the defendant, when he fired the shot which caused the death of Ruel Anderson, was in a heat of passion produced by opprobrious and insulting words directed toward the wife of the defendant, and while so in that heat of passion slew the deceased, then the defendant would not be guilty of murder, but of manslaughter in the first degree, provided that you find further that the killing of the deceased was without design on the part of the defendant. (Excepted to by defendant as not stating fully or correctly the law governing under the evidence submitted.)”

Instruction No. 14:

“I instruct you that, when you have retired to your jury room to consider of your verdict and have selected a foreman, you will first consider as to whether the defendant is guilty of murder as charged in the indictment, and if jrou have a reasonable doubt from the evidence, facts, and circumstances of this case, or the lack of the same, under the instructions here given you, of the guilt of the defendant on. the charge of murder, you will then abandon the consideration of that charge, and ascertain whether under the evidence, facts, and circumstances of this case the defendant is guilty of manslaughter in the first degree. If, after having given this charge of manslaughter in the first degree thorough consideration, you entertain a reasonable doubt of the defendant's guilt of manslaughter in the first degree, it will then be your duty to abandon the consideration of the defendant’s guilt of manslaughter in the first degree, and ascertain from the evidence, facts, and circumstances in the case whether the defendant is guilty of manslaughter in the second degree as defined in these instructions; and if, after having given the charge included in the indictment fair and thorough consideration, you entertain a reasonable doubt as to defendant’s guilt of manslaughter in the second degree, it would then be your duty to acquit him. (Objected to by defendant because manslaughter in the second degree is not defined; the statute simply being quoted.)”

Instruction No. 15:

“If the jury believe from the evidence in this case that when the defendant shot and killed Euel Anderson he had reasonable grounds to believe, and did believe in good faith, that his wife was in imminent danger of losing her life or suflerng great bodily harm at the hands of the said Ruel Anderson, and that there were no other apparently safe means of escape by his said wife from the impending danger, then the defendant had the right, and it was lawful for him in the exercise of reasonable judgment, to use such force as was reasonably necessary or apparently necessary to save and protect his wife’s life or her person from great bodily harm, even to the taking of the life of the said Ruel Anderson. On such grounds, and under such circumstances, the defendant is justifiable under the law in the defense of his wife. The danger to one’s life or of great bodily harm to his or her person by which the defendant pleads justification for his acts, as herein indicated, may be real danger or apparent danger; but, before the jury can acquit the defendant on the ground of defense of his wife, three essential elements must concur: First, defendant and defendant’s wife must be without fault in bringing on the difficulty, and must not be disregardful of'the consequences in this respect or any other wrongful word or act; second, there must have existed at the time either really, or so apparently as to lead a, reasonable mind to the belief that there actually existed, a present imperious impending necessity to shoot in order to save himself or his wife from death or great bodily harm; third, there must have been no other reasonable mode of avoiding the necessity of taking the life of the deceased, apparent to the defendant as a person of ordinary prudence and courage (objected to as not correctly stating the law applicable).”

It will be observed that instruction No. 8 above set out is in the exact language of section 2271, Snyder’s Comp. St. 1909, except the words, “or voluntary intoxication at the time,” are omitted. It is insisted that this instruction is erroneous, and counsel argue that:

“It may not be said that the provision of the statute is bad law, and yet we think there may be prejudicial error in quoting the statute as the law governing the deliberations of the jury. And when the hare provision of a statute is quoted as the instruction to a jury there ought, in connection with it, to be given such explanations as will enable the jury to intelligently consider it. And that anger may arise from a provoked cause, and we think is sometimes intentionally provoked, and' when such is the case, and when the evidence shows such possibility, the jury should be given to understand that such heat of passion is not the anger referred to in the statute quoted, but is rather that referred to in the second sub-division of the statutory definition of manslaughter in the first degree.”

It is also argued that the first sentence in the thirteenth instruction intensifies the error in giving the eighth without explanatory modification, and that the concluding clause, “provided you find further that the killing of the'deceased was without design on the part of the defendant,” wholly destroys this instruction. We do not believe that this contention is well founded. These instructions state the law. The latter half of instruction No. 13 covers the objection as made, and the proviso is based upon subdivision 2, § 2276, Snyder’s Comp. St. 1909, defining “manslaughter in the first degree,” and set forth in another instruction.

It is also insisted that instructions Nos. 11 and 12 are erroneous, and it is argued that the jury should have been advised, in view of the testimony of the defendant, his wife, and daughters:

“That they should consider the question as to whether or not the act of killing was necessary to prevent the commission of a crime, or the act of deceased so threatening as to cause such interference by a reasonably prudent and courageous man who was in that way threatened by the deceased, and that if they found from the evidence that an attempt to commit a crime was at the time being made by the deceased, but that the killing by defendant, acting as a reasonably prudent and courageous man, was unnecessary to prevent it, the verdict in such case should be guilty of manslaughter in the first degree, instead of instructing that, if the act complained of was without authority of law, the jury should find the defendant guilty of murder.”

And counsel in their brief further say:

“We desire here to call the attention of the court to the fact that, while there was evidence tending to show that the deceased was at the time of his death in the . act of committing a crime, which made it incumbent upon court and jury to pass upon, there was no instruction given covering the phase of the ease arising from an unnecessary killing in order to prevent such crime, if tire jury found from the evidence that the deceased was at the time so in the act of committing an assault upon Mrs. Atchison. By such failure to so instruct, and instructing that the defendant must be found guilty of murder, if the killing was not justifiable, and was intentional, the defendant was deprived, over his objection, of the right to have the offense charged against him, considered in the light of -the third subdivision of the statute defining manslaughter in the- first degree. The defendant was not negligent in this respect, for his request to have this instruction modified was explicit, and the request was refused.”

The objection made is as follows:

“The defendant, David Atchison, objects to the instructions, and asks that the same be not given to the jury until modified in accordance with the objections thereto as shown by the exceptions indorsed on the instructions and in accordance with objections here stated: First, because the instruction ignores the right of the defendant to have the degree of the crime reduced to manslaughter in the first degree, when the killing is perpetrated unnecessarily while resisting, as shown bv defendant’s testimony, an attempt by the person killed to commit, a crime, to wit, an assault upon the person of the wife of the defendant, or after such attempt should have failed.”

It is also argued that the error complained of in the eleventh instruction was accentuated by giving the twelfth instruction.

Section 6857, Snyder’s Comp. St. 1909, provides:

“In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given, if not, it must be refused. Upon such charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused.”

It is well settled that the court in its instructions to a jury in a criminal cause must, instruct them upon the law applicable to the evidence adduced upon the trial. This is the purpose of the instructions given by the court and is only properly fulfilled when the jury retire to deliberate fully informed upon the law which is to govern them in their deliberations.

■“The charge should state the law in its application to tfcé facts, as already explained, correctly and fully. If, for example, there are different degrees of an offense, the law of each degree, which the evidence tends to prove, should be given, but not of any degree which it does hot tend to prove.” (Bishop, Crim. Proc. par. 980.)

The theory of the state was that the defendant, with malice, or actuated by the spirit of revenge, deliberately shot the deceased, when there was no necessity for him to do so, to protect his habitation or family, and no circumstances at the time to justify a passion which caused him to shoot the deceased. The tlieom^ of defendant was that he shot and killed the deceased to .prevent him from committing a felonious assault on the person of his wife, and he and his family so testify. The issue was clearly defined. If the theory of the defendant be supported by the facts, he was not guilty of any offense, but was entirely justified. If the theory of the state was correct, then the crime was murder.

The instructions of the court fully and fairly present the law of the case upon the theory of the defense, and alsp the law of manslaughter in the first degree by instruction No. 6, as follows:

“Homicide is manslaughter in the first degree when perpetrated without design to effect death, and in the heat of passion, but in a cruel or unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide, or when the killing is perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall haye failed.”

And instruction No. 9, as follows:

“The indictment in this case charges the highest “degree or homicide; but the charge in the indictment embraces all the lower degrees of such crime, viz., manslaughter in the first degree and manslaughter in the second degree, as well as that of justifiable homicide. The defendant is presumed to be innocent of the crime charged and of each lower degree of crime embraced in the indictment, until the contrary is made to appear by competent evidence to the satisfaction of the jury, beyond a reasonable doubt; and, if you entertain a reasonable doubt of the guilt of the accused, it is your duty to return a verdict of not guilty.”

There were no objections made and no exceptions were taken to these instructions. It is here insisted that they do not go far enough, and are therefore to that extent erroneous. In the absence of a more complete instruction presented to the court on the part of the defendant with the request that it be given, we cannot believe that the failure to explain the instruction defining manslaughter in the first degree constitutes error.

The vice imputed to instruction No. 14 is that “manslaughter in the second degree” is not defined. The question is: Does the evidence in the case show, or tend to show, any of the elements or ingredients of manslaughter in the second degree? Assuming the facts to be as claimed by the defendant in this regard and as shown by the testimony offered on his behalf, there was no such evidence adduced upon the trial. In Cannon v. The Territory, 1 Okla. Cr. 600, 99 Pac. 622, it was held by this court that it is the duty of the court to say, as a matter of law, if there is any evidence that would tend to reduce the degree of the offense to manslaughter in the second degree. Mr. Wharton says:

“The province of the court, on an issue as to the degree of a homicide, is to guide and direct the jury, and keep them within proper bounds. It is its duty to determine whether competent evidence has been introduced, which, if believed by the jury, would furnish the elements or ingredients of any particular grade of homicide.-”' (Wharton on Homicide [3d Ed.] p. 241.)

We are of opinion that, under the facts in this case, there was no evidence which authorized an instruction on the law of manslaughter in the second degree.

Finally, it is asserted that:

“The fifteenth instruction proceeds upon the ground that the jury must believe there was reasonable grounds for the defendant’s belief that the wife of the defendant was in danger of suffering great bodily harm at the hands of deceased, and that there was no other apparently safe means of escape, when it should have stated that such fact as viewed from the standpoint of defendant, considering all the facts and circumstances shown upon the trial, was sufficient to justify -the act complained of.”

There is no merit in this contention. Considering the instructions of the learned trial judge as a whole, we do not find any inadequacy, nor do we find any indication whatever of either prejudice or partiality.

The only remaining assignment of error is that “the verdict and judgment are contrary to the law and the facts offered in evidence upon the trial.” The questions presented by this assignment have been fully considered. Our views as to the sufficiency of the evidence to sustain the verdict were stated at the outset. We entertain no doubt on this question. The defendant was well and ably defended in the court below, and his eminent counsel in their brief before this court have learnedly elaborated on the few irregularities which occurred upon the trial; but the day is past in the administration of criminal law in this state for a criminal to escape the just penalty of the law on a mere technicality not involving a fundamental principle or a substantial right. Section 6957, Snyder’s Comp. St. 1909, precribes that:

“On an appeal the court must give judgment without regard to technical errors of defects, or to exceptions which do not affect the substantial rights of the parties.”

The letter and spirit of this law is that if the defendant has had a fair trial, and if this court is satisfied that the conviction is sufficiently supported by competent evidence, and the verdict against him was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed.

We have carefully examined the record, and in connection with the very able and elaborate brief of counsel for the defendant, have fully considered the questions presented. For the reasons herein stated, we are of opinion that the defendant had a fair and impartial trial, and that no error was committed prejudicial to his substantial rights.

The judgment of the district court of Canadian county is therefore affirmed.

FTTRMAN, PRESIDING Judge, and.OWEN, Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Opinion of the Judges.
    Opinion Filed December 11, 1909.
    (105 Pac. 684.)
    1. COURTS — Criminal Court of Appeals — Advisory Opinions — Binding Effect. An opinion in response to a requirement of the Governor, as authorized by Snyder’s St. sec. 6928, has not the force of an adjudication, and is at most advisory.
    2. PARDON — Reprieve Pending Appeal — Power of Governor. Under Snyder’s St. sec. 6929, providing that no court or officer other than the Governor can suspend the execution of the judgment of death, unless a writ of error is allowed and taken, a reprieve can only be granted by the Governor pending the perfecting of an appeal in the case, and an order of the trial judge staying the execution of judgment after granting an appeal is without authority; and, where an appeal has' been granted, but not filed, in the Criminal Court of Appeals, the Governor may grant a reprieve to a day beyond the time allowed to make, serve, and file a case-made and petition in error.
   In response to a communication submitted by the Governor, the following opinion was submitted by DOYLE, Judge:

Hon. Chas. N Haskell, Governor of the State of Oklahoma:

The Criminal Court of Appeals, responding to your official communication of December 8th inst. addressed to this court, accompanied by a statement of the conviction and judgment and a transcript of the testimony, in the case of the State of Oklahoma v. John Black, being case No. 205, in the district court of Hughes county, Okla., wherein said defendant upon his trial was by the verdict of the jury found guilty of murder, and the death penalty assessed, and thereafter, on the 8th day of November, 1909, said defendant was sentenced by the court in accordance with said verdict, to be hanged on the 17th day of December, 1909, with the request that we give an opinion thereon, respectfully submit the following opinion of the judges:

From the record it appears that in compliance with section 6927, Snyder’s St., which prescribes:

"The judge of a court at which a conviction requiring a judgment of death, is had, must immediately after the conviction, transmit to the Governor, by mail or otherwise, a statement of the conviction and judgment, and of the testimony given at the trial.”

—the honorable John Caruthers, presiding judge, transmitted to the Governor of the state of Oklahoma the record and transcript of the testimony in said cause.

Section 6928, Snyder’s St., provides that:

"The. Governor may thereupon .require the opinion of the judges of the Supreme Court (Criminal Court of Appeals), or any of them upon the statement so furnished.”

The general and abstract question as to whether or not the foregoing provisions of the law of Oklahoma Territory are repugnant to our state Constitution will not be considered here, as an opinion of this kind has not the force of an adjudication, and is. merely persuasive, or, at most, advisory.

Section 6929, Snyder’s St., provides as follows:

"No judge, court or officer other than the Governor can reprieve or suspend the execution of a judgment of death, except the sheriff, in the cases provided in the next seven sections, unless a writ of error is allowed and taken.”

The next seven sections referred to have no relation to the facts presented by the record before us. By virtue of the foregoing provision, a respite or reprieve can only be granted by the Governor of the state of Oklahoma pending the perfecting of the appeal in said cause to the Criminal Court, of Appeals.

We have examined the records of this court, and find that no appeal has been filed in this court in said cause. The record as transmitted contains the following recital:

“Thereafter on the 12th day of November, 1909, the defendant through his counsel moved for a new trial after a consideration of which was overruled by the court; defendant duly excepted and prayed an appeal to the Criminal Court of Appeals, which said appeal was granted and the defendant was ordered to be committed to the state penitentiary at South McAlester for safe-keeping until the Criminal Court of Appeals should finally determine said cause. Thereafter, on the 4th day of December, 1909, s. stay of execution was granted by the judge of this court pending defendant’s said appeal. Bespectfully submitted this the 4th day of December, 1909. John Caruthers, Judge of the Ninth Judicial District, Hughes County, Oklahoma.”

Thus it will be seen that the learned trial judge has ordered a stay of execution pending an appeal. As we view it, under the provision last quoted the order so made staying the execution of judgment was without authority of law. If the appeal had been perfected, the cause would properly be before this court upon a petition in error with authority to review the same upon the assignments of error or to determine upon the whole cause whether the verdict was against the weight of the evidence or contrary to law, and, if upon such review we were of opinion that justice required a new trial, we would reverse the judgment, but the impropriety of an unauthorized expression of opinion by a judge or the judges of this court, especially upon a matter that may subsequently come before the court for adjudication, is obvious. Any opinion expressed in a proceeding of this kind is manifestly extrajudicial. As we view it, the statute contemplates an advisory opinion, where an appeal has not been taken in a capital case, and where the death penalty has been assessed. The proposition then presented would be, Has there been an observance of all the formalities of law essential to the taking of human life? Or has the trial, conviction, and sentence of death been in accordance with the law of the land? In this case, however, the record recites that the defendant prayed an appeal to this court, and that said appeal was granted, and the defendant was committed to the state penitentiary pending the determination of said appeal. This appeal has not been filed in this court. Under this status of the case, it is apparent that, unless the Governor of the state of Oklahoma in the exercise of the supreme executive power shall grant a respite or reprieve to a day beyond the time allowed by the court to make, serve, and file a “case-made” and “petition in error” in this court, the defendant will be denied his constitutional right to have his trial and conviction reviewed by the Criminal Court of Appeals as the court of last resort in a criminal case in this state.

Fpr the reasons hereinbefore given without considering others, which might be suggested, the judges of the Court of Criminal Appeals of Oklahoma respectfully submit the foregoing opinion with the recommendation that the said defendant John Black be reprieved and respited until Friday, the 14th day of January, 1910, which time we consider amply sufficient to have his appeal, if perfected, properly presented to this court:

All the Judges concur.


author: OWEN, Judge.

text:
    George O’Barr v. United States.
    No. 310.
    Opinion Filed December 18, 1909.
    (105 Pac. 988.)
    1. COURTS — Territorial Courts — Subsequent Statehood. Under an indictment for murder returned prior to statehood, the defendant should he tried and punished under the law as it existed at the time of the commission of the offense.
    2 HOMICIDE — Manslaughter—Elements—Statutes. An instruction defining manslaughter under the United States statute (Rev. St. U. S. sec. 5341 [U. S. Comp. St. 1901, p. 3628]), in force in the Indian Territory prior to statehood which omits the word “willfully,” is improper.
    3. HOMICIDE — Manslaughter—“Willfully.” The word “willfully,” as used in the United States statute defining manslaughter, is synonymous with “intentionally” or "designedly.”
    4. WEAPONS — Use—Case Required. The law imposes upon persons handling deadly weapons the duty of exercising such care as an ordinarily cautious and prudent person would exercise under similar circumstances.
    5. HOMICIDE — Criminal Negligence — Handling Weapons — Instructions. The court in this case instructed the jury: “The law imposes upon people controlling or handling dangerous instruments or agencies the duty of exercising some care or caution in the manner of using the dangerous agency, and in case of gross or culpable neglect of this duty the law imposes criminal as well as civil liability.” Held, error for the reason that it does not define the degree of care or caution to he used, or gross neglect, such as would render the defendant guilty of criminal negligence.
    6. CONDUCT OF COUNSEL — Argument. The defendant being on trial for murder, it was improper for the prosecuting attorney, in his closing argument, to make use of the statement: “It is your duty to punish this defendant, who by the means of whisky given the poor girl, weakened her will and dulled her senses, and has been her ruin.”
    ('Syllabus by the Court.)

      Error from District. Court, Le Flore County; Malcolm E. Rosser, Judge.

    George O’Barr was convicted of manslaughter on an indictment for murder, and he brings error.
    Beversed.

      W. B. Buckley and Day & DiuBois, for plaintiff in error.-—
    On definition of manslaughter: Eev. St. IT. S., sec. 5341; Wharton on Homicide, sec. Ill, and cases cited; Brown v. U. 8. (Ind. T.) 52 S. W. 56; Territory v. Baca, (N. Mex.) 71 Pac. 460, and cases cited; Roberts v. U. S., 126 Fed. 897; U. 8. v. Meagher, 37 Fed. 880. On improper argument of prosecuting attorney: Dunmore v. State (Ala.) 22 South. 541; State v. Thompson, (La.) 30 South. 895; Long v. State, - (Miss.) 33 South. 224; Attaway v. State, (Tex.) 55 S. W. 45; Gilbert v. Gomtv. (Ey.) 51 S. W. 804; People v. Valliere (Cal.) 59 Pac. 295; Roberson v„ State, (Ala.) 26 South. 645.

      Chas. West, Atty. Gen., and E. G. Spihncm, Asst. Atty. Gen., for the United States.
   OWEN, Judge.

The proof on part of the state, in substance, is to the effect: That the defendant was a married man with a family of children. The deceased, who was a girl between 17 and 18 years of age, on the day of the shooting, met the defendant by appointment away from home, got into his buggy, and they were -driving over the country at the time of the shooting. That defendant had, at different times during the day, given her whisky. That he had been in her company on the night before at a church house and had there given her whisky. She was found in his buggy on the roadside with a gunshot wound through her neck, and a short time thereafter died.

The evidence offered on part of the defendant was in perfect harmony with the evidence on part of the state, and, in addition thereto, was to the effect: That at the time of the shooting the-girl was lying on his lap, with his hand under her neck; that his pistol had been lying on the seat of the buggy; that he and the deceased began playing with it, when it was accidentally discharged, the ball passing through the girl’s neck and through his-hand; that he immediately started for the doctor at the nearest town; but that before he reached there the tugs of his harness became unhitched; that he got out of the buggy to rehitch them, and, thinking the deceased was dead, left her in the buggy and went to a mining camp, and there engaged one of the miners to take him to the county seat* where he surrendered to the officers.

Among the persons who first saw the girl' on the roadside after she was wounded, was a deputy marshal, who testified that the girl told him the shooting was accidental, and that she did not wish the defendant to be in any way harmed for it. There is no evidence in the record which tends in the slightest degree to contradict the defendant’s testimony that the shooting was'accidental". The case seems to have been tried on the theory that the defendant was guilty of such-degree of carelessness as would make the accidental killing criminal.

In the motion for new trial, counsel for the defendant assign 11 reasons for setting aside the verdict. We deem it unnecessary to consider all of them. The three.upon which counsel seem to rely, and which are well taken, are as follows:

“Third. Because the court disdirected the jury in a matter of law, in this, to wit: ‘Manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation. It may occur upon a sudden hear of passion caused by provocation apparently sufficient to make the passion irresistible.’ Fourth. Because the -court misdirected the jury in a matter of law, in this, to wit: ‘The law imposes upon people controlling or handling dangerous instruments or agencies the duty of exercising some care or caution in the manner of using the dangerous agency, and, in case of gross or culpable neglect of this duty, the law imposes criminal as well as civil liability.’ Fifth. Because the court erred in its decision in a question of law, in this to wit: In permitting the attorney for the United States in his closing argument -to use the following language over the objection and exception of the defendant: ‘It is your duty to punish this defendant, who, by the means of whisky given the poor girl, weakened her will and dulled her senses, and has been her ruin.’ ”

The date of the commission of the alleged crime in this case was the 20th day of March, 1907, prior to statehood. The defendant was tried in April, 1908, after statehood. The case should have been tried under the law as it existed in the Indian Territory at the time of the commission of the offense. Sharp v. State, ante, p. 24, 104 Pac. 71.

Act Cong. May 2, 1890, c. 182, 26 Stat. 96, which put the criminal laws of Arkansas into effect in the Indian Territory, contained the following proviso: '

“That in all cases where the laws of the United States and said criminal laws of Arkansas have provided for the punishment of the same offenses, the laws of the United States shall govern as to such offenses.” (Section 33, Ind. T. Ann. St. 1899.)

At the time this, act of Congress went into effect, the law of the United States defining murder and manslaughter and providing a punishment therefor was in full force and effect in Indian Territory. Therefore the offense committed in this case should have been tried and the punishment assessed under the laws of the United States. “Manslaughter,” as defined by the United States statute (Rev. St. U. S. § 5341 [ U. S. Comp. St. 1901, p. 3628]), is as follows:

“Every person • who unlawfully and wilfully, but without malice strikes, stabs, wounds, or shoots at, or otherwise injures another, of which striking, stabbing, wounding, shooting, or other injury such other person dies, is guilty of the crime of manslaughter.”

The defendant was entitled to an instruction defining manslaughter as defined in this statute. The instruction of the trial court was:

“Manslaughter is the. unlawful killing of a human being without malice, express or implied, and without deliberation.”

It will be noted that this differs from the United States statute by omitting the word “wilfully.” The word “wilfully,” in the sense in which it is used in this statute, means not merely voluntarily, but with a bad purpose. It is a synonymous term with “intentionally,” “designedly,” “without lawful excuse”; that is, not accidentally. Thomp. on Tr. § 2209; Com. v. Brooks, 9 Gray (Mass.) 303; Com. v. McLaughlin, 105 Mass. 463; Roberts v. U. S., 126 Fed. 897, 61 C. C. A. 427.

In the last-named case the United States Circuit Court of Appeals, in defining the word “wilfully,” as used in section 5341, Rev. St. U. S., the section under which this prosecution was liad, said:

“In a penal statute -the word ‘wilful’ means more than it does in common parlance. It means with evil intent or legal malice, or without reasonable ground for .believing the act to be lawful.” (Citing: State v. Preston, 34 Wis. 675; State v. Clark, 29 N. J. Law, 96; Savage v. Tuller, Brayton (Vt.) 223; United States v. Three Railroad Cars, 1 Abb. U. S. 196, Fed. Cas. No. 16,513; Thomas v. State, 14 Tex. App. 204; Sam Lane v. State, 16 Tex. App. 172.)

This court, in the case of Thurman v. State, 2 Okla. 718, 104 Pac. 67, defines the word, “wilfully,” citing Harrison v. State, 37 Ala. 154, and Felton v. U. S., 96 U. S. 699, 24 L. Ed. 875, and quoting from Felton v. United States, as follows:

“Doing or omitting to do a thing, knowingly and wilfully, implies not only a knowledge of the thing, but a determination with a bad intent to do it or omit doing it. iThe word “wil-fully,”’ says Chief Justice Shaw, ‘in'the ordinary sense in which ..it-is. used in statutes, means not merely voluntarily, but with a bad purpose.’ Commonwealth v. Kneeland, 20 Pick. (Mass.) 220. ‘It is frequently understood,’ says Bishop, ‘as signifying an evil intent without justifiable excuse.’ ”

The instruction of the trial court, as quoted in the fourth assignment of error, did not state the law, for the reason that it fails to define the degree of care or caution to be used, or the failure to use such care as would constitute carelessness, and render the ghootSng criminal: ‘The law imposes upon persons handling dangerous instruments, or deadly weapons, the duty of exercising ordinary care, or such care as an ordinarily prudent and cautious person would exercise under similar circumstances. Carlessness is the failure to use 1 such care as an ordinarily prudent person would use under similar circumstances. Under the proof - in this case, the only theory on which the jury could have found this defendant guilty of manslaughter was that the shooting was'accidental.

If defendant’s handling the pistol was with the same caution that an ordinarily prudent person would have used, under the same circumstances, the accidental shooting of the girl would not make him guilty of manslaughter. On the other hand, álthou'gh the shooting was accidenta], yet done by defendant in the careless use or handling of the pistol, he- would be guilty of manslaughter. , This court said, in, the ease of Tyner v. United States, 2 Okla. Cr. 689, 103 Pac. 1057:

“If one fires a gun recklessly or heedlessly, he.will not be excused; and his offense will be at least manslaughter, though the weapon was pointed in range of the deceased by accident, with no intention or design of killing the deceased. * * * ‘The law infers guilty intention from reckless conduct, and, where the recklessness is'of such a character as to justify this inference, it is the same as if the defendant had ‘ deliberately 'intended the' act committed. When therefore one recklessly fires a pistol with criminal indifference as to the consequences, and- another is killed, it is not necessary, in order,to constitute, this killing murder, that the accused should at the time of the .firing have been engaged in the commission of some' unlawful act, independent of. and in addition to the reckless firing itself.”

' In the case of Roberts v. United States, supra, -the court said:

“In the definition of ‘manslaughter’ contained in the statute, the killing must be done unlawfully and wilfully. The term ‘unlawfully,’ as here used, means without legal excuse. The term .‘wilfully’ here means done wrongfully, with evil intent. It means any act which a person of reasonable knowledge and ability must know to be contrary to duty, and, while the act must be. done with evil design, and knowingly, as herein stated, still a killing which takes place under circumstances showing a reckless disregard for the life of another, and the reckless and negligent use of means reasonably calculated to take the life of another, such killing would be wilfully done, as the term is herein defined.-”

The instruction complained of informed the jury that; in case of gross or culpable neglect, the -law imposed, on the defendant a criminal-liability, but left the jury'to determine what would constitute gross neglect. What constituted -carelessness and gross neglect should have been defined by the court. York v. Com., 82 Ky. 360; Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907, 37 Am. St. Rep. 374; Lago v. Walsh, 98 Wis. 348, 74 N. W. 214; 1 Words & Phrases.

■The language used by the attorney for the state in-closing the argument, as set out in the fifth assignment, was .improper. The defendant in this case was charged with murder. He' was not charged with having improper relations with the young girl, or with having seduced her, and there was no evidence offered proving any improper relation, or that.the,girl had been ruined. .An argument along the line as indicated by this language was calculated to arouse the prejudice of the jury against the defendant. When this language is considered in connection with the lack of the evidence, to disclose any motive for the killing, it cannot be ignored. Every one will admit that the conduct of the defendant in administering whisky to that young girl at the church house, giving her whisky at. different times, meeting her by appointment, taking her into his buggy, and driving acrnso the country, he being a married man with a family of children, was reprehensible; but however reprehensible such conduct, and however severely the same is to be condemned, the courts must not lose sight of the fact that the defendant is not on trial for that conduct. The sole charge for which the defendant was on trial here was, the unlawful killing. When the evidence discloses such reprehensible conduct on the part of a defendant, such conduct as is calculated to arouse the prejudices of an ordinary juror against a defendant, the trial court should be all the more careful to confine the argument of attorneys to the material facts as proven. Every one must agree that the defendant deserves to be punished for such conduct; but that ivas not at issue in this ease. There being no evidence that the defendant had caused the girl’s ruin, or that the girl had in fact been guilty of improper conduct other, than drinking whisky and. driving in a buggy with a married man, there was ¡nothing to warrant the statement of counsel. The statement amounted to his opinion, an officer of the court, that defendant should be convicted of the crime charged because of acts for which he was not on trial. The jury is sworn to try the case according to the law and evidence. .They are not permitted to communicate with persons in or outside of the courtroom after they are selected as jurors for the reason that perchance they might learn the opinions of others as to 'the weight of the evidence and' be impropérly influenced. The law throws aroundth’e jury every'safeguard that the verdict may ’ be "the re-‘ suit'of the sworn testimony alone. It is the province of attorneys in the argument, to apply the law to' the facts as disclosed by'the evidence, not to ássert as" facts things not in evidence. The argument is presumed'to'iñfluénce the jury:' The law provides for argument. It is one of the most effective'means’ of arriving at the truth. ' Why have any argument if the jury is ■ not expected to be influenced by it ?' The state is' given the closing of the argument because it has the burden of proof, 'and'the argument is as much a part of the trial' as the taking of testimony. It should be' governed by the same rules of fairness, be confined to facts material to the issue, and based upon the competent testimony.' We would not be understood as intending to abridge the power of prosecuting attorneys in arguing all the facts brought out in the' testimony, but it is certainly error to argue' facts which are not brought out. The state cannot convict a defendant of one crime by proving him guilty of ’another: This is true of 'the argument as well as the proof. It is extremely difficult to formulate rules by which to determiné when the statement of counsel will justify the court in granting a new trial. It may be' regarded as an established rule that it is error, sufficient to reverse a judgment) for counsel to state facts pertinent to the issue, calculated to prejudice the jury, and not in evidence, or to assume in argument that such'facts are in the case, when they are not.

Many of the courts have announced á more rigid rule than this, and have even gone further in reversing cases on statements made by prosecuting officers than we would be willing to go. In this case we are following the rule o’f the more conservative courts) ' '

In the case of Dunmore v. State, 115 Ala. 69, 22 South, 541, the Supreme Court of Alabama said:

' “Counsel must not, in .argument to the jury, state as a matter of fact 'that 'of which there is no evidence. Such statements are not within the latitude of discussion the law accords the. counsel and is of itself of evil-tendency.” ■ .

In the case of Tucker v. Henniker, 41 N. H. 317, the court said:

“Every person against whom an accusation is made, or a suit is brought, is entitled to be tried by a jury and according to the laws of the„ land. This was the greatest of all privileges conferred by magna eharta, and is guaranteed by our own fundamental law. This privilege is substantially violated, if counsel are permitted to state facts and comment upon them in argument against the adverse party, which are not before the jury by- proofs regularly submitted. * * * An essential element in the trial by jury is that the verdict shall be rendered according to the facts of the case, legally produced before the jurors. * * * When counsel are permitted to state facts in argument, and to comment upon them, the usage of courts regulating trials is departed from, the laws of .evidence are violated, and the full benefit of trial by jury denied. It may be said, in answer to these views, that the statements of counsel are not evidence, that the court is bound so to instruct the jury, and that they are sworn to render their verdict only according to 'evidence. All this is true, yet the necessary effect is to bring the statements of counsel to bear upon the verdict with more or less force, according to circumstances, and, if they in the. slightest degree influence the finding, the law is violated, and the purity and impartiality of the trial tarnished and weakened. If not evidence, then manifestly the jury have nothing to do with them, and the advocate has no' right to make them.”

In the case of Brow v. State, 103 Ind. 133, 2 N. E. 296, the prosecuting attorney said:

“I know personally the saloon keeper in this case, and be is guilty of this, and I am sure of other crimes.”

This was held to be sufficient to justify'reversal.

In the case of Martin v. State, 63 Miss. 505, 56 Am. Rep. 813, the prosecuting attorney said:

“Martin, the defendant, is a man of bad, dangerous, and desperate character; but I am not afraid to denounce the butcher boy, although I may, on returning to my home, find it in ashes over the heads of my defenseless wife and children.”

The' Supreme Court held that it was the duty of the presiding judge to interfere in such case of his own motion, and for his failure to do so gave the defendant a new trial.

The following excerpts are a fair sample of the rebukes administered to statements made by prosecuting attorneys, by courts following the more rigid rule. In Perkins v. Burley, 64 N. H. 524, 15 Atl. 21, counsel for the plaintiff in his closing argument, said:

‘’‘'That if they (the jury) knew how the. plaintiff and his father and brother were regarded in the vicinity in which they lived, he would be willing to submit the case without argument.”

This was held to be sufficient ground for setting aside the verdict.

The case of State v. Thompson, 106, La. 362, 30 South. 895, is one where the defendant ” was convicted of murder and sentenced to death. The only error assigned was a statement by the prosecuting attorney in his closing argument, “I will say nothing to you of her six fatherless little children.” There was no proof that the widow of the deceased had six children. The Supreme Court held this language was calculated to prejudice the jury against the defendant and reversed the case. The case of Long v. State, 81 Miss. 448, 33 South. 224, is one where the defendant was on trial for burglary. The evidence was to the effect the defendant entered the house of one Lawson at night. Lawson’s daughter, a girl about 16 years old, was awakened by cold hands on her face, looked up, and saw the defendant standing by her bed. The district attorney, in his argument to the jury, made use of the following remarks:

“The defendant was in the house on the occasion when his offense was committed, not for the purpose of committing the crime which he is charged with alone, but for the purpose of committing another crime, - one of the vilest known.”

The Supreme Court of Mississippi held that this statement was calculated to inflame the jury and arouse their- prejudices, and for this error reversed the case.

For the reasons mentioned, we do not believe the defendant in this case had a fair and impartial trial,

Therefore .the judgment of the trial court is .reversed, and the cause is remanded, with directions to grant the defendant’s motion for new trial.

FTTBMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: DOYLEi, Judge

text:
      Ex parte Ralph Brown.
    No. A-422.
    Opinion Filed December 18, 1909.
    (105 Pac. 577.)
    1. HABEAS CORPUS — When Lies — Irregularity in Procedure. Habeas corpus does not lie to correct mere irregularity of procedure. where there is jurisdiction. There must he illegality or irregularity sufficient to render the proceedings void.
    2. COURTS — County Courts — Criminal Jurisdiction. The jurisdiction of a county court in criminal cases is the same in all respects, whether its sessions are . held at the county seat or at a county court town.
    S. JURISDICTION — What Constitutes. When there is jurisdiction of the party and of the offense for which he was tried, the decision of all other questions arising in the case is hut an exercise of that jurisdiction.
    4. COURTS — County Courts — Presumption as to Jurisdiction. County courts are entitled to the same presumption of jurisdiction as are the district courts.
    (Syllabus by the Court.)
    Application of Balph Brown for writ of habeas corpus.

    Writ denied.
    The petitioner, Balph Brown, on November 11, 1909, filed in this court a petition signed and verified by his oath, wherein he avers that he- is unlawfully restrained of his liberty by one W. A. Fox, sheriff of Payne county, at and in the common jail of said count}', and for the reasons stated therein .petitioner prays that a writ of habeas corpus be allowed, and that'he be discharged. On said date there was also filed a stipulation and agreed statements of facts, as follows:

      “Stipulation.
    “The petitioner by his attorney, Freeman E. Miller, having filed-his application for habeas corpus, in the above-entitled cause, the state of Oklahoma, by J. W. Reece, county attorney of Payne county and by the Attorney General, waive the issuance of a formal writ in the above-entitled matter, and waive the presence of the petitioner and submit the cause to the court upon an agreed statement of facts hereto attached and marked ‘Exhibit A,’ and made a part of this stipulation. It is further stipulated and agreed that the petitioner is now actually confined in the county jail of Payne county, under judgment and sentence of the county court of said county, for an alleged violation of the liquor law, penalty assessed being $'200;Ó0 fine and 90 days in jail, and that the county court fixed an • appeal. bond in the sum of $800.00 which has not been given by the petitioner. It is further stipulated- that the timé for! giving of said bond -has not yet elapsed. It is-further-, stipulated--that .the-attorney for the..petitioner in error may have 110- days 'from this date in which-to file brief in support of his application, and.that the state shall have. 10 days additional .to file, answering Brief.-’. It is'further' hereby stipulated between .the parties, that the court may fix .a -bond in such sum as it may deem proper for the appearance of the petitioner, pending the hearing herein.. , , .
    “Dated at Guthrie, Oklahoma^ this the 11th day of November, 1909.
    “FreemaN E. Miller,
    ■■ “Attorney. for Petitioner.
    ■" ' ' ' “J. W. Reeoe,
    “County Attorney, Payhie County.
    “Chas. L. Moore, -
    , ' “Assistant Attorney General.”
    “Agreed Statement of Facts.
    , , “It is hereby agreed by and between Ralph Brown and the state of Oklahoma that the following are 'the facts in the matter:
    “That on September 30, 1909, there was filed by the clerk of the county, court- of Payne county, Okla., -in his office, at Stillwater, the county seat-of Payne county, an information, duly, verified, .presented by. J. W. Reece, county attorney, substantially charging .said Ralph Brown with having, on June 10, Í909, unlawfully sold one pint of wliisky to Win. Walker1’for the'price of $1. That said defendant, Ralph Brown, was on October % 1909, duly .arrested on warrant under said information, and on October 4, Í909, said defendant was duly arraigned on the .charge contained in said information, in the county court of Payne county, Okla., at Stillwater and entered his plea of Not guilty/ and his bond fixed by said court in sum of $400. That on the 4th day of October, 1909 said county court at Stillwater set said cause for assignment at Stillwater for trial, on the 19th day of October, 1909, and defendant had due notice that cause would be assigned on that day for trial at future day. That On October IS, 1909, defendant filed in said county court at Still-water, Okla., his -written request' and demand that the' same be set down and assigned for trial- at Stillwater. That afterwards on October 15, 1909, said county attorney filed his - affidavit in said' cause deposing and saying that public convenience and- the convenience of the parties in interest and of the witnesses require that the hearing in the above cause be had at Cushing, Payne county, Okla. That afterwards on said 15th day of October, 1909, said county court at Stillwater, the state' and defendant being present, overruled said'demand and request of defendant for'trial at Stillwater, and ordered and adjudged that said cause be assigned for trial at Cushing, Payne county, Okla., ■ on' the- 1st-day of November, 1909, and to all and each said defendant duly objected and excepted. That on Monday,. November 1, 1909, the county court of Payne county convened and opened in regular term at town of Cushing, Payne county,' Okla.; with Hon.' P. D. Mitchell, county judge, present as presiding judge; and there were also present Lulu M. Regnier, county court' stenographer and, ea; oficio clerk of county court, Al Goldsby; deputy sheriff. J. "W. Reece, county attorney, and also other attorneys.
    : ■ “That on said Monday, November 1, 1909, the county court of Payne county, Okla., sitting at town of Cushing, took up.in order all cases set for trial for that day, and by reason of other cases standing for trial with priority, the case of State v. Ralph Brown W.as not called for trial until Tuesday, the 2d day of November, 1909. That .afterwards on November 1, 1909, the said defendant duly, filed in the county court at Cushing, Okla., his special appearance and objection to the jurisdiction of said county court sitting at Cushing to try said cause or to make any order or proceedings therein, for the reason that said court sitting at Cush-ing had no jurisdiction to try, hear, or determine the same, or to make any order or proceeding therein, which objection was by the eoiinty court sitting at Cushing in all things overruled, to which action of the court the defendant at the time duly excepted. That on November 2, 1909, the said cause was called for t;ri¿4 and the objection of the defendant to the jurisdiction of the court having been overruled, and the defendant having excepted thereto as aforesaid, all at the town of Cushing, Okla., the court ordered said trial to proceed; and thereupon a jury was duly impaneled, and said cause was tried at the town of Cushing, Okla., by a jury, and afterwards on the same day said jury returned into the court sitting at the town of Cushing as aforesaid their verdict finding the defendant guilty as charged in the information, and fixing his punishment at a fine of $200 and imprisonment in the county jail for 90 days. That afterwards on the 4th day of November, 1909, the defendant filed in said county court sitting at Cush-ing his motion for a new trial, one of the grounds therein stated being that said court sitting at Cushing had no jurisdiction to hear, try, or determine said cause, or to make any order or proceeding therein; and that afterwards on November 5, 1909, the sáid motion for new. trial was heard and .considered by the said county court at the town of Cushing, and in all things overruled, to which ruling of the court the defendant at the time duly excepted. That afterwards on said November 5, 1909, the said defendant filed in said county court at the town of Cushing, aforesaid, his motion and application in arrest of judgment, which motion and application in arrest, of judgment was heard and considered by said county court at the said town'of Cushing, and in all things overruled when so sitting, to which action of the court the defendant at the time duly excepted.
    “That thereafter on said November o,' 1909, the said county court, while sitting at the town of Cushing aforesaid, sentenced the said defendant in said cause and entered upon his record of the proceedings of said court an entry thereof, finding him guilty as charged in the information, and sentencing him as a punishment therefor to pay to the state of Oklahoma a fine of $200 and to serve a term of 90 days in the'county jail of said county, and to. pay the costs of the prosecution, to which action, order, and judgment of the court the defendant at the time duly excepted. That a true' and correct copy of said judgment and sentence is hereto attached as ‘Exhibit A/ and made a part hereof. That a commitment on said judgment and sentence was issued by said county court on the 5th day of November, 1909, and said defendant is now confined in county jail of Payne county, Okla., by W. A. Fox, sheriff, by' virtue of said commitment and judg-merit and sentence. That the presence before this conrt of Ralph Brown, -defendant, is hereby'waived. That said defendant, Ralph Brown, at all times herein mentioned, was and is a legal resident of the immediate vicinity" of town of Cnshing and within two miles of the county court room in said town of Cushing. That said defendant, Ralph Brown, on the «Oth day of October, 1909, presented his appearance bond in said cause, and same was duly approved, and he was at liberty, until judgment and sentence was passed upon him on November 5, 1909, as above. That said appearance bond is hereto attached as 'Exhibit B’ and made a part hereof. ■ •
    “Witness our hands this 11th day of November, 1909. “Freeman E. Miller,
    “For Petitioner.
    “Chas. West, Atty. Gen.,
    “Chas. L. Moore)' Asst. Atty. Gen.,
    “J. IF. Reece, Co. Atty.,
    “For Respondent.”

      Freeman E. Miller, for petitioner. .
    • Chas. West, Atty. Gen., Chas. L.-Moore,- Asst. Atty. Gen., and J. W. Reece, Co. Atty., for the State.
   DOYLEi, Judge

(after stating the facts as above.) This proceeding presents but one question. Did the county court of Payne county, 'convened at the court town' of Cushing, have jurisdiction of the party and of the offense for which he was tried?

Article 13, c. 19, p. 255, of the Session Laws of 1907-08 entitled “An act t.o provide for holding sessions of the county court of Payne county, Oklahoma, at the town of Cushing, in said county,” provides for holding sessions of the county court 'of Payne county at the town of Cushing. Section 2 of said act reads’as follows:

“Sec. 2’. The jurisdiction of-said court shall be the same in all. respects as if exercised at the county seat. Any person instituting proceedings in said court may.lile, at the time, an affidavit, showing that the convenience of the parties in interest requires the hearing to be had at said town, and it shall be so ordered; provided, that such' parties may subsequently agree to transfer such hearing to the county seat.”

The petitioner at every stage of the proceedings objected to iieing tried at Cushing. Counsel for petitioner contends that the trial, conviction, and sentence in the county court of Payne county convened at Cushing was illegal, null, and void for want of jurisdiction, and argues ingeniously that the affidavit provided for in said section 2 is a necessary prerequisite to obtaining jurisdiction to try the cause at the town of Cushing. He places particular stress upon the clause fixing the time the affidavit should be filed.' That portion of said section reads as follows:

“Any person instituting proceedings in said court may file, at the time; an affidavit, showing that the convenience of the parties in interest requires the hearing to be had at said- town, and it shall be so ordered.”

Counsel in his brief says:

“The phrase ‘at the time’ can refer to no time other than the time when the proceedings are instituted, and in this case they were instituted when the information was filed on September 30, 1909. They certainly had been ‘instituted’ long before October 4. 1909, when defendant was arraigned and entered his plea of hot guilty to the charge, and long before October 15, 1909, when the defendant’s written demand for a trial at Stillwater was overruled, by the county court and when the county attorney filed the affidavit for a transfer of the cause to the town of Cushing. As we view it, the law simply means that the county court at Still-water never has jurisdiction to try a cause except by retransfer under the agreement of the parties if the affidavit for transfer has been filed at the time the proceedings are instituted, and, on the other hand, if the affidavit is not filed ‘at the time’ the proceedings are instituted, the court at Stillwater has full and complete jurisdiction of the. case, from which it cannot be ousted by an affidavit ■subsequently filed, after arraignment and plea and written demand for trial by the- court at Stillwater.”

We cannot believe that this contention is well founded. As we view this provision, it furnishes merely a rule of practice applicable in a certain class of cases. The jurisdiction of the county court of Payne county is the same in all respects, whether the sessions are held at the county seat or at Cushing.

Section 1, art. 7, of the Constitution, provides:

“The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or, boards, inferior 10 the Supreme Court, as may be established by law.”

In section 11 of said article 7 it is provided:

“There is hereby established in each county of this state a county court, which shall be a court of record.”

In section 12 of said article 7 it is provided:

“County courts shall have jurisdiction concurrent with justices of the peace in misdemeanor eases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction.”

In section 13 of said article 7 it is provided:

“The county court shall be held at the county seat, but the Legislature may provide for holding sessions of the county court at not more than two additional places in the county.”

Section 2007, Snyder’s St., provides:

“In the several counties of this state commencing on the first Mondays of January, April, July and October of each yéar, except as otherwise herein provided, county court shall convene at the county seat and continue in session so long as the business may require: provided, that said court shall always be open for the transaction of all probate business in their respective counties.’ ”

Section 2009, Snyder’s St.,- further provides:

“If there is only one place other than the county seat at which it is provided by law for holding terms of the county court, the terms of. said court at such place shall commence on the first Mondays of February, May, August and November of each year, and continue in session for the period of 3 weeks, if the public business requires it.”

It appears from the agreed statement that the October term of the county court of Payne county convened at Cushing on Monday, November 1st, as prescribed by section 2009, Snyder’s St., above quoted, and, in the exercise of its exclusive jurisdiction to try this class of misdemeanors, the petitioner was there tried, convicted, and sentenced for a violation of the prohibition law. Where the power of a court in a particular matter is derived directly from the Constitution, it is not a special jurisdiction, and jurisdiction will be presumed unless the contrary appears of record. Ex parte Earl Howard, 2 Okla. Cr. 563, 103 Pac. 663. Section 5137, Snyder’s St., provides:

“The proceedings of this court are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there are accorded like force, effect and legal presumption as to the records, orders, judgments and decrees of district courts.”

We are of opinion that the manner and method of assigning criminal cases for trial by the county court of Payne country, at the county seat or at the town of Cushing, is not jurisdictional, and therefore does not present a question that will be reviewed in a habeas corpus proceeding. In section. 620?, Snyder’s St., it is provided that:

“No court or judge .shall inquire -into the legality of any judgment or process, whereby the party is in custody, or discharge him when the .term of commitment has not expired in either of the cases following: ’ * * * (2) Upon any process issued on any final judgment of a court of competent jurisdiction.”

Upon principles which may be considered well settled by a series of decisions of' this court, the writ of habeas corpus does not lie to correct mere irregularity of procedure, where there is jurisdiction. There must be illegality or irregularity sufficient to render the proceedings void for want of jurisdiction. Ex parte Charles Johnson, 1 Okla., Cr. 414, 98 Pac. 461; In re Geo. McNaught, 1 Okla. Cr. 528, 99 Pac. 241; Ex parte Flowers, 2 Okla. Cr. 430, 101 Pac. 860; Ex parte Earl Howard, supra; Ex parte Mingle, 2 Okla. Cr. 708, 104 Pac. 68; Ex parte Justus, ante, p. 111, 104 Pac. 933.

The' statutes contain 37 acts creating county court towns. It is to be' regretted that many of these acts were drawn carelessly and' with a total disregard of 'legal certainty, and there seems to have been no effort to secure 'uniformity in their various provisions. The various acts were necessarily fruitful of legal questions. To1 relieve this condition the general law was passed, to wit,'article 9, c. 14, p. 191, Sess. Laws 1909, providing for uniformity in the sessions of county courts in the several counties in the state, and repealing all laws in conflict therewith- This -act became effective June 11, 1909. The constitutionality of this law is unquestionable.

"Viewing the law as we do, the application for writ of habeas corpus for the release of the petitioner will be denied.

FUEMAN, PRESIDING Judge, and OWEN, Judge, concur.


author: PEE CTJEIAM.

text:
      Ex parte Geo. W. McNaught.
    No. A-353.
    Opinion Filed December 18, 1909.
    (105 Pac. 1119.)
    Application of George W. McNaught for writ of habeas corpus.

    Application denied, and case dismissed.
    See, also, 1 Okla. Cr. 528, 99 Pac. 241; 1 Okla. Cr. 260. 1C>0 Pae. 27.

      Bessey & Gray, for petitioner.
   PEE CTJEIAM.

The petitioner, Geo. W. McNaught, on October 11, 1909, filed in this court an application for a writ of habeas corpus, wherein it is averred that he- is unlawfully' restrained of his liberty by E. W. Dick, warden of the state penitentiary, at and in said penitentiary at McAlester, Okla. Counsel for petitioner, in view of the fact that an appeal has been taken by said petitioner from the judgment and sentence under which he is now held, consent that this cause be dismissed. The application is therefore denied, and said cause is hereby dismissed.


author: PER CURIAM.

text:
      Ex parte Edward B. Justus.
    No. A-459.
    Opinion Filed December 18, 1909.
    (105 Pac. 1119.)
    Petition of Edward B. Justus for writ of habeas- corpus.

    Petition denied.

      Eubanks & Elder and Ohas. T. Keller, for petitioner.
   PER CURIAM.

The petitioner, Edward B. Justus, on December 3, 1909, filed in this court a petition signed and verified by his oath, wherein he avers that he is unlawfully restrained of his liberty by one R. E. Rader, sheriff of Kay county, at and in the common jail of said county. For the reasons stated therein, petitioner prays that the writ of habeas corpus be allowed, and that he be discharged. On said day there was also filed an agreed statement of facts. We do not deem it necessary to further consider this cause than to state that in the case of Ex parte Justus, ante, p. 111, 104 Pac. 933, opinion rendered October 25, 1909, the petitioner was by decision of this court remanded to the custody of the sheriff of Kay county, with direction to the district court of said county to proceed in accordance with the views of this court as expressed in said opinion. For this reason, the application for a writ of habeas corpus is denied.


author: PEE CUBIAM.

text:
    F. M. Speece v. State.
    No. A-389.
    Opinion Filed December 20, 1909.
    (105 Pac. 1119.)

      Error from Canadian County Court; H. L. Fogg, Judge.

    T. M. Speece was convicted of violation of the prohibition law and brings error.
    Dismissed.

      Frame, Roberson & Roberson, for plaintiff in error.
   PEE CUBIAM.

T. M. Speece, plaintiff in error, was convicted in the county court of Canadian county for a violation of the prohibition law, and was on the 27th day of October, 1908, sentenced to pay a fine of $100 and be confined in the county jail of Canadian county for a period of 60 days, and if said fine of $100 and costs, amounting to $-, be not paid, said defendant be confined in said county jail an additional time in proportion of one day. for each $2 of the fine and costs aforesaid. On October 26, 1909, there was filed in this court his petition in error and case-made, together with proof of notice of appeal. On December 11, 1909, there was filed in this court on behalf of said plaintiff in error a dismissal of said appeal. Wherefore, without consideration by the court of said cause, said appeal is hereby dismissed, with direction to the county court ot Canadian county to cause the judgment and sentence to be carried into execution.