text:
    IRA E. WILLIAMS v. STATE.
    No. A-3522.
    Opinion Filed July 16, 1921.
    Rehearing Denied Aug. 5, 1921.
    (199 Pac. 400.)
    (Syllabus.)
    1. Appeal and Error — Discretion of Trial Court — Change of Venue. The granting of a change of venue is by statute made discretionary with the court, and this court will not reverse the ruling of the trial court refusing a change of venue unless there has been such an abuse of discretion as will amount to a practical denial of justice.
    2. Venue — Change of Venue — Requisite Showing of Prejudice. In order to warrant a change of venue by reason of prejudice existing against a defendant, it must be shown that such prejudice extended throughout the county generally, and it is insufficient to grant a change of venue upffii a showing that impartial jurors cannot be procured from a portion of the county only. E*
    3. Judges — Disqualification—Mandamus. Where a claim is made for any reason, as provided in section 5816, R. L. 1910, that the regular presiding judge is disqualified to try the case, and where upon presentation to the trial court of such claim of disqualification the court captiously or for insufficient reasons refuses to certify his disqualification, this court in a proper showing in a mandamus proceeding may compel him to do so.
    4. Appeal and Error — Discretion of Lower Court — Transfer of Causes. The superior court, or the judge thereof, may in his discretion transfer to the district court any cause pending and undetermined therein which may be within the jurisdiction of the district court (Sess. L. 1915, p. 25); and a refusal to exercise such discretion will not be disturbed by an appellate court unless there was a clear abuse of such discretion, to the manifest prejudice of one or the other of the parties.
    5. Courts — Creation of Superior Court — Constitutionality of Act. The act of the Legislature creating a superior court for Okmul-gee county was not beyond the constitutional powers of the Legislature.
    6. Rape — Conviction—Sufficiency of Evidence. A careful examination of all the testimony in this case shows that the verdict was amply supported by the evidence.
    6. Trial — Improper Argument — Duty of .Court. Where any attorney in the trial of a cause has been repeatedly admonished by the court to refrain from making argument to the jury concerning matters previously excluded by the court, or concerning matters not in evidence before the jury, and such attorney pays no attention to such admonitions, it would be proper for the court to interrupt the argument and have the jury retire and reprimand or punish such attorney in some manner appropriate to the occasion.
    8. Appeal and Error — Harmless Error — Improper Argument. .Certain remarks of the county attorney in his argument to the jury, relating to matters outside of the record, held improper; but under the circumstances disclosed by the entire record in this case, applying the provisions of section 60(15, R. L. 1910, commonly known as the harmless error statute, the judgment of the trial court in this instance will not, for that reason, be set aside.
    9. Evidence — Previous Good Character of Accused — 'Instruction. The previous good character of a defendant may properly be considered by the jury in mitigation of the punishment, and a requested instruction to that effect should have been given.
    Appeal from Superior Court, Okmulgee County; R. B. Simpson, Judge.
    Ira E. Williams was convicted of the crime of rape in the first degree and sentenced to a term of 99 years in the state penitentiary, and he appeals.
    Affirmed, as modified.
    F. P. Branson, E. M, Carter, H. J. Sturgis, L. H. Little, Moman Pruiett, Victor A. Sniggs, Crawford D. Bennett, and W. R. Bleakmore, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from a judgment against Ira E. Williams, convicted of the crime of rape in the first degree, rendered in the superior court of Okmulgee county on the 28th day of September, 1918. The facts implicating the defendant, plaintiff in error here, as shown by the record before us, are to the effect that Sue Bonds, the prosecuting witness, was reared on a farm in Arkansas, from where she came to Okmulgee to visit friends in August, 1917. That after she had visited there for three weeks or more, at the suggestion of her friends, she obtained employment in Okmulgee and remained there, engaged in various employments, until the time she met defendant, July 23, 1918, the date of the offense charged. That at this time she was about 22 years of age, unmarried, not in the best of health, and weighed about 119 pounds. That during the winter Miss Bonds took a commercial course in a business college in Okmulgee, where she became acquainted with a Mrs. Cummings, who was instrumental in arranging a meeting between Miss Bonds and this defendant.

The record shows that the defendant, Ira E. Williams, •was a man of about 36 years of age; that his early life was spent in Osage county, Mo., and that about the time he reached his majority he and the other members of his family came to Enid, Okla., where he was first employed as a clerk in a hardware store. Afterwards he became a traveling salesman, and for some time prior to the alleged offense he had been a traveling solicitor and salesman for the Shapley Hardware Company, with headquarters at Okmulgee. That the defendant had been twice married and was divorced from each of his wives. That he was a strong man, in good health, and weighed about 190 pounds.

That some time during the afternoon of July 23, 1918, the defendant took some whisky to the office of a Mr. Fagan, a friend and associate of his, and that they took several drinks, after which the defendant inquired of Mr. Fagan as to what he proposed to do that night. Mr. Fagan informed him that he had a date with his sweetheart, Mrs. Cummings; that defendant then inquired of Fagan whether she had a friend with whom he might make a date. They got into communication with Mrs. Cummings over the phone and she agreed to try to make the arrangement defendant desired with Miss Bonds, the prosecuting witness. After waiting a while they again called Mrs. Cummings, who reported that the lady refused to go, that she was busy sewing. In this conversation over the phone it was suggested by Mrs. Cummings that possibly if Mr. Williams would call her up, he could make the desired arrangement, and she informed the defendant of Miss Bond’s name and phone number.

On the Saturday evening before this Mrs. Cummings had told Miss Bonds that Mr. Fagan had a friend working in Mr. Black’s office from the same vicinity in Arkansas where Miss Bonds had formerly lived, and that this friend wanted to meet some nice girl. Miss Bonds replied that she would like to meet him. There is evidence tending to show that when the defendant called Miss Bonds over the telephone she supposed that it was this gentleman from her home community in Arkansas. Miss Bonds finally agreed with the defendant that he, Mr. Fagan, and Mrs. Cummings should call at her rooms at the Mansion House at about nine o’clock, with the expectation that they would later take an automobile ride together. At the appointed time these three went to the Mansion House, where Mr. Fagan called Miss Bonds out on the ¡porch and introduced this defendant to her. These three persons came there in a Ford roadster and invited Miss Bonds to join them for a ride; this she refused to do, stating that there was not sufficient room for four persons to ride in a Ford roadster, and asked if they didn’t have a five-passenger car. Fagan then went to the garage and procured another roadster for Williams. There is evidence tending to show that this arrangement had been previously designed by the defendant and Fagan; that the defendant did not know how to drive' a Ford car, and that Fagan had given the defendant instructions and demonstrations between the time he made the arrangement to call on Miss Bonds and the time he did call. After some conversation Fagan and Mrs. Cummings got into one roadster and Miss Bonds and the defendant into another, and the defendant drove out of the city on the streets and roads not much traveled. Fagan and Mrs. Cummings drove away in another direction and were not seen any more that night.

The testimony of Miss Bonds is to the effect that she did not know that the defendant was not the young man from her old home' community until after he was introduced to her by Fagan. That immediately after getting into the car with the defendant he began to take liberties with her person, which she resisted and repulsed; that at the first opportunity, when the car was stopped, she got out and attempted to run away, but that the defendant overtook her and with his superior physical strength dragged her back into the ear, and then proceeded to a more isolated spot, where he again stopped the car and she again got out of the ear and attempted to escape. That he overtook her, caught her in his arms and forced her back against the front part of the rear fender, where, after a prolonged struggling and resistance, she was finally overpowered and he succeeded in ravishing her. Having accomplished his purpose, he took her back to the Mansion House where she roomed. Other witnesses testified that on her return she ran from the car to the room of her landlady, in a highly nervous and hysterical condition, and reported to the landlady what had occurred. With the assistance of others, she was undressed and put to bed. A physician was called, who at once made a physical examination of the female organs and a microscopic examination of the discharge there found, the results of which indicated recent sexual intercourse and a recently ruptured hymen, tending to show that she had hitherto been a virgin. Her clothing was soiled, torn and disarranged. Several witnesses testified that a day or two following her lower extremities were covered with many black and blue spots, the result of bruises lately inflicted.

The defendant admitted the act of sexual intercourse and claimed that Miss Bonds submitted to his caresses without protest, and that the sexual act was voluntary and agreed to by her for a money consideration.

This record is voluminous, containing more than 1900 pages. In the trial below the state was represented by five lawyers, and the defendant by a like number. The defendant claimed that the minds of the people of Okmulgee county were so inflamed against him that he could not have a fair trial in that county; that there was' much prejudice against him, aggravated by inflammatory newspaper notoriety; that immediately after he had been arrested a mob collected, threatening summary vengeance; and that the court and the officers of the court were so prejudiced against him that he could not have and did not have a fair trial. Every dilatory plea and motion known to our practice was interposed in his behalf, the records of which comprise about 700 pages of this record. Among other motions was a motion for a continuance, in which it was urged that if the ease could be postponed for ■a reasonable time the passions and prejudices of the people anight subside. All of these motions, asking for a change of venue, a change of judge, a transfer to the district court, and continuance, were by the court overruled, and the defendant was forced to trial on the merits in the sixth week after the unhappy occurrence charged.

Numerous assignments of error have been interposed by the defendant as reasons why this judgment and sentence should be reversed. We have carefully examined the whole record and the points urged and argued in the briefs, reply briefs and supplementary briefs on file. In order that this opinion may not be extended to an unreasonable length we will notice only those we deem of vital importance or that may have operated to the prejudice of the defendant, grouped as follows:

First. The petition for change of venue should have been granted.

Second. The motion for a change of judge should have been sustained.

Third. The statute creating the superior court of Okmul-gee county is unconstitutional and the court was without jurisdiction to try the case.

Fourth. The verdict is not sustained by and is contrary to evidence and the law applicable thereto.

Fifth. Misconduct of the county attorney in his closing argument to the jury.

Sixth. The court erred in giving instruction No. 15, and in refusing the requested instruction No. 14 in lieu thereof.

1. The application for a change of venue was heard on the 31st day of August, 1918, five weeks after the commission of the offense, and testimony of twelve witnesses was heard in support of the motion, among whom was a former judge of the district court of Okmulgee county and a State Senator.

The state resisted the motion for a change of venue by the oral testimony of six witnesses, including a registration officer, a physician from Beggs, and the mayor of the town of Morris. In addition to the above, there were filed by the state affidavits signed by 48 residents of various parts of the county, to the effect that the sentiment of the community was not such as would prevent the defendant’s having a fair trial.

As might be expected in a controversy of this character personal beliefs of the witnesses, relating to the temper of the inhabitants of the county and whether or not the defendant could have a fair and impartial trial, were more or less conflicting and to a large extent mere matters of opinion. The testimony of Judge Carruthers was probably stronger in favor of the defendant than that of any other witness upon this issue. His testimony was that there existed strong local feeling that the defendant was guilty of the crime charged, and that he was not certain about the wisdom of trying the case in Okmulgee county; that if he were the presiding judge he would be a little afraid that the Criminal Court of Appeals would reverse the case if it were tried in that county. The prejudice shown by the defendant to exist against him was confined to the vicinity of the city of Okmulgee and related, for most part, to the feeling that had existed immediately after the offense was committed; and this feeling was not so much, directed against the defendant as it was against the crime of which he was accused.

The fact that the inhabitants of the city of Okmulgee were incensed and shocked by the revolting circumstances surrounding this affair, • as gathered from newspaper articles appearing in the local press and the stories of the occurrence circulated in that community, would be complimentary to the citizenship of that town. If the mental attitude of the people was such that they refused to become excited or took no interest in a case where an innocent, unprotected girl had been brutally ravished, it would indicate that the citizenship of the community was indifferent as to whether the laws relating to violent and abhorrent crimes were enforced or not. Too frequently, where a defendant has a weak defense to the merits of the accusation and where he is represented by astute and able counsel, such defendant takes advantage of all the dilatory pleas and motions available in order to postpone and remove the case from time to time and from pla.ce to place, with the hope and expectation that some of the witnesses will die or .remove from the state, so that when the trial on the merits is finally reached the state wili be unable to make out its case, and so defeat the ends of justice.

The granting of a change .of venue is by statute made discretionary with the court, and this court will not reverse the ruling of the trial court, refusing a change of venue, unless there has been such an abuse of discretion as will amount to a practical denial of justice. Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341.

In order to warrant a change of venue by reason of prejudice existing against a defendant it must be shown that such prejudice extended throughout the county generally, and it is sufficient to grant a change of venue upon a showing that impartial jurors cannot be procured from a portion of the county only. In this case, the showing of prejudice made by the defendant related chiefly to the state of mind of the people in and about Okmulgee and was more or less conflicting, and where such conflicting evidence fails to show that such prejudice existed throughout the county, the court’s finding thereon will not be disturbed' on appeal. Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 27 R. C. L. 816; State v. Gordon, Ann. 1918A, 442 (N. Dak.); State v. Casey (Nev.) 117 Pac. 5; Elias v. Ter. (Ariz.) 76 Pac. 605, 11 Ann. Cas. 1153; Earles v. State (Tex. Cr.) 85 S. W. 1.

2. The application for a change of judge or a transfer of the cause to the district court was, under the circumstances in this case, properly overruled. If the defendant knew or believed that the superior judge of Okmulgee county was disqualified, he should have proceeded as provided in section 5816, R. L. 1910, and if there were grounds existing that operated as a disqualification and the court refused to certify his disqualification, this court upon a proper showing, in a: mandamus proceeding, could have compelled him to do so. The record here discloses that the court, throughout the trial-on its merits, to the best of his ability accorded to the defendant every right to which he was entitled. In many instances, touching the admissibility of testimony, the exclusion of testimony, and in respect to other matters of procedure, where there was any doubt that doubt was generally resolved in favor of the defendant. This- was as it should be, and we find no error under the second assignment.

3. The third proposition urged, that the superior court of Okmulgee county was without jurisdiction to try the case for the reason that the statutes creating this court are unconstitutional and void, is without merit. The constitutionality of the creation of superior courts for certain designated counties in this state has been upheld by the Supreme Court of this state and by this court. Leatherock v. Lawter, 45 Okla. 716, 147 Pac. 324; Diehl v. Crump, 72 Okla. 108, 179 Pac. 4; Ex parte Whitehouse, 3 Okla. Cr. 97, 104 Pac. 372.

4. It is next urged that the verdict is not sustained by the evidence. A careful reading and consideration of all the evidence in this case convinces us that no fair, impartial jury could arrive at any other conclusion than that of the guilt of the defendant. It' would be neither edifying nor instructive to recite here at length the voluminous testimony in this case, and we deem it sufficient to say that the theory of the state was amply supported by credible evidence, both direct and circumstantial. We are not unmindful of the fact that testimony in cases of this character should receive the close and painstaking scrutiny of the court. This has been given in this case. We do not remember ever having examined a record in a case of this character where the evidence of guilt was so convincing as in this case.

5. Under the fifth assignment of error it is urged that this case should be reversed because the county attorney, in his closing argument to the jury, argued and discussed matters outside of the record, to the prejudice of the defendant. We quote from the record some of the remarks of which complaint is made:

"I say this, gentlemen of the jury, did you observe that when Mr. Pruiett started to make his argument that he addressed himself five or ten minutes to the court ? He told the court he never saw a case so well conducted, with so few exceptions, as had been made in this ease. Exceptions! That is true, there were but few exceptions made in this case. But, listen, there were a great many objections made, were there not? Who from? From this side of the table? If it were not for those objections, we would have thrown the curtains back, thrown the searchlight on this defendant’s character — ”•

To the remarks above made the defendant objected, and the objection was sustained by the court in the following language :

“Don’t state anything outside the record. The jury will consider nothing in this case but testimony of the witnesses and the law as given in the instructions. ’ ’

Immediately after this admonition the county attorney stated:

“But what is the truth in this matter? I say to you, there were a great many objections made, and if it hadn’t been for those objections the curtains would have been thrown back — ”

Here another objection was interposed, and the court again admonished.the county attorney to refrain from stating anything outside of the record. Closely following, the county attorney made the following remarks to the jury:

“You remember he stood before you, himself, and said that a young man who was unmarried in this state could do anything he wanted to; that he didn’t have to be chaste, moral —that’s what he said to you, that is one of tfie objections I had reference to; but at that place we could have thrown the curtains back and shown—
“By Mr. Sturgis: We insist on counsel waiting until we make our record. If the court pleases, I insist that counsel is discussing matters that have never been introduced here in evidence, and we ask that counsel be admonished not to continue, and that the jury be instructed not to consider the remarks of counsel.

By the Court: Objection sustained. Counsel for the state is admonished not to continue this line of argument, and the jury are instructed not to consider the remarks of counsel, outside of the record in this case.”

A little farther on in the record appears the following:

“What other extremities they were driven to to prove that this man had a good reputation, a reputation for being a moral, chaste character? No—
“By Mr. Sturgis: We except to that remark. His reputation as a moral, chaste character was never in issue, and we except to the remark of the county attorney and ask that the court admonish the jury not to consider it.
“By the Court: That objection is sustained; that was not in issue in this ease, and the jury are now instructed not to consider the remark of the county attorney.”

A little later the following statement was made:

“Yet they would not let us prove what his reputation was— they dared not—
“By Mr. Carter: We think that is'unfair; that point has been ruled on by the court. We object to it as unfair.
“By the Court: The objection is sustained and the jury will not consider those remarks.”

Closely following, this statement appears:

“Let’s see what else. They asked this girl if she didn’t go up to Muskogee and lay up with some other fellow over there. What for, men? Was that fair? I suppose it is fair on this side of the table—
“By Mr. Carter: What girl do you refer to?
“By Mr. Eaton: I am talking about Miss Bonds.
• “By Mr. Carter: We except to that remark — we object to that as outside of the record, no insinuation was made as to that, she told how long she stayed up there.
“By the Court: Objection sustained. The jury will not consider that last remark.
“By Mr. Eaton: Your honor, I say that that is in the record.
“By the Court: The court has ruled, proceed.”

In rebuttal the state sought to show that Miss Bonds, the prosecuting witness, was in Ft. Smith, Ark., on a certain day, by a Mr. Cope, a clerk of a hotel in that city. Mr. Cope came upon the witness stand in the presence of the jury, but before testifying an objection was interposed, touching the competency of the testimony about to be introduced. The jury was then excused and retired, and the testimony of this witness was heard by the court , and by the court excluded. To this testimony the county attorney made reference in his argument to the jury as follows:

“What else have we? You saw Mr. Cope sworn here, appeared on the witness stand. Gentlemen, you heard — ”

To this line of argument the defendant objected, and the court again admonished the county attorney as follows:

“Just a minute, Mr. Eaton; that objection is sustained and the county attorney will not discuss that question any further.”

Later on the county attorney made these remarks:

“What about the register from the hotel at Ft. Smith? What about Mrs. Woods from Oklahoma City? We brought them to you. You wouldn’t receive them after we brought them to you.
“By Mr. Pruiett: We object to that remark as highly improper, not based upon any testimony in this case. Just a minute, Mr. Eaton.
“By the Court: That objection is sustained. Gentlemen of the jury, you are admonished not to consider any remarks made by the county attorney in this ease that is outside of the record. ”

It is needless to say that the remarks of the county attorney relating to matters outside of the record were improper, and the county attorney must have known at the time he made them that they were improper. The court should at all stages of the trial exercise control over the attorneys and officers of the court, to the end that the trial may proceed in a legal and orderly manner; and where, as in this case, the county attorney has been repeatedly admonished by the court to refrain from making arguments to the jury concerning matters previously excluded by the court, and the county attorney pays no attention to such admonitions, it would be proper for the court — indeed, it may have been the court’s duty — to interrupt the argument and have the jury retire and punish such attorney in some manner appropriate to the occasion.

Eliminating all consideration of the improper remarks of the county attorney, the conduct of the defendant in connection with the offense charged and proved was of a heinous, aggravated nature that would justify the jury imposing the extreme penalty of the law. The court, in every instance, admonished the jury to pay no attention to the remarks of the county attorney relative to matters not in evidence and we assume that, so far as possible, these admonitions were heeded. Whether the impressions received from such remarks unconsciously entered into the deliberations of the jury in aggravation of the punishment we cannot say.

If upon a careful examination and consideration of the whole record it appears that there was a reasonable doubt that the defendant was guilty of the crime charged, we might be inclined to reverse this case on account of the improper remarks of the county attorney; but, as before indicated, we believe beyond any doubt that, eliminating all such remarks, this jury or any other fair-minded jury would have found the defendant guilty. Whether or not the punishment assessed would be the same would be a matter of conjecture. Under the circumstances disclosed by this record, applying the provisions of section 6005, R. L. 1910, commonly known as the harmless error statute, we decline to set aside the judgment of the trial court on the ground that the county attorney went outside the record in his closing argument to the jury.

6. It is next urged that the court erred in giving instruction No. 15, as follows:

“Gentlemen of the jury, evidence of the good character and reputation of the defendant in the neighborhood in which he has lived as being a peaceable, law-abiding citizen, has been introduced before you, and in that matter you are instructed that such testimony is competent and proper for you to consider, together with all the other facts and circumstances in the case, as bearing upon the defendant’s guilt or innocence, and the probability or improbability of his having committed the crime with which he stands charged; and if after considering all the evidence in the ease, together with that bearing upon his reputation, you entertain a reasonable doubt as to the guilt of the defendant, then it will be your duty to resolve that doubt in favor of the defendant and acquit him.
“On the other hand, if after a full and fair consideration of all the evidence in the case, you believe beyond a reasonable doubt that the defendant is guilty, then his previous good character cannot avail, and you should find the defendant guilty, notwithstanding his previous good character.”

The instruction above quoted is the same as instruction No. 14 offered by the defendant, except that in the latter appears this additional final clause:

“But in that event you may take into consideration his previous good character in mitigation of punishment.”

It has been held in several cases by this court that the character of the defendant may be considered in mitigation or aggravation of punishment. Prather v. State, 14 Okla. Cr. 327, 170 Pac. 1176; Morris v. Ter., 1 Okla. Cr. 617, 99 Pac. 760; Ernst v. State, 16 Okla. Cr. 507, 184 Pac. 793.

This being so, the request for an instruction on this feature of the case should have been given, to be considered in the discretion of the jury, in mitigation of the punishment.

For the reasons stated in the opinion, the judgment of the trial court is modified, changing the term of imprisonment from 99 years to 25 years in the state penitentiary, and the judgment in all other respects is affirmed.

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


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    CHARLIE MURRAY v. STATE.
    No. A-3691.
    Opinion Filed Aug. 3, 1921.
    (198 Pac. 973.)
    (Syllabus.)
    1. Trial — Delay in Prosecution — Waiver of Right to Discharge. Where the record shoves that the accused was not anxious for a speedy trial, and where the accused, without insisting upon his right to have the cause dismissed for want of prosecution, under the provisions of section 6095, R. L. 1910, on his own motion subsequently has the cause continued from time to time, when the cause is finally set for trial it is not error for the trial court to refuse to permit him to withdraw his plea of not guilty in order to interpose a rriotion to dismiss the prosecution for the reason that the state had previously delayed trial.
    2. Same. The constitutional and statutory right to a speedy trial in a criminal case is one that may be waived by the defendant, and under the circumstances in this case it was waived.
    3. Appeal and Error — Discretion of Trial Court — Continuance. An application for a continuance is addressed to the sound discretion of the trial court, and in the absence of any abuse of such discretion! the same will not be reversed upon appeal. Applying this rule to the facts in this case, there was no error in overruling the defendant’s motion for a continuance.
    4. Witnesses — Competency—Effect of Misspelling Name in Witness List. It was not error, for the court to refuse to exclude the testimony of Bluford Wills, whose name appeared “Buford Wills” among the list of witnesses for the state served on the defendant before the trial, where it appears that the defendant was not prejudiced nor misled by the misspelling of the name.
    5. Homicide — Manslaughter in First Degree — Sufficiency of Evidence. The evidence examined, and found amply sufficient to support the verdict.

      Appeal from District Court, McIntosh County; Harve L. Melton, Judge.
    Charlie Murray was convicted of the crime of manslaughter in the first degree, and sentenced to twelve years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.
    Green & Green, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Charlie Murray was, by information filed in the district court of McIntosh county, January 19, 1918, charged with the murder of Jess Rogers on the 19th day of April, 1917, upon which charge he was tried and convicted of manslaughter in the first degree September 25, 1919, and his punishment fixed at imprisonment for twelve years in the state penitentiary. From this conviction, judgment, and sentence he appeals.

The circumstances leading up to this homicide occurred at the home of the defendant, Charlie Murray, in the country near Salem, in McIntosh county. Late in the afternoon of the day of the tragedy the defendant had returned from Henry-etta. The weather was rainy and disagreeable, and the defendant, upon reaching home, had disrobed and gone to bed and to sleep. There was a dance at the defendant’s house that night, and after the people had begun to gather and after the dancing had begun the defendant awoke and called to his wife to bring him a pair of dry socks. The wife thereupon went to a table and removing the defendant’s revolver from the table, hid it beneath some papers and then procured the socks, as requested.

Bert Nelson, a brother of the defendant’s wife, had been living with the defendant and his sister prior to this time, in their employment, and had been discharged or released from employment a short time previous. Soon after the defendant arose on this night, he and Nelson engaged in an altercation or fist fight, after which Nelson ran out of the house. Immediately following, the defendant and his wife had a scuffle, in which both fell to the floor. After this some of the witnesses noticed that the defendant’s face had been scratched and was bleeding, and that the defendant’s wife had a knot or bruised place on her forehead. The defendant then took down a loaded shotgun from the place where it was kept and held it in his hands, until presently Jess Rogers came in at the door and demanded of the defendant that he put up the gun. The defendant refused, whereupon the parties cursed and swore at each other. While this was going on Jess Rogers started approaching the defendant, and the defendant ordered him to stop. The testimony here is conflicting; a half dozen or more witnesses for the state testified that Jess Rogers did stop or hesitate before the shooting began. The defendant fired one of the barrels of his shotgun into the floor near Jess Rogers’ feet, and Jess Rogers turned to retreat or get out and a second shot was fired, the load entering his left hip and side, and he fell over upon a couch nearby. The defendant then extracted the shells and placed two other loaded shells in the gun. From the effect of the shotgun wound in the hip and side the deceased died a week later.

The defendant claimed that the deceased was advancing upon him in a threatening manner and had one hand back of him or in his hip pocket. It subsequently developed that the deceased was unarmed, and it also developed from the testimony of both the state and the defendant that there had been no previous difficulty between the two men.

There is evidence tending to show that the brother-in-law, Bert Nelson, brought some Choctaw beer to the premises that evening. At any rate there was Choctaw beer there, but whether any of the parties to the quarrels were intoxicated or under the influence of liquor does not clearly appear. There is testimony to the effect that after the shooting the deceased moaned and groaned on account of his physical suffering, and that he addressed the defendant and said, “Charlie, you killed me in cold blood", and that the defendant said to him, ■“Shut up, or I’ll finish the job." The testimony shows that after the shooting and before the arrival of the physician and others, who took charge of the wounded man, a curtain was hung up at the connecting door or opening into the other room, and the keg of Choctaw beer was removed from the room to a field or lot near the barn.

At the time of this trial the defendant and his wife were living separate and apart, and the wife did not testify. At the first trial the jury failed to agree, and at the second trial the defendant was convicted, as before stated.

The following assignments of error are urged in the brief:

First: The court erred in overruling the defendant’s motion for permission to withdraw his plea of not guilty for the purpose of filing a motion to dismiss the cause for want of prosecution, and in refusing to dismiss the case for want of prosecution.

Second. The court erred in overruling the defendant’s motion for a continuance.

Third. The court erred in permitting the witness Bluford Wills to testify as a witness against the defendant, for the reason that the name “Bluford Wills" did not appear on the list of witnesses served on the defendant.

Fourth. The court erred in overruling the defendant’s demurrer to the evidence and his motion for a directed verdict of not guilty.

1. The record discloses that a preliminary hearing was had before a justice of the peace on the 3d day of May, 1917, and that the information was not filed until the 9th day of January, 1918, and that the August, 1917, term of court convened and adjourned between those two dates. Section 6095, R. L. 1910, provides:

“When a prisoner has been held for a public offense, if an indictment or information is not filed against him at the next term of court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

The record shows that on February 4, 1918, the defendant filed his demurrer to the information and when the same was overruled, entered his plea of not guilty. The case was set for trial on February 8, 1918, and on that day, on application of counsel for defendant, the trial was continued until February 11, .1918. On that day the case came on for trial before the court and jury, and a mistrial resulted on account of the failure of the jury to agree. The case was then passed from time to time until February 5, 1919, when it was again set for trial and again continued, upon application of the defendant, over the term. On September 19, 1919, the defendant filed his motion to dismiss the action for want of prosecution, which was but a few days before the ease was set for trial.

It appears from the record that the defendant and his counsel were not anxious for a speedy trial, and that he and his counsel had an understanding with the prosecuting attorney that the case should not be tried at the August, 1917, term of court; and that the reason that the same was not filed before this term of court was because the county attorney had inadvertently or for some reason misplaced the information. Under this state of the record, it would seem that the court did not abuse his discretion in refusing the defendant to withdraw his plea and in refusing to dismiss the case for want of prosecution. The constitutional and statutory right to a speedy trial is one that may be waived, and the court holds that under the circumstances in this ease the defendant did waive his right to have the cause dismissed for want of prosecution. Ex parte Hudson, 3 Okla. Cr. 403, 106 Pac. 540; Dalton v. State, 6 Okla. Cr. 89, 116 Pac. 954; Stouse v. State, 6 Okla, Cr. 424, 119 Pac. 271; State v. Frisbie, 8 Okla. Cr. 406, 127 Pac. 1091; Head v. State, 9 Okla. Cr. 356, 131 Pac. 937.

2. The grounds upon which the defendant bases his right to a continuance on account of the absence of his wife are that she was sick and about to be confined, and'consequently unable to attend the trial at that time. The deféndant and his wife were living apart and had been for some time, and the last time the defendant had even seen his wife was in April, 1919, and the application for a continuance was made on September 23, 1919. A subpoena was issued for Mrs. Murray, then residing at Antlers in Pushmataha county, Okla., on the 4th day of September, 1919, and the same was served on the 16th day of September. Under this state of facts it was evident that the defendant had known for a long time that his wife would not be physically able to attend the trial, and if the defendant desired her testimony it became his duty to have his wife’s deposition taken. No proper diligence to procure the testimony of this witness was shown. She may, in fact, have been physically able to appear and testify at the trial. After service and nonattendanee of this witness, no application for an attachment for this witness was made. Under all these circumstances it was not error for the court to overrule the application for a continuance on the grounds of the absence of Mrs. Murray.

Another reason alleged as grounds for a continuance in the motion for a continuance was the absence of Dave Guinn, who resided at Texanna, in McIntosh county. The record shows that the witness Dave Guinn did not testify at the first trial and that a subpoena was not issued for him until the 4th day of September, 1919, and that the same was served on the 16th day of September, seven days before the trial. It is alleged that if he had been present he would have testified that he heard Jess Rogers tell Bert Nelson that he would “stay with him”. That this statement was made in the yard of the home of the defendant immediately before Bert Nelson entered the house and entered into the difficulty which led up to the shooting immediately after Nelson had been ejected. This testimony does not appear to be competent or material. The defendant applied for no attachment to procure the attendance of Dave Guinn.

Evidence was heard upon the merits of the application for a continuance, and the trial court must have come to the conclusion that the application was without merit. Under the repeated rulings of this court, an application for a continuance is addressed to the sound discretion of the trial court, and in the absence of any . abuse of such discretion the same will not be reversed upon appeal. There being no showing of an abuse of discretion in the case of either witness, the ruling of the trial court will not be disturbed. Lee v. State, 7 Okla. Cr. 141, 122 Pac. 1111; Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544.

3. It is next contended that the court erred in permitting Bluford Wills to testify in this case for the reason that his name was not included among the names of witnesses served upon the defendant, as required by statute. The record shows that within the proper time before the first trial a list of witnesses was served upon the defendant, which included the name “Buford Wills” and that Bluford Wills did in fact testify at that trial; at the second trial the same witnesses were sworn and testified. The witness testified that his true name was Bluford Wills; that prior to that time there was a person in being named Buford Wills, who had died in 1913. It was plain that the spelling of the name, as it appeared in the list of witnesses, was merely a typographical error, and under the circumstances the defendant and his counsel must have known or had notice of the identity of the person. Furthermore, the defendant went to trial without first making objection to the testimony of Bluford Wills on the ground that his name was not among the witnesses served on the defendant, and the failure of the defendant to interpose an objection at the first trial constituted a waiver of whatever right, if any, he had on account of the misspelling of the name. The court committed no error in permitting this witness to testify,

The last assignment of error is that the court erred in overruling the motion of the defendant to direct a verdict, upon the grounds that the evidence did not show that the death of the deceased was the result of the shots fired by the plaintiff in error. The testimony is that the deceased, after he was shot and wounded, gradually grew worse from day to day, and died on the seventh day after receiving the wound. There is nothing in the record to show or that would tend to show‘that his death could have been due to any other cause. On the contrary, the evidence shows that his death was the result of the wounds inflicted by the defendant. It was for the jury to say, under all the evidence, whether or not they were convinced beyond a reasonable doubt that the deceased came to his death by reason of the wounds inflicted by the defendant.

For the reasons stated in this opinion, the judgment ol the trial court is affirmed.

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


author: MATSON, J.

text:
    A. B. (JACK) WALLER v. STATE.
    No. A-3571.
    Opinion Filed May 2, 1921.
    Rehearing Denied Aug. 3, 1921.
    (199 Pac. 224.)
    (Syllabus.)
    1, Appeal and Error — Discretion of Court — Order of Admission of Evidence. Where evidence admitted ia competent, ordinarily the order in which lit is admitted will not constitute reversible error.
    2. Trial — Evidence in Rebuttal — Discretion of Court. Where evidence strictly rebuttal has been admitted in chief, without objection, it is discretionary with the trial court to permit further evidence along the same line to be admitted in rebuttal.
    3. Appeal and Error — Discretion of Court — New Trial — Newly Discovered Evidence. Motions for a new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court. The trial court’s action in overruling such a motion will not be disturbed unless a manifest abuse of discretion appears.
    Appeal from District Court, Canadian County; Edward Dewes Oldfield, Judge.
    A. B. (Jack) Waller was convicted of the crime of manslaughter in the first degree and sentenced to serve a term of 20 years’ imprisonment in the state penitentiary and appeals.
    Judgment affirmed.
    On the 10th day of June, 3918, the county attorney of Canadian county filed in the district court of said county an information charging plaintiff in error, A. B. (Jack) Waller, hereinafter referred to as defendant, with the crime of having murdered one Clarence Patterson in said county on the 19th day- of May, 1918. Defendant was put upon trial before a jury, which, on the 10th day of December, 1918, returned a verdict of guilty of manslaughter in the first degree, and assessed the punishment at 20 years’ imprisonment in the state penitentiary at McAlester. A motion for a new trial was presented on the 21st day of December, 3918, overruled, and proper exceptions 'taken, and on the same date judgment and sentence was pronounced in conformity with the verdict rendered.
    Defendant excepted to certain rulings of the trial court, which will hereafter be more specifically set out in the body of the opinion, and has properly perfected an appeal to this court from the judgment rendered against him.
    A short narrative statement of the material facts is as follows:

      Defendant, at the time of the commission of the alleged homicide, was the marshal of the town of Yukon; deceased was at that time living on a farm about three-mile» distant from Yukon, and had lived in Yukon and in that immediate vicinity during the entire period of his life, to. wit,'27 years. The killing occurred on the main street of Yukon, near the hour of eleven p. m. on Sunday night, the 19th day of May, 1918.
    Apparently there was a feeling of hostility toward deceased on the part of defendant, and there is also certain evidence to indicate a like feeling by deceased toward defendant. This feeling on the part of defendant was caused by certain alleged remarks that deceased had, a short time previous to the commission of the alleged homicide, made concerning defendant and a woman by the name of Wallace, who had obtained a divorce from her husband in the district court of Canadian county some two or three months prior to the homicide, in which proceeding defendant was a witness in her behalf. Defendant contends that deceased made disparaging and untruthful statements concerning the relations existing between defendant and the Wallace woman, and while a witness upon the stand defendant admitted that these statements angered him, and that he was mad at deceased at the time of the commission, of the homicide. This condition of defendant’s mind will more fully appear by excerpts taken from his testimony, subsequently incorporated in this statement.
    On the day immediately preceding the homicide, late in the evening, defendant appeared at the residence of Herman Ellis in the town of Yukon, at which place Mrs. Wallace had stayed when residing in the county, and according to the testimony of Mr. and Mrs. Ellis, defendant was in an angry mood, and stated in substance that he had come down there “to straighten up some black stuff that Ellis arql his wife and Clarence Patterson had been telling about him,” and further stated that he was going to clean up on the bunch, and was going to begin on Ellis first if he caught him down town. Ellis and his wife and deceased were friends, and on the day of the killing, deceased had been to their home in Yukon and had taken supper there, staying at that place on account of a very heavy rain that occurred that day and night until just a short time before he was killed.
    Deceased left the home of Ellis, according to the state’s evidence, ten or fifteen minutes before he was killed. Deceased came into town on horseback, and' had left his horse in a barn in another part of town, some distance from the Ellis home. Before leaving the Ellis home that night, deceased was provided with a brown overcoat that belonged to Mr. Ellis, which was buttoned closely around him and pinned at the collar with a safety pin to protect him against the rain. He was also provided with a pair of heavy high overshoes. After leaving the Ellis home, deceased went up town, purchased a box of tobacco, went to a drug store to get some medicine for his mother, lighted his pipe and started down the main street east from the drug store, smoking his pipe and traveling in the general direction of the barn where his horse had been left. The evidence is that the overcoat deceased was wearing was securely buttoned and pinned when he left the drug store.
    About a block east of the drug store deceased and defendant met, deceased going east and defendant going west, on the north side of the main street. The sidewalk at that point was about twelve feet wide, made of concrete blocks about four feet square. Deceased was traveling near to the outer part of' the sidewalk while defendant was up next to the buildings. There were several people in the front part of a hotel across the street south about the distance of one hundred feet from the place where the homicide occurred. There were others in the drug store and pool hall, which was west.and on the same side of the street where the killing took place a distance of approximately 150 to 200 feet. There were no witnesses at the: immediate place of the killing except defendant and deceased.
    Some parties who were across the street opposite heard the report of eight or nine pistol shots, fonr or five in rapid succession, then a pause of some seconds, and four or five more. It was dark at the point of the killing, there being no lights' except some in the back part of the store rooms in front of which the killing took place. Parties across the street could distinguish objects at the point of the killing and could see the flashes of the guns and saw one of the parties fall.
    The proprietor of the hotel, one Ellison, testified that the person doing the shooting, whom he at that time believed to be Waller, fired several shots at the other person, who was standing some 20 to 25 feet southwest at the time, and that after the deceased fell and was lying upon the pavement, defendant pulled a second pistol from his person and fired four or five additional shots into his prostrate body. That defendant deliberately walked from the scene of the homicide to the telephone office, and the witness Ellison followed him up on the opposite side of the street so that he could get a good view of who it was, and then clearly recognized defendant as the person who had done the shooting.
    Another witness for the state, who was the agent of the Bock Island Bailroad Company at Yukon, testified that about ten or fifteen minutes prior to the killing, he had gone home, from town and passed defendant standing in the doorway of a store right at the scene of the killing, and that defendant was apparently hiding in a recess which led into said doorway at the time such witness passed.
    The defense interposed was self-defense, defendant testifying that he shot deceased to protect himself against an attack which he believed deceased was then about to make upon him; and in this connection we quote rather fully from the transcript of the evidence of defendant as follows:

      On direct examination, defendant testified in part as follows :
    “Q. Now, explain to this jury, Mr. Waller, the circumstances surrounding the shooting that occurred there on the street, in the first place, what side of the street was you on? A. The north side. Q. What side of the street was he on? A. On the north side. Q. In what direction were you going? A. I was walking west. Q. As you walked west who did you see? A. I met Patterson walking east. Q. About where was it now, on that north side of that street when you first saw Patterson? A. It was right along in front of the Mulvey Mercantile store. Q. Now, go ahead, Mr. Waller, and state what occurred when you was walking west and he approached to the east. A. I saw I was meeting Patterson. I always called him Pat and I inclined to the other side of the street. Q. How could you tell you were meeting him, what kind of a night was it? A. It was a very dark night and we had had a pour down rain, but there was lights in the Yukon’s National Bank and Mr. Stafford’s confectionery and I could see him when he came between those lights. The buildings lighted up enough so I could see who I was meeting. Q. As he came from the west toward the east he was between you and those lights? A. Yes. Q. There was a canopy over the sidewalk in front of the store ? A. Yes, sir, a metal canopy. Q. How about it being light or dark under there? A. It was pretty dark all along there. Q. Now, you saw him and how far away was he when you recognized him? A. Well, I don’t know exactly but I judge 15 to 20 feet, may be not that far. Q. When you recognized him? A. Yes. Q. When you did recognize him what did you do? A. I inclined toward the other side of the sidewalk. Q. Which side would that be? A. The north side, if I remember right. I was walking near the center of the walk. Q. And about what part of the sidewalk was he occupying, as he walked toward you? A. I don’t believe very far from the center, and he was nearer the curb than the building. Q. He would be then a little south of the center? A. Yes. Q. You inclined as you say to your right or to the north? A. Yes. Q. And closer to the building? A. Yes, sir. Q. Then what occurred? A. Well, when we got along about, I don’t know the distance exactly, but I judge eight to ten feet, Pat stopped and I said, ‘Pat, go on, I don’t want any trouble with you, I have given you the sidewalk.’ Q. At that time were you still walking or were you stopped? A. I had stopped. Q. And by that time you had inclined up against the building? A. yes, I know I had. Q. After you had said that and after having angled off toward the building then what occurred? A. He just stuttered two or three times and threw his arm back. .Q. Which arm? A. His right arm. Q. What did he do, how did he throw it back? A. He threw it back like he was going to his pocket at his side. Q. Was he between you and the light so you could see the motion of his arm? A. Yes. Q. What did he say? A. He stuttered two or three times and then said, ‘God — .’ Q. Then what did he do? A. Made a step or two towards me, I don’t know whether more than one step or possibly two. Q. When he threw his arm back and started towards you what did you do? A. I jerked my gun and began to shoot. Q. How many guns did you have? Describe them. A. I had two automatics, a three-eighty in my left coat pocket and a .45 in my hip pocket. Q. Those were the two guns that were introduced here? A. 1 did not look at them but I judge they -were. Q. You had the big gun in your right hip pocket? A. Yes. Q. What kind of a coat did you have on? A. I-had on a large coat, it was an old winter coat, brown clothes. Q. Where did you have the little gun? A. In my left coat pocket. Q. You say you reached for your gun, did you reach for both of them at once or which of them did you reach for first? A. I put my hands on my guns, both of them. Q. Then what did you do when you reached for your guns? A. I jerked my guns as quick as I could and began to shoot. Q. Which did you jerk first or did you jerk both of them at once? A. The small gun hung in my pocket and I had trouble getting it out and I shot the big gun first. Q. Describe about getting those guns out, that is what I want. A. I had the small gun in my left coat pocket and I had the big gun in my right hip pocket and I got it out first. Q. Go right ahead. When did you get the little gun out, how soon did it come loose? A. I don’t know just when it did. Q. Do you know what you did when it did come out? A. Yes, sir; I shot, but I don’t know how many shots. Q. Do you know how many shots you had fired with the big gun when the little gun came out and you began to shoot with it? A. No, sir; I do not know. Q. You reached for both, to begin shooting with both at once? A. Yes, sir. Q. Do you know how many shots with either one or how many you fired in all? A. No, sir; I do not. I will plead guilty to all of them but I don’t know how many shots I fired. Q. After you had began shooting what happened, now do you know what happened after you shot the first, second or third shots? A. No, sir; I do not. Q. Do you know what Patterson did after you began shooting? A. He fell part of the way down to his hip, after I began shooting but I don’t know how many shots I had fired before he fell. Q. Then what happened? A. I shot until he fell to the sidewalk. Q. Until he fell clear down to the sidewalk? A. Yes. Q. Then what did you do? A. I walked straight away and went to the telephone office west. Q. Do you know whether you shot him in the back or not ? A. No, sir; I do not. ’ ’
    On cross-examination, the defendant testified in part as follows:
    “Q. And it was then, after you had made numerous trips there to see Mrs. Wallace that the talk became prevalent in the community that you were too intimate with Mrs. Wallace? A. No, sir; there is not a thing to it. Q. And you sought to saddle the responsibility upon Clarence Patterson for the talk that was going around?
    “By Mr. Fogg: Objected to as incompetent, irrelevant and immaterial and argumentative.
    “By the Court: Overruled.
    “By Mr. Fogg: Exceptions.
    “A. No, sir. Q. And it was then that you became angry at Clarence Patterson and the Ellises? A. No, sir. Q. You had, I believe you say, heard that Clarence had made some statements that you were too friendly with Mrs. Wallace? A. Mrs. Wallace’s husband told me that, the first one. Q. That made you mad, didn’t it? A. You bet it did. Q. And later on you went up to the Ellis’s house and took your friend, Claude Johnson, another deputy sheriff, with you? A. Mr. Parker-Q. Just answer my question. A. Yes, sir, I done that. Q. Were you armed when you done that? A. Yes, I had one gnn on me. Q. You did not have these two pistols with yon? A. I had one of them. Q. Which one? A. I don’t remember, the large gnn, I expect. Q. Where did you bny this .45 automatic? A. Soon after I went to work at Yukon. Q. When did yon bny the little gnn? A. About two weeks after Jason Clark went into office, I don’t know just how long that has been. Q. When yon got to Ellis’s home yon talked to Herman about what Clarence and his wife said about your being intimate with the Wallace woman or what they are reported to have said? A. I was talking with them all. Q. You said to Herman and his wife, ‘I came up here to investigate some black stuff that yon and Clarence Patterson had been telling on me?’ A. I did not name Clarence Patterson at that time. Q. During the conversation yon mentioned his name? A. One time. Q. And Mrs. Ellis said to yon, ‘Clarence Patterson will face you in anything that he has said,’ in substance did she say that to yon? A. She said, ‘Clarence Patterson is fixed for yon and will tell yon so at any time.’ Q. ‘Is fixed for yon,’ that was her expression was it? A. That was her words. Q. Yon said to Mrs. Ellis — yon called this woman a liar, didn’t yon? A. No, sir; I did not. Q. Yon were still mad at Clarence Patterson, were yon? A. Not near as mad at him as I was at Lon and Herman Ellis. Q. Yon was mad at them? A. I was sore at them, yes. Q. Did yon tell Herman Ellis that yon would lay off your gnn and whip him? A. I did not. Q. That the first time yon met him down town that yon would lay off your gnn and whip him? A. I did not. Q. Or do anything to him? A. I did not. Q. What time of the day were yon up there? A. Late in the evening, I don’t remember the time of the day. Q. That was on Saturday, May the 18th of this year? A. Yes, sir. Q. And the day before yon killed Clarence Patterson? A. Yes, sir. Q. Yon know a man by the name of Joe Beckner, do you not? A. Yes, sir. Q. Yon had a talk with Joe Beckner in the city of Yukon on the same Saturday, did yon not? A. Yes, sir. Q. And yon accused Joe Beckner of shielding Clarence Patterson did you not? A. Yes. Q. And he said, ‘In what way,’ and yon said, ‘Clarence Patterson will talk about me,’ that Clarence Patterson would talk to Joe Beckner and that he, Joe Beckner, would not tell yon what Clarence said? A. Not in that way; no, sir. Q. Did you, in substance? A. I don’t know whether you would term it in substance, I can tell if you will let me, what I said. Q. First answer whether you had a conversation in substance to that effect, can you, or not?
    "By Mr. Fogg: Objected to as incompetent, irrelevant and immaterial and a repetition.
    "By the Court: Overruled.
    "By Mr. Fogg: Exceptions.
    "A. What is the question before that, in substance to what; I don’t understand you.
    "By the Court: Read the record in the previous question to the witness.
    "Q. And he said to you, ‘In what way,’ and you said, ‘Clarence Patterson will talk about me,’ that Clarence Patterson would talk to Joe Beckner and that he, Beckner, would not tell you what Clarence said. Q. Did you state that or that in substance? A. I don’t know whether you would term it in substance to that or not. I can tell you what I said. Q. Did you say to Mr. Beckner at that time, that Herman and Lou Ellis will tell Clarence Patterson certain things about me and Clarence will tell it over town? A. Yes, I told him that. Q. And that Beckner knew about it but would not tell you what Clarence said? A. I did not say that. Q. Did you say anything in substance to that effect? A. I don’t know whether in substance or not, if you will let me, I believe I can tell you word for word what 1 said to him. Q. Did you tell Joe Beck-ner that Clarence had been talking about you? A. Yes. Q. And had intimated that your conduct with Mrs. Wallace was not proper? A. Intimated that it'was not proper? Q. That Clarence had intimated that your conduct with Mrs. Wallace was not proper? A. Yes, sir; I said that. Q. And you were mad about it? A. Yes, I was mad about it and had been for two or three months. Q. You were mad when you were talking to Beckner? A. Yes, I was pretty sore at Joe at that time. Q. And you was sore at Clarence Patterson at that time? A. Yes, and Lou and Herman Ellis. Q. And then you said, ‘Beck-ner, If there are three funerals in town the town would be better off’? A. Not in that way. Q. Did you make that statement? A. Not in that way. Q. Did you intimate that there would be funerals in the town of Yukon? A. No, sir; I did not. Q. Did you tell him if there was three funerals in Yukon that it would be better off? A. In a way but not in the way you are putting it. Q. In what way was it? A. Will you let me tell it in my own way? Q. State what you said about the funeral. A. I went to Joe and said, ‘Joe, how is that you come in and warn me about Ellis and his gun and you don’t warn me about Clarence Patterson when you know that Clarence Patterson has been threatening my life more than Herman Ellis has,’ and he looked a little dashed and said, ‘Jack, Clarence is awfully high tempered,’ and I said, ‘What of that?’ and he said, ‘ Clarence comes to my place nearly every time he comes to town and I can keep Clarénce under my^thumb anywhere I want him when I know it,’ and he said, ‘That is the reason I didn’t tell you, I have been watching him.’ Q. Didn’t you ask Joe Beekner at that time—
    “By Mr. Babcock: Wait a minute. He has asked the witness a question and I want him to have an opportunity to answer it.
    “By Mr. Williams: Oh, is he not through yet? All right, go ahead, go ahead, Mr. Waller, if you have anything else to say. A. And I said, ‘Joe, all this talk, you know as much about it as others, you hav.e been telling some of it yourself, you and Clarence, and I don’t believe you and Clarence have manufactured this dirty talk on me but you are telling it just the same when you know where it is coming from,’ and we went on talking and I don’t remember our words just exactly but I said, ‘If people only wanted to be peace-makers instead of trouble makers this would be a better world to live in, ’ and he said, ‘Yes, that is true, Jack, but you will find fellows around town, most any town you go to that try to create trouble any where you go. ’ He said, ‘ That is just the trouble now, there is parties carrying things to Clarence and Win Wallace, and he really referred to Win more than he did Clarence, but he spoke of Clarence and Win had told him that three parties had told him—
    “By Mr. Williams: I object to that as hearsay.

      “A. Well, I said to Joe in regard to these three parties that had been carrying talk to Win Wallace, and I said, ‘It’s a damn cinch this place would be better off if it had a few funerals.’ Q. And you included Clarence Patterson in the funeral list? A. I did not say it. Q. Were you including him in the funeral list? (No answer.) Q. Answer my question, were you or not? A. Yes, that would have included Clarence Patterson.” * * * “Q. How far were.you from Clarence Patterson when you first recognized that it was him? A. I don’t know; I judge from 18 to 20 feet. Q. Come down and show me how close you were to him. A. Well, you will have to get back there some more. Q. All right, you put me where you killed him, and tell me when to stop. (Here counsel for the state walks backward to get the distance.) A. About there. Q. Now is that about right? A. Yes, sir. Q. You were that distance away from him when you first observed him? A. When I first noticed who I was meeting. Q. What was the first thing that he did? A. He kept on walking toward me. Q. Now, you are representing Patterson and you walk towards me and show me just how he did. (Witness here makes demonstration, walking towards counsel.) Q. What did he say? A. Did not say anything. Q. What did you say? A. I said, ‘Pat, I don’t want any trouble with you.’ Q. And he never spoke a word? A. Not then. Q. You said what? A. I said, ‘Pat, go on, I don’t want any trouble with you now, I am giving you the sidewalk.’ Q. That is all you said? A. That is all I said. Q. What direction were you from him when you said that? A. Northeast. Q. About how many feet? A. I don’t know exactly, I would judge about the distance we are apart, may be not quite that far, eight or ten feet. Q. Did you get any closer before you began to fire? A. No, sir. Q. Was he smoking his pipe when you fired the first shot into his body? A. No, sir; if he was I did not notice it. Q. Patterson never said a word? A. Yes, sir. Q. Up to that time, had he? A. No, sir. Q. What did he then say? A. He said, ‘G-G-G-G-GÓd.’ Q. Didn’t he say,‘Oh, God’? A. No, sir. Q. ■Didn’t he say, ‘Oh, God,’ after you fired three shots into his body? A. No, sir. Q. Is not that when he exclaimed, ‘Oh, God’? A. No, sir; never said it. Q. Did you ever get any nearer to him than you have indicated during the firing? A. I did not. Q. Did you ever step toward Mm? A. I did not. Q. Did he ever step toward you? A. Yes. Q. After he stopped you had this conversation, did he move toward you thereafter? A. Yes. Q. How far? A. One or two steps. Q. You had not opened fire yet? A. No, sir. Q. You testified that you were about ten feet from him when you opened fire? A. Yes. Q. After you opened fire he did not advance on you did he? A. No, sir. Q. Then the nearest he was to you was ten feet? A. Wait a minute; I don’t know'whether he did or not; I don’t think he did. Q. Did what? A. I don’t think he came any nearer, not more than one or .tym steps. Q. Then the nearest he was to you was about ten feet? A. I don’t know. Q. The distance you indicated a while ago? A. It was about that when I shot. Q. He did not advance towards you after that, did he? A.- He made one or two steps toward me. Q. After you fired upon him? A. I don’t know what he done then. Q. He did not advance after you fired, did he? A. I don’t know. Q. Which gun did you fire first? A. The large gun. Q. That was in your right pocket? A. Right hip pocket. Q. You tried to get them both at once? A. Yes. Q. And the little gun hung? A. Yes. Q. Did you see old man Ellison across the street? A. There were people across the street. Q. Did you know that old man Ellison was looking at you when you were trying to get both' of those guns out of your pocket? A. No, sir; I did not know anything about it. Q. You fired how many shots with this large gun before you got the small gun out of your pocket? A. I don’t know. Q. You are an offi°er? A. Yes, was at the time. Q. And used to shooting guns? A. Yes. Q. You did not see anything in this boy’s hand did you? A. No, sir. Q. You never saw a thing in his hand? A. No, sir. Q. He had on an overcoat, didn’t he? A. Yes. Q. And he had this coat buttoned up, didn’t he? A. I don’t know. Q. Did you hear him coming along on the sidewalk? A. Yes. Q. Did you hear his footsteps? A. I guess I did; I don’t remember. I naturally would. Q. He had on rubber overshoes, didn’t he? A. I don’t know. Q. You say you guessed you heard him coming, what do you say now? A. I don’t know. Q. You said a while ago you guessed you heard him coming ? A. I want to change it then- and say I don’t know. I saw him coming. Q. The young man wras traveling east and you could not see his right hand, could yon? A. No, sir. Q. Yon could see his left hand could you not? A. No, sir. Q. At the time yon fired the first shot could you see his right hand or his left hand? A. No, sir. Q. When you fired the remainder of the shots you did not see his right hand or his left hand? A. No, sir. Q. You could not tell what he was doing with either of them, could you? A. No, sir.”
    On redirect examination, defendant testified in part as follows:
    “Q. You were asked by Mr. Williams when he had that overcoat on that when you fired the first shot could you see the right hand of Patterson? A. No, sir; I did not. Q. Why could you not see it? A. Because it was so dark. Q. Had you seen his right hand move before you fired?
    “By Mr. Williams: That’s objected to as leading and suggestive.
    “By the Court: Overruled.
    “A. No, I can’t say that I had, I had not. Q. What did you see him do when he stopped?
    “By Mr. Williams: Objected to as assuming a fact not proven.
    “By the Court: Sustained.
    “Q. You described a while ago, Mr. Waller, as to what occurred referring to the time that Patterson stopped and you angled off to the right, did you or not see Patterson make any movement before he started toward you?
    “By Mr. Williams: Objected to as leading and suggestive and a repetition.
    “A. Yes, sir; he threw his arm around by his side. Q. Which arm was that he threw down? A. His right arm. Q. Now after he did that did you see his right arm again? A. No, I can not say that I did. Q. When you reloaded these guns that had been after you had gone to the telephone office and all around that block and back to the city jail? A. Yes. Q. I believe you said you carried both guns with you at all times when on duty, that was your habit as a rule? A. Yes, sir. Q. Now, Mr. Waller, when you saw Clarence Patterson stop and saw him throw his right hand down toward his pocket on his right side and as he came one or two steps toward you with the expression you have stated, what conclusion did you arrive at at that time in your mind as to what he was going to> do?
    “By Mr. Williams: Objected to as leading and suggestive and calls for a conclusion.
    “By the Court: Overruled.
    “A. I believed that he was going to try and kill me. Q. Was that the reason you shot? A. Yes, sir, that is the reason I shot.”
    There is also evidence of certain alleged threats which were made by deceased against defendant, both communicated and uneommunicated; and in addition thereto, there is evidence of specific acts of violence alleged to have been committed by deceased on parties other than defendant on several occasions from the time deceased was about fourteen years of age to the time he was killed, defendant testifying that he had heard and known about these various alleged acts of violence by deceased. There is also evidence by certain witnesses in behalf of defendant that the general reputation of deceased as a peaceable, law-abiding citizen in that community was bad. In rebuttal, the state introduced a number of witnesses who, testified that the general reputation of deceased for peace and as a law-abiding citizen was good.
    Immediately after the killing parties went to the scene* with lanterns and flash lights, and made a thorough search in each direction from the body for a space of from ten to twenty-five feet. Seven or eight empty pistol shells were found, and the pipe of deceased was found about one foot from his face. Nothing else than these articles was found until about six o’-

      clock, or a little later, after broad daylight the next morning. A witness by the name of Brakefield testified that he picked up a closed, single bladed, spring back knife about six or eight feet west of where deceased’s head had laid, out in the street just off the curbing about five or six inches. A witness by the name of Brakefield also testified, as did several other witnesses who searched that place the night before, that no knife was there when the search was made the night before.
    Following the killing, investigation also was made of the sidewalk beneath where the body had laid, and three or four indentations within a space covered by an ordinary saucer were found in the sidewalk. These indentations were about the size of ordinary pistol bullets, an'd when rubbed with the finger disclosed a metallic polish around the same. Apparently they were indentations made by defendant’s pistol shots at the time deceased was lying on the sidewalk.
    The physician who examined deceased after the killing testified that there were eighteen holes in his body, counting both entrances and exits of bullets. These shots were of two different sizes, and the entrances were located in the front left side and in the rear of the body, one shot also breaking the bone in the wrist on the right hand of deceased. Numerous of these wounds were testified to be necessarily fatal, one of which through the heart would cause instant paralysis.
    The state in rebuttal introduced the mother of deceased and other relatives, who testified that deceased did not own and never carried a knife of the kind and description found at the scene of the killing. Further, deceased’s pocket knife was found in his every-day clothes at home after the killing. The killing having occurred on Sunday, deceased wore his best clothes to town that day.
    In surrebuttal defendant introduced a witness who testified that he had seen deceased with a spring back knife like the one found at the scene of the killing about three or four months before the killing, and another witness testified to having seen deceased with a knife with a large blade prior to the killing but could not describe the knife.
    This record is very voluminous, containing approximately 900 typewritten pages. There are other facts and circumstances in the record of the evidence unnecessary to detail as they have but slight bearing upon the issues presented, and the foregoing statement is considered sufficient for the purposes of this opinion.
    Pruett, Sniggs, Patterson & Morris, Babcock & Trevathan, and Fogg & Bennett, for plaintiff in error.
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating case as above). It is first contended that the trial court erred in permitting the state, over the objection and exception of defendant, to introduce evidence in rebuttal to the effect that when the search was made at the scene of the homicide immediately thereafter no weapon of any kind was located at the place where the single-bladed, spring-back knife was found the next morning.

The state in chief had introduced a number of witnesses who testified that immediately after the commission of the homicide, a search was made of the scene of the homicide with the aid of flash lights and lanterns; that this search covered a space approximately in a radius of 25 feet surrounding the place where the body lay; that no articles were found as a result of that search except certain empty pistol shells and the pipe of deceased.

The defense thereafter introduced witnesses who testified that on the morning following the- commission of the homicide, at about six o’clock a. m., a single-bladed, spring-back knife was found in the street near the gutter not very far from-where deceased’s head lay after he fell on the sidewalk. Thereafter, the court permitted the state in rebuttal to introduce witnesses who testified that the search made the night before covered the particular place where this knife was found the next morning, and that there was no knife at that place when the search was made the night before.

In introducing evidence in chief to the effect that no knife was found when the first search was made, the state anticipated what the defense would be, and that the defense would likely introduce evidence that a knife had been found at a later time. This evidence was permitted to go to the jury in chief without objection on the part of defendant. Strictly speaking the evidence was rebuttal, and perhaps would have been excluded from the state’s evidence in chief had objection been made thereto. Further evidence along this line, however, was, in our opinion, proper to be admitted in rebuttal of defendant’s evidence as to the finding of the knife, to make more definite and certain that the search which was made immediately after the homicide covered the exact spot where the knife was found, as it did not clearly appear from the evidence admitted in chief that a close and thorough search had been made at the exact place where the knife was thereafter found.

However, had this been exclusively evidence in chief, it was discretionary with the trial court, in the furtherance of justice, to permit it to have been introduced in rebuttal. Tingley v. State, 16 Okla. Cr. 639, 184 Pac. 599.

' Under the issues in this case, this evidence was competent, and the order of its admission did not constitute such error as should result in a reversal of this judgment.

It is also contended that the trial court erred in overruling the motion for a new trial on the ground of newly discovered evidence. The evidence alleged to have been newly discovered is attached to the motion for a new trial in the form of affidavits of three parties, who claim that about three or four months prior to the commission of the homicide they saw deceased in possession of a single-bladed, spring-back knife of the description found at the scene of the homicide.

Motions for a new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court, and the ruling of the trial court on such a matter will not be disturbed unless a manifest abuse of discretion appears; the presumption being that the discretion was properly' exercised. Noel v. State, 14 Okla. Cr. 548, 174 Pac. 293.

In the trial of this case defendant introduced evidence of at least one witness who testified positively that he had seen deceased in possession of the knife found at the scene of the homicide or one exactly like it. The alleged newly discovered evidence, therefore, was cumulative. It appears from the record that the evidence was not newly discovered but that new witnesses were discovered to the same evidence of which defendant was possessed at the time of the trial. It is almost incomprehensible that defendant could, within nine days after his conviction, discover these three new witnesses, all of whom lived in the vicinity of where the crime was committed, although for a period of seven months prior to the trial he was unable to discover them.

Deceased had lived in the immediate vicinity of the commission of the homicide for over 20 years; he was well known to practically all the inhabitants of that community. It must have become a matter of public notoriety, where the parties involved were as prominent in the community as deceased and defendant were in this case, that on the morning immediately following the commission of the homicide a very unusual spring-back, large-bladed knife was discovered. Certainly had this knife been the property of deceased, with his wide acquaintance in the community, defendant by the exercise of ordinary diligence would have before the trial discovered more than one witness who would have been able to identify this particular knife as the property of deceased. Especially is this conclusion forced upon the court in view of the fact that within nine days immediately after his conviction, defendant was able to discover three other witnesses whom he claims would, if a new trial were granted, testify that they had seen deceased in possession of a knife similar to the one found at the scene of the homicide.

We are of opinion, therefore, that there was no abuse of discretion upon the part of the trial court in overruling this motion for a new trial on the ground of newly discovered evidence, (1)' because the evidence was cumulative; (2) because there is no showing of any reasonable diligence used to discover the particular witnesses; and (3) in view of defendant’s own testimony, the court is clearly of the opinion that had these alleged newly discovered witnesses been introduced upon the trial of this ease, no honest and intelligent jury could arrive at a result different than the conviction of this defendant, either for murder or manslaughter. Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499.

We have copied full excerpts of defendant’s testimony in the statement of this case, and it is clear from defendant’s testimony itself that an acquittal should not have resulted. As the court views the evidence, defendant was extremely fortunate that the result of the trial was a conviction of the lesser degree of felonious homicide than murder.

The petition in error contains assignments not presented in the brief. This being a felony conviction, the court has taken occasion to examine these assignments also. The instructions given fairly and fully covered the law of the ease as applicable to the evidence. The substance of the law contained in the requested instructions was covered by the court in the general charge in a manner as favorable to defendant as the evidence warranted. The trial court was very liberal to defendant in the admission of evidence in his behalf, and in our opinion accorded defendant a fair and impartial trial in every respect.

Judgment affirmed.

DOYLE, P. J., and BESSEY, j., concur.


author: DOYLE, P. J.

text:
    RAY McCRIGHT v. STATE.
    No. A-3720.
    Opinion Filed Aug. 3, 1921.
    (200 Pac. 259.)
    (Syllabus.)
    Larceny — 'Horse Theft — Sufficiency of Evidence. In a prosecution for horse theft, the evidence considered, and held sufficient to sustain the verdict and judgment .of conviction.
    Appeal from District Court, McCurtain County; A. A. McDonald, Judge.
    Ray McCright was convicted .of horse theft, and appeals.
    Affirmed.
    Jeff D. McLendon, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in errpr, Ray McCright, was convicted of horse theft upon an information charging that in McCurtain county on or about the 20th day of December, 1918, he did then and there feloniously by stealth and fraud, take and steal a certain bay horse, the samé being the personal property of one John Daniels, and in accordance with the verdict of the jury he was sentenced to serve a! term of six years’ imprisonment in the penitentiary. From the judgment an appeal was perfected by filing in this court on March 8, 1920, a petition in error with case-made.

The errors assigned question the sufficiency of the evidence to support the conviction. The defendant is not represented by counsel in this court; however, we have read and examined the entire record. The testimony in the case is in substance this:

John Daniels testified:

“I live at Rufe, northwest of Yalliant. I have lived in that neighborhood about 30 years; I am the owner of the bay horse; I bought it from the defendant, Ray McCright, about a year before it was stolen. I found this horse about a month after it was stolen at Clarksville, Tex., in Bob Westmoreland’s stable. ’ ’

Sherman Long testified:

“I live three miles from Rufe; I was with Ray McCright when he went into the pasture and got the horse; he had a bridle and he took my saddle; it was about one o ’clock in the morning; I met him at the river the next morning; he had this horse and a roan mule; I had my father’s horse; we crossed the river at Gray’s crossing about ten o’clock the next morning; and stayed at Houston Pattersons that night; the next morning we went to Clarksville and he traded the bay horse for a buckskin horse.”

Rick Williams testified:

“I know the bay horse owned by John Daniels, and assisted in tracing the horse into Clarksville, where it was put into Bob Westermoreland’s livery barn; we traced the horse across the river at Gray’s Ferry, then to Houston Pattersons, whose wife’s name is Anna. It is seven or eight miles from Yalliant to Gray’s Ferry, and it is 15 miles from Yalliant to Rufe.”

Mrs. Anna Patterson testified:

“I live eight miles from Bagwell, in Red River county, Tex. I am the wife of Houston Patterson; I have known the defendant, Ray McCright, two or three years; he stayed at our house between December 20th, and Christmas; Sherman Long was with him; they had three horses, Ray McCright was riding a large bay horse; I think it was a horse that he had' rode, there once before; Sherman Long was riding a little bay pony; they left there the next morning and Ray told me -they were going to Monroe, La.; they went towards Clarkesville; my step-son Jesse went with them; he rode the other horse; it was Saturday morning they left and Jesse came back Sunday night; Ray McCright and Sherman Long stopped at my house another night; I do not know where they went; it is eleven miles from my place to Clarksville, the defendant Ray Mc-Cright married my niece.”

The state rested, and the defendant moved the court to advise the jury to return a verdict of not guilty, because the evidence is not sufficient to support a verdict of guilty, in that the testimony of Sherman Long, an accomplice, is not corroborated. Which motion was overruled and exception allowed.

The defendant did not offer any testimony. The rule is t where there is any substantial testimony, independent of the testimony of an accomplice, tending to connect the defendant with the commission of the crime charged, its weight is for the jury. In this case the witness, Mrs. Patterson, testified-to the defendant’s possession of the stolen animal, and her testimony in itself, if believed by the jury, as it was, is a sufficient corroboration. For this reason the motion to direct a verdict of acquittal was properly overruled. On the record before us we see no reason to doubt that this. conviction was justified by the evidence, and finding no error prejudicial to the defendant, the judgment of the lower court is affirmed.

MATSON and BESSEY, JJ., concur.


author: PER CURIAM.

text:
    RUFERT DePRIEST v. STATE.
    No. A-3698.
    Opinion Filed Aug. 11, 1921.
    (198 Pac. 102.)
    Appeal from District Court, Muskogee County; Chas. G. Watts, Judge.
    Rufert DePriest was convicted of the crime of grand larceny, and sentenced to serve a term of two years ’ imprisonment in the state penitentiary.
    Appeal dismissed.

      Brook & Brook, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Rnfert DePriest, hereinafter referred to as defendant, was convicted in the district court of Muskogee county of the crime of grand larceny, and punishment fixed as above stated.

Defendant has attempted to appeal to this court from the judgment of conviction rendered against him in the, trial court by filing in this court, on the 10th day of February, 1920, a case-made with petition in error attached. However, an examination of the record discloses that defendant, within the six months period after the rendition of judgment, served no written notices of appeal upon the court clerk or county attorney of Muskogee county, as provided in section 5992, Revised Laws 1910; nor did he, within said six months’ period, have any summons in error issued out of this court upon the Attorney General, or procure a waiver of the issuance and service of same by said officer, as provided in section 5997, Revised Laws 1910.

All steps necessary to confer jurisdiction of the appeal on this court must be taken in a felony case within six months after the rendition of judgment in the trial court. If the appeal is not properly perfected within the six months period, this court does not acquire jurisdiction of the same, and the attempted appeal must necessarily be dismissed, and it is so ordered.


text:
    NASH et al. v. STATE.
    No. A-3819.
    Opinion Filed Aug. 4, 1921.
    (198 Pac. 973.)
    (Syllabus.)
    Appeal and Error — Time for Appeal — Requisite Procedure —Dismissal. In felony cases, the appeal must be taken within six months after the judgment 3s rendered. (Seo. 5991, 'ítev. Laws 1910.) In such cases an appeal is taken by filing in this court a petition in error with case-made attached, or a transcript of the record, together with proof of service of ijotices of appeal as required by statute, and when this is not done within the time prescribed by the statute this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.
    Appeal from District Court, Washita County; Thos. A. Edwards, Judge.
    Frank Nash, George W. Myers, and Edward Wade were convicted of burglary, and they appeal.
    Appeal dismissed.
    James W. Smith, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error, Frank Nash, George W. Myers, and Edward Wade, were jointly charged, tried and convicted on an information charging that in Wash-ita county on or about the 18th day of October, 1919, they did commit the crime of burglary with explosives, in that they did feloniously enter the building of the Corn State Bank, of Corn, and by the use of and aid of dynamite, nitroglycerine,, gun powder and other explosives open a certain bank vault therein and their punishment was assessed at imprisonment in the penitentiary each for the term of twenty-five years. On December 16, 1919, the court rendered judgment in accordance with the verdict of the jury, from which judgment an appeal was attempted to be taken by filing in this court on July 19, 1920, a petition in error with case-made.

On April 30, 1921, the Attorney General filed a motion to dismiss the appeal, “because the same was not filed in this court within six months after the rendition of the judgment, for which reason this court has no jurisdiction to entertain or hear said appeal.”

Section 5991, Rev. Laws 1910, provides:

“In felony cases the appeal must be taken within six months after the judgment- is rendered. ’ ’

In this ease it appears from the record that the petition in error and ease-made was not filed with the clerk of this court within six months after the judgment was rendered. The last day for filing the appeal was June 17th. The record shows that the appeal was not filed within seven months from the date the judgment was rendered. It follows that the motion to dismiss the appeal should be sustained. It is therefore adjudged and ordered that the purported appeal be and the same is hereby dismissed and the cause remanded to the trial court.

MATSON and BESSEY, JJ., concur.


text:
    FRANK FORNEY v. STATE.
    No. A-3706.
    Opinion Filed Aug. 8, 1921.
    (200 Pac. 558.)
    Appeal from County Court, Texas County; Geo. M. Fritz, Judge.
    Frank Forney was convicted of the offense of operating an automobile without license, and appeals.
    Appeal dismissed.
    John L. Gleason, for plaintiff in error.
    S. P. Freeling, Atty. Gen., E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered in the county court of Texas county on the 22nd day of October, 1919, against plaintiff in error for unlawfully operating an automobile upon a public road of Texas county without first having secured a license therefor, and punishment assessed at a fine of $50 and costs.

The Attorney General has filed a motion to dismiss the appeal on the ground that the same was not filed in this court within 120 days from tbe date the judgment was rendered. An examination of the record discloses that the judgment was rendered on the 22d day of October, 1919, and that the case-made and petition in error were not filed in this court until the 21st day of February, 1920, which was 122 days after the-rendition of said judgment. '

This being an attempted appeal frQm a judgment of conviction for a misdemeanor, the greatest length of time within which the appeal could have been lodged in this court was 120 days from the date of the rendition of judgment. Section 5991, Revised Laws 1910; Miller et al. v. State, 19 Okla. 148, 197 Pac. 121.

The appeal to this court lies from the judgment. Section 5988, Revised Laws 1910.

While- an appeal may be taken by defendant as a matter of right, the manner of taking and perfecting same is a proper matter of legislative control. Waggoner v. State, 13 Okla. Cr. 715, 167 Pac. 237.

The statute prescribing the manner in which an appeal can be taken is mandatory and must be followed. Green v. State, 7 Okla. Cr. 5, 120 Pac. 1037; Gorman v. State, 9 Okla. Cr. 351, 131 Pac. 939.

Case-made and petition in error not having been filed in this court within 120 days after the rendition of judgment, this being a conviction for a misdemeanor, the motion of the Attorney General to dismiss the appeal must necessarily be sustained, and the appeal is therefore ordered dismissed and the cause remanded to the trial court with directions to carry into effect the judgment.