text:
    CLAUDE MOORE v. STATE.
    No. A-3940.
    Opinion Filed March 10, 1923.
    Rehearing Denied Oct. 27, 1923.
    (218 Pac. 1102.)
    (Syllabus.)
    1. Trial — Sufficiency of Instructions when Considered Together. The instructions must be considered as a whole; no single instruction should be considered to the exclusion of the other instructions given. If, when considered together, the instructions correctly cover the law of the case and are not misleading, confusing, and contradictory, errors or omissions in separate instructions will not constitute reversible error.

      2. Homicide — Aggressor's Right of Self-Defense After Abandoning Conflict in Good Faith. The right of one to defend another is coextensive with the right of the other to defend himself. It is not held that the right of self-defense can never arise at' any stage of a difficulty when one is defending himself against dangers of any kind which he may have unlawfully provoked. In all eases where one has withdrawn from an affray or difficulty as far as he possibly can and fairly indicates his desire for peace and is thereafter pursued by the other party who renews the difficulty, his right of self-defense, although once lost, is revived and may be successfully pleaded by him, and thereafter his actions will be justified even to the extent of taking human life if necessary. This is also the law as to a relative who enters such conflict after such withdrawal either with or without knowledge of such withdrawal.
    3. Same — Abandoning Conflict to Defend Relative. If one enters a conflict to defend a relative and afterwards abandons his plan to defend such relative and himself withdraws in good faith from such conflict and is thereafter pursued, his right to defend himself from the latter attack is complete, although the relative to whose aid he first entered the conflict has not withdrawn therefrom.
    4. Instructions as a Whole not Erroneous. Instructions examined, and held fairly to cover the law as applied to the evidence, and not prejudicially erroneous when considered as a whole.
    Appeal from District Court, Cherokee County; A. C. Brewster, Judge.
    Claude Moore was convicted of assault with intent to kill, and he appeals.
    Affirmed.
    This is an appeal from a judgment of conviction against the plaintiff in error, Claude Moore, hereinafter referred to as defendant, rendered in the district court of Cherokee county on the 18th day of September, 1920, wherein defendant was charged with and convicted of the crime of assault with intent to kill one Henry .Cannon, and his punishment fixed as above stated.
    This is a companion ease to that of John Moore v. State, 25 Okla. Cr. 54, 218 Pac. 1106, this day decided, and it will only be necessary to make a short statement of the facts hi addition to that contained in the opinion rendered in No. A-3939.
    On the part of the prosecuting witness, Cannon, the testimony is that John Moore and Claude Moore came into the house of Bob Thomas where a dance was in progress; that John Moore had previously had a difficulty with Henry Cannon, and that both John Moore and Claude Moore had been in the house before this trouble commenced and had left the house and returned with rocks and knives; that John Moore asked Claude Moore, “Shall I hit him?” to which Claude replied, “Beef him,” and then John Moore threw a rock and hit the prosecuting witness, Cannon, on the side of the head with it, after which a general fight and scuffle occurred in the room and on the bed in the room, in which conflict, according to the testimony of the prosecuting witness, both John Moore and Claude Moore cut him with knives, acting together, inflicting serious wounds upon the person of the prosecuting witness.
    Both defendants deny positively that Claude Moore, this defendant, either cut the prosecuting witness or advised his brother to hit the prosecuting witness with the rock. Claude Moore claims that the first he knew of the trouble was after the fight began, and that he interfered therein to prevent his brother being shot by the, prosecuting witness with a pistol which the prosecuting witness then had, and solely for the purpose of taking the pistol from the prosecuting witness, and when he succeeded in getting the pistol from the prosecuting witness the fight ended. •
    There is very little corroborating evidence on either side. There was quite a crowd present, consisting of both men and women, who were evidently considerably frightened when the fight started, and who ran from the house at different times during the conflict so that they were unable to give, both because of their inability to see the conflict plainly because of the crowd, and also because of their frightened condition, a clear detail of the transaction.
    Suffice it to say, as was said in the John Moore Case, that neither John Moore nor Henry Cannon were free from fault, and that this defendant, Claude Moore, is guilty as a principal offender provided the jury believed the testimony on the part of the §tate to the exclusion of that of the defendants. The fact that Claude Moore received a much lighter sentence than his brother John Moore is attributable, no doubt, to the fact that ill feeling existed between the prosecuting witness and John Moore prior to the commencement of this difficulty; that such was not the case as to Claude Moore, and further, according to the state’s testimony, Claude Moore only cut the prosecuting witness one time, while John Moore cut him about a dozen times.
    Bruce L. Keenan, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). On the foregoing facts, eliminating the ■ stock instructions, the trial court in applying the law to the issues gave the following:

“(3) You are instructed that an ‘assault’ is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another. A ‘battery’ is any willful and unlawful use of force or violence upon the person of another. To use or attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases:
“First. When necessarily committed by a public officer in the performance of any legal duty, or by any other person assisting him or acting by his direction.
“Second. When necessarily committed by any person in arresting one who has committed any felony, and delivering him to a public officer competent to receive him in custody.
“Third. When committed either by the party about to be injured or by any other person in his aid or defense in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.
“(4) You are instructed that an ‘attempt to kill’ is defined as follows: Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another with any kind of firearm, air gun, or other means whatever, with intent to. kill said person, or if he commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death, or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding 10 years.
“(5) You are instructed that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals. To ‘aid and abet’ may consist of words spoken, or acts done for the purpose of assisting in the commission of the crime, or of encouraging its commission; to ‘abet’ is to countenance, assist, give aid. The word ‘abet’ includes knowledge of the wrongful purpose of the perpetrator, and counsel and encouragement in the crime.
“(6) You are instructed that consent and acquiescence are mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its per1-petration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. But a mere mental assent to, or acquiescence in, the commission of a crime by one who did not procure or advise its perpetration who takes no part therein, gives no counsel, and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.
“(7) Now, in this case the defendant, Claude Moore, as his plea and for his defense says that the assaulting, striking, bruising, beating, and wounding of the prosecuting witness was justifiable on the part of his brother, John Moore, and that in doing so his brother, John Moore, was acting in his own necessary self-defense, and that he had nothing to do with the fight between John Moore and the prosecuting witness, except to try to disarm the prosecuting witness, and thereby prevent serious bodily injury, or to prevent the prosecuting witness from killing his brother, John Moore. The law gives to every person the right to fight in his own defense, and that of his family, to protect himself or them from the unlawful attack of an adversary, and where a person is unlawfully attacked he is not required to retreat, but has a right to stand his ground, and use whatever force is necessary to repel the attack in order to prevent great bodily injury to himself or member of his family. The law of self-defense was given to the citizen for his protection, but it cannot be pleaded as a defense by one who himself is the aggressor, or who enters voluntarily into a difficulty armed with a deadly or dangerous weapon, no matter in how much danger he may be placed in the course of the difficulty, nor how imminent his peril may become.
“(8) You are instructed that the word ‘aggressor,5 as used in these instructions, refers to and means the person who provoked the difficulty; to ‘provoke the difficulty,’ as used in' these instructions, means to willingly and knowingly use some language or do some act after meeting the antagonist reasonably calculated to lead to an affray or bodily conflict.
“(9) If you find from the evidence that John Moore armed himself with a rock and knife, or with a rock, or with a knife, for the purpose and with the intent of provoking the difficulty with the prosecuting witness, and in order that he might have an opportunity or pretext to assault the prosecuting, witness and to inflict serious bodily' harm or injury upon him, and in pursuance of such design did provoke a difficulty with the prosecuting witness, and did assault, strike, bruise, and beat, with force likely to produce death, and did wound the prosecuting witness with the felonious intent of him, the said John Moore, intentionally, wrongfully, unlawfully, purposely, and feloniously to kill the prosecuting witness, and that the defendant did aid, abet, or assist his brother John Moore, it will be your duty to find the defendant guilty; unless you find from the evidence before the prosecuting witness was so assaulted, beaten, bruised, and wounded the defendant abandoned such intention and in good faith withdrew from the conflict.
“(10) You are instructed that while the law permits a person to defend himself, such is defensive and not offensive, and a person cannot under law arm himself and invite and provoke a difficulty, and as a result thereof a fight ensues, and then invoke the right of self-defense, and if you believe from the evidence in this case beyond a reasonable doubt that the defendant, or his' brother, John Moore, or either, armed himself with a rock, and sought the prosecuting witness, either acting alone, or together, for the purpose of provoking or engaging in a difficulty with the prosecuting witness, and in furtherance of any such design between the said John Moore and Claude Moore, did invoke and provoke the difficulty with the prosecuting witness, and thereupon the defendant or his brother-, John Moore, did assault the prosecuting witness with the intent to kill him with a rock or rocks or knife or knives, which either the said John Moore or the defendant then and there had and held in his hand intentionally, wrongfully, purposely, unlawfully, and felon-iously did assault, strike, bruise, and beat with force likely to produce death and did wound the prosecuting witness with the felonious intent, intentionally, wrongfully, unlawfully, purposely, and feloniously to kill the prosecuting witness, then you should convict the defendant, as under such circumstances the defendant cannot invoke the right of self-defense.
“(11) You are instructed that flight, when unexplained, is a circumstance tending to prove consciousness of guilt, and when taken in connection with all the other evidence in the case, its significance is to be determined by the jury; and you should consider the flight of the defendant in connection with all the other facts and circumstances in evidence in determining the defendant’s guilt or innocence.”

. It is contended that instruction No. 9 is fatally defective, in that it fails to include after the words “aid, abet, or assist his brother, John Moore,” the essential words of the statute, “in its commission”; that is to say, the instruction should read “and that the defendant did aid, abet, and assist his brother, John Moore, in the commission of the offense”; that separated from the commission of the offense, aiding, abetting, or assisting John Moore would not be any offense.

This court has repeatedly held that the instructions must be considered as a whole, that no' single instruction should be considered to the exclusion of the other instructions given; that if, when considered together, they correctly cover the law of the case and are not misleading, confusing, and contradictory, errors or omissions in separate instructions will not constitute reversible error. Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Wishard v. State, 5 Okla. Cr. 610, 115 Pac. 796; Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157; Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699.

Instruction No. 5 defines an “accomplice,” and the jury is told in that instruction that principal offenders must be “concerned in the commission of the crime.” The jury is there also told what the terms “aid” and “abet” mean, and that the “aiding” and “abetting” must be in the “commission of the crime,” and also that “abet” includes “knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime.”

By instruction No. 6 the jury is further told that—

“Mere mental assent to, or acquiescence in, the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel, and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.”

Instructions Nos. 5 and 6 supplement instruction No. 9 and cure any defect occurring in the later instruction. When considered together, we consider the instructions as complete as necessary upon the subject of criminal responsibility of an accomplice, especially in the absence of a request for more definite charges on. that subject. No objection was lodged to either instruction No. 5 or instruction No. 6.

It is also contended that instruction No. 10, which was also excepted to, was prejudicially erroneous for the following reasons:

(1) It is inconsistent with, and in contradiction of, instruction No. 9 construed in connection with instruction No. 5.

(2) It is erroneous within itself.

In this connection it is contended:

“That it is bad within itself because it links the blame of one defendant upon the acts of another. It makes Claude Moore responsible for the acts of John Moore.”

Instruction. No. 10 applies the law of. the case to the right of Claude Moore to defend his brother, John Moore.

The general rule is that the right of one to defend another is coextensive with the right of the other to defend himself. Michie on Homicide, vol. 1, p. 430.

So in this ease Claude Moore could not avail himself of the right of self-defense unless both he and his brother, John, were free from fault in bringing on the difficulty.

The instruction fairly states the law as applied to the right of Claude Moore to act in his brother’s defense and is as favorable to him as the evidence warranted.

While the states of Missouri and Texas hold to the contrary, that is, to the effect that the culpability of one who kills in defense of a relative is not measured by the right of the relative to defend himself, but upon appearance of conditions when he entered the conflict, unless he knew or might reasonably have known the rights possessed by the other under the circumstances of the conflict, such holding in our opinion wholly ignores the right of the deceased, or, in cases of assault, the injured party or prosecuting witness to defend himself. In effect such decisions hold that although the deceased or injured party may at the time be acting wholly within his rights in defending against an unlawful assault, and if killed or injured by the relative who brought about such assault such relative could not claim the right of self-defense, on the other hand, he may under such circumstances be killed or injured by a relative of the party in fault who voluntarily entered the conflict when the first relative was still at fault without criminal responsibility. Further, while the law would’require the relative who provoked the attack to withdraw in good faith from the conflict, no such requirement attaches to the relative who without knowledge of the other’s fault enters voluntarily into a conflict with deceased or prosecuting witness and accomplishes the very result for which the relative first in the wrong sought and brought about the conflict.

To so hold, in our opinion, puts too cheap a valuation upon human life and upon security against unlawful injury. The great weight of authority is to the effect that one who goes to the aid of a relative or third person acts at his own peril, and his right to defend the other is coextensive with the other’s right to defend himself at the time.

It must be understood in this connection that it is intended not to be held, and that we do not hold, that the right of self-defense can never arise at any stage of a difficulty when one is defending himself against dangers of any kind which he may have unlawfully provoked. In all cases where one has withdrawn from the affray or difficulty as far as he possibly can and fairly indicates his desire for peace, and is thereafter pursued by the other party who renews the difficulty, his right of self-defense, though once lost, is revived and may be successfully pleaded by him, and thereafter his actions will be justified even to the extent of taking human life if necessary. This is also the law as to the relative who enters such conflict after such withdrawal, either with or without knowledge of such withdrawal. And, further, if the relative last entering the conflict abandons his plan to defend the other and himself, withdraws in good faith and is himself thereafter pursued by the prosecuting witness or deceased as the ease may be, his right to defend himself from the latter attack is complete, although the relative to whose aid he first entered the conflict has not withdrawn therefrom.

The general rule is adequately stated in the following: Morris v. State (Ala.) 39 South. 608; Sherrill v. State, 138 Ala. 3, 35 South. 129; Utterbach v. Com., 105 Ky. 723, 49 S. W. 479, 88 Am. St. Rep. 328; Sharp v. State, 19 Ohio, 379; Wood v. State, 128 Ala. 27, 29 South. 557, 86 Am. St. Rep. 71; Crockett v. Com., 100 Ky. 382, 39 S. W. 674; State v. Cox, 153 N. C. 638, 69 S. E. 419; Cooper v. State, 123 Tenn. 37, 138 S. W. 826; State v. Cook, 78 S. C. 253, 59 S. E. 862, 15 L. R. A. (N. S.) 1013, 125 Am. St. Rep. 788, 13 Ann. Cas. 1051; Wharton on Homicide (3d Ed.) § 332; 1 Bishop’s Crim. Law, § 877; Hale’s Pleas of the Crown, vol, 1, p. 484.

Nor do we believe that there is any inconsistency between instruction No. 9 and instruction No. 10.

Instruction No. 9 applies the law to the evidence on the theory that Claude Moore was a principal in the second degree; not an accessory before the fact, as contended for by counsel for defendant.

The evidence of the state and that of the defense, considered together and as a whole, authorized the court to submit the case to the jury on the theory that this defendant, even though they might believe he was not a principal in the first degree, was at least a principal in the second degree, in that he was present aiding, abetting, and assisting his brother, John Moore, who, under the common law, was a principal in the first degree.

As under section 2574, Comp. Stats. 1921, the distinction between principals in the first and second degrees is abrogated, the instructions construed in their entirety were not prejudicially erroneous.

The contention of defendant’s counsel that the trial court submitted the cause on the theory that this defendant was an accessory before the fact, that the assault was the outgrowth of a preconceived plan on the part of both John Moore and Claude Moore, is untenable.

This cause was not submitted on a conspiracy theory, but upon the two theories which the evidence tended to present, to wit:

First. That both John Moore and Claude Moore were principals in the first degree.

Second. That John Moore was a principal in the first degree, and Claude Moore a principal in the second degree, because present aiding and abetting the first principal.

Adopting this view of the evidence and the law applicable thereto, we find no error in the court’s general charge considered as a whole sufficient to authorize-reversal of this judgment.

Judgment affirmed.

DOYLE and BESSEY, JJ., concur.


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    HARRY LA COSS v. STATE.
    No. A-4170.
    Opinion Filed Oct. 27, 1923.
    (219 Pac. 416.)
    (Syllabus.)
    1. Appeal and Error — Continuance Within Court’s Discretion. Applications for a continuance are addressed to the discretion of the trial court and a judgment of conviction will not be reversed because of the refusal of the trial, court to grant a continuance, unless a manifest abuse of discretion appears.
    2. Continuance — Continuance for Merely Cumulative Evidence .Denied. Where a continuance is asked to permit defendant to obtain evidence of witnesses residing without the state, and it is not made to appear from the face of the motion that such evidence will be material, and further it appears from the motion that, if material, it will be cumulative of other evidence available to applicant, the continuance is properly denied.
    3. Trial — Assistance of Private Counsel in Prosecution — Authority for Appearance. The assistance of private counsel in the trial of criminal cases is not prohibited. Where county attorney instituted the prosecution and appeared in and conducted the trial, it is discretionary with the trial court to require private counsel to state to the court (for the benefit of the defendant) by what authority he appears to assist in the trial.
    4. Same — Failure to Require Private Counsel to State not Reversible Error. Where the prosecution appears from its inception to have been instituted and carried on in the name of the state, and it is not made to appear that private counsel was guilty of any misconduct prejudicial to the substantial rights of the defendant at the trial, the mere failure of the trial court to require private counsel to state by what authority he appears to assist in the trial will not' be held reversible error.
    5. Trial — Homicide—Instructions to be Applicable to Evidence— Failure to Instruct on Second Degree Manslaughter not Erroneous. The instructions should be applicable to the evidence. In a prosecution for murder the failure of the trial court to instruct on manslaughter in the second degree is not erroneous; there being no testimony tending to reduce the homicide to that of manslaughter in the second degree.
    6. Witnesses — Impeachment by Showing Statements Contradictory to Testimony — Laying Predicate. A witness may be Impeached by showing that he has made, out of court, statements material to the issues, contradictory of his testimony at the trial. Where the attention of the witness is first called to the time, place, and persons involved in the supposed contradictory statements in a manner sufficiently definite to reasonably refresh his recollection, and to call his attention to the substance of the subject-matter and statements upon which it is intended to impeach him, the predicate is sufficient.
    7. Instructions Approved. The instructions as. a whole held to fairly and fully cover the law of the case, and to be not misleading or contradictory.
    Appeal from District Court, Stephens County; A. S. Wells, Special Judge.
    Harry La Coss was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      Appeal from the district court of Stephens county. Con-' vietion of manslaughter in first degree with punishment at 30 years’ imprisonment in the penitentiary. Judgment rendered July 21, 1921. Petition in error and ease-made filed in this court January 16, 1922. Prosecution for murder alleged to have been committed on the 5th day of June, 1921, by defendant stabbing and cutting one Jim Vance with a knife. A synopsis of the substantial testimony of the witnesses follows :
    “J. P. Briggs testified that he was the proprietor of the ‘B & V Cafe’ in Empire City, where the fatal difficulty occurred; that, at the time of the fatal difficulty, the defendant was working for the witness as a cook; that he was attracted to the difficulty by two men falling on the floor of the kitchen, and that he arrived on the scene immediately after and found the defendant and the deceased lying side by side; that the deceased had his right arm around the defendant’s neck and that their faces were close to the floor; that the defendant held a knife in his right hand and the point thereof was sticking in the floor; that the deceased was stabbed in the left side of the neck and lived about three minutes after the witness got to him.
    “Louis Bledsoe testified in substance that he was engaged in the pool hall business; that he was about two doors from the ‘B & V Cafe’ when he heard the noise of the difficulty between the deceased and the defendant; that when he arrived the deceased was lying on the floor and a bloody knife was lying on a table in the kitchen; that the deceased died soon after.
    “L. Woodward testified that he was engaged in the undertaking business a£ Duncan, Okla., and prepared the deceased Jim Vance for burial, and described the wounds on the body of the deceased as a stab on the left side of the neck and a gash in the muscle of his left arm, the stab sew-ering part of the jugular vein.
    “Sam Harlan testified that he knew the deceased for about two weeks before his death; that at the time of the difficulty he was working as a dishwasher at the ‘B & V Cafe,’ assisting the defendant, but that he had only known the defendant about two hours before the difficulty; that immediately before the difficulty, the deceased came into the back door of the kitchen; and that the deceased spoke to the witness, but did not speak to the defendant when he came into the kitchen; that the defendant asked the deceased why he kicked his boy, and after a heated conversation between the defendant and the deceased, the witness left the kitchen by the back door and did not see any of the difficulty. The witness further testified that he had been in jail since the time of the difficulty, being held as a witness for the state. The witness denied that in the presence of John Schulz, Mrs. Schulz, Mrs. Matthews, and Mr. Hood, or either of them, while he was in jail, he had a conversation in which he inquired if the defendant had any money, and stated that he had never told all that he knew about the killing, and could clear defendant for $300 or $100.
    “V. Dombroske testified as follows: That at the time of the difficulty the witness was lying on a cot in the building adjoining that in which the trouble occurred, and upon hearing the noise ran to the back door of the kitchen where the difficulty was, and saw the defendant and the deceased lying on the floor, the defendant holding a knife in his hand and the deceased trying to get up; that the witness immediately left to get some weapon to knock the knife out of the defendant’s hand.
    “Ed Skeen testified that at the time of the difficulty he was working as a dishwasher in the place of the deceased in a restaurant adjoining the restaurant where the difficulty occurred; that he was attracted to the ‘B & V Cafe’ by the noise of the difficulty between the defendant and the deceased, and went immediately to the back door of -the ‘B & Y Cafe,’ and there he saw the defendant standing over the deceased; that no other person was present at the time except the witness Briggs, the defendant and Jim Vance; that the defendant had a knife in his hand at the time, and the deceased was lying on the floor.

      "Walter Vance testified that he was the father of the deceased; that the deceased was 18 years of age at the time of his death.
    "John Schulz testified for defendant that he knew the witness Sam Harlan, and had a conversation with Harlan relative to what his testimony would be in this case, and that Harlan stated in substance that if they would dig him up $300 or $100, one or the other, that he knew some things connected with this ease that would clear old man La Coss, and that he would tell it if they would furnish that much money; that he was in the thing for as much money as he could get hut of it.
    "Mrs. Kate Matthews testified in substance as the witness John Schulz relative to the statements made by the witness, Sam Harlan.
    "John Hood testified substantially as the witness John Schulz and Mrs. Matthews.
    "Harold La Coss testified that he is a son of the defendant; that he was near the ‘B & V Cafe’ at the time the fatal trouble arose; that upon hearing' the noise he went immediately to the place of the difficulty, and that the defendant, Jim Vance, and the witness Briggs were present at the time; that the deceased and the defendant were lying on the floor, with one arm about each other’s necks; that when he arrived the defendant had the knife in his hand and the point of the knife was sticking in the floor; that the witness picked up the knife, and placed it on the table in the kitchen.
    "Henry La Coss testified that he is a son of the defendant; that he is thirteen years of age; that a short time before the fatal difficulty he was kicked by the deceased near the restaurant; that something was said about the witness telling his father about being kicked by the deceased, and that the deceased called his father a low-down- son of a bitch and a bastard, and that if the witness told his father he would kill that low-down son of a bitch if he came out there; that the witness went immediately to his father, and told him what Jim Vance had done and said, and that his father had told him to go on home and let everything drop.
    “Dewey Gowan testified that he was with the witness Henry La Coss at the time of the threats made by the deceased against the defendant, and his testimony is substantially the 'same as that of Henry La Coss.
    “Willie Walton testified that he was with the witness Henry La Coss and the witness Dewey Gowan at the time of the difficulty between the witness Henry La Coss and the deceased, his testimony being substantially that of Henry La Coss and Dewey Gowan.
    “S. S. Baker testified that he had known the defendant since November, 1918, that' he was acquainted with the . general character of the defendant at the different places he had known him; that his reputation for being a peacable and law-abiding citizen was good.
    “E. B. Wilkinson testified substantially as the witness S. S. Baker as to the reputation of the defendant.
    “Mrs. Harry La Coss testified that she was the wife of the defendant; that she and the defendant have been married about 21 years; that she has four children living; that-the defendant, prior to coming to Oklahoma, worked as an oil well driller and as a railroad man, but that on coming to Empire City, Oklahoma, he was compelled to work as .a dishwasher and cook; that they lived in a tent at Empire City;' that her husband has always been a peaceful and law-abiding citizen, and had' never had any trouble; that the defendant had had-two sunstrokes, and frequently suffered great pains in his head on account of the heat; that she knew the defendant’s father, and that his father died insane in the state of Missouri; that his father became insane at approximately the same age that the defendant is at this time.
    “Harry La Coss testified that he is 51 years of ,age; that a short time before the fatal difficulty arose, his little boy, Henry La Coss, came to him while he was working in the kitchen of the ‘B & V Cafe,.’ and told him that ‘Big Boy,’ meaning the deceased, had kicked him, and that the boy told him that the deceased had called him an old bastard; that shortly before the difficulty, the witness Sam Harlan, who was working in the kitchen at the time, went out at the front of the restaurant several times; that soon thereafter the deceased, Jim Vance, came in at the back door of the restaurant, and the defendant asked him what the trouble was between him and his small boy, Henry La Coss; the witness told the deceased to go out of the restaurant, that he did not want to fuss with him; that the deceased struck the defendant on the neck; that when the deceased struck the defendant the deceased said, ‘Do you like that, you old son of a bitch,’ and at the same time grabbed for the knife lying on the table; that the deceased and the defendant both reached for the knife at the same time; that when the deceased struck him on the neck he was thrown back and when the deceased reached for the knife the defendant managed to get it first; that the deceased then made a rush for the defendant’s throat, and that the defendant was in such a state of mind that he does not recall what occurred thereafter, until he was spoken to by the witness Briggs, while the defendant and the deceased were lying on the floor; that immediately after the difficulty he came to Duncan and gave himself up to the sheriff; that he has no recollection of stabbing or cutting the deceased, but that he assumes that the deceased was cut, by the blood on his own clothing; that the kitchen in which the defendant worked at the time had a low roof, and that a hot stove was going, and that the temperature was very hot and sultry; that the defendant was subject to sunstroke; that heat frequently causes him to become groggy, and he is unable to see anything; that when he has these spells and pains in the head, he is unable to recollect and forgets himself; that his father died in an insane asylum at St. Joseph, Mo., that he became insane at about 53 years of age. Defendant also testified that he did not remember having any conversation with Jim Brown or Mrs. Brown or with the sheriff in the courthouse in the city of Duncan shortly after the killing, defendant also denied conversation with R. G. Crossland on way to Duncan immediately after killing.
    “J. B. Bartley testified that he is a practicing physician, and has been in the practice for approximately 25 years; that during said time he has had, occasion to treat and observe patients suffering from sunstroke and insanity. A hypothetical question was asked the witness which in substance was: ‘Assuming the theory of the defendant that the defendant was struck a violent blow at the base of the brain, and that the defendant was subject to sunstroke and the loss of consciousness on account of heat, and that his father, at approximately his own age, had become insane, if such matters might deprive such person of his reason, temporarily or deprive such person of his reason permanently and render him incapable of knowing his acts and the wrongfulness of his acts?’ The witness answered the question that it might do so.
    “Lee Curtis testified that he was in jail at the time the defendant was brought to the jail; that the defendant was suffering about the head and neck at the time, and that the witness treated him for the trouble by placing wet towels on his head and neck.
    “Frank Wright testified substantially as did the witness Lee Curtis.
    “In rebuttal the state called as a witness Mrs. Jim Brown who testified that she was a deputy sheriff and jailer at the time the defendant was brought to the jail of Stephens county; that she had a conversation with the defendant in the jail when herself and her husband were present, part of her testimony being as follows:
    “ ‘Q. Mrs. Brown, I will ask you if he stated to you on that occasion, this or this, in substance, that the fellow who had kicked his boy came into the restaurant, and he asked him why he kicked the boy, and he said he throwed dirt on his shirt, and he told him to get out of the restaurant and he didn’t go, and Yance struck at him and he knocked the lick off with his left hand, and grabbed the knife with his right hand. I will ask you if he didn’t tell that in substance.
    “ ‘By Mr. Merrill: Objected to as incompetent, irrelevant, and immaterial; no predicate being laid. Don’t know the time and place, and it is different from the question asked the defendant as to the time and place; it might refer to the witness Mr. Brown. The witness on the stand testified the conversation was upstairs, and the conversation with the witness Brown whose predicate was made or referred to downstairs, and the further objection as it is not in the language of the county attorney as submitted to the defendant on the stand yesterday and for the further reason that the answer of the defendant yesterday is such an answer as to prevent the impeachment, being of such a nature as to not permit an impeachment.
    “ ‘By the Court: Overruled.
    “ ‘By Mr. Merrill: To which the defendant excepts.
    “ ‘Q. Did he tell you that or that in substance? A. He told me that in part, not all of that language.
    “ ‘By Mr. Merrill: I ask that answer be stricken out, and the jury instructed not to regard it.
    “ ‘By the Court: Overruled.
    “ ‘By Mr. Merrill: To which the defendant excepts.
    “Jim Brown testified that he is a deputy sheriff of Stephens county; that he knew the defendant, Harry La Coss; that after the defendant surrendered himself he had a conversation with the defendant, part of his testimony being as follows:
    “ ‘Q. I will ask you if he didn’t tell you this or this in substance, that the deceased, Jim Vance, came into the “B & V Cafe” where he Avas cooking, and prior thereto, about 20 or 30 minutes, he kicked his boy, and he asked Jim Vance why he called him a bastard, to which Jim Vance replied he was a little too fast, and that Jim Vance struck him with his fist, and the defendant knocked off his lick with his left hand, and picked up the knife with his right hand?
    “ ‘By Mr. Merrill: Objected to for the reason of the time and place and circumstances that same was made and that same was made under duress of imprisonment and without warning on behalf of the .'officers, that such statements could be used against him if made there.
    “ ‘By the Court: Overruled.
    “‘By Mr. Merrill: To which defendant, excepts. And we object for the further reason that the answers made by the defendant on the stand yesterday will not justify impeaching questions, for the reason that same was not an unqualified denial.
    “‘By the Court: Overruled.
    “ ‘By Mr. Merrill: To which defendant excepts. A. Yes, sir.’
    “R. G. Crossland testified in part as follows:
    “ ‘Q. Do you remember of seeing the defendant after the killing the same day? A. Yes, sir. Q. Where did you see him? A. I was coming to town and overtaken him out here the other side of the cemetery. Q. Did you ride any part of the way with him? A. Yes, sir; he asked to ride to town, something was wrong with his ear. Q. Did you hear him make any statements about the killing of Jim Vanee? A, Yes, sir. Q. I will ask you if he made this statement or this in substance, that he had cut a son of a bitch’s throat in Empire City who had kicked his little boy, and he could stand a little himself, but wouldn’t stand for anybody to fool with his children, that he started to throw the son of a bitch out of the building, and he struck at him, and he cut his throat?
    “ ‘By Mr. Merrill: Objected to as no predicate has been laid in the cross-examination of the defendant, and for the reason the question doesn’t state the time and place and the question is in words and language and import an intention of that sort to have the defendant admit and that when the question was submitted to him wholly improper and is at this time.
    “ ‘By the Court: Overruled.
    “ ‘By Mr. Merrill: To which the defendant excepts. A. He did/ ”
    J. G. Clift, for plaintiff in error.

      George F. Short, Atty. Gen., and Kathryn Van Leuven, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). It is first contended that the trial court erred in overruling the motion for continuance.

The application for a continuance is based upon two grounds: First, lack of opportunity by counsel to prepare the defense; second, absence of material witnesses.

It has been repeatedly held by this court that motions for continuance are addressed to the sound discretion of the trial court, and that the judgment will not be set aside for a failure to grant a continuance unless a manifest abuse of discretion appears. Reed v. State, 14 Okla. Cr. 651, 174 Pac. 800; White v. State, 9 Okla. Cr. 442, 132 Pac. 381; Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825.

The defendant was a poor person, and on the 6th day of July, 1921, the court appointed W. B. Merrill and J. G. Clift as attorneys to defend him in this prosecution. The case had been previously set for trial on the 11th day of July following. The inability to prepare defense is based upon the proposition that one of the defenses to be interposed was that of insanity, and that, if given an opportunity, counsel would be able to procure the testimony of witnesses residing without the state who would testify that the father of the defendant became insane at about the age of the defendant at the time defendant killed the deceased. The motion wás properly overruled as to this ground for several reasons: First, it is not made to appear who these witnesses would be, and where located; second, the materiality of this testimony is not made to appear from the face of the motion; third, it is apparent from the motion that the evidence, if procured, would be cumulative.

As to the second ground stated it appears from the record that one of the witnesses for whom a continuance was asked was produced and testified in behalf of the defendant, and that the testimony of the other witnesses whose attendance is sought was cumulative of that produced at the trial. It is sufficient to state that, considering the motion for continuance as a whole in the light of the record before us, it appears no rights of the defendant were prejudiced, and there was no manifest abuse of discretion on the part of the trial court in overruling the motion.

Next it is contended that the trial court erred in permitting private counsel to appear and assist in the prosecution. No objection was raised to private counsel assisting in the trial at the beginning of the trial. In Reed v. State, 2 Okla. Cr. 589, it was held: “The laws of this state only prohibit persons other than the county attorney or his deputy from performing such acts in the prosecution of crimes as are strictly official, such as appearing before and advising the grand jury, verifying and filing informations, approving complaints, etc.,” and it was further held in that case that “the assistance of private counsel in the trial of criminal cases is not prohibited.”

The county attorney appeared and conducted this prosecution on behalf of the state. The information was filed by the county attorney, and indorsed by him, and the record shows that all the preliminary steps taken to institute this prosecution were taken by the county attorney, the official representative of the state in that capacity. It was perhaps discretionary with the trial court to require private counsel to state to the court by what authority he appeared, but there is no statute requiring the proceedings in a criminal case to be stayed until such authority is shown such as section 4099, Compiled Statutes 1921, applicable to civil proceedings.

In view of the fact that the assistance of private counsel in the trial of criminal cases is not prohibited, and. in view of the further fact that this prosecution appears from its inception to have been instituted and carried on in the name and by the authority of the state of Oklahoma, and in view of the further fact that it is not contended that there was any misconduct by any private counsel prejudicial to the substantial rights of the defendant, we deem the assignment of error wholly without merit.

Next it is contended that the trial court- erred in failing to give an instruction on the law relative to manslaughter in the second degree. We have carefully examined the transcript of the evidence in this ease, and fail to find any testimony which tends to reduce the degree of this homicide to that of manslaughter in the second degree.

In Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124, it is held:

“The refusal to give manslaughter instructions in a prosecution for murder is not error, if there is no evidence tending to reduce the degree of the crime from murder to manslaughter in either degree.” See, also, Williams v. State, 17 Okla. Cr. 375, 188 Pac. 890; Williamson v. State, 19 Okla. Cr. 430, 200 Pac. 461; Ussaery v. State, 22 Okla. Cr. 397, 212 Pac. 137; Smith et al. v. State, 22 Okla. Cr. 383, 212 Pac. 1012.

Next it is contended that the trial court erred in admitting certain testimony over the objections of the defendant.

This assignment relates to the testimony of certain witnesses introduced by the state in rebuttal for the purpose of impeaching the testimony of the defendant. Certain witnesses were permitted to testify in rebuttal to certain statements made by the defendant shortly after the killing of the deceased, which statements, if true, were contradictory to the testimony of the defendant given at the trial on matters material to the issue. Testimony of this character is proper for impeachment purposes. Smith v. State, 3 Okla. Cr. 629, 108 Pac. 418; Kuykendall v. Lambert et al., 68 Okla. 258, 173 Pac. 657; Freels v. State, 18 Okla. Cr. 456, 195 Pac. 1094.

The only objection urged to the admission of this testimony is that the question asked the impeaching witness did not conform to the predicate laid. In this connection it is sufficient to state that an examination of the record discloses that the attention of the defendant was first called to the time, place, and persons involved in the supposed contradictory statements or conversations in a manner sufficiently definite to reasonably refresh his recollection, and to call his attention to the substance of the subject-matter and statements upon which it was intended to impeach him. We think -the predicate laid sufficient, and, in addition, the trial court instructed the jury that such evidence was introduced solely for impeachment purposes, and could not be considered as substantive proof of any of the alleged facts detailed by the impeaching witnesses in such conversations.

Certain instructions given in the general charge to the jury are contended to be erroneous. We have carefully examined the entire set of instructions, and find that certain of the instructions complained of have heretofore been approved by this court where the issue of self-defense was involved, and further that the instructions as a whole fairly and fully cover the law of the case from every angle; indeed more favorably to the defendant than the evidence probably warranted. The general charge covered the law of the case, and in the opinion of this court was. not misleading, contradictory, or unfair to the defendant.

The conclusion is reached that the defendant had a fair and impartial trial; that there is nothing contained in this record to indicate that the defendant could have a more fair trial.had the cause been continued to a later term of court; that no reversible error is presented, and that the judgment of the trial court should be affirmed. It is so ordered.

BESSEY and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    CLARENCE MORLAN v. STATE.
    No. A-4407.
    Opinion Filed Oct. 27, 1923.
    (219 Pac. 172.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Manufacture — Lack of Evidence. In a prosecution for manufacturing intoxicating liquor, evidence examined, and held insufficient to sustain the verdict and judgment of conviction.
    Appeal from County Court, Dewey County; W. A. Carlton, Judge.
    Clarence Morían was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    Hoyt & Butler, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the county court of Dewey county, wherein Clarence Morían was sentenced to be confined in the county jail for 60 days and to pay a fine of $100 and costs, taxed in the sum of $105. It was charged in the information, in substance, that the crime of manufacturing intoxicating liquor was committed by the ■defendant by willfully and unlawfully manufacturing, by process of distillation, intoxicating liquor containing more than one-half of 1 per cent, of alcohol by volume measure, to wit, home' distilled liquor and capable of being used as' a beverage. Upon the trial the jury returned a verdict of guilty, but were unable to agree upon the punishment.

The Attorney General has filed the following confession of error:

“The record in this appeal discloses that there was not a scintilla of evidence offered upon the part of the state to show that any quantity whatever of intoxicating liquor had been manufactured by the plaintiff in error, or that the mixture found upon the premises of plaintiff in error contained as much as one-half of 1 per cent, of alcohol, measured by volume. It is to be noticed that the information charges the plaintiff in error with having manufactured intoxicating liquor by a process of distillation, and the chief witness for the state, in his testimony, discloses the fact that no part of the mixture had ever been distilled; in any manner or form. The verdict of the jury is clearly without any evidence to support the same and we respectfully suggest that this cause should be reversed.”

An examination of the record discloses that the- confession of error is well-founded and should be sustained. Because the evidence is entirely insufficient to support' the verdict and judgment of conviction, the judgment- of the lower court is reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    JAMES R. GOBER v. STATE.
    No. A-4283.
    Opinion Filed Oct. 29, 1923.
    (219 Pac. 173.)
    (Syllabus.)
    1. Homicide — Information for Assault with Intent to Kill Sufficient. For information held sufficient' to charge assault and battery with intent to kill by means of force likely to produce death, see body of opinion.
    2. Statutory Provisions. Section 1756, Comp. St. 1921, sets out four different means by which the crime there defined may be committed: First, by shooting or attempting to shoot at another; second, by assault and battery by means of a deadly weapon; third, by assault and battery by means other than a deadly weapon, but by such force as is likely to produce death; fourth, by assault and battery in resisting the execution of any legal process.
    3. Homicide — Information for Assault with Intent to Kill Held not Required to Describe Weapon. Where the information charges the offense under the third division above stated, it is not necessary to allege the means used to have been a deadly weapon, or to describe any weapon used, except where necessary to set out the acts constituting “force likely to produce death.”
    4. Same — Sufficiency of Information. Where the information sets out the acts alleged to constitute “force likely to produce death” in such manner as to enable the defendant to know what is intended to be charged against him, and further alleges that such acts were perpetrated “with intent to kill,” it is sufficient to charge the offense of assault and battery with intent to kill, under the third division of section 1756, Comp. St. 1921.
    5. Same — Force Used and Intent to Kill, Questions of Fact. Whether the force used was such “as likely to produce death” and whether or not the intent' was to kill are questions of fact for the jury.
    6. Trial — Instructions Construed as a Whole Sufficient. Where the instructions as a whole are a fair and full exposition of the law of the case, and not misleading or contradictory, they are sufficient.
    Appeal from District Court, Ellis County; T. P. Clay, Judge.
    James R. Gober was convicted of assault and battery, and he appeals.
    Affirmed.
    C. B. Leedy, T. R. Blaine, and Perry J. Morris, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction of the crime of assault and battery rendered in the district court of Ellis county on the 10th day of October, 1921. Punishment was assessed at a fine of $50 and costs. Case-made and petition in error were filed in this court on the 7th day of April, 1922. Whatever comment on the facts is deemed necessary will be stated in concluding the opinion.

It is first contended that the trial court erred in overruling the demurrer of the defendant to the information, and also in overruling, his motion in arrest of judgment. These assignments of error are based on the contention that the information is insufficient to state facts constituting a felony under the laws of this state. The charging part of the information is as follows:

“Now comes Harry C. Brownlee, the duly elected, qualified and acting county attorney in and for the county of Ellis and state of Oklahoma, and gives the court to know and be informed that on the 13th day of February in the year of our Lord one thousand nine hundred and twenty-one (1921), at and within the county of Ellis and state of Oklahoma, one James R. Gober did then and there unlawfully, willfully, intentionally, wrongfully, and feloniously commit an assault and battery upon one G. A. Wahl by such means and force as is likely to produce death, to-wit, with heavy leather shoes on the feet of the said James R. Goher, and with which said shoes on the feet of the said James R. Gober he (the said James R. Gober) did violently kick and strike, beat and wound the stomach, bladder, intestines, groin, and body of the said G. A. Wahl, with such force as was likely to cause death, and with the intent of him (the said James R. Gober) to injure and kill the said G. A. Wahl, said defendant then and there being a robust, powerful man of about 225 pounds in weight, and the said G. A. Wahl being then and there a weakly slender man of 132 pounds in weight, contrary to the form of the statutes in such case made and provided-, and against the peace and dignity of the state. ’ ’

In drawing the information the pleader evidently intended to charge the crime defined by section 1756, Compiled Statutes 1921:

"Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

It is contended that the information is fatally defective in that "it does not state or show that the means used or manner thereof, and the amount of force used, were of such character as was reasonably calculated to cause death; that, where the means or instruments themselves which are or may be used are not deadly weapons per se, then a sufficient description of such instruments, weapons, or means used, and the character thereof, together with the manner in which such weapons, means, or instruments are used, must be pleaded in the information, or else it is fatally defective.”

Section 1756, supra, sets out four different means in which the crime there defined may be committed: First, by shooting or attempt to shoot at another; second, by assault and battery by means of a deadly weapon; third, by assault and battery by means other than a deadly weapon, but by such force as is likely to produce death; fourth, by assault and battery in resisting the execution of any legal process.

The information here attacked charged the offense to have been committed by means other than a deadly weapon, but by force likely to produce death, so that the decisions of this court relative to the description of a weapon, where the same is not per se deadly, where it is alleged that the assault and battery was committed by means of a deadly . weapon, are not in point in attacking this information.

The sixth subdivision of section 2563, Compiled Statutes . 1921, relative to the sufficiency of an indictment or information, provides that the indictment or information is sufficient if, among other things, “the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.” Section 2556, Id., provides that an indictment or information must be direct and certain: First, as to the party charged; second, as to the offense charged; third, as to the particular • circumstances of the offense charged, when they are necessary to constitute a complete offense. The information here charged:

“That defendant wrongfully and feloniously committed an assault and battery upon G. A. Wahl by such means and force as is likely to produce death.”

And the information proceeds to set out specifically the acts constituting such means and force in the following language, to wit:

“With heavy leather shoes on the feet of the said James R. Gober, he (the said James R. Gober) did violently kick and strike, beat and wound the stomach, bladder; intestines, groin, and body of the said G. A. Wahl, with such force as is likely to cause death, and with the intent of him (the said James R. Gober) to kill the said G. A. Wahl.”

It is immaterial under the statute whether or not a deadly or dangerous weapon is used, provided, of course, that the force used is likely to produce death and the intent of the defendant at the time is to kill. It then becomes a question of fact for the. jury to determine whether or not the force used is such as is likely to produce death, ■ and whether or not the defendant intends to kill by the use of such force.

We are of opinion, therefore, that the information sufficiently charges the crime of assault and battery with intent to kill by means other than a deadly weapon, but by such force as is likely to produce death, and that it was sufficient, therefore, to confer jurisdiction upon the district court to try this offense.

Certain objections are made to the instructions of the trial court. We have examined the instructions as a whole, and consider them as a fair and full exposition of the law of the case without prejudice to any substantial right of the defendant. The evidence on the part of the state proves a very aggravated case of assault and battery, and while defendant at the time was a city marshal of the town of Shat-tuck, Okla., there is very little evidence in the record that would excuse or justify the severe kicking and bruising inflicted upon the man Wahl. The defendant was a man weighing about 100 pounds more than Wahl, and, no doubt, could have easily handled him, were it necessary, without resort to extreme violence. We find nothing in the record of the evidence to induce this court to look with favor upon this appeal. That defendant was convicted only of the included misdemeanor and punished by fine without imprisonment should furnish occasion for rejoicing rather than cause for complaint.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    J. A. MOORE v. STATE.
    No. A-4218.
    Opinion Filed Oct. 30, 1923.
    (219 Pac. 175.)
    (Syllabus.)
    1. Homicide — Rule as to Admissibility of Dying Declaration. Dying declarations, to be admissible, must be made under a sense of impending death, but it' is not necessary that the declarant state that he is expecting immediate death. It is sufficient if, from all the circumstances, it satisfactorily appears that' they were made under that sanction.
    2. Same — Statements of Deceased Immediately after Homicide Held Sufficient Predicate. Proof that deceased was shot about 3 o’clock in the afternoon, and died that night, that his wounds were necessarily fatal, and that he stated to those present' immediately after he was shot, “I am going to die," and that “I would rather die at home than anywhere else,” sufficiently shows that the deceased appreciated the certainty of his impending death, and is in itself a sufficient predicate for the admission of his statement of the circumstances of the homicide as a dying declaration.
    3. Homicide — Intervener in Difficulty Between Others — Criminal Responsibility. The right of one to defend another is coextensive with the right of the other to defend himself, and one who intervenes in a difficulty between others must accept all the responsibilities and liabilities of the person for whom he intervenes.
    4. Same — Killing Another in Defense of Son. If one fires a fatal shot in defense of his son, he is justifiable or not according as the son would be innocent or guilty had he fired the shot in his own defense.
    5. Homicide — Manslaughter in First Degree — Evidence Sustaining .Conviction. In a homicide case, evidence reviewed, and held to justify a conviction of manslaughter in the first degree.
    Appeal from District Court, Le Flore County; E. F. Lester, Judge.
    J. A. Moore was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Neal & Neal and White & Reid, for plaintiff in error.

      George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this ease, filed in the district court of Le Flore county, the defendant, J. A. Moore, was charged with the crime of murder, he having shot and killed one J. T. Bailey. Upon his trial the jury found him guilty of manslaughter in the first degree, and assessed the punishment at imprisonment in the penitentiary for the term of 15 years. From the judgment rendered in pursuance of the verdict, he has appealed to this court.

It appears that the homicide occurred at the annual school meeting held in a sehoolhouse near Zoe, on the 12th day of July, 1921; that about 150 people were present, and the meeting had been in progress for about one hour at the time of the tragedy. The evidence shows that' there was considerable feeling among the patrons of the school relative to the employment of the principal of the school, and that the school board had already employed Mr. McAnally principal for the ensuing year, and some of those present, including the deceased, favored reducing the term of school to 3 months, instead of 9, on account of this feeling towards Mr. McAnally.

Mr. Whitener testified:

“There must have been 150 or 200 people present. I was alone in the hallway. Mr. Bailey came out the door, and the defendant’s son came up behind him, and struck at Mr. Bailey. They clinched, and went down on the floor. Then the defendant rushed down the hallway to them with something in his right hand. The crowd rushed out between me and the defendant, and I heard but did not see the shooting. ’ ’

D. A. Carriker testified:

“They were discussing the length of the term, whether it should be 9 months or a shorter term. Mrs. Hendrix got up, and said she was in favor of 9 months school, and spoke highly in favor of Mr. McAnally; Mr. Bailey spoke up, and said that was the first person he had ever heard speak of Mr. McAnally as being a good teacher. The defendant jumped up and said something in regard to a man arguing with a lady. Mr. Bailey told him that he would argue with him on the outside, the defendant said, ‘All right,’ and they started out. Mr. Bailey walked out the east door, and the defendant walked down the aisle to the west door. Both doors lead into the same hall. The defendant’s son, Henry Moore, was sitting on the back of a seat near the west door, and as Mr. Bailey started out Henry started going out ahead of his father. I followed the defendant into the hall. Henry Moore had his arm around Mr. Bailey’s neck, and the defendant commenced shooting him in the back. There was six or seven shots fired — maybe more. The first three or four shots were in rapid succession. There was a short lull, then the other shots. It seems to me now that four shots hit'Mr. Bailey in the back.”

Wilson McKenny testified:

“I was standing in the east door when the words were spoken. They both started out. Mr. Bailey came to the door I was standing in and passed out by me. The defendant started out the west door. I turned to the hallway, and saw Henry Moore either strike at or grab Mr. Bailey, I don’t know which. They both went to the floor in the scuffle. I saw the defendant I judge 8 or 10 feet down the hallway. Mr. Bailey was down on his knees. The defendant held the gun close, and shot Mr. Bailey in the back. I could not say just how many shots were fired. The pistol was a Colts automatic .32. The east and west doors are about 15 feet apart. ’ ’

Will MeKenney testified:

“I ran out the west door. Henry Moore was standing by the east door, and he struck or grabbed Mr. Bailey as he came out the door. They went down, and the defendant rushed up and shot Mr. Bailey in the back. It appears that death ensued within 12 hours from the time of the shooting, the result of four gunshot wounds in the back and one in the side.”

The defense was justifiable homicide.

Henry Moore, 18 years of age, son of the defendant, testified :

“I left the room, and was out about 10 or 15 minutes, and as I was coming back through the hall Mr. Bailey rushed out, and I threw up my hands to avoid colliding with him; then he hit me with his left fist, and knocked me down. I started to get up, and he caught me around the neck. I heard the shots, and some one pulled me back. Mr. McAnally, the teacher, is my brother-in-law.”

Mrs. Terry testified:

That her father, J. T. Pope, was chairman of the meeting. That she was standing outside at an open window. That when Mr. Bailey enterrupted Mrs. Hendrix the defendant said, “Mr. Chairman, I think these proceedings are out of order; here is a gentleman disputing with a lady.” Mr. Bailey said, “Come outside and I will argue with you.” The defendant started out, and his wife said, “Oh, Jim, don’t fight, Jim!” and Mrs. Bailey said, “Yes; they will.” The defendant went in a hurry, and Mrs. Moore followed Bailey out.

O. C. Terry testified:

That he went out the east door of the room, and the second or third shot was fired as he entered the hall. Mr. Bailey had his left arm around Henry Moore’s neck, and had his right hand in his pocket.

W. 0. Pace testified:

“When I got into the hall Mr. Bailey had Henry Moore down. The defendant was about halfway down the hall, and his wife said, 'Oh, Jim, he is killing Henry!’ ”

B. T. McAnally testified:

That he was a son-in-law of the defendant, and the principal of the school. That when Mr. Bailey started out of the room the defendant’s wife said, “Jim, don’t fight!” and the defendant sat down. His wife started for the door, and the defendant got up and started for the door also, and witness followed two or three steps behind the defendant. When they reached the hall Mrs. Moore hollered, “Jim, he is killing Henry!” Mr. Bailey had his arm around the boy’s neck, and had his right hand in his pocket, and the defendant ran up and shot him, firing five or six shots.

Mrs. James Moore, wife of the defendant, testified:

That when Mr. Bailey invited her husband to come out “that scared me. I jumped up and hollered, ‘No, Jim, you must not fight!’ and Jim kindly smiled, and sat down. I turned and saw Mr. Bailey knock my boy down, and I ran out and grabbed Mr. Bailey by the hair, and went to pulling, and he hit me, and shoved me back against the wall, and rammed his hand back. I hollered to my husband, ‘Oh, Jim, he is killing Henry! ’ and he ran up and began to shoot. ’ ’

As a witness in his own behalf the defendant testified:

“I addressed the chairman and told him I thought Mr. Bailey was out of order arguing with a lady. Mr. Bailey told me to come outside, and he would argue it with me. When he started out the door he said something else, and I turned around, and I saw him hit that boy of mine, and he went down, they both fell just outside the door. I went out, and I found him there in that position. My wife hollered at me, and said, ‘He is killing him!’ I went right on up and shot him. I shot him because I thought my boy was in danger.”

Several witnesses testified that the defendant’s reputation as a peaceable, law-abiding citizen was good.

In rebuttal Roy Branson testified that Henry Moore was in the room when Mr. Bailey invited the defendant out, and immediately went into the hall.

Several witnesses testified that previous to the school meeting they heard the defendant say: “If old man Bailey tries to run “that school meeting, that will be his last one.”

The testimony is voluminous, covering several hundred pages, but the foregoing statement is sufficient for the purpose of this opinion. Several assignments of error relate to the rulings of the court in the admission of alleged improper evidence on the part of the state. .

A careful examination of the record leads to the conclusion that these alleged errors are technical, and without substantial merit. For instance, it is contended that the court erred in admitting the testimony of Mrs. Jackson Turner as to statements of the deceased made after he was shot. She ¡testified that shortly after he was shot he said: “Get back and be quiet; I am going to die” — and some one mentioned' taking him to the hospital, and he said: “No; I would rather die at home than anywhere else.” She further testified that the deceased several times stated that as he started out the door -Henry Moore hit him with knucks, and knocked him almost down, and as he was trying to tear loose from- Henry the defendant shot him. By numerous decisions of this court it is held that it is sufficient if it satisfactorily appears that the declarations were made under a sense of impending death, whether it be directly proved by the express language of the declarant or be inferred from his evident danger, or the opinions of medical attendance stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declarations and his death. Poling v. State, 12 Okla. Cr. 27, 151 Pac. 895, Ann. Cas. 1923E, 663; Palmer v. State, 17 Okla. Cr. 220, 187 Pac. 502; Williams v. State, 17 Okla. Cr. 375, 188 Pac. 890; Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030. We are clearly ■of the opinion that the statement made by deceased was properly admitted in evidence as a dying declaration.

Error is assigned in the giving and in refusing to give certain instructions.

It is contended that the court improperly iústructed the jury on the law of justifiable homicide committed by a parent in defense of his child. Our Penal Code provides that homicide is justifiable (paragraph 2, § 1754, Comp. Stats. 1921):

“When committed in the lawful defense of such person, or of his or her husband, wife, parent, child; master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished. ’ ’

In lieu of the instructions requested, the court gave the following:

“(9) Homicide is justifiable when committed in the lawful defense of one’s person, or of the person of some member of his immediate family.”
“(13) You are instructed that a person under the laws of the state of Oklahoma has a right to defend his child against the unlawful assault of another to the same extent that he might defend himself under similar circumstances. But such person has no right to go further in the defense of his child.than he may lawfully act in the defense of his own person.”
“(16) You are instructed that' a person in defending himself or his child has no right under the law to use more force than appears to him, viewing the controversy from his standpoint and as he is then and there situated, to be .reasonably necessary to protect himself or his child against the ■unlawful assaults of another, and, if such person in the controversy or combat uses more force than appears to him to (>e reasonably necessary, viewing the controversy from his standpoint, and as he is then and there situated, to protect himself or his child from the unlawful assault of another, and as a result thereof a homicide is committed, the killing would be unlawful, the degree of crime depending upon whether or not the act resulting in death was done with a premeditated design to effect the death of the person killed.”
“(18) A parent has the right under the law to go to the assistance of his son where the son is suffering an unlawful attack from another, and to use such force, even to taking life, as is necessary or apparently necessary under all the facts and circumstances as they then reasonably appeared to him to prevent the taking of his son’s life or the infliction upon his child of great bodily injury.”
“(19) If the deceased made an assault upon Henry Moore, son of the defendant, defendant had the absolute light under the law to go to the assistance of his son, and, if upon the arrival of the defendant at the place of the conflict between the deceased and his son he discovered that the son was receiving or about to receive great personal injury at the hands of the deceased, then he had the right to use force to prevent the infliction of great personal injury upon his son, even to the taking of life, if it was necessary or apparently necessary to do so, to prevent the infliction of great personal injury upon the son of the deceased.”
“(20) A father has a right to fight in the necessary defense of his own son, and the fact that he attacked one who is in combat with his son will not constitute such father as an aggressor in such combat, as that word is used in these instructions, unless the son willfully, and without real or apparent necessity, entered into a difficulty for the purpose and with the intent upon the part of the son to take the life of his adversary or to do him great bodily harm.
“(21) You are instructed that, if you believe from the evidence, or have a reasonable doubt thereof, that the deceased challenged the defendant or invited him out, and that the deceased thereupon left the schoolroom and began an attack upon the son of the defendant, and that the defendant thereupon left the room for the purpose of defending his son against the attacks of the deceased, if any, and that the defendant, situated as he was, and from his standpoint, as a reasonable person, believed at the time that he fired the shots at the deceased that it was reasonably necessary to save his son from great bodily injury or from death, then you will resolve such doubt in favor of the defendant and acquit him.”
“ (22) You are instructed that, if the son of the defendant was assaulted in such a way as to induce in the defendant a reasonable belief that his son was in danger of losing his life or suffering great bodily harm at the hands of the deceased, the defendant would be justified in attacking the adversary of his son, although the danger was not real but only apparent. The defendant would not be responsible criminally if he acts in the defense of his son from real and honest convictions as to the character of the danger induced by reasonable appearances, although he may be mistaken as to the extent of the actual danger. The son of the defendant need not have been in actual imminent peril of his life or of receiving great bodily harm before the father would have been justified in slaying the deceased. It is sufficient if in good faith the father had reason to believe from all the facts and circumstances as they appeared to him at the time that his son was in such imminent peril.”
“(23) You are instructed that, in determining whether or not the defendant, as a reasonable man, in good faith believed at the time of the killing that his son was in danger of suffering death or serious bodily injury at the hands of the deceased, you should take into consideration all the facts and circumstances that transpired prior to and at the time of the killing.”
“(24) You are instructed that you must view the evidence in this case upon the question of danger or apparent danger to the son of the defendant at the time of the killing from the viewpoint of the defendant, and as it then reasonably appeared to him.”
“(25) You are instructed that, if the evidence is such as to raise in your minds a reasonable doubt as to whether or not the defendant at the time of the homicide acted in good faith upon reasonable appearance of danger of his son receiving great, bodily harm or death at the hands of the defendant, then you must resolve that doubt in favor of the deceased, and acquit him, unless you further believe from the evidence beyond a reasonable doubt that the son of the defendant voluntarily entered into the difficulty, within the meaning of that term as hereinbefore defined.”

The instructions requested were based on the theory that the father had a right to intervene regardless as to whether or not his son was the aggressor.

As a general rule a person has a right to use violence in defense of another only when the imperiled person would have been justified in using it in his own defense. Both must have been free from fault in bringing on the difficulty.

In Wharton on Homicide (3d Bd.) § 332, it is said:

"The doctrine of freedom from fault in bringing on a difficulty as a condition precedent to a plea of self-defense applies with equal force to a case in which one person interferes in a difficulty between two others in behalf of, or to protect, one of them; and generally speaking a person who does this will not be allowed the benefit of the plea of self-defense, unless sueh plea would have been available to the person whose part he took in case he himself had done the killing, since the person interfering is affected by the principle that the party bringing on the difficulty cannot take advantage of his own wrong. If the person sought to be protected provoked or brought on the difficulty, he must have clearly manifested a desire and intention to retire from • the conflict; and, even then the person interfering would not be justifiable if he struck the fatal blow in pursuance of a previous design to assist his friend in the event of a personal difficulty. And where one person interferes in behalf of another who was the aggressor, and there is opportunity to retreat after the interference, and advantage is not taken of it, the person interfering can claim no greater right than the other, and neither of .them can invoke the doctrine of self-defense. Thus, if a son fight in defense of his father, his act in doing so will receive the same construction as that of the father, and, if the latter was the aggressor in bringing on the difficulty, and could not plead self-defense, the same rule applies to the son. And the son cannot rely upon his own freedom from fault in bringing on the difficulty as a defense, where he knew the father had provoked the attack; both must have been without fault in bringing it on. Nor is a father justified in killing the adversary of his son, where the son had provoked and brought on the conflict in which he was placed in imminent danger. And the plea of self-defense cannot be interposed by a father who kills an officer rightfully seeking to arrest his son, to prevent such arrest. Nor can one strike to relieve a brother from peril unless the brother was free from fault in bringing on the difficulty which placed him in peril. And if a person in whose defense a brother engaged was in fault, and had not retreated or attempted to retreat, the interference is not justifiable of excusable.”

In Utterback v. Commonwealth, 105 Ky. 723, 49 S. W. 479, 88 Am. St. Rep. 328, it was held that a father who shot in defense of his son was excusable or not according as the son would have been innocent or guilty had he fired the shot in his own defense.

In Wood v. State, 128 Ala. 27, 29 South. 557, 86 Am. St. Rep. 71, it was held that one who interferes in a pending difficulty in behalf of a brother and takes the life of the other combatant stands in the shoes of the brother in respect of fault in bringing on the difficulty, and he cannot defend upon the ground that his brother was in imminent and deadly peril, and could not retreat, unless the latter could have defended upon that ground had he killed his assailant. It was also held to be of no consequence that the defendant, when he interfered, was not aware of any fault on the part of his brother in bringing on the difficulty.

It may be said that this rule may in exceptional cases work hardship; however, the opposite rule would allow an innocent man who had been forced to strike in self-defense to be killed with impunity merely because appearances happened to be against him at the moment a relative of his antagonist reached the scene of conflict. We deem it our duty to enforce rather than to relax the rule, which admits of no justification for taking human life except necessity.

Upon careful consideration our conclusion is that the instructions given by the court fully covered every possible phase of the case presented by the testimony.

This disposes of the questions raised in the case.

On the defendant’s own testimony the killing cannot be justified under the law, and on the undisputed testimony there was no real or apparent necessity for this homicide. It follows that the defendant was guilty at least of manslaughter in the first degree.

The judgment is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    JOHN GOODWIN v. STATE.
    No. A-4312.
    Opinion Filed Nov. 3, 1923.
    (219 Pac. 423.)
    (Syllabus.)
    1. Appeal and Error — Affirmance—Lack of Brief or Argument. In a felony case where the defendant appeals from a judgment of conviction and no briefs are filed, or arguments presented, this court will make an examination of the record, including the information, the testimony, and the judgment, and if no error is apparent will affirm the case.
    2. Sufficiency of Evidence — Lack of Prejudicial Error. In a prosecution for the theft of an automobile, evidence held sufficient to sustain a conviction, and that no material error was committed on the trial.

      Appeal from District Court, Pontotoc County; J. W. Bolen, Judge.
    John Goodwin was convicted of stealing a Ford car, and he appeals.
    Affirmed.
    Wimbish & Duncan, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

In the information in this case John Goodwin and Eugene Augustus were jointly charged with stealing a Ford touring ear. A severance was granted, and upon his separate trial appellant was found guilty and his punishment fixed at imprisonment in the penitentiary for the term of five years. He has appealed from the judgment rendered on the verdict, but there has been no appearance in his behalf on his appeal.

The errors assigned question the sufficiency of the information; the sufficiency of the evidence to support the verdict, and that appellant was prejudiced by misconduct of the court, the jury, and county attorney during the trial of the ease.

A careful reading of the record has revealed nothing that supports or sustains the errors assigned, and convinces us that no error prejudicial to the substantial rights of the defendant was committed on the trial.

In cases of this kind we do not consider it the duty of this court, and it would subserve no useful purpose, to write an opinion specifically reviewing the errors assigned and our reasons for overruling them.

The information is sufficient, and the demurrer thereto was properly overruled. The testimony on the part of the state, if credited, as it was, was amply sufficient to sustain the conviction.

As shown by the record, appellant has been accorded a fair and impartial trial. The judgment of the trial court is affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    BOB AMMONS v. STATE.
    No. A-4279.
    Opinion Filed Nov. 3, 1923.
    (219 Pac. 426.)
    (Syllabus.)
    Larceny — Evidence! Sustaining Conviction for Grand Larceny. In a prosecution for grand larceny, evidence held to support the conviction.
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    Bob Ammons was convicted of grand larceny, and he appeals.
    Affirmed.
    ■Wilkinson & Saye, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding Bob Ammons guil: ty of grand larceny, and fixing his punishment at imprisonment in the penitentiary for the term of one year and a day. The information charges that in Stephens county, on or about the 1st day of May, 1921, Bob Ammons did take, steal, and carry away four automobile casings, and four coils, the personal property of Oran Norman, and of the value of $150.

The only assignment of error urged by counsel for appellant is that the verdict of the jury is not sustained by sufficient evidence.

The evidence shows that Oran Norman was the owner of a Ford coupe, and on the 30th day of April, 1921, he left said coupe near Weaver Chapel, on the public road, on account of some car trouble which he was unable to adjust; at the time he left the car there it was equipped with casings and the ordinary coils used in a Ford car; that the casings were worth $40, and were taken from the car without his knowledge or consent; that some two or three days thereafter, upon learning of the theft, the owner, with a man named Gregg, went to the defendant’s house and found the stolen casings on the defendant’s car, also the stolen coils.

Vernon Brewer testified that he lived 9 miles east of Comanche, remembers when Oran Norman’s car broke down out there about a mile from his place, that he passed the car one day and the casings were on the car, and the next day he passed they were gone, and he notified Mr. Norman.

C. C. Gregg, deputy sheriff, testified that he knew the defendant, and with Mr. Melllvain and Mr. Norman went to the defendant’s home to search for the casings; while there the defendant drove up in a Ford ear; Mr. Norman identified the casings on the car as his casings by certain slits on the same and took the casings from the defendant’s car, also some coils; that the defendant did not protest the taking of the casings and the coils, but said that he bought the casings from a man driving a gray horse; that if they would go with him he would show them the man; then he said he was a poor man and wanted to settle the matter; that he would give a cow and a calf if that would settle the matter. There was other testimony tending to show that appellant had been in the vicinity the night the casings were ■taken.

As a witness in his owñ behalf, the defendant testified that he had started over to Ms brother’s after dinner, it was .about 14 miles, and intended to return home that evening, and had car trouble; that Ms wife and a little girl were. with him; that he had sorry casings, and was patching a tube when a man came up and said, “I have some pretty good old seconds I can sell you and sell them right,” and he gave this man $20 for four casings, then went on to his brother’s; that he took off the old casings and put on those he had brought and went on to the ball game; that when the officers came to his home he had the casings that he bought of the man on his Ford, and the officers said he had stolen them; that he told the officers that he. could not say that they were not Mr. Norman’s casings, and that he would rather give the best milk cow and calf he had than be tried for theft, but that he was not trying to bribe the officers.

His wife testified, in substance, to the same facts as did the defendant.

Where the inference of guilt can be reasonably drawn from the evidence, this court will not pass upon the weight of the evidence in order to determine whether the defendant was gmlty as charged. On the record before us it was for the jury to judge the weight of the evidence and the credibility of the witnesses, under the instructions of the court which gave the defendant the benefit of all reasonable doubt.

We do not discover any error in the record; while it is undoubtedly true that there was, under the testimony, ample room for a different verdict, we cannot substitute our judgment for that of the jury. The record shows that the defendant was accorded a fair trial.

The judgment of the trial court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    TOM EDWARDS v. STATE.
    No. A-4262.
    Opinion Filed Nov. 3, 1923.
    (219 Pac. 427.)
    (Syllabus.)
    Evidence — Circumstantial Evidence of Venue. The venue in a criminal case may be established by circumstantial evidence.
    Appeal from County Court, Hughes County; Owen H. Rives, Judge.
    Tom Edwards was convicted of the illegal sale of intoxicating liquor, and he appeals.
    Affirmed.
    Anglin & Stevenson, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

Tom Edwards, plaintiff in error, here designated the defendant, was charged with the illegal sale of intoxicating liquor in Hughes county. At the trial in the county court of said county, on January 17, 1922, the de>-fendant was by a verdict of the jury found guilty as charged, and his punishment assessed at confinement in the county jail for a period of 30 days and a fine of $50. Prom this verdict he appeals.

The only error that can be seriously urged by the defendant is that the state failed to show that the offense was committed in Hughes county — the question of territorial venue.

It has been decided by this and other courts that it is not necessary in a criminal case to prove venue by direct testimony, but that the venue may be established by circumstantial evidence. It has also been held that the venue need not be shown beyond a reasonable doubt. Fuller v. Ter., 2 Okla. Cr. 86, 99 Pac. 1098; Ward v. State, 13 Okla. Cr. 81, 162 Pac. 232; Jentho v. State, 19 Okla. Cr. 434, 200 Pac. 251.

The record shows that the trial and conviction were had in Hughes county, in the county court of said county. This court will take judicial notice that the only place of holding the county court in Hughes county is at Holdenville, and that the judge of this court at the time of the alleged offense and at the time of the trial was Owen H. Rives.

The testimony shows that the defendant sold one gallon of Choc beer at the Mecca Cafe, and that this Choc beer was an intoxicating liquor, and that the Mecca Cafe was owned and operated by the defendant; that one of the witnesses was taken, immediately after the sale of this intoxicating liquor, to the office of the county judge, and that the county attorney and the sheriff were present; that this witness has been arrested for the same offense by T. H. Whaley, city marshal, who took the witness to the office of the county judge. It was shown that this was at the time that Owen Allen was drunk “down here at the cafe”; also that some negroes were there (at the cafe) in a drunken condition; that there was also an immediate investigation at the “police court over there.”

From all of this we conclude that the offense was committed in Holdenville, in Hughes county; that while it would have been better practice to have proved the venue directly, in our opinion the circumstances shown in proof are sufficient to establish the venue. We do not mean to hold that, as to the defendant, there is a presumption that the offense proved was committed within the county where the case was tried, but only that where it is apparent that the court and the jurors have personal knowledge of the places named by the different witnesses, tending to show that the offense was committed within the county, and the defendant desires to challenge the venue, he should do so by a request for an instructed verdict because of insufficient proof of venue, and also as a ground for a new trial, in order that the trial court might determine this issue. No objections to the venue were interposed in this ease.

The proof of the sale of the liquor was clear cut and positive, and it would amount' to a miscarriage of justice to reverse this cause on technical grounds, assuming that the county court had assumed jurisdiction of an offense that occurred beyond the limits of the county.

No other reasons appearing why the cause should be reversed, the judgment of the trial court is affirmed.

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