text:
    JIM BARROW v. STATE.
    No. A-3349
    Opinion Filed March 29, 1920.
    (188 Pac. 351.)
    (Syllabus.)
    1. INDICTMENT AND INFORMATION — Duplicity o'f Information for Manslaughter. Information for manslaughter in the second degree, alleged to have committed by the culpable negligence of the defendent, is not duplicitous, although it alleges and charges in one count more than one way in which the defendant was culpably negligent, through gross ignorance, in the treatment of disease resulting in death.

      Z. HOMICIDE — Information—Manslaughter in Second Degree. For information held sufficient to support a conviction of manslaughter in the second degree by gross ignorance and culpable negligence in the treatment of disease resulting in death, see body of opinion.
    3. WITNESSES — Cross-Examination—Bias of Defendant’s Witness. It is competent, on cross-examination of a witness for the defendant, to elicit facts which tend to show the bias, prejudice, or friendship of' the witness for the defendant.
    4. APPEAL AND ERROR — Discretion of Trial Court — Scope of Cross-Examination. A large discretion is lodged in the trial court as to the scope of eross-examnation of witnesses on matters affecting their credibility, and before a judgment of conviction will be reversed because improper cross-examination along this line was permitted, a clear abuse of discretion must be shown.
    5. HOMIC5DE — Death as Result of Ignorance or Negligence of Physician — Criminal Responsibility. A person assuming to treat disease is bound to know the nature of the remedies he prescribes and the treatment he adopts, and he is responsible criminally for a death resulting to the patient from gross • ignorance and culpable negligence in the selection of remedies and the application of the treatment.
    6. APPEAL AND ERROR — Conviction—Sufficiency of Information and Evidence. Where the information charges an offense, and there is evidence in the irecord from which the jury was authorized reasonably to conclude that the defendant is guilty of the crime in the manner charged, the judgment will not be set aside because of insufficient evidence.

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

    Jim Barrow was convicted of manslaughter in the second degree, and he appeals.
    Affirmed.

      Harris & Lackey, for plaintiff in error.

      S. P, Freelwg, ¿■■tty, Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Pittsburg county, wherein the defendant, Jim Barrow, was convicted of the crime of manslaughter in the second degree, and sentenced to. serve a term of two years’ imprisonment in the state penitentiary. An appeal in due time was taken from said judgment to this court, and the errors relied upon for reversal will be considered in the order presented by counsel for defendant.

The prosecution is based on section 2325, Bevised Laws 1910, defining manslaughter in the second degree, which is as follows:

“Any killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

The information, in substance, charges that the defendant, being grossly incompetent to act as a physician and grossly ignorant of the science of medicine, and not being a licensed physician under the laws of the state of Oklahoma, held himself out as such to the deceased, Tom Lank-ford, who was then and there sick and suffering from disease and sickness, a further and more fit description of which was to the county attorney unknown, and to the family and relatives of the said deceased, and did willfully, wrongfully, unlawfully, and feloniously, without due caution and circumspection, and by malpractice and in the use of remedies, 'and by unskillful acts and procurement and culpable negligence, and by exercising gross ignorance and lack of ordinary knowledge and skill in medicine, and through inattention and wanton indifference to the safety of the deceased, and with utter disregard for either the safety or life of the deceased, grossly negelcted to use ordinary precaution in ministering to the sickness and feebleness of the deceased, and wantonly failed and refused to give deceased ordinary remedies to cure and heal him, but, being wholly indiffer-erent to the health, safety, and life of the deceased, administered to him as a medicine a brew made .by burning hog feet that had long theretofore been thrown out as waste and refuse, pretending to the deceased and the members of his family that the said brew and concoction possessed curative qualities and would alleviate and cure the said Tom Lankford; and also by malpractice, through culpable negligence and gross ignorance, the defendant rubbed the limbs and body of the deceased, accompanied with some incantation, claiming thereby that he was causing the pain to be transferred out of the person of the deceased and to be lodged in him, the said Jim Barrow; and that said brew and said form of rubbing was wholly without nature or cause to tend to cure and heal the deceased and to alleviate his suffering, and was wholly worthless and without remedial value, all of which was known to the defendant; and that said acts as aforesaid, and the culpable negligence, gross ignorance, and wanton inattention and malpractice upon the said Tom Lankford, caused a mortal sickness and feebleness of body from which the said Tom Lankford died, and by reason of all of which the defendant did kill and slay the said Tom Lankford.

The defendant interposed a demurrer to the information, which was overruled and excepted to, and it is here urged that the court erred in overruling the demurrer, upon the grounds that the information is duplicitous and does not state facts sufficient to constitute a crime under the laws of the state.

■Counsel present no authorities in support of this contention. We are of the opinion that the information is not duplicitous, although it charges more than one way in which the defendant, through gross ignorance and culpable negligence, attempted to treat and heal the ¡sickness or disease from which the deceased is alleged to have been suffering, and which is alleged to have contributed to and resulted in the death of the deceased. This the pleader was authorized to do in one count under section 5741, Revised Laws 1910. The information is .sufficiently definite and certain as to the various means employed which are alleged to have resulted in the death of Tom Lankford, by malpractice, gross ignorance, and culpable negligence on the part of the defendant.

It is'.the opinion of the court also that the information states an offense, which, if proven to be true, would justify a conviction of manslaughter in the second degree, as defined by section 2325, supra. Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; State v. Hardister, 38 Ark. 605, 42 Am. Rep. 5.

Objection is also made to the manner in which the county attorney was permitted to cross-examine the wife of the deceased, who was introduced and testified in behalf of the defendant. A large discretion is lodged in the trial court as to the scope of the examination of witnesses, especially as to matters of credibility of the witness on cross-examination. The questions complained of relate to the witness’ feeling of friendship for the defendant, and under the circumstances of this case, in view of the fact that the witness was largely responsible for calling the defendant to treat her deceased husband, we find no abuse of discretion upon the part of the trial court in overruling the objection of defendant’s counsel to the questions asked. Harold v. Territory, 18 Okla. 395, 89 Pac. 202, 10 L. R. A. (N. S.) 604, 11 Ann. Cas. 818; Gilbert v. State. 8 Okla. Cr. 543, 128 Pac. 1100; 129 Pac. 671.

Objection is made to certain of the court’s instructions, but an examination ■ of the instructions convinces us that the law of the case was fully covered in a manner as favorable to the defendant as the evidence warranted. The defendant requested no other instructions on any proposition of law involved in the case.

It is also contended that the evidence adduced in the cause utterly fails and is wholly insufficient to establish that Tom Lankford’s death was caused by the culpable negligence of the defendant in the treatment of the disease of which deceased was suffering, and is wholly insufficient upon which to base the conviction.

There is evidence in the record to the effect that at the time the defendant undertook to treat and administer to the deceased the deceased was suffering from an attack of la grippe which was bordering on incipient pneumonia, and the evidence of credible physicians is to the effect that in such cases, even with the most careful and skilled treatment, from 10 to 40 per cent, of the patients die. The evidence also shows that deceased’s condition at the time the defendant commenced to administer to him demanded the very best of medical attention and nursing; that defendant was aware of deceased’s condition, and at first protested against treating him, but thereafter, being prevailed upon by the relatives of the deceased to treat deceased, the defendant undertook the treatment of the deceased, and administered to him by laying on of the hands and offering a prayer or incantation that the pain be transmitted from the body of the deceased to that of the defendant, and also .by administering to the deceased a brew or concoction made by parching and boiling hog hoofs, and also by giving deceased .shortly before death a headache or fever powder containing 3V2 grains of acetanilide. The undisputed evidence is to the effect that such treatment was without curative powers and not indicated for treatment of the disease from which the deceased was then suffering, but was wholly without nature to tend to alleviate in any degree the disease from which deceased was suffering, and that the headache or fever powder had a very depressing effect on the heart’s action, and that the administration of such treatment under the circumstances was through gross ignorance of the art the defendant assumed to practice.

The main contention urged here appears to be that, in view of the fact that from 10 to 40 per cent, of the patients suffering from the disease the deceased had at the time the defendant commenced treating him probably die despite the very best of medical attention and nursing, it can only be surmised that the treatment administered by the defendant possibly may have contributed to the death of the deceased, and that the evidence of guilt only amounts to a suspicion, and the crime is not proved with that degree of certainty which authorizes a conviction in a criminal cause.

The treatment given the deceased by the defendant was not indicated for the disease from which the deceased was suffering; it in no way tended to alleviate the suffering nor had any curative properties whatever. On the contrary, the treatment administered,, considering the time it was given was evidently detrimental to the patient’s health. Defendant possessed no knowledge of the curative properties of medicine, was not licensed to practice medicine in the state, and was grossly ignorant of the manner in which the disease from which the deceased was suffering should be treated. The application of hands, accompanied with an incantation or prayer that the pain be transmitted from the body of the deceased to that of the defendant, the administering of hog-hoof tea and of the headache or fever powder at the time it was given, evidenced gross ignorance and culpable negligence on the part of the defendant in the treatment of the disease. Prior to the time the defendant commenced his treatment of the deceased, the deceased’s condition, under the treatment of a skillful physician, had slowly improved. The evidence is to the effect that on the morning the defend-" ant commenced the treatment of the deceased the deceased’s temperature was 100, his pulse about 85, and his respiration 24. Prior to that time the temperature of the deceased had been as high as 104, his pulse from 90 to 100, and his respiration above 30. The deceased died within two days after the defendant commenced treating him. No one knows to an absolute certainty whether the deceased would or would not have lived had the treatment of a skillful physician been continued.

The question here is not whether the deceased would have lived had he received treatment according to the care and skill usual among good practitioners of any recognized and authorized school, but did the treatment given and applied by the defendant contribute to and result in the death of the deceased, and was the defendant grossly ignorant of the manner in which such disease should be treated and culpably negligent of the patient in giving the treatment? There is evidence in this record from which the jury was authorized reasonably to conclude that death resulted in the manner charged in the information. Under these circumstances, the trial court having properly submitted the law of the case, this court should not set the judgment aside because of insufficient* evidence. Crilley v. State, 15 Okla. Cr. 44, 181 Pac. 316; Cope v. State, 15 Okla. Cr. 437, 177 Pac. 920.

The crime here did not consist in the omission to perform some duty specifically imposed by law. Defendant owed deceased no duty; but, having assumed to treat him for disease, defendant was bound to know the nature of the remedies he prescribed and the treatment he adopted, and he is responsible criminally for the death resulting from gross ignorance and culpable negligence in such relation. The burden, of course, rests on the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt that death resulted from defendant’s gross ignorance and culpable negligence, but controverted questions of fact are solely for the jury’s determination.

As we view the evidence in this case, it cannot, with propriety and due respect for the law, be held that there is an absence of competent evidence on which to base the conviction.

N>o prejudicial error having, been urged as ground for reversal, the judgment is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    AL FRANKLIN v. STATE.
    No. A-3215
    Opinion Filed April 3, 1920.
    (188 Pac. 686.)
    (Syllabus.)
    1. APPEAL AND ERROR — Time for Objections — Information. An objection to the sufficiency of an information cannot be raised for the first time upon appeal, unless the information fails to charge a public offense.
    2. INDICTMENT AND INFORMATION — Sufficiency—Waiver of Objections. -Where the defendant fails to challenge the sufficiency of an information in the manner provided by law, he in effect waives any and all defects., except such as are fundamental.

      Appeal from County Court, Oklahoma County; William H. Zwick, Judge.

      A1 Franklin was convicted of maintaining a public nuisance, and he appeals.
    Affirmed.

      Pruiett, Sniggs, Burns & Patterson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, A1 Franklin, was found guilty of maintaining a public nuisance, and his punishment fixed at confinement in the county jail for 90 days and a fine of $250. He has appealed from the judgment rendered upon ,such conviction.

The undisputed facts as shown by the testimony of five witnesses for the state are that on the date alleged they found about 500 quarts of whisky, 40 quarts of gin, 16 barrels of beer, and 100 quarts of wine at a place occupied by the defendant about a mile southwest of Oklahoma ’City; that while the officers were searching the place the defendant disappeared; that the general reputation of the place was that of being a place where intoxicating liquors were kept and sold.

Upon the record in this case the only question submitted for our consideration is the sufficiency of the information to charge an offense.

Omitting preceding portions, the information charges that:

“On the 15th day of April, 1917, and thence continuously until and including the 25th day of May, 1917, in Oklahoma county, state of Oklahoma, A1 Franklin, * * * then and there being, did then and there willfully and unlawfully maintain a public nuisance, in that the said A1 Franklin, did then and there willfuly and unlawfully keep and maintain a place, to' wit, the building and grounds located and situated on the banks of the North Canadian river in said county and state, about three-quarters of a mile southwest of what is commonly known as ‘Packing-town,’ where spirituous, vinous, fermented, and malt liquors, to wit, beer, whisky, wine, and gin, capable of being used as a beverage, which the ,said A1 Franklin intended to sell, barter, give away, and otherwise furnish in violation of law, whereby the said A1 Franklin possessed and kept, to the common nuisance of the public, contrary to”, etc.

It is contended that the information does not charge an offense in that it does not “allege that the defendant had possession of intoxicating liquor on the premises designated,” and that it only alleges “that the” defendant intended to sell intoxicating liquor at the place he was keeping.”

The record shows that no objection was taken or question raised to the sufficiency of the information in the court below. No demurrer was interposed, and no general objection was taken that evidence should not be received because the facts stated do not constitute a public offense, and no motion in arrest of judgment was filed. It is apparent that the word “whereby” in the information is a mistake in copying the same, a? in the instructions of the court, which were not excepted to, the words “were by” are used instead of the word “whereby.”

An information cannot be attacked upon appeal unless some foundation was laid therefor before final judgment was rendered. The defendant may take advantage of a defective information by demurring thereto, whenever it appears from the face thereof that it i,s subject to one or more of the five objections named in the statute. Code Crim. Proc. § 5791, Rev. Laws 1910. These objections can be taken only by demurrer, “except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Code Crim. Proc. § 5799, Rev. Laws 1910.

Where the defendant fails to question the sufficiency of an information as authorized by the provisions of thé Code of Criminal Procedure, he in effect waives any and all defects, except such as are fundamental.

The information seems to be loosely drawn, but we are of opinion that it is sufficient to charge the offense of keeping a place where intoxicating liquors were kept and possessed in violation of the provisions of the prohibitory liquor law, and, as there is ample evidence to sustain the verdict, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    CHAPLA JACK v. STATE.
    No. A—3348.
    Opinion Filed April 5, 1920.
    (188 Pac. 684.)
    (Syllabus.)
    1. HOMICIDE — Murder—Sufficiency of Evidence. In a prosecution for murder, the evidence reviewed, and held sufficient to sustain the conviction, with imprisonmVsnt for life as the punishment.

      2. APPEAL AND ERROR — Absence of Briefs — Review of Murder Case. In a homicide case, where the defendant appeals from a judgment of conviction for murder, and no briefs are filed or argument presented, this court will carefully examine the record and all questions involved therein,' and- if no error is apparent, the judgment will be affirmed.

      Appeal from District Court, Hughes County; Geo. C. Crump, Judge.

    Chapla Jack was convicted of murder, and he appeals.
    Affirmed.

      L. Skinner, for plaintiff in error.

      W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Chapla Jack, herein referred to as defendant, was convicted of the murder of his wife, and in pursuance of the verdict of the jury was sentenced to imprisonment in the penitentiary for life at hard labor. He has appealed from the judgment to this court, but there has been no appearance in his behalf on his appeal.

It appears that the parties concerned and the principal witnesses are 'Creek Indians. The testimony tends to prove a most heartless and brutal murder.

The defendant, his wife, and her ,son, Surnsie Yargee, left Wetumka together some time before midnight on the date alleged to drive to their home, and the killing occurred within two -miles of their home. Mattie Jack was shot twice with a 38-calibre pistol. One bullet entered the right hip, the other bullet entered to the left of the spine, and both passed through her body.

Surnsie Yargee testified:

“I am 14 years old. Mattie Jack is my mother; Chapla Jack is my stepfather. 'About 10 o’clock that night we left Wetumka in a buggy. I fell asleep, and woke up hearing Chapla Jack cursing my mother. I heard him say, ‘I will kill you,’ and he shot her twice with a pistol; then jumped out of the buggy and ran off. I jumped out of the buggy and ran home, which was not quite two miles from where the shooting occurred.”

Nanie Lucas testified:

“I know Chapla Jack and his wife, Mattie Jack. I have known them I might say nigh all my life; Chapla and I were boys together; I lived right by them 13 or' 14 years. They telephoned for me to come down there; I got there about 1 o’clock. Mattie Jack was dead. I examined the wounds. One shot was in the hip; the other shot entered a little to the left of the back bone. I speak the Creek language; I asked Chapla Jack how this happened; He told me they were driving home that night and a fellow was standing in the road about as far from here to the wall back there at the time he saw him, and the fellow shot at him. He said when the first shot fired he fell out of the buggy, and he got up, and Mattie asked him if he was shot. He said, ‘No,’ and she said, T am; I am going to die/ He said both shots were fired from the front. He said he was riding on the right-hand side of the buggy, and she was doing the driving. I examined the buggy, the top was down, and a bullet hit the top from the left-hand side and ranged down and went through the back of the seat and lodged in the front of the seat on the right-hand side. This is the only shot that hit the buggy.”

Mitchell Compier testified:

“I am a full-blood Creek Indian. I have been deputy sheriff in Hughes county since statehood. I know Chapla Jack, and I knew Mattie Jack in her lifetime/ I was at their place the next day after the killing, and talked with the defendant. He said somebody had been waiting on the road between his house and Wetumka, and they shot at him and shot his wife.”

.The defendant, as witness in his own behalf, testified:

“My age is 35 years. I am a full-blood Creek. I and Mattie have been married over 10 years. On that day I went to Okmulgee, and my wife went with me. We got back to Wetumka about 6 o’clock, and after 10 o’clock we started for home in the buggy. I started to drive, and my wife suggested that she drive; she was driving at the time she was shot. The boy was in the back of the buggy asleep; he went to sleep just as we crossed Wewoka creek; two miles from there a fellow rode up on horseback and clicked his gun, and I jumped out and he fired tiyo shots. My wife said, T am shot.’ I went to the buggy and felt for the boy, and he was gone. It was a prairie ,spot near the road where the shooting occurred. I could not say' who it was that did the shooting. I believe that it might have been Canuky Harjo, because he said he was going to kill me, and I rsaw him in Wetumka that night. I started home with her in the buggy and went on a piece, then I decided to get my brother-in-law, John Talamajesse, to help me. His place was about a mile away. We went back to the buggy and took her down to the house; Sum-sie opened the door. I did not shoot my wife.”

On cross-examination he was asked:

“Q. You made a complete statement to the officers about this when they came over to your house to investigate the killing, didn’t you, long before you were arrested? A. Yes, sir..
“Q. Didn’t you say that the man just rode up and ishot two shots directly in front of you, and didn’t you show Mr. Turner, Nanie Lucas, and Mitchell Compier just where you stood and where you were when you fell out of the buggy, and where the man was that done the shooting; didn’t you do that? A. Yes, sir; I told them that.
“Q. Was that true? A. No, sir; it was not.
“Q. You could see this man prety plain, couldn’t you, that done the shooting. A. Yes, .sir.
“Q. Was he an Indian? A. It was dark; I could not tell whether he wa,s an Indian, white man, or negro.”

John Talamajesse testified:

“I live five miles east of Wetumka. Chapla Jack is my brother-in-law. I heard two shots fired that night. Chapla Jack came to my house, and I went with him and found the dead woman in the buggy hardly half a mile from my gate. Chapla Jack said, ‘Let’s take her down to ■my house,’ and we took her there. Sumsie and the other hoy, Seneta, were there.”

Three or four witnesses testified that the general reputation of the defendant in that community was that of being an upright and law-abiding citizen.

It appears from the record that no exceptions were taken on the trial to rulings of the court, and no exceptions were taken to the instructions given by the court to the jury, and no instructions were requested to be given by counsel for defendant. The instructions covered every question of law suggested by the facts in evidence, and were as favorable to the defendant as he could ask or demand.

We have given careful examination and consideration to the record in this case, and no error whatever appears therein, and on reading of the evidence the conclusion ,seems beyond reasonable doubt that the verdict reached was the only one which the jury would have been justified in rendering. Accordingly the judgment should be, and is, affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    J. E. HILL v. STATE.
    No. A—3398.
    Opinion Filed April 10, 1920.
    (188 Pac. 695.)
    (Syllabus.)
    APPEAL AND ERROR— Discretion of TrSal Court — New Trial for Newly Discovered Evidence. Motions for a new trial on tbe ground of newly discovered evidence are addressed to tbe discretion of tbe trial court and before tbe judgment of conviction will be reversed on tbe sole ground that tbe trial court erred in not granting a new trial because of newly discovered evidence a clear abuse of discretion must appear.

      Appeal from District Court, Muskogee County; R. P. de Graff enr&id, Judge.

    J. E. Hill was convicted of the crime of assault with intent to kill by shooting, and sentenced to serve a term of ten years in the state penitentiary, and he appeals.
    Judgment affirmed.

      W. L. McPherson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Muskogee county, wherein the defendant, J. E. Hill, was convicted of the crime of assault with intent to kill one James L. Fore, by shooting him with a pistol, and sentenced to s.erve a term of ten years in the state penitentiary.

From said judgment of conviction defendant has perfected an appeal to this court by filing herein a petition in error with case-made attached, and relies for a reversal of this judgment upon one ground alone, to wit, that the trial court erred in not granting the defendant a new trial because of newly discovered evidence.

The evidence in this case thoroughly convinces this court that the defendant was clearly proven guilty of an attempted cold-blooded assassination. Defendant and a confederate went to the home of James L. Fore in the city of Muskogee on the 4th day of September, 1917, between 8 and 8:30 in the evening, and called the prosecuting witness to the front door of his house, and without any cause or reason shot him twice with a pistol, inflicting upon his body certain wounds, one of which was in the neighborhood of the heart and would undoubtedly have proven fatal had it not struck a rib and deflected. The prosecuting witness was confined to his bed by reason of said in-juriéis for a period of a month. Fore was a man 66 years of age at the time.

The defendant was positively identified by Fore as the man who did the shooting, and other witnesses who were in the neighborhood at the time identified him as one of the men who were seen running away from Mr. Fore’s premises immediately after the shots were fired. A motorcycle policeman of the city of Muskogee happened to be on a corner about 250 feet distant from the scene of the crime at the time of its commission, and shortly started in pursuit of the defendant and his confederate, and, following them on his motorcycle some four or five blocks, overtook and arrested them, bringing them back to the scene of the shooting.

The defendant was seen to throw a pistol away at the time the motorcycle policeman overtook him, and on the next morning at daybreak the pistol was found at the place where the defendant was overtaken. The pistol was introduced in evidence, and was of the same calibre as the bullet extracted from the body of the prosecuting witness, and had at the time of its discovery two empty discharged cartridges in it, and also some evidence of blood upon it.

The defendant took the witness stand in his own behalf and admitted that he was in the east ,side of Musko-kee some two or three blocks from the scene of the commission of this crime about the time of its commission, but explained his presence in that neighborhood by testifying that he and his confederate had gone over to that part of town for the purpose of meeting a woman. Defendant failed to deny that he had a pistol upon his person on that evening, or that the pistol found at the place of his arrest was his pistol. Defendant also had a finger on his right hand abrased and bleeding.

Counsel for plaintiff in error admit that the evidence on the part of the state is amply sufficient, if believed by the jury, to sustain the verdict of guilty, and also admit that the trial appears from the record to have been well conducted by the trial court, and that, if there are any apparent errors in the record, no proper exceptions were taken to the same such as would authorize their review by this court.

The case was ably prosecuted and ably defended, and it is seldom that a record so free of error is presented to this court for review.

We have carefully considered the affidavits attached to the motion for a new trial relating to the question of newly discovered evidence, and this court is convinced that the trial court did not err in overruling the motion. Motions for a new trial on the ground of newly discovered evidence are addressed to the sound discretion of the trial court. Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499; Harper v. Sate, 7 Okla. Cr. 581, 124 Pac. 1116; DreW v. State, 6 Okla. Cr. 348, 118 Pac. 677.

It has also been held by this court that due diligence must be shown in procuring testimony, and it is not enough to merely allege that the defendant used due diligence, but the facts constituting such diligence must be stated fully so as to enable the trial court to determine whether or not proper diligence has been exercised. Harper v. State, supra; Johnson v. State, 5 Okla. Cr. 1, 112 Pac. 760.

The affidavit of the defendant filed in support of the motion in this case does not allege any facts showing diligence in attempting to procure this testimony. It merely states a conclusion of the affiant that due diligence was used. This is not enough.

It is also apparent that the alleged newly discovered evidence would be to a certain extent cumulative, and the court is of the opinion that there is no abuse of discretion on the part of the trial court shown in overruling this motion for a new trial upon the ground of newly discovered evidence for the additional reason that there is no reasonable probability that another jury would arrive at a different conclusion than that the defendant is guilty as charged considering the alleged newly discovered evidence in connection with all the evidence introduced at this trial. It is well established that the newly discovered evidence must not only be material to the issues presented, but must also be such as would lead the court to the conclusion that upon a new trial a different verdict would result. Asher v. Terr., 7 Okla. 185, 54 Pac. 445; Howey v. State, supra; Martin v. Terr., 18 Okla. 370, 90 Pac. 13; Douthitt v. Terr., 7 Okla. 55, 54 Pac. 312.

For the reasons stated, the conclusion is reached that the defendant had a fair and impartial trial according to the forms of law, and that the judgment should be affirmed.

It is so ordered.

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


author: ARMSTRONG, J.

text:
    BILLY EDWARDS v. STATE.
    No. A-3109
    —Opinion Filed April 12, 1920.
    (188 Pac. 889.)
    (•Syllabus.)
    APPEAL AND ERROR — Conviction—Sufficiency of Evidence. Where the uncontradicted testimony sustains a conviction, the judgment will not be reversed on appeal.

      Appeal from, District Court, Carter County; W. F. Freeman, Judge.

    Billy Edwards was convicted of contempt, and he appeals.
    Affirmed.

      J. B. Champion and S. A. George, for plaintiff in error.

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

The plaintiff in error, Billy Edwards, was convicted of violating an order of injunction, and in accordance with the verdict of the jury was sentenced to pay a fine of $300 and all costs. From the judgment he appeals.

The only error assigned and argued in the brief is that “the verdict of the jury is contrary to and not supported by the evidence.” The only testimony is that introduced by the state. It is as follows:

The court clerk called as a witness identified the petition of the county attorney of Carter county against Cy Pyeatt, Billy Edwards, and C. A. Williams, and the order of injunction based upon said petition, the summons in the case and the return thereon, and the order of the court making the injunction perpetual. The recitals of the orders of injunction show that said defendants were in possession of a certain lot known as lot “51,” and further known as “66,” on Main street in the town of Wirt, and recites that during their occupancy of this place intoxicating liquors were there received, kept, sold, bartered, and otherwise furnished to persons who congregated there, and on the trial the court issued an order enjoining the defendants, including this defendant, Billy Edwards, from using and occupying said premises for such purposes.

Buck Garrett testified:

“I am sheriff of Carter county. I served the defendant herein, Billy Edwards, the summons in the civil case in which ‘66’ was locked up. I also served on him the order of injunction. I went there and nailed ‘66’ up and put a lock and chain on the door and turned the key over to our court clerk. I know defendant, Billy Edward^, whose initials are ‘W. R.’ I was in Wirt on the date alleged and with two deputies went to ‘66/ The defendant, Billy Edwards, was there at the time.”

Fred Pyeatt testified:

“I am deputy sheriff. I went to Wirt with Sheriff Garrett, and we went to ‘66/ We raided the place and found the defendant and several other people there at the time. I told them we would have to take them all or take the one who was running the place, and the defendant, Billy Edwards, spoke up and said the place was his; that he would make bond for it and for me not to take the rest of them. He said it was his place. We found there at that time nine quarts of whisky, four quarts of gin, two quarts of rum, and six quarts of beer; also a bar and some tables. I entered through the side door, which was open. The front door was locked.”

Horace Kendall testified:

“I am deputy sheriff and was one of the party that raided the nlace. I have known the defendant five or six years. The place is known as ‘66.’ After the crowd came out, I got in as soon as I could and asked Mr. Pyeatt who he had. He said, T have got Billy Edwards.’ Then Billy Edwards spoke up and said, ‘The place belongs to me.’ There was a bar in there and some gambling tables. It was then after 10 o’clock at night. Mr. Pyeatt found the whisky behind the bar. I don’t know whether the defendant operated the place or not, only what he said; he said he had charge of the place.”

There was also introduced a certified copy of a United States retail dealer’s permit, issued to Black Company, R. L. Black, and W. L. Edwards, retail liquor dealer, place, Wirt, Okla., signed Hubert L. Bolen, collector.

We are of the opinion that the verdict of the jury is amply supported by the evidence.

Finding no error prejudicial to the defendant, the judgment is affirmed.

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


text:
    BILL EDWARDS v. STATE.
    No. A—3111.
    Opinion Filed April 12, 1920.
    (188 Pac. 890.)
    (Syllabus.)
    GAMING — Conducting- Game — Sufficiency of Evidence. In a prosecution for conducting a gambling game, the evidence considered, and held sufficient to sustain conviction.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

    Bill Edwards was convicted of conducting a gambling game, and he appeals.
    Affirmed.

      Champion <fb George, for plaintiff in error.

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

The plaintiff in error was convicted and his punishment assessed at imprisonment in the penitentiary for one year and a fine of $500. From the judgment rendered on the verdict he appeals.

Omitting preceding portions, the information charges that Bill Edwards “did then and there unlawfully and fel-oniously open up and conduct a certain banking, percentage, and gambling game for money, checks and other representatives of value, to wit, poker, and other gambling games played with cards, the names of which is to your informant unknown with divers of persons to your informant unknown, contrary to,” etc.

The errors assigned question the sufficiency of the evidence to support the verdict.

It appears that two deputy sheriffs and two constables together raided a place in an alley north of Main street in the town of Wirt, commonly called “Ragtown.”

Jim Gauntt, deputy sheriff, testified:

“I went to Ragtown and raided this place. Mr. Jones and myself made the run on the house. I made the run on the table where Bill Edwards was sitting. When I got to the table there were cards on it and $162.65. The defendant claimed the money on the table. The house was full of people. There was quite a bunch around the table and the defendant was the only one sitting behind the table.' He was banking the game. He was the only man that claimed the money.”

C. P. Jones, constable of Hewitt township, testified:

“I was with Mr. Gauntt and Mr. Ward and Mr. Griffin when the'raid was made. When we stepped in the crowd ran out. I saw the defendant, Bill Edwards, there.”

There was no testimony offered on part of the defendant.

The weight of the evidence was a question for the jury under the instructions of the court, which gave the defendant the benefit of all reasonable doubt; and we are not prepared to say that the verdict is not supported by the evidence. This court has uniformly held that, when the inference of guilt can be reasonably drawn from the evidence, it will not interfere with the verdict on the ground of a want of evidence to support it.

Having found no error in the record, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    KIRBY LYDE v. STATE.
    No. A-3566.
    Opinion Filed Feb. 17, 1920.
    Rehearing Denied April 13, 1920.
    (187 Pac. 252.)
    (Syllabus.)

      1. APPEAL AND ERROR — Case-made — Settlement — Judges. A case-made must be settled and signed by tbe judge wbo tried the case; and, where a ease was tried by one judge, and the case-made is signed and settled by another, and no showing is made as to inability of the trial judge to do so, such ease-made is a nullity.
    2. SAME — Case-Made a Nullity — Dismissal. Where the appeal is attempted to be taken by ease-made alone, and such case-made is a nullity, because no; settled and signed according to law, upon proper motion by the state, such case-made will be stricken, and the appeal dismissed.

      Appeal from District Court, Love County; W. F. Freeman, Judge.

    Kirby Lyde was convicted of rape, and he appeals.
    Appeal dismissed.

      Graham & Logsdon, and Geo. H. Clup, for plaintiff in error.

      W. C. Hall, Asst. Atty. Gen., and T. B. Wilkins, County Atty., for the State.
   DOYLE, P. J.

Plaintiff in error, Kirby Lyde, was convicted of rape in the first degree, and in accordance with a verdict of the jury was sentenced to a term of 15 years’ imprisonment in the state penitentiary. An appeal from the judgment of conviction was attempted to be taken by filing in this court a petition in error with case-made.

'Counsel for the state havé filed a duly certified motion to dismiss the appeal, which, omitting the title and verification, is as follows:

“‘Comes now the defendant in error and moves the court to dismiss the appeal herein for the reason the Court of Criminal Appeals has no jurisdiction to hear and determine the issues in this case, as it appears and is shown in the case-made herein that said case was tried in Love county before Hon. W. F. Freeman, district judge, and that he extended the time for making and settling said case-made for 90 days, and that before the expiration of said 90 days, the term of the said Hon. W. F. Freeman expired, and that Hon. Thomas W. Champion was elected, as said district judge, and that he signed and settled said case-made.
“Defendant in error alleges that said Hon. W. F. Freeman is now and has been in the city of Ardmore, Okla., ever since the trial of this case. Defendant in error alleges that under sections 5244 and 5245 of Revised Laws 1910 and the following decisions construing said sections the case-made is void. See Upton v. American Trust Co., 31 Okla. 456 [122 Pac. 159]; Chandler v. State, 3 Okla. Cr. 254 [105 Pac. 375, 107 Pac. 735]; Scott v. State, 4 Okla. Cr. 657 [112 Pac. 763]; J. W. Ripey & Son v. Art Wall Paper Mill, 27 Okla. 600 [112 Pac. 1119]; Hess. v. Harrah, 28 Okla. 627 [115 Pac. 790]. Wherefore defendant in error prays this appeal be dismissed.”

Plaintiff in response to the motion admits the allegations therein, but states “that the appeal in this case is meritorious and presents substantial errors, especially as to the manner of selecting the trial jury and in the instructions of the court; that this plaintiff in error should be awarded a new trial in order that he may have a fair trial.”

An examination of the record discloses that the case was tried before W. F. Freeman, district judge, who overruled the motion for a new trial, and on November 29, 1918, rendered the judgment appealed from. The case-made does not contain a certificate of the court clerk to the transcript of the record proper, and is only authenticated by the following certificate:

“I hereby allow, certify, and sign and settle the same as the true and correct case-made in said cause, and hereby order that the clerk of this court attest the same with his name and seal of this court, and file same as of record, as provided by law.
“Witness my hand this the 81 day of March, 1919.
“Thos. W Champion, District Judge.
“Attest: W. L. Richards, Court Clerk.”
Section 5244, Rev. Laws 1910, provides:
“The court or judge may, upon good cause being shown, extend the time for making a case and the time in which the case may be served; and may also direct notice to be given at the time when a case may be presented for settlement after the same has -been made and served, and amendments suggested, which when so made and presented shall be settled, certified and signed by the judge who tried the cause; and the case so settled and made shall thereupon be filed with the papers in the cause; and in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired; and if no amendments are suggested by the opposing party, as above provided, said case shall be taken as true and containing a full record of the cause and certified accordingly.”

Section 5245 (Id.) provides:

“If, after final judgment in any civil or criminal case, the judge who presides at the hearing of said cause, or any part thereof, or in any of the proceedings therein, shall die, or be out of office and absent from the state, or unable to' settle the case, the successor of said judge shall settle, sign and certify the case-made in said cause, or such part thereof as was presided over by such deceased or absent judge, and make all other necessary orders therein to enable the party to perfect the record for the appellate court; and to that end may, upon reasonable notice or appearance of the parpes, hear evidence for the r>i'’',r)ose of determining any disputed matter of fact in relation to the proceedings in such cause.”

In the case of Wilcox v. State, 15 Okla. Cr. 453, 177 Pac. 924, construing the foregoing sections, it is held:

“The case-made must be settled and signed by the judge who tried the case, and where case was tried by one judge, and the case-made is signed and settled by another, and no showing is made as to inability of the trial judge to do so, such case-made is a nullity.”

And further held:

“Where the appeal is attempted to be taken by ease-made alone, and such case-made is a nullity, because not settled and signed according to law, upon proper motion by the state, such case-made will be stricken, and the appeal dismissed.”

In the absence of a certificate by the court clerk to the transcript of the record proper, and the purported case-made having been certified by a judge who did not try the case without proper showing of the inability of the trial judge to settle, sign, and certify the same, such purported case-made is a nullity. It follows that nothing has been filed in this case to confer jurisdiction upon the cmrt to review the case upon appeal. The appeal herein is therefore dismissed.

ARMSTRONG and MATSON, JJ., concur.


text:
    OPINION OF THE JUDGES.
    No. A—3748.
    Opinion Filed April 15, 1920.
    (189 Pac. 198.)
    (■Syllabus.)
    1. COURTS — Death Sentence — Opinion to Governor Before Expira tion of Time for Appeal. An opinion to the Governor in a case where a defendant has been sentenced to death ought not to be given when the time for taking an appeal has not expired, and when defendant has not waived the right to apner.l.
    2. PARDON — Death Sentence — Time for Appeal — Power to Reprieve. Where one convicted of murder and sentenced to death has obtained permission to take an appeal, and the time allowed by the court for perfecting an appeal has not expired, the Governor by virtue of Rev. Daws 1910, § 5970, alone can reprieve or suspend the execution of the judgment beyond the time allowed by the trial court to perfect the appeal.
   Opinion of the judges rendered at the request of the Governor of the State of Oklahoma.

Hon. J. B. A. Robertson, Governor of the State of Oklahoma:

The judges of the Criminal Court of Appeals, responding to your official communication of the 6th inst., addressed to this court, which presents for the consideration of the judges of the court a duly certified copy of the record of the conviction of Levi Young, who was on the 28th day of February, 1920, by the judgment of the district court of Greer county, sentenced to suffer death by electrocution, with the request that we give an opinion thereon, as provided by Proc. Crim., section 5969, Rev. Laws 1910, do hereby respectfully submit the following opinion of the judges (per DOYLE, P. J.) :

An inspection of the record discloses that the information filed in this case on December 1, 1919, charged Levi Young with the murder of one Tom Johnson, committed in Greer county on or about the 11th day of November, 1919, by shooting the said Tom Johnson with a shotgun. The original complaint was filed before the committing magistrate on the 20th day of November, 1919. On the 24th day of November, a preliminary examination was had. At that time the defendant, Levi Young, stated that he did not want to be represented by counsel, and on the evidence adduced by the state the defendant was on said day held to answer for the crime of murder as charged. On December 1st the defendant was arraigned in the district court. It appearing that he was without means to employ counsel, the court appointed two attorneys to defend him. A general demurrer to the information was filed. On said date said demurrer was overruled, to which ruling the defendant excepted and entered a plea of not guilty. Trial commenced on February 18, 1920. On February 20th, the jury returned a verdict against the defendant, Levi Young, finding him guilty of murder and fixing his punishment by death. On February 23d, the defendant filed a motion for new trial. On February 28th, the defendant filed motion in arrest of judgment. On the same day both motions were overruled. On February 28th, the court rendered judgment and sentenced the defendant to suffer death by electrocution. The judgment and warrant fixes the 29th day of April, 1920, as the date for the defendant’s execution; this being the sixty-first day from the time of judgment.

The record as submitted shows that the defendant at the time the judgment was pronounced reserved exceptions, and gave notice of his intention to appeal from the judgment and sentence to this court, and the trial court ordered: '

“Good cause being shown to the court, the defendant is hereby granted 35 days in which to make and serve case* made herein, and ten days are allowed in which to suggest amendments thereto; such case-made to be signed and settled in five days.”

Thus it appears that the time allowed by the court for perfecting an appeal has not yet expired. In former opinions of the judges the uniform rule stated is that an opinion to the Governor, in a case where a defendant has been sentenced to death, ought not to be given when the time for talcing an appeal has not expired, and when the defendant has not waived the right to an appeal.

In Opinion of the Judges, 8 Okla. Cr. 467, 128 Pac. 734, Furman, Presiding Judge, used the following language:

“As we understand the law, this provision of the statute contemplates that an advisory opinion of the judges may be given to the Governor, where an appeal has not been taken from a judgment and sentence of death. But we think it would be improper for the judges to express any opinion in ex parte proceedings as to the rights of a defendant which may afterwards be brought before them by appeal, where all parties interested would be represented. To pass upon such questions in advance of an appeal would be to deprive a defendant of his constitutional right to be heard in his own behalf. The time for taking an appeal in this case has not expired, and we have no legal information that the defendant has in any manner waived his right to take an appeal. The fact that the Governor has been informed that no appeal would be taken would in no manner estop the defendant from taking an appeal within the time allowed by law. We cannot consider this as evidence that an appeal will not be taken. It would therefore be improper for us to pass upon this record as now presented.”

In Opinion of the Judges, 3 Okla. Cr. 315, 105 Pac. 684, it is said:

“If the appeal had been perfected, the cause would properly be before this court upon a petition in error with authority to review the same upon the assignments of error or to determine upon the whole cause whether the verdict was against the weight of the evidence or contrary to law, and if upon such review we were of opinion that justice required a new trial, we would reverse the judgment, but the impropriety of an unauthorized expression of opinion by a judge or judges of this court, especially upon a matter that may subsequently come before the court for adjudication, is obvious. Any opinion expressed in a proceeding of this kind is manifestly extrajudicial. As we view it the statue contemplates an advisory opinion, where an appeal has not been taken in a capital case, and where the death penalty has been assessed. The proposition then presented would be, has there been an observance of all the formalities of law essential to the taking of human life? Or has the trial, conviction, and sentence of death been in accordance with the law of the land? In this case, however, the record recites that the defendant prayed an appeál to this court, and that said appeal was granted, and the defendant was committed to the state penitentiary pending the determination of said appeal. This appeal has not been filed in this court. Under this status of the case, it is apparent that, unless the- Governor of the state of Oklahoma in the exercise of the supreme executive power shall grant a respite or reprieve to a day beyond the time allowed by the court to make, serve, and file a ‘case-made’ and ‘petition in error’ in this court, the defendant will be denied his constitutional right to have his trial and conviction reviewed by the -Criminal Court of Appeals as the court of last resort in a criminal case in this state.”

In Hutchins v. State, 13 Okla. Cr. 717, 167 Pac. 338, it is said:

“Under the Constitution and laws of this state, an appeal may be taken by the defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and he is entitled to have this court review the proceedings had upon his trial and conviction when such appeal is taken according to law. Every citizen should feel and know that under our Constitution and laws there is no one so rich and powerful as to be above the just penalties of the law, and no one so poor and humble as to be beneath its protection.”

In the case of Noel v. State, 17 Okla. Cr. —, 177 Pac. 688, opinion handed down this term, it is held:

“The right of appeal is a constitutional right and counsel appointed by the court to defend an indigent defendant fails to fulfill his duty as an attorney when he neglects to take an appeal from a judgment and sentence of death.”

And further held:

“It is the duty of courts in the administration of criminal law to see that the accused shall have the benefit of every right which the law secures to him upon his trial, and in a capital case where the defendant by reason of his poverty is unable to employ counsel, and the court appoints counsel to defend him, and the trial results in a judgment and sentence of death, the court should direct such counsel to appeal the case, and to this end it is the duty of the court to order the court clerk to furnish a duly certified transcript of the record, and to order the court reporter to furnish a transcript of the testimony without expense to the defendant.”

Our Code of Crim. Proc. section 5970, Rev. Laws 1910, provides as follows:

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

The next seven sections referred to have no relation to the facts presented by the record before us. By virtue of the foregoing provision, the Governor alone can reprieve or suspend the execution of a judgment of death beyond the time allowed by the trial court to perfect an appeal to this court, when the appeal has not been, taken within the time allowed. Opinion of the Judges, 3 Okla. Cr. 315, 105 Pac. 684.

The record transmitted by you to this court is a complete case-made, duly signed, settled, and certified to by the trial judge, and the same has been filed with the court clerk of Greer county, Okla., as required by the law for purposes of taking an appeal from said judgment. All that is required of the defendant to perfect this appeal at this time is to serve the proper notices of appeal upon the court clerk and county attorney of Greer county and file the same with a petition in error attached to the said case-made in this court within six months from the rendition of said judgment. Under the status of the record in this case, it is apparent to the judges of this court that unless an appeal from the judgment of conviction in this case is lodged in this court in time to stay the execution of the judgment and sentence as fixed by the trial court, the Governor of the state of Oklahoma, in the exercise of the supreme executive power, must grant a reprieve, or the defendant will be denied the opportunity to exercise his constitutional right to have his trial and conviction reviewed by this court, as the court of last resort in criminal cases in this state.

For the reasons stated, the judges of the Criminal Court of Appeals of Oklahoma respectfully submit the foregoing opinion with the recommendation that as a matter of right and justice the said defendant, Levi Young, be granted a reprieve until such time as an appeal may be perfected, or until a time beyond the limit of time in which an appeal may be taken, which under the statute is six months from the rendition of the judgment.

ARMSTRONG and MATSON, JJ., concur.


text:
    ISRAEL WILLIAMS v. STATE.
    No. A-3336
    Opinion Filed April 15, 1920.
    (188 Pac. 890.)
    (Syllabus.)
    1. CONTINUANCE — Absent Witnesses — Diligence. In an application for a continuance on the ground of the absence of a witness for the defendant, the application must set out fully the facts constituting the diligence to procure the attendance of said witness, or to take his deposition prior to the commencement of the trial.
    2. SAME — Denial of Continuance — Discretion of Court. Where an application for a continuance fails to set out any facts disclosing diligence on the part of the defendant to procure the absent witness, or to take his deposition prior to the commencement of the trial, and there is no showing that the whereabouts of the witness are known to the defendant, or that there is any likelihood of procuring his attendance or taking his deposition before the next term of court, and where the evidence sought to be elicited from such absent witness would only be cumulative, there is no abuse of discretion in denying the continuance.
    3. HOMICIDE — Dying Declarations — Admissibility. Declarations concerning the facts surrounding tho commission of the alleged homicide, made by the party injured under a sense of impending death, are admissible as dying declarations.
    4. TRIAL — Instructions—Refusal of Requests. It is not error to refuse to give instructions requested by the defendant, where there is no evidence to support the same.

      Appeal from District Court, Choctaw County; C. E. Dudley, Judge.

    Israel Williams was convicted of the crime of manslaughter in the first degree, and he appeals.
    Judgment affirmed.
    Israel Williams was convicted in the district court of Choctaw county, at the October term, 1917, for the crime of manslaughter in the first degree, alleged to have been committed by him on the 11th day of July, 1917, by shooting and killing one Joe Childers with a pistol. Defendant was sentenced to serve a term of 10 years’ imprisonment-in the penitentiary. The shooting occurred on the premises of the defendant in Choctaw county about 3 o’clock in the afternoon of the 11th day of July, 1917, the deceased dying about 9 o’clock the next morning.
    The deceased was a tenant on the farm of the defendant, and lived about a quarter of a mile distant from the house of the defendant. Deceased was a married man, with some children, and had been working for the defendant off and on for over 2 years.
    On the day of the killing, the defendant was over at the home of the deceased, and took about a pint of whisky with him, and the defendant, deceased, and one other drank from this bottle of whisky early in the morning of that day. The defendant was somewhat intoxicated, and later came to the home of the deceased to borrow a horse to go and get some more whisky. After borrowing the horse, the defendant again returned to the home of the deceased, and had dinner, and after dinner the. defendant and deceased went over to defendant’s house, and it was while they were over there by themselves that the tragedy occurred.
    The deceased stated after he was shot that Israel Williams had shot him, and he (deceased) believed defendant had killed him; that he had no idea that Israel would ever have done it, or he never would have gone home with him; also that it looked hard for an honest man to have to die that way; that he hated to leave the children for his wife to do the best she could with them. He stated further that after they had got over to Israel’s house, Israel told him to pick the banjo for him so he could dance, and deceased said he was picking the banjo and Israel was dancing, when deceased stopped, and Israel went in the house and came back with a gun and said he was going to kill deceased and Lee Novels both; that they had run over him enough. Deceased said that he asked defendant not to shoot him, but that Israel commenced to fire, and fired three .shots, and the fourth shot hit him, and deceased said that he started home, and Israel then said he was going to follow him and kill him; that when he started home, he left Israel reloading his gun.
    The wife of the deceased testified that she heard the shots and heard her husband hollowing, and that she went immediately in the direction of Williams’ house, and found her husband by the side of the road, badly shot, and Israel Williams about 18 steps away with a pistol in his hand, and that she heard the defendant say at that time to her husband: “Good-bye, you -; I’ll kill you yet;” that thereupon she assisted her husband home; that her husband was suffering intense pain and died about 9 o’clock the next morning.
    The defendant testified concerning the homicide as follows :
    “Q. Did you come back to Joe’s house then after you rode the horse awhile? A. Yes, sir.
    “Q. Did you have dinner over there? A. I don’t recollect eating dinner there, but they say I eat dinner there.
    “Q. Then where did you go? A. I went home.
    “Q. Who went with you? A. Joe.
    “Q. Now what took place after you got over there? A. Well, I went and got a banjo. T come out on the gallery, and he went to picking the banjo, and he wanted me to dance, and I told him I couldn’t dance, and he kept on after me, and I made on like I was dancing. After I got tired I just sat down on the gallery, and after awhile he quit picking. I had a string on the banjo, and he wanted to borrow some money from me, and I told him I didn’t have any, and he says, ‘I know damn well you have got it,’ and I says, ‘No; I ain’t got no money.’ ‘Well,’ he says, ‘I am goiag to have it anyway,’ and he commenced cussing me, and I just got up—
    “Q. What did he call you when he was cussing you? what did he call you? A. He called me a son of a bitch.
    “Q. And what did you do then? A. I just got up, and started out towards the fence, and he come up behind me and gave me a push and struck me in the boot here (indicating) — that’s the foot — and I fell down, and I got up. Then he struck at me with the banjo, and I just got up and went around the house, and he followed me. I comé to the back door and went in the house; I just went on in and got my gun and walked out, and he come through the house following me.
    “Q. Where was the gun? A. It was on the bed under a pillow.
    “Q. What took place out at the gallery? A. I just shot towards him. I didn’t aim to hit him.
    “Q. Before the shooting took place, what did you tell him about trouble, if anything? A. I just told him that I didn’t want to have any trouble with him, and I didn’t want him to hurt me, and I didn’t want to hurt him.
    “Q. Then did he hit you firpt, or did you shoot first? A. He hit me first.
    “Q. What did he hit you with? A. A banjo.
    “Q. Where did he hit-you? A. Right up here (indicating), and right down there (indicating).

      “Q. Do you know how many shots you fired? A. No,, sir.
    “Q. Do you remember what took place after you was hit? A. No sir; I don’t know anything about—
    “Q. Tell that jury whether or not you thought you was in any danger when you went to shooting? A. Well, I thought I was in danger. The banjo is brass, and weighs about five or six pounds.
    “Q. And did you shoot because he hit you? A. Yes, sir.
    “Q. What was Joe 'Childers doing at the time you shot, if you know? A. No, sir; I don’t.
    “Q. You don’t remember anything after he hit you? A. No sir. * * *
    “Q. Did you have any ill feelings towards Joe that morning when you went over to Joe’s house; was you mad at him? A. No, sir.
    “Q. Did you tell Joe that you was going to kill him and Lee Novels? A. I don’t know, sir.
    “Q. You don’t remember telling him anything of the kind? A. No, sir; if I did, I was just saying that, I gue,ss. We had been talking about one another there all the time.
    “Q. About getting one another, but if you did tell him that, you didn’t mean it, did you ? A. No, sir.
    “Q. Was you mad at Joe when you and him went back over to your house and Joe went to picking the banjo? A. No, sir; I wasn’t.
    “Q. And if you shot Joe and killed him that evening, you did it because you thought he was trying to kill you with that banjo? A. Yes, sir.”

      On cross-examination the defendant testified in part as follows:
    “Q. Israel, you say you was drinking some that day you shot Joe? A. Yes, sir.
    “Q. How much had you drank? A. I don’t know. I don’t know how much I did drink.
    “Q. How much did you drink the day before? A. I was already full that morning. I don’t know how much I did drink.
    “Q. What time of the day was it when you went over to Joe’s the first time? A. First time about 8 or 9 o’clock.
    “Q. You say you took a drink or two that time over there? A. Yes.
    “Q. How .many drinks did Joe take? A. Why, he taken about four.
    “Q. And you taken about how many? A. I take one —two.
    "Q. Two? A. Yes. * * *
    “Q. Didn’t you eat dinner at Joe’s that day, that evening some time? A. I might eat dinner there, but I don’t know it.
    “Q. Don’t remember it, do you? A. No, sir.
    “Q. In fact, you don’t remember many things down there, that day, do you? A. Not many.
    “Q. Where was Joe sitting when he was picking that banjo; whereabouts was he sitting? A. On'the gallery. ,
    “Q. Whereabouts on the gallery? A. On the right-hand side of the door.
    “Q. Leaning back against a post, was he? A. No, sir; leaning against the wall.

      “Q. Leaning against the wall facing out in the yard? A. Yes, sir.
    “Q. How long did Joe play that banjo before you went out in the yard ? A. He didn’t play it long. I guess it was about a quarter of an hour.
    “Q. When was it he asked you for some money that day? A. That day?
    “Q. Yes. A. He asked me — he wanted to borrow it right after he got through picking the banjo and dancing.
    “Q. Where was you when he asked you for the money ? A. I was sitting on a chair in the yard.
    “Q. What did you do then? A. I didn’t do anything. I just told him I didn’t have the money.
    “Q. When did you go'out to the gate? A. Well, when he wanted to borrow the money I told him I didn’t have it, and he says he knows damn well I did have it; he says, T am going to have it anyway,’ and when he ,said that I just got up and started towards the fence, and he come up behind me and give me a push, and he struck me on the foot there — this foot (indicating).
    “Q. Then what did you do? A. Fell down.
    “Q. You was pretty drunk, wasn’t you? A. I guess I was.
    “Q. How long did you lay on the ground before you got up? A. I just got right up and went around the house and he followed me.
    “Q. What did you say Joe called you? A. He called me a son of a bitch.
    “Q. I believe you stated a while ago that you didn’t think much about that; that was a common byword between you, wasn’t it? Y'ou just called each other sons of bitches any time you thought about it, didn’t you? A. When we got to drinking.

      “Q. And when you wasn’t drinking you still kept it up, didn’t you? ‘ A. I guess so.
    “Q. You went around to the back of the house? A. Yes, sir.
    “Q. Went around the back way? A. Yes, sir.
    “Q. Went into your bed and got the gun and went out the front door, and at that time Joe had come up and was .standing on the front gallery? A. No, sir; he followed me.
    “Q. Where was you when you done the shooting? A. Out on the ground.
    “Q. Then you went out in the front yard? A. I got off of the gallery and then he got off, and I come back to the gallery, and he still followed me, and I shot. I wasn’t aiming to hit him.
    “Q. And Joe hadn’t touched you since the time you fell down, had he? A. He touched me with the banjo.
    “Q. Where? A. (Indicating).
    “Q. I know, but whereabouts was he touching you with the banjo? A. Out in the yard.
    “Q. Was that just before he shoved you down? A. That was after.
    “Q. Did he hit you one or two licks? A. One; come down this way (indicating).
    “Q. And then you went around behind the house, went in and got your gun, came on back and went out in the yard, didn’t you? A. Yes, ¡sir.
    “Q. Then you came back on the gallery, and then was when you done the shooting, wasn’t it? A. Yes, sir.
    “Q. Where did you go then? A. I just set down on the gallery.

      “Q. Where did Joe go? A. He went home.
    “Q. Didn’t you follow him? A. I don’t recollect following him.”
    The foregoing statement of the case is sufficiently comprehensive for the purposes of this opinion.

      Warren & Warren and Cunningham & Hunter, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Aspt. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). It is first contended that the trial court erred in overruling defendant’s motion for a continuance on account of the absence of Dr. H. W. Mier, who it is alleged would testify, were he present, that on the next day after the alleged killing the witness examined the defendant and found him suffering from a blow on the left side of his head, which rendered defendant incapable of knowing or understanding what he wa<s doing; also, that he knows of no other competent person who will testify to such facts. It is also alleged that the said witness is out of the state and beyond the jurisdiction of the court, and that the defendant will take the witness’ deposition, and asks that the cause be continued until the next regular term of the court for that, purpose.

The court very properly overruled the motion: (1) Because theré is no showing of any facts disclosing any diligence on the part of the defendant to procure the attendance of this witness, or to take his deposition prior to the commencement of the trial; (2) because there is no showing that the whereabouts of the witness are known to the affiant (defendant), or that there is any likelihood of taking his deposition or procuring his attendance should the cause be continued until the next regular term of court; (3) becausé the material facts stated in said application were testified to by other witnesses during the trial, and the competent evidence would only be cumulative. For all of which reasons, no manifest abuse of discretion on the part of the trial court in overruling the motion appears from the record.

It is next contended that the trial court erred in permitting the witness Mrs. Childers to testify, over the objection of the defendant, to the statements made by the deceased concerning the facts and occurrences at the time of the commission of the alleged homicide. The court admitted this evidence as a dying declaration on the part of the deceased.

We have carefully examined the record, and this court is of the opinion that the record discloses a sufficient showing that at the time the deceased made said declarations he realized that death was impending, and was at that time without hope of recovery. Under such circumstances the declaration was properly' admitted. Paden v. State, 13 Okla. Cr. 585, 165 Pac. 1155; Addington v. State, 8 Okla. Cr. 712, 130 Pac. 311; Mulkey v. State, 5 Okla. Cr. 78, 113 Pac. 532; Blair v. State, 4 Okla. Cr. 365, 111 Pac. 1003.

Lastly it i,s contended that the court erred in refusing to give instructions Nos. 1 and 2, requested by the defendant. Said instructions read as follows:

“I charge you that if you believe from the evidence or have a reasonable doubt thereof, that the deceased assaulted the defendant unlawfully, with some heavy instrument and struck him on the head or face, and by said stroke rendered him unconscious at the time and during this period of unconsciousness defendant shot and killed' the deceased, and at the time he fired said shot defendant was in such a state of mind that he did not know what he was doing, or know the consequences of his act, then you will acquit the defendant.
“I charge you if from the evidence you believe, or have a reasonable doubt- thereof, that the deceased assaulted the defendant unlawfully with some heavy instrument and struck him on the head or face, and by said stroke that the defendant was bereft of his reason, he shot and killed the deceased, and that at the time he fired said shot the defendant was in such a state of mind that he did not know what he was doing, or know the consequences . of his act, then you will acquit the defendant.”

These instructions were properly refused. There is not any evidence in the record which would support the theory that defendant was unconscious at the time of the commission of this homicide, neither is there any evidence whatever that defendant was temporarily insane. The excerpts taken from the defendant’s testimony above copied in the statement of the case show that if the defendant had any defense whatever for taking the life of the deceased, it was based solely on the ground of self-defense, and the court gave the defendant the benefit of this defense in the instructions given. Thus court has repeatedly held that the trial court is not required to instruct upon any theory of defense unless there is some evidence to support the same. Newby v. State, 17 Okla. Cr. -, 188 Pac. 124, and cases cited therein.

Finding no evidence in the record in this case which would authorize the court to give the instructions requested, it was clearly not error to refuse the same.' In fact, the evidence that the defendant killed the deceased in self-defense is very meager, and the trial court’s action in giving the benefit of that defense to the defendant was favorable to him.

This record discloses a homicide committed by the defendant when he was evidently greatly intoxicated, perhaps to .such an extent that he was incapable at the time of forming any premeditated design to take life, and for that reason the. jury found him guilty of manslaughter in the first degree. The verdict was a humane and merciful one, and fully warranted by the evidence.

Finding no error in the record prejudicial to the substantial rights of the defendant, the judgment is affirmed.

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


text:
    F. L. O’NEAL v. STATE.
    No. A-3383.
    Opinion Filed April 15, 1920.
    (188 Pac. 1092.)
    (Syllabus.)
    1. INDICTMENT AND INFORMATION — Proof of Venue As Charged. The venue of an offense must be proved as charged.
    2. LIBEL AND SLANDER — Evidence—Sufficiency. For reasons holding the evidence in this case insufficient to support the judgment, see body of opinion.
    Appeal from County Court, Cole County; C. M. Threadgill, Judge.

      F. L. O’Neal was convicted of the crime of slande? and he appeals.
    Judgment reversed.

      Wimbish & Duncan, for plaintiff in error.

      S. P. Freezing, Atty. Gen., and W. C. Hall, As.st. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the county court of Coal County, wherein the defendant was' convicted of the crime of slander, and his punishment fixed at a fine of $25 and the cost of the prosecution.

The action- is based on section 2388, Revised Laws 1910, which provides as follows:

“If any person shall orally or otherwise, falsely and maliciously or falsely and wantonly impute to any female, married or unmarried, a want of chastity, he shall be deemed guilty of slander, and upon conviction shall be fined not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than ninety days, or by both such fine and imprisonment.”

The charging part of the information reads as follows :

“That F. L. O’Neal did in Coal county and in the state of Oklahoma, on or about the - day of June, 1917, and anterior to the presentment hereof, commit the crime of slander in manner and form as follows, to wit: That he did then and there falsely, maliciously, and wantonly impute to one Fannie D. Evans a want of chastity,, by then and there stating in the presence and hearing of A. L. Green as follows: ‘That -God damned whole whoring outfit, if they don’t stop that, I’ll give them a jar that will make the old man turn over in his grave,’ — then and there meaning the said Fannie D. Evans and her family, contrary to the form of the statutes,” etc.

The defendant interposed a demurrer to the information, which was overruled and excepted to. A plea of not guilty was then entered, and trial had, resulting in a conviction and the imposition^ of the punishment set out above.

A. L. Green testified concerning the material alie' gations of the information to the following eifect:

“Q. Mr. Green, did you hear Mr. O’Neal say anything about Mrs. Evans and her family? A. Yes, sir.
“Q. What did he say? A. He said, ‘If that damn dirty outfit don’t let me alone, I will tell something on her that will make her old man' turn over in his grave.’
“Q. Did he say anything else? A. Yes, sir; he went on saying something else to himself.
“Q. Did you understand what he said? A. Well, I understood him to say ‘whoring outfit.’
“Q. Did he say this in the presence of anyone else? A. Well, it has been .so long I don’t quite remember. * * *
“Q. Well, Mr. Green, you say he was talking about both being a whoring outfit, the Davis outfit? A. Yes, sir.
“Q. Davis outfit? A. Yes.
“Q. You just heard him say ‘whoring outfit’; you don’t know whether he meant Mrs. Evans and her family or not, only that he said that dirty Davis outfit had better let him alone? A. Well, I can’t say that he meant Mrs. Evans and her family, but I know he said, ‘If that dirty outfit don’t let me alone, I will tell something on her that will make her old man turn over in his grave,’ and lie wa,s at that time mad at Mrs. Evans because she had this petition out for the post office.
“Q. What Davis was Mr. O’Neal talking about? A. Thadan Davis.
“Q. Mr. Green, where was this at you heard Mr. O’Neal make this remark? A. It was out at Mr. Moore’s thresher.
“Q. Did anyone else hear Mr. O’Neal make this remark? A. I don’t know; there was others around the thresher.
“Q. There was no one around aa you can remember that was close by that could have heard Mr. O’Neal make this remark? A. No, sir; not when he was talking to me, and when he went on murmuring to himself he went over towards the thresher.”

Ottis Fanning testified as follows:'

“Q. Mr. Fanning, do you know , the defendant, Fay-ette O’Neal? A. Yes, sir.
“Q. Mr. Fanning, in June, 1917, do you remember when you was out to Mr. Moore’s thresher, you and Mr. O’Neal and others? A. Yes, sir.
“Q. Did you hear Fayette O’Neal make a remark about Mrs. Fannie D. Evans and her family being a whoring outfit? A. Well, I just can’t say as to whether he said ‘whoring outfit,’ but as well as I can remember he said ‘that dirty outfit.’
“Q. Was Mr. O’Neal talking very loud? A. Well, loud enough that I heard him say ‘dirty outfit.’
“Q. Did Mr. O’Neal make any specific reference to whom he wa,s talking about? A. Well, he said that dirty Evans and Davis outfit had better let him alone.
“Q. Was there any one else around when Mr. O’Neal made this remark? A. Yes, sir; there was, but I could not say as to whether they heard him make this remark.”

The above-named witnesses were the only witnesses for the state who gave any testimony concerning the alleged slanderous remarks made by the defendant regarding Mrs. Fannie D. Evans.

The defendant testified as follows:

“Q. Mr. O’Neal, you have heard the testimony in this case, have you not? A. Yes, sir.
“Q. Mr. O’Neal, what is your occupation? A. Postmaster.
“Q. Where at; I mean in what town? A. In Clarita.
“Q. Coal county? A. Yes, sir.
“Q. Do you know the plaintiff in this case, Mrs. Fannie D. Evans, or Mrs. Davis now? A. Yes, sir.
“Q. Mr. O’Neal, state to the jury' what you know in regard to this matter. A. Well, one day I met up with Green, and he said to me, ‘Fayette, do you know that there is a petition out against you?’ and I said ‘Yes.’ And Green.said he had signed it, but he did not want to, but they insisted that he sign it, so he did. It made me mad at the time, for I felt that he wanted to play on both sides, and I told him I did not care, but I did say that dirty Davis outfit had better let me alone, and I got so mad I walked away, and Tom Ridley walked up and hit me on the back and said, ‘Fayette, what in the devil" i.s wrong with you?’ and I told him about it. I said, ‘Tom Ridley, Tom, if I thought you was half as dirty as that Davis outfit I would not help you out of a mud hole if the ants was eating you up.’ And that was all I had to say.”

Cross-examination:

“Q. Fayette, did you not say, ‘If that dirty whoring outfit of a Evans outfit don’t let me alone, I will tell something on her that will make her old man turn over in his grave’? A. No, sir; I did not. You know, John, I told you the fir,st time I was at your office that I did not say it. I told you just what I said.
“Mr. Harley: Never mind, Fayette, what you told me, it is nothing to me what you said; you just answer the questions you are asked.
“Q. Fayette, have you ever seen anything wrong that you could make any remark about Mrs. Evans? A. No. sir, I cannot; just only seen her with Davis, and they would act just like sweethearts do, loving.
“Mr. Wimbish: Q. Mr. O’Neal, you say you don’t remember of ever making any kind of a remark about Mrs. Evans as to her family being a whoring outfit? A. No, sir; I never did make any kind of a remark about Mrs. Evans.”

At the conclusion of the state’s evidence, counsel for the defendant requested the court to instruct a verdict m favor of the defendant for the reason that the evidence was insufficient in law to sustain the conviction. This motion was renewed at the conclusion of the entire evidence, and on both occasions was overruled by the trial court, to which an exception was properly reserved.

It is contended, among other grounds for reversal, that the evidence is wholly insufficient to warrant the conviction; also that there is an entire lack of proof of the venue of the offense to have been in Coal county, Oklahoma.

The Attorney General has filed a confession of error containing, among others, the -following statements:

“We believe that the objection here urged pertaining to the sufficiency of. the evidence will have to be sustained. The proof introduced by the prosecution is not strong under the most liberal construction in its favor, and the venue of the crime was not shown by any evidence. The venue was fixed at ‘Moore’s thresher’, a threshing machine out on a man’s place, whose name was Moore. If ‘Moore’s thresher’ were the name of a town, evidence of venue would have been sufficient. Reed v. Territory, 1 Okla. Cr. 492 [98 Pac. 583] 129 Am. St. Rep. 861. But under the rule laid down in the Ed Brunson Case, 4 Okla. Cr. 467 [111 Pac. 988], that there must be some evidence of venue, it was reversible error to not instruct the jury to return a verdict of not guilty, for the reason that the material allegations in the information had not been proven.”

The court is of the opinion that 'the confession of error of the Attorney General should be sustained. There is an entire absence of proof of venue of this offense, except that it occurred, as stated in the Attorney General’s confession of error, at “Moore’s thresher.” There is no .showing of the location of Moore’s thresher at the time this offense was alleged to have been committed, except that it was at a man’s place by the name of Moore, but whether Moore’s place was in Coal county, or in the state of Oklahoma, or in some. other county or state, i,s not disclosed by the evidence. It appears, however, from the evidence, that whatever was said by the defendant was said in the neighborhood of a threshing machine.

This court will take judicial notice of the location and boundaries of counties and cities and towns within this state, but the location of a threshing machine at any particular time cannot be judicially noticed. There must be some more substantial proof of venue of a crime than appears in the record of this case before this court can hold that the crime was committed within the jurisdiction of the trial court.

Further, the evidence that the defendant falsely, maliciously, and wantonly uttered the alleged slanderous language concerning Fannie D. Evans is very meager and unsatisfactory. In fact, the evidence of one of the state’s witnesses only amounts to an insinuation that such slanderous language may have possibly been uttered by the defendant concerning the said Fannie D. Evans. The other witness introduced by the state does not in the least corroborate even the insinuations that such slanderous language -was uttered by the defendant. The defendant as a witness testified positively that he did not- utter any such language. He introduced several witnesses also, who testified to his good standing in the community as a law abiding citizen. He occupied the responsible position of postmaster in his home town.

In view of the apparent contradiction between the evidence on the part of the state and that of the defendant, and in view of the fact that no witness testified positively that the defendant uttered the alleged slanderous language, as charged in the information, concerning the prosecuting witness, and in view of the further fact that the testimony of the only witness who imputed such language to the defendant leaves it uncertain whether the defendant uttered such language of and concerning Fannie D. Evans, it would be a miscarriage of justice to affirm this conviction.

For the reasons stated, the confession of error of the Attorney General is sustained, and the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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