text:
    J. K. INMAN v. STATE.
    No. A-3824.
    Opinion Filed Nov. 29, 1922.
    (210 Pac. 742.)
    (Syllabus.)
    1. Homicide — Evidence—Demeanor of Accused Prior to Offense to Show State of Mind. Evidence of the actions, conduct, and general demeanor of defendant a short time prior to the commission of the homicide is competent as tending to show the state of mind of defendant at the time of the killing.

      2. Trial — Instructions—Requisites as to Exceptions and Requested Instructions. Requested instructions must be in writing and presented to the trial court, and exceptions to the general charge must be made before the same is settled and read to the jury.
    3. Appeal and Error — Failure to Present Error Below — Instructions. Where no such timely objection or proper request is made, any error, if any, in the general charge will not be reviewed on appeal unless fundamental.
    4. Homicide — Manslaughter—Conviction of Lesser Degree Than Evidence Justified not Ground for Complaint. Where defendant is charged with murder, and under the law and facts might properly have been convicted of manslaughter in the first degree, a conviction of manslaughter in the second degree is error of which defendant will not be heard to complain upon appeal.
    Appeal from District Court, Comanche County; Cham Jones, Judge.

      J. K. Inman was convicted of the crime of manslaughter in the second degree, and he appeals.
    Affirmed.
    On a charge of murder, defendant was, in the district court of Comanche county, on the 27th day of January, 1920, convicted of manslaughter in the second degree, and sentenced in accordance with the verdict returned to serve a term of one year’s imprisonment in the county jail.
    The killing occurred on a business street of the town of Elgin in the forenoon of October 27, 1919. Deceased, J. P. Ballew, and defendant were neighbors,- and at the time lived in the east part of town.
    About 10 or 15 minutes before the commission of the homicide, defendant and Jesse Ballew, a son of deceased, had some trouble, in which defendant called Jesse Ballew from a barber shop and assaulted him by striking him over the head with his pistol and kicking him. Each party to this difficulty evidently used abusive, profane and vulgar language toward the other, and defendant admitted that he was mad at the time. Defendant claimed this first trouble arose because Jesse Ballew had accused him (defendant) of having stolen some horses from him, and defendant called Ballew out of the barber shop to find out about the report.
    Immediately after this first difficulty, defendant started to go home, and when he had gone about a block and a half from where the difficulty occurred, Kelly Hoffer, a merchant, called to him, remarking, “Hey, you kinder had your Dutch up, didn’t you?” At this remark defendant didn’t say anything, but turned around and came back to where Hoffer was standing; Hoffer at that time was standing on the porch in front of his store. Defendant and Hoffer continued to remain on the porch in front of Hoffer’s store talking for several minutes, when Hoffer says defendant remarked, “There comes the old man now,” or “Here comes Mr. Ballew now.” Hoffer is not certain which of these remarks defendant made. Defendant claims that Hoffer called attention to the fact that deceased was approaching.
    When deceased was first seen, the undisputed evidence is that he was coming in a trot from the east, and had his hands down holding to the lower corners of his coat on each side. According to Hoffer’s testimony, Ballew came straight down the street west until he got within about 30 or 40 feet east of where he and defendant were, and then deceased took a “beeline straight for the porch;” that the porch was about 25 feet long east and west and 8 feet wide north and south, and had an awning above it; that the store faced the north, and that there were four posts along the south side of the porch, and that defendant was standing near the southeast post; that Ballew came right straight toward Inman, and that the only thing Hoffer heard Ballew says'was, “Inman, you God damn son of a bitch;” that at the time Ballew made this remark he was about 25 feet away from Inman, running toward the porch in a good stiff trot; that when Ballew started to curse he began to pull at his coat like he was going to take his coat off; that about this time Inman fired a shot at Ballew; that witness was then standing back of Inman and could see past In-man and see Ballew; that as soon as Inman shot, Ballew staggered back east and toward the north, and holloaed, “Oh!” very loud.
    Further describing the difficulty, witness Hoffer testified as follows:
    “A. Well when the first shot was fired he staggered as I say east and north possibly 8 feet or something like that, it might have been a little further than that, I don’t believe it was over 8 or 9 feet on a direct line from where he was shot the first time and the second time, but it was done pretty quickly, and it seemed to me like he lost control of himself when he was shot the first time he kinder limped and throwed his eyes closed and, of course, as I say, the second shot was fired right away and at the second shot he collapsed.
    “Q. Where were you standing when the second shot was fired? A. Bight inside of the door and here is where he fell, right about here (indicating on map). And here is where he was when the first shot was fired.”
    The witness Hoffer was the only person besides defendant who saw all the difficulty between, deceased and defendant. Defendant’s testimony relative to what occurred at the time of the killing differs somewhat from that of Hoffer. Defendant testified as follows:
    “A. Mr. Ballew; I was talking to Mr. Hoffer. This porch fronts the south and I was up on the porch with my back to the southeast and Mr. Hoffer was northwest of me setting on a nail keg. Well, Mr. Ballew came running up holding his coat about this way ’(indicating) and about the time he got in about 30 feet of me I says, ‘Mr. Ballew, stop, I don’t want to hurt you.’ Well, about that time he seemed to get faster and be ran up within about four feet or about this corner post, and he come like angling to this man and 1 was standing up here with my hand on this post and he came about this far; well, I turned around standing about here and he just turned his coat loose like this (indicating) and he went down in here (indicating) and he says, ‘You bastardly son of a bitch, come on with that gun’; and he made a grab at his gun, and it seemed to hang and about that time I shot the first shot and struck him about here and he staggered this way, about this far; about that time he came with his left hand and reached for his gun- and then the second shot hit him; he had his head this way and the second shot hit him here and he dropped down with his arm under him just like that.
    ‘ ‘ Q. Where did he first commence swearing, how far was he away when he first commenced swearing at you? A. Well, I would think it would be about 30 yards, the first thing he began to say was calling me a God damn bastardly son of a bitch, and he kept that up until he got in about 20 feet and I hollered at him to stop. I says, ‘Stop, Mr. Ballew, I don’t want to hurt you’; and he ran a little faster and got nearly to the store when he went after his gun.

      ******

      ‘ ‘ Q. When you saw him reach for his gun, what did you do? A. Well, I jerked my gun as quick as I could after he started with his gun. ■
    “Q. The fact of the business is if Ballew’s gun had not hung — A. If you will give me the gun I’ll show the jury how it hung to the best of my ability.
    “Q. I will ask you one question, did you have time to take aim or did you shoot as quick as you could? A. Yes, sir; I shot him with a double action gun as quick as I could shoot it.
    “Q. How many times did you shoot? A. Twice.
    “Q. You said the gun of Mr. Ballew hung in his pocket? A. Now as it hung, I don’t know where it hung, but here is where I suggest it hung because when he came over here he released the gun and got it about this far up when the second shot was fired and then he fell with the gun just about like that with his arm under him, as Mr. Coffin testified.
    “Q. When you fired the second shot; the evidence of Dr. Martin, Mir. Wisner and Mr. Hoffer was that the second shot struck the head about here, I will ask you how it was that wound was made there? A. Well, the fact is I could not say for certain which bullet hit him at a certain place; I know the second shot hit him because it knocked him down, he had his head in this position — he turned his head this way when he went to release his gun with his left hand and that is the time the bullet hit him’ here and knocked him down.
    “Q. He was looking down trying to release his gun? A. Yes, sir; he turnedihis head that way and jerked the gun, as. he got it this far up.
    “Q. You don’t know whether he jerked the button open on his overalls or not? A. No, sir; I don’t know.
    “Q. What did you say or do after the shooting? A. Why, I turned to Mr. Hoffer, he came out from where he ran to; I said, ‘Mr. Hoffer, you see that I had that to do,’ and that is all I said.
    “Q. Was Mr. Hoffer — did he appear to be considerably excited at the time? A. Well, he looked more sick than excited ; he has heart trouble and I believe he seemed to be sick; looked awfully white.
    “Q. He didn’t say anything? A. I believe he just shook his head like that.
    “Q. Shook his head you say; you say you told him that you had thisi to do, did he >nod his head or say ‘yes’? A. He seemed to be sick; I don’t know as he said anything.
    “Q. Did you have any enmity against Mr. Ballew? A. None whatever.”

      Concerning the trouble with Jesse Ballew, defendant testified as follows:
    “Q. You heard the evidence of Jesse Ballew relative to the altercation that occurred about 30 minutes before this? A. Yes, sir, I heard his testimony.
    “Q. I will ask you to state the facts as they occurred at that time and where you had been prior to that time of seeing Jesse Ballew that morning? A. I broke a spring out of my car; I had been to my mother’s down at Blanchard a day or two before that and I broke a spring out of my car, and took it to Fletcher early that morning and left it in Wilson’s garage. Before that though I had went to where I have got a place in New Mexico, I had been gone about forty days, and I had my gun in the side pocket of my car and when I left my car in the garage Mr. Wilson he called my attention to locking my tool box up and I had no key for it and I said I will get my gun, it is in the side pocket and I got it and stuck it in my pocket and I rode from there back to Elgin with Dr. Gamble in his car, and as I came up through town, from the post office Jesse Bal-lew was sitting in the barber shop. I had been to Blanchard, a few days before that Jess had been down there and had taken a city marshal out and searched over the pastures, he was hunting me they claimed for stealing horses. (Objected to for the reason it is hearsay, incompetent, irrelevant and immaterial, this witness did not see Jesse Ballew down at Blanchard.)
    “Court: Overruled. (State excepts.)
    “A. The city marshal at Blanchard told—
    “Court: Don’t state any conversation you had with any one at Blanchard.
    “A. Well, I found Jess Balléw had been down there, circulating the news over where my mother lives — and she is 80 years old — she told me about it too, about me being a horse thief. And as I came back through town I called Jesse Bal-lew out to straighten this matter up with him. I asked him about this and he said he had not been down there; I said, ‘Jess, I have got the goods on you, you can’t deny it, the city marshal and the sheriff told me you were down there.’ He says, ‘You are a God damn lying son of a bitch,’ and ran his hand in his pocket. I jerked my gun out and hit at him and it hit him on the elbow and he ran; I kicked him as he ran and cursed him a little and he did me too; just like anybody most will do in a fight of that kind. Jesse told me, he said, ‘You put up your gun, you God damn son of a bitch you, and I’ll beat you to death,’ and I says, ‘Jess, you have already threatened my life too much for me to put up the gun,’ and about that time Yawter came out and says, ‘Mr. Inman, I wish you would go on away, there afe ladies here.’ About that time Jess says, "If you don’t put your gun up I’ll have the old man bring my gun and I’ll kill you, you God damn son of a bitch.’ I turned around and walked to the post office and started on home. I did ' not think about any more trouble. The fact of the business is I intended to come down town, he said he was going to have me arrested, and I intended to come down town and give myself up. I came on up by Hoffer’s and straight by his place about ' three-quarters of a block and he called me back; and then this old gentleman came up with his gun and started to kill me with his gun. '
    “Q. I will ask you if in the altercation with Jesse Ballew .if you told him to get out of town and if he didn’t get out of town you would kill him? A. No, sir; I did not.
    “Q. You made no threats to kill him? A. No, sir; I did not; if I had wanted to have killed him I could have killed him then, I didn’t want to kill Jesse Ballew; if I had wanted to do so I could have done it, I didn’t want to kill him at all.”
    On cross-examination, defendant testified in part as follows :
    “Q. You had known Jesse about how long? A. Well, about four years; I bought my property there last August four years ago; I believe it was.
    “Q. You didn’t feel so kindly toward Jess, did you? A. Well, I have not felt very kindly toward Jess for two or three years; him and I have not been good friends.

      **,##•*
    “Q. Now you did come back from Blanchard and you did go down in. town on the morning- of October 27, 1919? A. Yes, sir; I came through town as I came from Fletcher.
    “Q. Well, you did come down town to the barber shop owned by Mr. Stackhouse? A. Yes, sir. No; I didn’t go in the barber shop.
    “Q. Did you go to the shop ? A. Yes, sir.
    “Q. Did you call Jesse Ballew out? A. Yes, sir; I did.
    “Q. 'At that time you had not seen Jesse Ballew for weeks? A. No, I had not seen for some time.
    “Q. You called him out; where did you get him to go to? A. We walked down the street about half a block I suppose.
    “Q. At that time did you have in your possession, your gun? A. Yes, sir.
    "Q. You tried to hit Jesse with your gun? A. Yes, sir.
    “Q. You did hit him several times? A. No, sir.-
    “Q. How many times? A. I hit at him once and he threw up his arm, and I struck him a light lick as Dr. Martin testified to.
    “Q. You did strike him' with that gun several times? A. No, sir.
    “Q. Well, you did strike him twice? A. No, sir; once.
    “Q. You knocked his hat off? A. No, sir; when he throwed up his arm he knocked it off.
    “Q. You.did not hit him in the back of the head? A. No, sir.
    “Q. You kicked him? A. Yes, sir.
    “Q. And then punched him in the ribs with your gun? A. I shoved my gun up that way when he went after his knife.

      "Q. Jesse told you he would fight you fair handed if you would throw the gun away? A. Well, after so long a time he did.
    "Q. You did not throw the gun away did you? A. No, sir.
    “Q. You kept on poking that gun at him as he walked up the street? A. No, sir.
    “Q. Did you poke him with it as you walked up the street? A. No, sir.
    “Q. And didn’t you kick him after you poked him in the side with your gun? A. I kicked.him one time.

      ******

    “Q. Now then do you say at any time between the time you kicked the boy near the telephone office and the time he went in the store that he told you he was going home to get his gun? A. He said he would have the old man bring his gun.
    “Q. And there were several of those parties out there when he said it? A. Yes, sir.
    “Q. You mean to tell the jury that is true? A. Yes,, sir.
    “Q. Now you were pretty mad, weren’t you as a result of that altercation? A. Well, I was mad; I had a right to be mad.
    “Q. And you continued to be mad, didn’t you, all that morning? A. Yes, sir.
    “Q. When did you cool off? A. Well, I cooled off right away.
    “Q. You got all over it in just a minute did you? A. Yes, sir.
    “Q. And you were not excited or mad at the time you went to have the conversation with Kelly Hoffer? A. No, sir.”

      Concerning the occurrences immediately preceding the shooting, defendant testified as follows:
    “Q. Now, I believe you said that Mr. Bailew got within about 30 feet of you, and you said something to him? A. Yes, sir.
    ‘ ‘ Q. Now, you said it with the purpose and with the intention of having him hear it so he would stop, didn’t you? A. Yes, sir.
    “Q. You said it loud enough so he could hear it 30 feet? A. I would not say exactly how far, about that far.
    “Q. Tell the jury what you said to him when you say he was about 30 feet from you? A. Well, I said, ‘Stop, Mr. Bal-lew, I don’t want to hurt you.’
    “Q. What had he said prior to'that time?. A. Well, he was saying, ‘God damn,’ some of it is too indecent to speak Before ladies if the court please.
    “Court: Go ahead.
    “A. He said, ‘You God damn, * * * son of a bitch, I am going to kill you.’ I said, ‘Stop, Mr. Ballew, I don’t want to hurt you.’
    “Q. Said, ‘I am going to kill you’? A. Yes, sir.
    “Q. That was in a loud voice? A. He was talking fast and loud all the time.
    “Q. You could understand it without any trouble? A. Yes, sir.
    “Q.. Kelly Hoffer was 6 or 8 feet from you? A. I think about 4 feet.
    “Q. He was not over 6 or 8 feet from you at the time you told this man to stop ? A. No, sir.
    “Q. No reason in the world why he could not hear you tell that man that? A. No, sir.

      “Q. Nothing to keep him from hearing that conversation? A. That is about the time Hoffer ran to get out of line.
    ‘‘Q. Do you say Hoffer started to run when the man was 30 feet away? A. Well, just about the time; he come up close; he was running all the time.
    “Q. Was that when he was 30 feet away that Hoffer started to run? A. When he started to make this threat he was running toward me probably 30 feet away, and by the time he got through making this talk he was probably in 4 feet of me and then he says, ‘ Come on with that gun, you God damn bastardly son of a bitch.’
    “Q. Do you say Hoffer started to run when Ballew was about 30 feet from you? A. Well, he had got up closer than that when Hoffer ran.
    ‘ ‘ Q. The man had not got closer than 30 feet when Hof-fer.started to run? A. No, sir; I say he was closer; he started this cursing when he was 30 feet away and he was coming toward me all the time and he kept getting faster and he did get in about three feet of me.
    “Q. When he was within 30 feet was the time when you told him to stop? A. Well, something like that.
    “Q. Now then, where was this man’s hands at that time? A. Well, he were holding them about like this.
    “Q. He had been running holding his coat with his hands up to that time? A. He had not had them this way; he had had them about like this.
    “Q. You mean to say one hand higher than the other? A. Yes, sir; he seem" to be holding his gun this way.
    “Q. He was not holding both hands down like this? A. The best I could judge it was about like this.
    “Q. Was his coat open when he was within 30 feet of you? A. I think it was buttoned about like. this.

      “Q. Did it remain, buttoned all the rest of the time so far as you know? A. I am not sure it was buttoned, but I think it was at the top.
    “Q. What do you say as to whether it did as a matter of fact remain buttoned up until you shot him? A. I did not say it was buttoned, I am not sure that it was.
    “Q. Did it remain fastened or closed as if it was buttoned all the time until you shot him? A. I did not say it was fastened.
    “Q. Well, closed as if fastened all the time up to the time you shot him? A. I didn’t say it was closed as if fastened. (Object to argument with witness.)
    “Q. Tell the jury in what position you say his coat was at the time you shot him? A. Well, he just — when he got up pretty close he turned his coat loose with his hand and throwed his hand in here for his gun, and he left his coat probably like mine is. It is possible it was buttoned, I am not sure, but after he got up close, when he got probably as close as this man over here, he stopped and squared himself this way and he throwed his coat back, I could not say it was fastened at the top or not.
    “Q. Was he coming directly facing you all the time he was coming, from the time you told him to stop at about 30 feet until you fired the first shot? A. Well, when he stopped that throwed him a little this way. When he stopped and throwed hisself this way the first shot struck him here I think, the way the doctor says it come out over here.
    “Q. Was he facing you directly? A. No, sir; not directly.
    “Q. As I understand you to tell the jury he was within 4 feet of you when you shot? A. No, sir; I did not say that; I should judge 3 or 4 feet.
    “Q. He was either 4 feet or closer when you shot? A. I should not say, probably it was further than 4 feet.

      “Q. Well, what do you.say about it? A. I should say just like I did while ago, 3 or 4 feet or maybe 5; he was close enough to powder burn.
    “Q. What was the size of the gun you shot? A. Thirty-eight Colts.
    “Q. On a forty-five frame? A. No, sir.
    “Q. It is generally recognized as a very powerful gun? A. Well, those Colts guns are good guns.
    “Q. When the first shot struck him, what did he say? A. Well, beween the two shots Mr. Ballew hollered.
    “Q. What kind' of holler; what expression did he make? ' A. He says, ‘Oh!’ in a loud voice.
    “Q. Said, ‘Oh! Oh!’ didn’t he? A. No, sir, just said, ‘Oh!’
    “Q. It was a moan? A. Probably so.
    “Q. That was between the shots. A. Well, about the time the shots wére being fired; they were so close together, I could not distinguish about that.
    “Q. I will ask you if, as a matter of fact when the first shot was fired, if that man’s hands did not fall and his eyes didn’t close? A. No, sir; I didn’t see his eyes; he had his hands this way trying to get his gun.
    “Q. You saw him try to release his gun with his left hand after the first shot? A. Just about the time both shots were fired, he tried to release it, which he did — release it and drew it this high.
    “Q. You told the jury after the first shot was fired and before you fired the second shot that his gun seemed to hang, and he reached over with his left hand after the first shot was fired and released it? A. I think about the time the first shot was fired, probably a second after, but about the time both shots were being fired; he jerked at his gun a time or two before I ever got my gun, the fact of the business is if his gun had not hung I would have been killed instead of Mr. Ballew.
    “Q. You, of course, feel you acted in perfect self-defense? A. I certainly do.”
    Concerning the location of the wounds, Dr. C. M. Martin testified as follows: One over the left eollar bone or clavicle; one on the left side of the head toward the hack, above and behind the ear on the left side; did not try to follow or probe the direction of the bullet; did not think the wound in the shoulder a fatal wound, but the one in the head was fatal.
    A pistol was found in the trousers of the deceased. There is considerable other evidence in the record, but the foregoing statement is sufficient for the purpose of this opinion.
    Lewis Hunter, Ben Goff, and J. F. Thomas, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). Among other assignments of error it is contended that the admission of evidence of the difficulty between defendant and Jesse Ballew, the son of deceased, from 10 to 30 minutes prior to the killing, was erroneous and prejudicial to defendant. With this contention we cannot agree. This evidence was admissible for the purpose of showing that defendant was armed and in an angry mood a short time prior to the killing. Earl Tallon v. State, 22 Okla. Cr. 89, 210 Pac. 309; Williams v. State, 4 Okla. Cr. 524, 114 Pac. 1114; Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43.

It is also contended that the trial court erred by refusing to give a special instruction requested by defendant. No written.instructions were presented to the trial court by counsel for defendant. After the court had delivered his general charge to the jury, counsel for defendant orally took the following exceptions, and made the following request: ■

“Comes now the defendant and excepts to instruction giving manslaughter in the first degree and manslaughter in the second degree and requests the court to instruct the jury that if the defendant is found guilty of the charge in the indictment, their verdict should be murder in the first- degree, and if they fail to find beyond a reasonable doubt from all the evidence that the defendant is guilty as charged in the indictment, that he be acquitted. ’ ’

The fifth subdivision of section 5870, Revised Laws 1910 (criminal procedure), .provides as follows:

“When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. If the questions of law involved in the instructions are to be argued, the court shall direct the jury1 to withdraw during the .argument, and after the argument, must settle the instructions, and may give or refuse any instructions asked, or may modify the same as.he deems the law to be. Instructions, refused shall be marked in writing by the judge; if modified, modification shall be shown in the instruction. When the instructions are thus settled, the jury, if sent out, shall be recalled and the court shall thereupon read the instructions to the jury. ”

The foregoing statutory provision clearly contemplates that the instructions should be settled before being read to the jury. Boutcher v. State, 4 Okla. Cir. 585, 112 Pac. 762.

Requested instructions must be in writing and presented to the trial court before the general charge is settled and read, otherwise the request comes too late. Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900.

In the case of Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242, it is held :

‘ ‘ The trial court is required to settle, and counsel are required to take exceptions, to, instructions before the same are read to the jury.
“When requested; it is error for the trial court to refuse to permit counsel for the defendant to have a reasonable opportunity to be heard upon the instructions to be given to the jury before the same are read to the jury.”

It is as much the duty of counsel to present requested instructions and to take exceptions to instructions before the same are read to the jury as it is the duty of the trial court to give counsel an opportunity to be heard upon the instructions. The provision of the statute in each respect is salutary, affording to defendant and the trial court that protection which prevents an unfair advantage to be taken of either.

This court, since the early decision in Boutchér v. State,, supra, has repeatedly called the attention of counsel to the necessity of making timely objection to and request for instructions, if review is to be had in this court, otherwise the error, if any, will be considered waived unless fundamental. No fundamental error is presented by this assignment.

It is also contended that there is no evidence in. the record to support a conviction for manslaughter in the second degree. Under the testimony of the state’s eyewitness, Holier, defendant should rightfully have b'een convicted of manslaughter in the first degree; and indeed under his own testimony a conviction of manslaughter in the. first degree would not have been disturbed by this court had the trial court, after seeing the witnesses and hearing the testimony, let such a verdict stand.

This record discloses that defendant (and he admits it) was on that day carrying a pistol in violation of the laws of the state; that he was a short time before the commission of the homicide in an angry mood, and had made a vicious assault upon the son of deceased. He was not in that calm, deliberate frame of mind indicative of a desire to avoid trouble, but rather in a frame of mind seeking trouble. According to the testimony of Hoffer, after defendant had fired the first shot and had apparently injured and disabled deceased to such an extent that he closed his eyes and uttered in a loud tone of voice the exclamation "Oh!” and staggered away from defendant, apparently in a helpless condition (which facts must have been known to defendant, as according to his own testimony he had a very acute recollection of the various positions that deceased assumed during the entire difficulty) the defendant again shot deceased. Defendant showed no inclination to avoid a difficulty with deceased, neither did he show any inclination to show mercy toward him, and the jury reasonably had a right to conclude that defendant, apparently in the heat of passion, unnecessarily shot deceased the second time when he knew deceased to be in a helpless condition and unable at that time to attack him.

If any error was committed in finding defendant guilty only of manslaughter in the second degree, it was error of which defendant in this court will not be heard to complain. This doctrine is' well established by a long list of authorities, among which are the following: Weather holt v. State, 9 Okla. Cr. 161, 131 Pac. 185; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S. ) 1121; Irby v. State, 18 Okla. Cr. 464, 197 Pac. 526; Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879, 882; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519, 520; Lytton v. State, 12 Okla. Cr. 204, 153 Pac. 620; Wilmoth v. State, 20 Okla. Or. 453, 203 Pac. 1055; Ballard v. State, 12 Okla. Cr. 277, 154 Pac. 1197.

For reasons stated, the judgment is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J. A. REDDEN et al. v. STATE.
    No. A-3795.
    Opinion Filed Nov. 29, 1922.
    (210 Pac. 556.)
    (Syllabus.)
    1. Intoxicating Liquors — Validity of State Laws in Harmony with Volstead Act. The states may enact new laws or may enforce any pre-existing laws as to intoxicating liquors which tend to effectuate and not defeat the purposes of Const. II. S. Amend. 18 and the Volstead Act.
    2. Appeal and Error — Presumption that Proper Foundation Laid for Admission of Evidence. Where the case-made does not include a complete transcript of the evidence, this court will not hold there was an entire failure, on the party of the state, to identify the liquid tested by a witness for its alcoholic content with that possessed by defendants, although such witness was unable to testify to such facts. In the absence of all the evidence, the presumption will be entertained on appeal that the links necessary to connect the liquid tested with that possessed by defend, ants was supplied by the testimony of other witnesses, the duty devolving upon appellants to bring before the court so much of the proceedings of the trial court as will permit this court to pass intelligently and safely upon the questions presented.
    3. Appeal and Error — Burden to Show Prejudicial Error. The burden is upon appellant to affirmatively show that error prejudicial to his substantial rights was committed in the trial.
    4. Intoxicating Liquors — Sale of Ginger as Beverage — Instruction. Instructions examined, and held not fundamentally erroneous, and in the absence of a complete transcript of the evidence, not prejudicially, erroneous.
    Appeal from County Court, Atoka County; J. M. Hum-phreys, Judge.

      J. A. Redden and J. A. Redden, Sr., were convicted of a violation of the prohibitory liquor laws, and' they appeal.
    Affirmed as to J. A. Redden, and abated as to J. A. Redden, Sr.
    J. G-. Ralls and C. McCasland, for plaintiffs in error.
    The Attorney General, and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Atoka county, wherein plaintiffs in error (hereinafter referred to as defendants) J. A. Redden and J. A. Redden, Sr., were convicted of the crime of unlawful possession of intoxicating liquor, and each sentenced to pay a fine of $50 and to serve a¡ term' of 30 days’ imprisonment in the county jail.

Showing has'been made to this court that the defendant J. A. Redden, Sr., has died since the taking of .this appeal. It is therefore ordered that the cause as to him be, and the same is hereby, abated.

It is first contended that the trial court had no jurisdiction to try and render judgment against defendants for the reason that the prohibitory liquor laws of this state have been superseded by the. Eighteenth Amendment to the Constitution of the United States and the act of Congress (Volstead Act [41 Stat. 305]) enacted in pursuance thereof.

This assignment of error is without merit. The second section of the Eighteenth Amendment to the United States Constitution provides:

“The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. ’ ’

Said amendment prohibits the manufacture, sale, or transportation of intoxicating liquors within the United States and its territories for beverage purposes. The statute upon which this prosecution is based (section 3605, Revised Laws 1910) is not in abrogation of said Eighteenth Amendment, nor is it in conflict therewith. The said statute was enacted in furtherance of the constitutional provision of this state prohibiting the manufacture, sale, transportation, et cetera, within the state of intoxicating liquors of any kind.

In construing the second section of said Eighteenth Amendment, the Supreme Court of the United States, in Rhode Island v. Palmer, and other cases, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. 946, held:

“Const. Amend. 18, § 2, giving Congress and the states concurrent power to enforce such amendment by appropriate legislation, does not authorize Congress or the states to defeat or thwart the prohibition contained in section 1, but only to enforce it by appropriate means.”

In the case of Vigliotti v. Pennsylvania, 258 U. S. 403, 42 Sup. Ct. 330, 66 L. Ed. 389, the Supreme Court of the United States held:

“State legislation which prohibits every sale of spirituous liquors without a license, the law applying however small the percentage of alcohol, and although the liquor may not be intoxicating, and although it may be sold only for industrial purposes, was not superseded by the adoption of the Eighteenth Amendment to the Federal Constitution, and the enactment of the Volstead Act of October, 28, 1919, to enforce that amendment.”

In People v. Tomasovich (Cal. App.) 206 Pac. 119, it is held:

“A county ordinance concerning the sale of intoxicating liquors is not in conflict with the Volstead Act and invalid because it imposes a greater or less penalty.”

In the case of State v. Jewett (Wash.) 207 Pac. 3, it is held:

“The states may enact new laws or may enforce any pre-existing laws as to intoxicating liquors which tend to effectuate and not defeat the purposes of Const. U. S. Amend. 18 and the Volstead Act.”

Holding to the view that the statute upon which this prosecution is based tends to effectuate and not defeat the purposes of the Eighteenth Amendment to the United States Constitution and the Volstead Act, we pass to a consideration of the other alleged errors.

It is next contended that the trial court erred in permitting the witness W. Hi. Omohundro to testify in behalf of the state as to certain tests and examinations that he made as to the alcoholic contents of a sample of extract of ginger. The objections urged to the testimony of this witness are twofold: (1) That he did not qualify as an expert; (2) that it is not shown that he made a test of the identical liquid in controversy.

An examination of the direct and eross-examination of the witness convinces the court that there was a sufficient showing of the witness’ qualifications to make the test in the manner in which it was made; and, as to the second objection, while the testimony of the witness does not show that he tested the identical liquid in controversy, the defendants have not brought to this court all the evidence produced at the trial, and in the absence of an entire transcript of the evidence this court will not hold there was an entire failure on the part of the state in the trial to identify the liquid tested by the witness Omohundro with that alleged to have been possessed by defendants. We have before us only the testimony of the witness Omohundro. It is the duty of an appellant to bring before the court so much of the proceedings of the trial court as will permit this court to pass intelligently and safely upon the questions presented, and where' that is not done the presumption will be entertained on appeal, in the absence of a contrary showing, that all preliminary steps were taken to form sufficient foundation to authorize the admission of the evidence objected to, as the burden in this court is upon the appellant to affirmatively show that error prejudicial to his substantial rights was committed in the trial. Cowan v. State, 5 Okla. Cr. 313, 114 Pac. 627; Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311; Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620.

Complaint is also made of several of the trial court’s instructions, and while the charge is not a model one, yet when considered as a whole we find no error contained therein which we deem sufficient to authorize the reversal of this judgment, especially in view of the fact that defendants have failed to bring before the court for review and consideration in connection with the instructions all the evidence adduced at the trial.

Defendants were charged with having the possession of ten gallons of extract of ginger, and while such extracts are not ordinarily placed on the market for the purpose, of sale as beverages, it is a well-known fact, as stated in the brief of defendants’ counsel, that such extracts, as well as certain medical compounds, are sometimes sold for beverage purposes, with the knowledge and belief on the part of the seller that the purchaser intends to dilute them and use them solely for their intoxicating effect. At the request of defendants, the trial court instructed that—

It was “not a violation of the law in this state to sell extracts or medicines containing more than one-half. of one per cent, of alcohol, and the quantity of alcohol is immaterial so long as the liquid containing the same is prepared for and sold as a medicine, or an extract or compound to be used other than as a beverage, and it is only a violation of the law to sell such liquids when the same is likely to be used as a beverage instead of the purpose for which it is really compounded or put up.”

This instruction sufficiently safeguarded the rights of defendants under the holding of this court in Dutton v. State, 21 Okla. Cr. 186, 205 Pac. 940. The fact that the article itself was not capable of being used as a beverage in the state in which it was sold is immaterial, provided the sale was made for its use as an intoxicating beverage, and it could be so used in a diluted state or condition. State v. Kollar, 17 Okla. Cr. 132, 186 Pac. 968. In the absence of all- the evidence in the case, we must presume that defendant was possessed of the quantity of extract of ginger alleged in the information, to wit, 10 gallons. The possession of such an enormous quantity of ginger extract is of itself, especially in a small town the size of Stringtown (which, according to the 1920 census, contains 225 inhabitants), a strong presumption of fact that the article was possessed for unlawful purposes.

Judgment as to J. A. Redden affirmed.

Abated as to J. A. Redden, Sr.


author: DOYLE, P. J.

text:
    J. J. BIRDWELL v. STATE.
    No. A-3625.
    Opinion Filed Sept. 8, 1921.
    Rehearing Denied Dec. 2, 1922.
    (210 Pac. 558.)
    (Syllabus.)
    1. Appeal and Error — Verdict Sustained by Substantial Evidence not Disturbed. Where there is substantial evidence to show the guilt of the accused, the appellate court will not weigh the sufficiency of the evidence to sustain a conviction, but will consider the whole evidence to ascertain whether a conviction is founded on substantial evidence.
    2. Evidence — Circumstantial Evidence to Show Conspiracy. A conspiracy may be shown by circumstantial evidence.

      3. Homicide — Evidence Showing Conspiracy to ■ Murder. In a prosecution for murder, evidence held to show the existence of a conspiracy to kill and murder.
    4. Homicide — Evidence Sustaining Conviction for Murder. Evidence held sufficient to sustain a conviction for murder.
    Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.
    J. J. Birdwell was convicted of murder, and he appeals.
    Affirmed.
    W. H. Fuller, G. M. Porter, and J. L. Fuller, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment rendered upon the verdietl of a! jury finding appellant, J. J. Birdwell, guilty of murder and assessing his punishment at imprisonment for life. The information charged Otto Collins, Ben Smith, and J. J. Birdwell with the murder of Price Jett. Upon arraignment appellant demanded and was granted a separate trial. Otto Collins and Ben Smith were jointly tried and convicted of murder. The jury fixed their punishment at imprisonment for life. Ben Smith appealed, and this case is a companion case to that of Ben Smith v. State, 19 Okla. Cr. 356, 200. Pac. 553, this day affirmed by this court.

The only ground seriously urged for a reversal is that the evidence was insufficient to sustain the conviction.

On Sunday morning, about half past 9, the 25th day of August, 1918, Price Jett and Lee Jett, his father, were shot and killed by Otto Collins and Ben Smith. The theory of the state was that this was a conspiracy between the defendants to allure the Jetts into an ambuscade and there kill them. The crime, according to the state’s evidence, was deliberately planned and brutally executed.

The record is very voluminous, but it is unnecessary to here review the evidence at length, because a sufficient statement of the same is set forth in the opinion in the Ben Smith Case.

It appears that the previous year Price Jett had caused the arrest of Otto Collins and Ben Smith on a charge of robbery; that shortly after Price Jett killed Jim Collins, a brother of Otto Collins; that on his trial the jury had failed to agree, and the case was still pending; that a day or two before the trial of Price Jett for killing Jim Collins, Lee Jett was shot in the leg from ambush, and claimed Otto Collins shot him. It appears that, as a result, it was a matter of current report that a feud existed between Otto Collins, Ben Smith, and the Jetts, father and son.

Summarized, the evidence shows: That appellant had lived in and around Blocker about 10 years, and at the time was employed at a coal mine two miles east and a half mile south of Blocker. Appellant had a conversation with Otto Collins in Blocker Saturday afternoon, later was seen to stop at the Bigg’s home near Blocker, and Otto Collins and Ben Smith were sitting on the porch. About 6 o’clock that evening he was at the home of the Jetts, some four miles west of Blocker on the road to Crowder. A heifer belonging to Price Jett had strayed. Lee Jett and his wife had been to Crowder, and drove up to their gate, where appellant was sitting in his buggy. Ann Jett testified that she was standing inside of the fence; that appellant said to Lee Jett, if he had known where his heifer was yesterday when he spoke to him at Bloeker, he would have told him, but he didn’t know until today, when he saw a heifer with a bar L bar brand as he came out of his coal bank, and he came right on here, and for Mr. Jett to come tomorrow and get the heifer; that Mr. Jett said that it was according to where it was, and appellant said:

“It was not towards his enemies, it was back the other way, and that he had never betrayed anybody and got them killed in his life.”

That appellant repeated this statement two or three times. Mrs. Lee Jett told him that she would pay him $10 if he would bring the heifer there, and appellant said: “No, that he wouldn’t unless Mr. Jett would go with him in the morning.” That the next morning Price Jett, her husband, and Lee Jett, his father, went off on horseback to get the heifer.

Mrs. Ann Jett, widow of Lee Jett, testified, in substance, to the same conversation.

There was a series of Holiness meetings being held in a brush arbor about three miles southwest of Blocker, and within a mile of the home of Otto Collins. Two or three witnesses tes-, tified that appellant and Otto Collins attended the meeting that Saturday night. The air shaft at the mine where appellant worked burned out Thursday night; the miners were laid off; the men left in charge of the mine testified that they did not see appellant at the mine that Saturday. The following morning Price Jett and his father rode to Blocker, and from there proceeded with appellant towards the coal mine to get the heifer. They went a mile east, and turned south into a lane leading to the foot of a mountain; the wire gate there, in addition to the usual wire loops, had been fastened by several strands of barb wire tied around the posts. When they stopped at the gate Lee Jett got off his horse; then Otto Collins and Ben Smith commenced shooting from the' brush. Appellant rode back. He stated to the first person he; talked to and one or two others that the first shot came from the brush, and he made a similar statement before the coroner’s jury.

•Testifying in his own behalf, appellant said:

"Mr. Jett told me a month before that he had missed a heifer branded bar L bar. I was at the mine Saturday morning maybe an hour. My boy was with me. As we drove back along the road I saw the heifer, and told my boy that was Mr. Jett’s heifer. About 4 o ’clock I drove uptown to the pump by Brown’s store. I saw Otto Collins, and he asked me how I would swap my mare and buggy for his horse and saddle, and I asked him what he would do. He said he could not trade, and I drove home, and then on to Mr. Jett’s place to tell him about the heifer. When I arrived there I saw a little girl, and asked her where her papa was. She said he had gone to town. I looked down the road, and saw him coming. When he came up, I asked him if he had ever found his heifer. He said they hadn’t. I told him I thought I saw her, and if he' would come down I would show him the way, and if it was his heifer we would get her. He said he would be down the next morning. That is all that was said. His wife was sitting in the seat with him. If she said anything at all I do not remember it. I got home a little before sundown. I did not see Otto Collins that night, and I did not attend the Holiness meeting that night; me and my wife were there the night before. The next morning the Jetts, both horseback, came to my place, and asked me if I would go with them after the heifer. We rode straight on east to the lane where they were killed. We could see some cattle on the south end of the lane, and Mr. Jett said, ‘Yonder is some cattle, we will go down and look at them; she may be with them.’ We rode down to the other end, and Price Jett trotted up a little, and jumped off. his horse to open the gate; I was five or six feet from Lee Jett. He said something, and jerked a gun out of his pocket and fired. Then the shooting commenced. I whirled my horse and left there, whipping my horse, when the mare made about three jumps, and I looked back, and saw Lee Jett fall off his horse, and I got a glimpse of some one on a horse south of the gate. When I reached the north gate I jumped down and opened it, passed out, and shut it to keep the loose horses from getting out. I told Mr. Bassett about the shooting, and rode on to Blocker, and there told a bunch of men about it. I didn’t enter into any conspiracy with Otto Collins and Ben Smith before this killing, and I did not know that Otto Collins and Ben Smith were in that neighborhood at the time. The place where I saw the heifer was about a mile east of where the killings took place.”

His cross-examination was in part as follows:

“Q. Why didn’t you tell the coroner’s jury the story you have told here? A. They didn’t ask me.
“Q. What did they ask you? A. They asked me something or another about the shooting, how it happened.
"Q. Do you now admit to this jury that you didn’t tell the coroner’s jury that Lee Jett fired the first shot? A. I didn’t tell that.
"Q. Didn’t you tell them that the first shot came from the brush, and you didn’t know who fired it? A. No, sir; I don’t think so.
"Q. And you never did tell before you told it just now about seeing a man on horseback there? A. No, sir; I didn’t.
“Q. You say that you never worked for Tom Goodman? You lived out there, didn’t you? A. Stayed out there about two months, but never worked for him.”

Thirty other witnesses testified on the part of appellant, but his codefendants did not testify.

At the close of the evidence counsel for appellant asked the court to advise the jury to acquit the defendant because the evidence was insufficient to warrant a conviction, which the court refused to do. This ruling is assigned as error.

Our Penal Code provides (section 2104, Rev. Laws):

"All persons concerned in the commission of crime, whether it be felony or misdemeanor and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals. ’ ’

This statute abolishes the distinction between accessories before the fact and principals; by it all accessories before the fact are made principals. If appellant aided or abetted the killing of Price Jett, be is as guilty as if be fired the fatal shots. Usually, as in this case, the proof of a conspiracy is merely incidental to proof of some other crime in which several have taken part. Thus, where a man has been killed as the result of a preconcerted assault upon him by several persons, it becomes necessary to prove a conspiracy to show the relations of the accused persons to one another.

As the existence of a conspiracy in any particular case is an inference to be drawn by the jury from all the facts and circumstances in evidence, the state may either prove the conspiracy which renders the acts of the conspirators admissible evidence, or it may prove the acts of the defendants, and thus prove conspiracy. If it is proved that two or more persons aided by their acts towards the accomplishment of the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected and co-operative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred, though no actual meeting among them to concert means is proved. The details of a conspiracy need not be proved. Un-derhill, Cr. Ev. § 491.

This court has uniformly held that, when in a criminal case the inference of guilt can be reasonably drawn from the evidence, it will not interfere with the verdict on the ground of want of evidence to sustain it. There is a direct conflict in the testimony for the state and that for the defense. Upon the testimony of appellant and his witnesses the jury could have acquitted him. On the other hand, the testimony on the part of the state, if credited as it was, was amply sufficient to sustain the conviction. We think that from all the evidence in the case, carefully considered, it is evident that all the defendants were acting in concert with á common purpose and intent in the commission of the offense charged.

The instructions fairly submitted the law of the case to the jury, and no error was committed in refusing instructions requested.

Our conclusion is that there is no reversible error in .the record. The judgment of the trial court is therefore affirmed.

MATSON and BÉSSEY, JJ., concur.


text:
    ERNEST KEY v. STATE.
    No. A-3639.
    Opinion Filed July 30, 1921.
    Rehearing Denied Dec. 2, 1922.
    (210 Pac. 407.)
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Ernest Key was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.
    ' R. Brett and J. H. Mathers, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State. /
   PER CURIAM.

The plaintiff in error, Ernest Key, was convicted in the county court of Carter county upon an information charging that he did unlawfully transport and convey from Provence, in Carter county, to near Ardmore, 240 quarts of whisky, along the public highway in said county, and his punishment fixed at confinement in the county jail for four months and a fine of $400. From the judgment rendered on the verdict, he appeals.

The errors assigned question the sufficiency of the evidence to sustain the conviction. The evidence for the state shows that Deputy Sheriff Horace Kendall had been informed of a whisky ear coming from Provence, and with Police J. D. Johnston, went to intercept them, and just east of Ard-more, on the Provence road, about 8:30, they met the defendant, Ernest Key, and Emmet Key, in a Cadillac car and stopped them, and found that the car was loaded with about 300 quarts of whisky, stacked in like stovewood. The evidence of these officers was that they had possession of the car and whisky, and arrested the defendant and Emmet Key. They further testified that Emmet Key was driving the car. When the state rested, the defendant moved a1 directed verdict, on the ground that the same was not sufficient to sustain a conviction, which motion was overruled. The evidence in our opinion was sufficient to sustain the verdict.

The judgment is therefore affirmed.


author: MATSON, J.

text:
    DAWES PUSLEY v. STATE.
    No. A-3718.
    Opinion Filed Feb. 13, 1922.
    Rehearing Denied Dec. 2, 1922.
    (210 Pac. 306.)
    (Syllabus.)
    1. Rape — Evidence Sustaining Conviction of Assault to Rape. Ev-idencie examined, and held sufficient to sustain the verdict and judgment.
    2. Continuance: — Refusing Continuance for Absence cf Witness not Abuse of Discretion. Motions for a continuance are addressed to the discretion of the trial court. The trial court’s action on such motion will not be disturbed, unless a manifest abuse of discretion appears.
    3. Rapa — Exclusion of Evidence of Defendant’s Intoxication After Alleged Act not Error. The defense interposed was that defendant was so drunk at the time the offenste was alleged to have been committed that he did not have mental capacity sufficient to form the specific intent to rape th'e prosecuting witness. The trial court permitted defendant to introduce evidence to show that he was drunk both before and at the time the alleged assault was committed, but excluded proffered evidence that he was drunk some three hours after that time. Held, exclusion of such evidence not erroneous.
    4. Appeal and Error — Judge’s Inaccurate Remarks Cured by Instruction. Inaccurate remarks of the trial judge in ruling upon the admission of proffered testimony held to be cured by an instruction on the same subject, subsequently given.
    5. Case Followed. Williams v. State, 10 Okla, Cr. 336, 136 Pac.. 699, followed in holding the information sufficient.
    Appeal from District Court, Bryan County; George S. March, Judge.
    Dawes Pusley was convicted of the crime of assault with intent to rape, and he appeals.
    Affirmed.
    O. R. Fowler and Utterback & MacDonald, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   MATSON, J.

Dawes Pusley appeals from a judgment rendered against him in the district court of Bryan county on the 18th day? of October, 1919. The conviction was for assault with intent to rape, and the punishment assessed at four years’ imprisonment, in the state penitentiary.

It is first contended that the trial court erred in refusing to grant the defendant a new trial because of the insufficiency of the evidence. The prosecuting witness, Mrs. Agnes Thomas, testified that the defendant assaulted her while she was passing through a field near the home of the defendant; that after some effort she succeeded in breaking away from the defendant, and ran to the house of a neighbor. Her testimony is corroborated by the testimony of several neighbors, who stated that Mrs. Thomas came to the house of one of them from the direction of the defendant’s house, and that she was in a very excited condition and in a state of nervous collapse. Another witness also saw a woman running through the field where the prosecuting witness testified the assault took place and saw a man running after her. This witness was not able to positively identify these parties.

The defendant did not deny the assault, but interposed as a defense that he had been drinking that day and had no recollection of what occurred during the day from early in the morning until after he came to himself in the jail at Durant. The alleged assault took place between noon and 1 o’clock.

That the defendant assaulted the prosecuting witness is established by apparently credible and uncontradictory testimony. As we view the evidence, the only controverted question for, determination by the jury was the intent with which this assault was committed. The question of intent was one for the jury, under proper instructions on the law by the trial court. The circumstances under which the assault was committed and the nature thereof were.such as to authorize the jury to infer that the defendant intended to rape the prosecuting witness. Under such circumstances we deem it our duty not to set a judgment of conviction aside on account of insufficient evidence, especially as the trial .court refused to grant a new trial on this ground, and the trial court and jury had the advantage of seeing the witnesses, observing their manner of testifying, and were in a much better position than is this court tO; arrive at a right conclusion of the credibility of the witnesses and the weight to be given to their testimony.

Further, it is contended that the trial court erred in overruling the motion for a continuance based on the absence of a Mrs. Lena McGarr, a sister of the defendant and the wife of Tobe McGarr. The motion alleges that said' witness had been subpoenaed, but was about to be confined, and could not attend the trial -without taking great risks as to her Health; that on the day1 the alleged offense was committed the defendant was at her home frequently during the day; that he was drinking and in a drunken condition, both in the forenoon and afternoon of said day; that the defendant was crazy drunk about 2 o’clock in the afternoon, and acted in a very boisterous manner, and apparently did not know what he was doing ; that the evidence is material to the defendant, and that he could not safely go' to trial without it. The motion was subscribed and sworn to by the defendant. No attachment was asked for the absent witness, and it appears from the record that the testim'ony of this witness, if present, would' have been altogether cumulative, as Tobe McGarr and other witnesses were present and testified to substantially the same matters. Further, there is no showing of any reasonable probability that the witness would be able to attend court at the next term should a continuance have been granted. Under the circumstances as disclosed by this record we find no abuse of discretion in denying the continuance.

Further it is contended that the trial court erred in excluding legal and competent testimony offered in behalf of the defendant. In this connection it is contended that the trial court erred in refusing to allow the defendant to show by certain witnesses that he was very drunk at the time he was arrested, about 4 o’clock in the afternoon of the day the offense was alleged to have been committed. The trial court permitted the defendant to show by other witnesses and by his own testimony that he had been drinking the day before the offense was committed, that he did not eat any supper the day before, that he began drinking early in the morning of the day the offense was committed, that he became very drunk that morning, and that he was drunk at the time the offense was alleged to have been committed, and was apparently drunk shortly thereafter. The material inquiry was whether or not the defendant was so drank at -the time the offense was committed that he could not and did not form the specific intent to rape the prosecuting witness. The scope of the inquiry as to the drunken condition of the defendant was to a large extent discretionary with the trial court. In view of the fact that evidence had previously been introduced to show that the defendant was drunk both before and at the time the alleged assault was committed, we fail to see wherein he was prejudiced by the exclusion of evidence that he was drunk three hours after that time.

In this connection is it also contended that the trial court erred while ruling upon the admission of this proffered testimony by using the following language:

“I will sustain the objection. I am going to try to admit -everything I think admissible on the part of the defendant, and the same on the part of the state, but I don’t think this is competent. In this connection I will call your attention to section 2095 of the Eevised Laws: ‘No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of having been in such condition.’ And the decisions go further than that, and I will charge the jury accordingly when I come to it. If a man was so drunk at the time of the alleged commission of an offense that he could not form an intent to commit a crime, yet that wouldn’t excuse him. Sustain the objection.”

In support of the latter assignment the following argument is advanced:

“From the language above used the court imparted at that time to the jury the information that even if the defendant was drunk, it would not make the act any less criminal, and although he ‘was so drunk at the time of the alleged commission of the offense that he could not form an intent to commit a crime, yet that would not excuse him.’ This was told the jury, or was stated in the presence of the jury by the judge upon the bench, at a time when the defendant had given his testimony, and soon after the close of the evidence by the state. This was not the law, and this erroneous instruction to the jury at the time could , not have been dislodged from the minds of those men by the use of dynamite. ’ ’

The remarks above quoted were not entirely accurate, and did not contain a complete statement of the law of “voluntary intoxication” when applied to the commission of a crime in which a specific intent is involved. While voluntary intoxication is not an excuse for the commission of a criminal act, it may tend to reduce the degree of the crime, as from murder to manslaughter, when the intoxication is such that at the time of its alleged commission defendant was unable to form a premeditated design to kill. Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031; Tubby v. State, 15 Okla. Cr. 496, 178 Pac. 491; Miller v. State, 9 Okla. Cr. 55, 130 Pac. 814. Or, in this case, to reduce the offense from assault with intent to rape to that of simple assault. We are clearly of the opinion, however, that the trial court in his general charge to the jury cured any inaccuracy that may have been contained in the foregoing statement and ruling excluding the proffered testimony.

Instruction No. 5 is as follows:

“The defendant, as a part of his defense, contends -that at the time of the alleged commission of the offense charged in the information he was in such a state of intoxication that he was incapable of forming the specific intent to commit the offense charged. In this connection you are instructed that while ordinarily drunkenness is no defense to the commission of an offense, yet in the case at bar before the defendant could be guilty of an assault to commit rape the law requires that he must have been capable of and to have had the mental capacity to form an intent to commit the crime charged, and if you find that the defendant did not have such mental capacity or was not capable of forming such intent, or have a reasonable doubt thereof, then you must acquit the defendant.”

The foregoing instruction was a more favorable statement of the law as applied to the evidence than the defendant was entitled to, because had the jury believed beyond a reasonable doubt that the defendant had committed the assault as charged, but had a reasonable doubt as to his mental capacity to form the specific intent on account of drunkenness alone, the jury still could have convicted him of simple assault; but the trial court told them that under such circumstances the defendant was entitled to an acquittal.

It is also contended that the trial court erred in overruling the demurrer to the information interposed on the ground that the information did not state facts sufficient to constitute the crime. of assault with intent to rape. The specific objection to the information is'that it does not state the facts constituting the alleged assault; and in support of this assignment several decisions are cited by this and the Supreme Court of the territory of Oklahoma that in charging an attempt to commit a crime it is necessary to allege the acts or facts constituting the attempt, and, further, that the attempt failed. A clear distinction is to be made between the necessary allegations of an information charging an attempted crime and one charging assault with intent to commit a crime. We think this distinction is made clear in the case of Williams v. State, 10 Okla. Cr. 336, 136 Pac. 599.

After a careful examination of the record, the conclusion is reached that the information is sufficient to charge the crime of assault with intent to commit rape; that the evidence is sufficient to support the verdict and judgment; that there was no abuse of discretion either in denying the continuance or excluding the proffered testimony; and that the defendant was accorded a fair and impartial trial. For reasons stated,, the judgment is affirmed.

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


text:
    BERT RICHARDS v. STATE.
    No. A-3749.
    Opinion Filed Feb. 8, 1922.
    Rehearing Denied Dec. 2, 1922.
    (210 Pac. 295.)
    (Syllabus.)
    1. Indictment and Information — Sufficiency of Information with Substantially Same Charge as in Complaint. Where it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information filed in the district court, a motion to quash on the ground that the offense charged in the information differs from that charged in the complaint was properly overruled.
    2. Robbery — Conjoint Robbery — Statute, of Classification. Penal Code (section 2373, R!ev. Laws 1910), prescribing the punishment for robbery conjointly committed, is a statute of classification, and not of definition.
    3. Robbery — Evidence Supporting Conviction. Evidence examined, and found sufficient to support the verdict and judgment of conviction.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Bert Richards was convicted of robbery, and he appeals,
    Affirmed.
    John J. N. Sykes, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and 'E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Bert Richards, was convicted of the crime of robbery conjointly committed and his punishment fixed at five years in the penitentiary. From the judgment rendered on the verdict he prosecutes this appeal.

The information charged that Bert Richards and John Doe, whose real name is unknown, on the 23d day of February, 1918, conjointly and feloniously committed the crime of robbery by taking from the person and possession of one E. S. Johnson the sum of $24, the property of said Johnson, without the consent and against the will of the said Johnson, in that said defendants and each of themj did then; and there threaten to do bodily harm and injury and take the life of the said Johnson if he, said Johnson, resisted! the taking of said property.

The first assignment of error is that the court erred in overruling the defendant’s motion to quash the information. Before pleading to the information the defendant Richards filed a motion to quash, for the reason in substance as follows : That the original complaint upon which the preliminary trial was had charged this defendant with the crime of robbery, and the information filed charges this defendant with the crime of conjoint robbery; that he did not have a preliminary examination before the committing magistrate for the crime of conjoint robbery as charged in the information now pending.

The original complaint charged that Bert Richards and John Doe, whose real name is to affiant unknown, did on the 23d day of February, 1918, unlawfully and feloniously take from the person and possession of E. S. Johnson $24 lawful money of the United States, which taking was accomplished by means of force and fear, said defendants being armed with revolvers, and threatened to take the life of said Johnson if he resisted. Attached to the complaint was a duly certified transcript of the proceedings holding the defendant to-the district court.

It is urged by counsel for the defendant that in the original complaint the defendant was charged with the crime of robbery, and the information filed in the district court charged the crime of conjoint robbery, and for this reason the defendant was denied the benefit of a preliminary examination for the particular crime of which he was convicted.

Robbery is defined by onr Penal Code as follows:

“Robbery is an unlawful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.” Section 2364,- Rev. Laws.

Our Penal Code further provides:

“Whenever two or more persons conjointly commit a robbery or where the whole number of persons conjointly committing a robbery and persons present and aiding such robbery amount to two or more, each and either of such persons is punishable by imprisonment in the penitentiary for not less than five years nor more than fifty years.” Section 2373, Rev. Laws.

It is apparent, without comment, that the last section above quoted is a statute of classification, and not of definition. It follows that conjoint robbery is not a distinctive offense, but is one of the methods of committing robbery, and it has been repeatedly decided by this court that the original complaint need not state the offense charged in technical language, nor in such specific terms as is required in an information, and is sufficient where the jurisdictional facts appear and the crime is stated in ordinary language. Ponosky v. State, 8 Okla. Or. 116, 126 Pac. 451; Tucker v. State, 8 Okla. Cr. 428, 128 Pac. 313; Weatherholt v. State, 9 Okla. Or. 161, 131 Pac. 185; Muldrow v. State, 16 Okla. Or. 549, 185 Pac. 332.

The facts are about as follows: The complaining witness, Johnson, left his home two or three miles south of the Hickory mines about 9 o’clock in the evening in a one-horse rig, and drove to the home of one Sturgeon, near the Hickory mines, who paid him $20 that he owed him. On his way there he passed another one-horse rig, and recognized the driver as a man he saw that day in Tulsa in company with a woman he knew as Clarisa Bell. Leaving Sturgeon’s for his home, he had not gone very far when he noticed the rig he had passed stopped near the side of the road. As he passed by two men with revolvers in their hands stepped out in the road and said, “Stick them up; stick them up,” and demanded his money. He handed them his money, a $20 bill and $3 or $4 in change, and they told him to go on and drive like hell. He stopped at the next house and called up the officers. Two officers came out. He told them that one of the men that held him up was the defendant and the other one he did not know.

The officers and Mr. Johnson went to the home of Bert Richards, reaching there about 11 o’clock that night, and found a gray horse wet with sweat. The next morning Mr. Johnson in company with one or two others went back to where the robbery occurred and traced the tracks of a horse that had one hoof unshod, which was the condition of the gray horse found in the possession of the defendant.

The defense interposed was an alibi. Some exceptions were taken to rulings of the court upon the admission and rejection'of testimony, but we are of the opinion that none of them were well taken.

The instructions given fully covered the law of the case. The testimony on the part of the state, if credited, as it was, was amply sufficient to sustain the verdict. As shown by the record, the defendant has had a fair and impartial trial.

The judgment of the trial court is therefore affirmed.

MATSON and BESSEY, JJ., concur.


author: BESSEY, J.

text:
    R. E. COLLINS v. STATE.
    No. A-3750.
    Opinion Filed May 3, 1922.
    Rehearing Denied Dec. 2, 1922. .
    (210 Pac. 285.)
    (Syllabus.)
    1. Homicide — Instructions—Definitions of Murder and Manslaughter. The instructions relating to murder and included offenses given and refused analyzed and found sufficient.
    .2. Homicide — Jury Question as to Whether Cane, Was a Deadly Weapon. As a matter of law, a walking cane is not per se a deadly weapon. In this case it was a question of fact for the jury.
    3. New Trial— Qualifications of Jury — Refusal of New Trial for Juror's Vague Statements as to Opinion. There was no error in the court’s refusal to grant a new trial on thfs showing made by affidavits to impeach the qualifications of two certain jurors to the effect that about a year previous to the trial these two jurors made indefinite statements indicating that they may have had an opinion that the defendant was at fault.
    Appeal from District Court, Seminole County; J. W. Bolen, Judge.
    R. E. Collins was convicted of manslaughter in the first degree, and .sentenced to imprisonment in the state penitentiary for seven years, and he appeals.
    Modified and affirmed.
    W. W. Pryor and W. N. Stokes, for plaintiff in error.
    The Attorney General and E. L. Pulton, Asst. Atty. Gen.-, for the State.
   BESSEY, J.

R. E. Collins, plaintiff in error, in this opinion referred to as the defendant, was by information filed January 5, 1918, in the district court of Seminole county, charged with the crime of murder. In the charging part of the information it was stated that the defendant—

“unlawfully, willfully, intentionally, maliciously, and felon-iously, without authority of law, without justification or excusable cause, and with a, premeditated design then and there existing in his mind to effect the death of one George Jackson, did assault, strike, and beat the said George Jackson upon the head with a certain cane (wooden) then and there held in his hand, thereby inflicting upon the head of the said George Jackson a mortal wound, from the effects of which * * * he died.” -

To this information a demurrer was filed stating that the facts alleged were not sufficient to constitute an offense. The record does not disclose that this demurrer was either sustained or overruled. Thereafter,. however, the defendant announced ready for trial, and the trial proceeded, resulting in a verdict on September 20, 1919, for first-degree manslaughter, in which the defendant’s punishment was fixed at imprisonment for seven years in the state penitentiary. After the overruling of a motion for a new trial, judgment on the verdict was rendered November 4, 1919, from which judgment defendant appeals to this court.'

A synopsis of the facts, gathered from the testimony as-a whole, may be stated as follows:

Defendant, Collins, was a former professional baseball player, but for a number of years had been badly crippled, having one stiff, shrunken leg, and habitually using a cane to assist him in walking. About two years prior to the homicide Collins, who was naturally very much interested in the sport of baseball, was instrumental in organizing a team and promoting ball games in the town of Wewoka. After several games had been played subscriptions and donations were solicited from persons interested, for the purpose of improving and inclosing the baseball park. These subscriptions and donations were not sufficient for that purpose, and to provide for the deficiency a note in the amount of $300 was executed, signed by 20 individuals. With the money so donated and borrowed lumber and wire netting were purchased and a. grand stand was érected, the baseball park inclosed or partially inclosed, and otherwise improved.

The organization, if indeed it could be called such, was loose and .indefinite, consisting of persons who in one way or another contributed to the baseball enterprise. At the suggestion of the defendant, George Jackson, the deceased, was selected as president or manager and had charge of the. business and finances of the organization before turning them over to the treasurer, W. L. Thurston, who was also nominated for his position by the defendant. After the construction of these improvements most of the young men of the community enlisted or were drafted. for military service, and for that reason no games had been played in the park for some time. Shortly prior to the homicide the deceased, George Jackson, so far as appears,from this record, without consulting others interested in the ball park, wrecked the grand stand, tore down the fence and other improvements there, and carried the lumber and other material out to his farm near Wewoka.

On the day of the difficulty defendant went into the pool hall and cold drink stand in Wewoka, and was at the counter drinking coca-cola, where he invited others to drink with him, among them being the deceased, Jackson. Deceased declined to drink, and then defendant asked him what he did with the lumber from around the ball park. Mr. Jackson replied that he had taken it out to his farm. Defendant asked him what his purpose was, and Jackson said it was to get the money he had tied up in it. Then a heated argument followed, in which some harsh things were said. The deceased accused the defendant of being drunk, and it is claimed that he called defendant a “crippled s- of a b-.” A few Vwinut.es later the quarrel was renewed in a drug store across the street, where the defendant had followed the deceased. After more words the defendant advanced on the deceased and struck him. on the head with his cane, causing the deceased to sink to the floor. The blow made an abrasion on •the head of the deceased, from which he bled profusely. The deceased quickly revived from effects of the blow, and by‘standers separated the two men, while both were in a fighting .attitude.

Later that evening the deceased grew violently ill, and died the following day. A post mortem examination of the .cranium disclosed a fractured skull and large clots of blood .at the base of the brain.

The evidence indicates that the left leg of the defendant was stiff, partially paralyzed and shrunken, and that defendant carried this cane habitually, being unable to walk without it. The cane was in evidence before the jury, but there was no definite testimony as to the kind of cane, except that it was a cane with a crook for a handle, presumably -sturdy enough to be used as a staff.

There was evidence to support one of the theories of the -state, that the defendant' renewed the difficulty and struck the fatal blow in the heat of passion, in a cruel and unusual manner, and that the cane in question was capable of being used and was used as a deadly weapon.

Among numerous assignments of error urged in defend.ant’s brief are instructions given by the eourt to which exceptions were taken, and the refusing to give instructions offered by the defendant. One of the instructions complained of is .as follows:

"Murder is the unlawful killing of a human being with a premeditated design to effect the death of the person slain.
"Manslaughter in the first degree is the unlawful kill-ing of a human being without a premeditated design to effect the death of the party slain, while engaged in the commission of a misdemeanor, or in the heat of passion, in a cruel and unusual manner by means of a dangerous weapon.”
“The instruction above quoted defining manslaughter in the first degree was probably given from memory, in an attempt to follow the statute defining that offense (subdivision 2 of section 2320, E. L. 1910), which is as follows:
“Second. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.”

The insertion of the word “premeditated” and the omission of the word “but” makes this instruction more favorable to the defendant than if given in the exact language of the statute, and it was therefore not prejudicial.

The following instruction was given by the court and excepted to by the defendant:

“An unlawful killing may also be reduced from murder to manslaughter by misadventure or accident, and in this connection you are instructed that, if you believe or have a reasonable doubt thereof that the cane in question could or could not be a deadly weapon, and that the defendant used said cane without a premeditated design and intent to kill, and that death resulted from the blow inflicted by said cane, under such condition the unlawful killing, if you find same is unlawful, would be manslaughter in the first degree, and not murder. ’ ’

The following instruction was also given by the court and excepted to by the defendant:

“You are further instructed that homicide is excusable in the following cases: When committed by accident and misfortune, in the heat of passion, upon sudden and sufficient provocation, or upon any sudden combat, provided that no dangerous weapon is used and the killing is not done in a cruel and unusual manner; and in this connection you are instructed that, if the homicide was committed by the defendant by accident and misfortune in the heat of passion, upon any sudden or sufficient provocation, or upon a sudden combat, and that the killing was not done in a cruel and unusual manner and not with a dangerous weapon, the homicide would be excusable, and' you should find the defendant not guilty.”

The last two instructions quoted are, to some extent, in•consistent with each other. Under the testimony here there was no occasion for giving an instruction on excusable homicide. The testimony for the state and for the defendant both show that the defendant, after the first difficulty, followed the deceased into another store and renewed the quarrel and deliberately struck him with his cane. The blow ¡struck was not accidental; on the contrary, the testimony indicates that it was struck purposely, in the heat of passion, although probably without any intent to cause death, under the circumstances reducing the offense to manslaughter, as •defined in another instruction. "We therefore hold that the instruction to the effect that the killing, if by accident or .misadventure, was manslaughter, is incorrect, but under the circumstances here did not operate to the defendant’s prejudice.

The defendant further urges that the court erred in refusing to instruct the jury that a dangerous weapon is one with which death can be easily and readily produced, and that the cane used by the defendant is not in law a dangerous weapon; that it was incumbent upon the state to show that this cane was in fact a dangerous weapon and an instrument from the use of which death would probably result. We think the requested instruction was confusing and was -not a correct statement of the law as applied to the facts in this case. While no description of the cane in question appears in the record, it does appear that the cane was produced ■and exhibited in the court, in the presence of the jury, and that demonstrative evidence was had and heard showing how -and in .what manner the cane was used .at the time the fatal sblow was struck.

It was held by this court in an early ease, Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300, that in an indictment charging that a murder was committed with a piece of two-inch plank and an ax handle, without setting out the weight or size of the instruments or that they were deadly weapons, the averments were sufficient. Under such circumstances the question of whether any instrument is a deadly weapon is a question of fact for the jury, and not a question of law for the court. Krchnavy v. State, 43 Neb. 337, 61 N. W. 628; People v. Valliere, 123 Cal. 576, 56 Pac. 433; Crow v. State, 55 Tex. Cr. R. 200, 116 S. W. 52, 21 L. R. A. (N. S.) 497, notes and annotations under “Clubs, Sticks, and Pieces of Wood.”

Axes, hammers, whips, brickbats, canes, clubs, or sticks of wood, as a matter of law, are not ordinarily deadly weapons, but they may as a matter of fact become weapons of a very deadly character. Notes to Crow v. State, supra; Allen v. U. S., 157 U. S. 675, 15 Sup. Ct. 720, 39 L. Ed. 854; 2 Words and Phrases, 1853; 1 Words and Phrases, Second Series, 1203.

Many and various definitions of the term “dangerous weapon” may be found in the law books, but, like many other simple terms, we find no definition susceptible of general application that explains or elucidates the meaning of the term any better than the use of the words without explanation. We think, therefore, that in this case the court committed no error in refusing to instruct the jury defining “dangerous weapon” in the language requested, or in any other language. The term itself is self-explanatory as applied to the facts here, and whether or not the cane was intentionally used as a deadly weapon was properly a question for the jury-

The instruction given by the court on self-defense denied defendant’s right to self-defense, if the jury found that defendant voluntarily and unnecessarily renewed the quarrel, and commented on the evidence. The evidence shows no facts or circumstances indicating that the defendant acted in self-defense.. Portions of the defendant’s own testimony refute this theory. From his testimony it appears that after the difficulty in the pool hall and after the deceased had called the defendant a vile name the deceased went into a drug store, and the defendant followed him in for the purpose, so he states, of making the deceased! apologize for what he had said; that the deceased then said, “You are drunk, and when you get sober I will talk to you;” that the deceased stood there a little while, and then said, “You heard what I called you, and you cannot help yourself.” When this remark was made the defendant struck the deceased with the cane. Based on this and other testimony, the court might, without error, have wholly omitted an instruction on self-defense, so that the court’s qualification of the defendant’s right of self-defense was not prejudicial.

It is urged that the court erred in refusing to instruct the jury on the law of manslaughter in the second degree. It has been held by this court in a number of cases that such an instruction is not necessary where, as in this case, it appears from the testimony that the issue of manslaughter in the second degree is not raised by the evidence. Instructions should be germane to the evidence introduced. Newby v. State, 17 Okla. Cr. 219, 188 Pac. 124; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Hopkins v. State, 4 Okla. Cr. 194, 108 Pac. 420, 111 Pac. 947; Fooshee v. State, 3 Okla. Cr. 666, 108 Pac. 554.

One of the grounds urged by defendant in his motion for a new trial was that the instructions given by the court were not signed by tbe court. The record indicates that the instructions were signed. At any rate, no objections were made or exceptions taken, and, if it were a fact that the instructions were not signed, such fact did not operate to prejudice the rights of the defendant.

It is further urged in the motion for a' new trial that two of the jurors had been heard to express an opinion tending to show that they had heard about the tragedy and entertained hostile feelings towards the defendant. These were indefinite remarks, made about a year prior to the trial of this cause, in a political argument with third persons, and we think that the showing made in this regard was insufficient to impeach the qualifications of these jurors.

Considering the record as a whole, the defendant appears to have had a fair trial. The testimony amply justified the jury in finding the defendant guilty of manslaughter in the first degree. In view of the fact, however, that there were some acts of provocation on the part of the deceased bringing on the difficulty, and the fact that the defendant possibly did not anticipate the fatal consequences of the blow, and giving the defendant the benefit of the minor irregularities mentioned above, we feel that it would be proper and that this court will be justified in modifying the penalty imposed by the judgment of the trial court to a term of four years, and it is accordingly so modified.

The judgment as modified is" affirmed'.

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