text:
    DAVE WEINBERGER v. STATE.
    No. A-1285.
    Opinion Filed December 14, 1912.
    (128 Pac. 160.)
    NEW TRIAL — -Argument of Counsel. Section 6833, Criminal Procedure (Comp. Laws 1909), provides that “the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him, nor be mentioned on the trial, if commented upon by counsel it shall be ground for a new trial.” Held, that this provision is mandatory, and leaves no discretion in the trial court to refuse to grant a new trial upon the application of the defendant, where the prosecuting attorney in his argument violates the terms of the statute.
    (Syllabus by the Court.)

      Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.

    Dave Weinberger was convicted of violation of the prohibitory law, and appeals.
    Reversed and remanded.

      McGuire & Smith, for plaintiff in error.

      Smith C: Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was at the April, 1911, term of the superior court of Logan county convicted of having in his possession intoxicating liquors with intent unlawfully to sell the same, and was sentenced to pay a fine of $50, and be imprisoned in the county jail for a term of 30 days. The information jointly charged Mary Weinberger, Dave Weinberger, and Marlie Carrol. When the- case was called for trial, Mary Weinberger demanded a severance, which was granted, and the case proceeded as to this defendant and Marlie Carrol. The jury by their verdict found Dave Weinberger guilty and Marlie Carrol not guilty.

But two assignments of error are argued in the brief. First. That the verdict is contrary to the evidence, and there is not sufficient evidence in said cause to sustain said verdict. Second. For the reason that the county attorney in his closing remarks to the jury improperly called the attention of the jury to the fact that the defendant did not testify in his own behalf, saying: “These liquors belonged to Dave Weinberger, that is conceded, and the defendants have made no explanation of it. The defendant don’t say anything.” Upon due objections being made to the remarks as prejudicial and improper, the county attorney then said: “Well, I’ll take it back.”

The evidence on the part of the state shows that on February 4, 1911, Bart Murphy, sheriff, and his deputy visited the home and place of business of the defendant Dave Weinberger; that they found a barrel of beer at the foot of the stairs leading to the second story, which was the home of the defendant and his family, and that they found a quantity of whisky, brandy, and wine upstairs; that the defendant conducted a furniture store on the first floor of the building; that none of the liquors were found in the furniture store; that a barrel of beer at the foot of the stairs had not been opened; that the whisky was not concealed in any way, but was in a closet of one of the living rooms upstairs. All the state proved in this case is that the Weinbergers had a stock of liquors in their family rooms in the second story of the building. There was no evidence offered of an intent to sell the same. One witness testified that in January he purchased a pint of whisky from the defendant Marlie Carrol; but that the defendant Dave Weinberger was not present. There was no evidence that this defendant knew anything about that transaction.

The mere possession of intoxicating liquor is not in itself sufficient to prove an unlawful intent to sell as charged by the information in this case. When we consider the weak and unsatisfactory nature of the evidence, and that the county attorney called the attention of the jury to the fact that the defendant did not testify in his own behalf, it is our opinion that it was the duty of the court under the statute to grant a new trial. No denial of the remarks is made by the county attorney.

Section 6833 of our Criminal Procedure (Compiled Paws 1909), provides:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offenses and misdemeanors before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial, if commented upon by the counsel it shall be ground for a new trial.”

Construing this statute in the case of Sturgis v. State, 2 Okla. Cr. 363, 102 Pac. 57, Furman, Presiding Judge, delivering the opinion of the court, said:

“The statute is mandatory, and, when it is violated either in its letter or its spirit, a new trial must be granted, or upon appeal a reversal will follow. The trial court, therefore, erred in not granting a new trial on account of the fact that the county attorney in his argument called the attention of the jury to the fact that the defendant had failed to testify in his own behalf.”

In the case of Brown v. State, 3 Okla. Cr. 442, 106 Pac. 808, it was held that:

“Where a defendant upon his trial fails to testify in his own behalf, and the prosecuting attorney comments upon such failure to the jury, such comments constitute reversible error.”

In the case of Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, it is said:

“It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or spirit.”

The statute is in accordance with the constitutional guaranty that “no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.” The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not elect to testify, and any reference by the prosecuting attorney in his address to the jury to the fact that the defendant did not testify constitutes misconduct, and, under the terms of the statute, the trial court has no discretion, but must grant a new trial. Every person accused of crime is entitled to a fair trial under the forms of law before he may be convicted.

For the reasons heretofore stated, the judgment is reversed, and case remanded for new trial.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    LUTHER MORGAN v. STATE.
    No. A-1243.
    Opinion Filed December 14, 1912.
    (128 Pac. 159.)
    1. LARCENV- — Evidence—Sufficiency. In a prosecution for larceny of live stock, tbe evidence is held sufficient to support the verdict, and that no reversible error was committed on the trial.
    2. INDICTMENT AND INFORMATION — Variance — Preliminary Examination. When it appears that the charge in the preliminary complaint is substantially the same as that set forth in the information filed by the county attorney in the district court, a plea of a want of a preliminary examination, or a variance between the preliminary complaint and the information, is unavailing.
    3. TRIAL — Verdict—Sufficiency. Where the information charged larceny of live stock, and the jury were limited to consideration of such crime, and the verdict found defendant guilty “of grand larceny as-charged in the information,” the words “grand larceny” were not binding on the court, and the defendant -was found guilty as charged.
    (Syllabus by the Court.)

      Appeal from District Court, Hughes County; John Caruthers, Judge.

    Luther Morgan was convicted of larceny and appeals.
    Affirmed.

      Crump, Skinner & Bailey, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Luther Morgan, was convicted in the district court of Hughes county on an information filed in said court October 21, 1910, wherein it was charged:

“That the said Luther Morgan, at the time and in the county and state aforesaid, did willfully, unlawfully and feloniously take, steal, and carry away by stealth one cow, the personal property of W. P. Stockton, of the value of $30, with the unlawful and felonious intent to appropriate the same to his own use, and to deprive the true owner thereof, contrary, etc.”

On arraignment the defendant filed a demurrer to the information, which was overruled by the court, and the defendant entered a plea of not guilty.

When the case was called for trial, the defendant asked leave to withdraw his plea and file a motion to set aside the information, which application was refused; whereupon the defendant filed a motion to quash the information, alleging that he had no preliminary examination, as provided by law, which motion was overruled by the court.

A trial was held at the March, 1911, term of said court. The jury returned the following verdict:

“We, the jury drawn, impanelled, and sworn in the above-entitled cause, do, upon our oaths, find the defendant guilty of grand larceny as charged in the information herein, and assess his punishment at hard labor in the state penitentiary at Mc-Alester, Oklahoma, for a period of two and one-half years.”

Which verdict was rendered in open court, without objection on the part of the defendant, and the court thereupon fixed a time for judgment. Motion for new trial was filed and overruled. On March 18, 1911, judgment and sentence was entered in accordance with the verdict.

The assignments of error relied upon to reverse the judgment are, in effect, as follows:

First. Error of the court in overruling the motion to set aside the information. This assignment is based on the theory that at the preliminary examination the crime charged against the defendant was grand larceny, and the information charges a larceny of live stock. The motion to set aside the information, even if filed in proper time, before plea, is without merit. The record shows that the charge against the defendantt in the original information was larceny of live stock, although erro-neousfy termed “grand larceny.”

In the case of Ponosky v. State, ante, 126 Pac. 451, it was held that:

“When it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information, a motion to quash, on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer, is unavailing, and was properly overruled.”

The second assignment is that the verdict of the jury is contrary to law, because the information charges a larceny of live stock, and the verdict is for grand larceny. We think this question is settled in the case of Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883. The information here charged the larceny of live stock, and the court, in his instructions, limited the jury to a consideration alone of larceny of live stock, and the verdict, as returned, found defendant guilty of “grand larceny as charged in the information herein.” The real effect of such verdict is to find the defendant guilty “as charged in the information.” _ The words “grand larceny” were not binding upon the trial court, and no objection was made to the form of the verdict when the same was rendered. When the court pronounced judgment against the defendant for larceny of live stock, no objection was then made to the judgment as pronounced.

In the Crowell case, supra, it is said:

“The words ‘grand larceny,’ mistakenly used in entering judgment, could not in any way have misled or injured the defendant. The information, plea, minutes of the trial, verdict, and judgment, taken together furnish the defendant complete protection against another prosecution for the same offense.”

The defendant was not prejudiced in any way by the irregular form of the verdict. The only difference between the crime of stealing a domestic animal, under the act of March 24, 1910, relating to the larceny of live stock, and larceny under the general statute is that this act abolishes the degrees of larceny and makes the stealing of a domestic animal a felony, without regard to value.

Section 6957, Criminal Procedure (Comp. Laws 1909), provides :

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

As was said in Swartz v. State, 6 Okla. Cr. 590, 120 Pac. 1029:

“The mandatory language of this wise and beneficent provision precludes this court from reversing judgments of conviction for errors, defects, or irregularities deemed inconsequential in the absence of reasonably clear indications that the plaintiff in error was prejudiced thereby, in that otherwise the verdict might, with reasonable probabilities, have been different. The public policy in the administration of criminal justice, as declared by this and other similar provisions of our criminal procedure act, has from its organization been fully conformed to by this court, not only as an obligation, but as a pleasure as well; and the doctrine that, error being made to appear, prejudice will be presumed has never obtained in this court.”

The charge of the court fully and fairly stated the law of the case, and no good purpose would be served by reviewing the objections thereto, further than to say that we find no error in any of the matters complained of in the assignments pertaining to the instructions. Our conclusion is that the defendant had a fair, impartial, and legal trial.

The judgment of the district, court of Hughes county is therefore affirmed.

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


author: FURMAN, P. J.

text:
    B. F. NOAH v. STATE.

      No. A-1254.
    Opinion Filed December 14, 1912.
    TRIAL — Joint Indictment — Severance. Alex Bates v. State, ante, just decided, reaffirmed.
    (Syllabus by the Court.)

      Appeal from District Court, Blaine County; James R. Tolbert, Judge.

    Appellant was jointly prosecuted in the district court of Blaine county with Alex Bates for cow-stealing. On motion of the state a severance was granted by the trial court and Bates was tried first. Appellant was duly found guilty by the jury and his punishment was assessed at one year and six months’ confinement in the county jail. Appealed.
    Affirmed.

      W. 0. Woolman, for appellant.

      Smith C. Matson, Asst. Atty. Gen., A. L. Emory, Co. Atty., and Seymour Foose, for the State.
   FURMAN, P. J.

, This is a companion case to the case of Alex Bates v. State, ante, in which both defendants were jointly prosecuted for the theft of cattle and a severance was granted by the trial court to the state upon the request of the county attorney. This is not an open question in Oklahoma. See Bates v. State, ante, and Dan Anderson v. State, ante.

From the evidence in this case we do not see how any jury could come to any other conclusion than that both of these defendants are guilty of cow-stealing.. We find no material error in the record. The judgment of the lower court is, therefore, in all things affirmed.

ARMSTRONG and DOYEE, JJ., concur.


author: ARMSTRONG, J.

text:
    JESS HUMPHREY v. STATE.
    No. A-1255.
    Opinion Filed December 31, 1912.
    (128 Pac. 742.)
    1. APPEAL — Prejudicial Error. When upon appeal the record discloses facts sufficient to sustain a conviction or from which an acquittal could reasonably have resulted, it is essential that the record of the trial court be free from prejudicial errors of law.
    2. HOMICIDE — Instructions—Self-Defense. An instruction which, logically construed, deprives the accused of the right of self-defense unless the' danger which he contends he was defending against was real and actual and that it ’so appeared to the accused at the time, is erroneous.
    3. APPEAL — Harmless Error. The doctrine of harmless error, so frequently invoiced by this court in its endeavor to aid in the enforcement of all the criminal laws .of the state, cannot be applied when the record discloses erroneous instructions reasonably calculated to prejudice the rights of the accused when viewed in the light of the facts deducible from the evidence submitted at the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Seminole County; Tom D. McKeown, Judge.

    Jess Humphrey was convicted of murder, and brings error.
    Reversed and remanded.

      Blakeney, Maxey & Miley and Crump & Skinner, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and Jos. L. Hull, Sp. Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

This is an appeal by Jess Humphrey, as plaintiff in error, against the state, defendant in error, from a judgment rendered in the district court of Seminole county imposing a sentence of four years in the penitentiary for conviction of manslaughter in the first degree.

The testimony on behalf of the state is sufficient to sustain a conviction for murder. The testimony on behalf of the accused would amply warrant an acquittal. The court in its instructions tells the jury that they cannot convict for murder because the accused had already been acquitted of that offense. The record before us does not disclose the facts upon which this instruction is based. The verdict of guilty by the jury establishes the fact that they followed the state’s theory and not that of the accused. The issues being sharply drawn and the facts ample to justify a verdict upon either the theory of the state or that of the accused, it is essential that the instructions of the court in such case should be free from prejudicial error.

There is only one error assigned that we deem it necessary to discuss, as the others are based on contentions not likely to arise on another trial. The error in question is based on the following instruction of the court:

“In this case the defendant, Jesse Humphrey, in support of his plea of not guilty, claims as a justification of such homicide that he acted in self-defense of his person, and you are instructed that under the law, before a person can justify a killing upon the plea that he acted in self-defense, there must not only have existed at the time of the killing, reasonable ground to apprehend a design on the part of the deceased to either take the life of the defendant or to do him some great bodily injury, but in addition thereto it must reasonably have appeared to the defendant that there was at the time imminent danger of such design being carried out.”

In this instruction the court clearly tells the jury that there must not only have existed at the time of the killing reasonable and actual grounds to apprehend a design on the part of the deceased to either take the life of the accused or do him great bodily injury, but that, based on such reasonable and actual grounds, it must have reasonably appeared to the accused that there was imminent danger of such design being carried out at the time of the difficulty. This could not have been understood by the jury to mean anything else than that there must have been reasonable, real, and actual grounds for apprehension existing, and not apparent grounds for such apprehension at the time of the difficulty. This court has repeatedly declared the law to be that it does not make any difference, so far as the rights of the accused on trial are concerned, whether the danger was real or apparent, provided, always, that it must appear to the accused, viewing the circumstances from his standpoint as a reasonable person, that there were reasonable grounds for the apprehension; and this is true although it might turn out later that there was no real or actual danger. The gist of the accused’s right is his good faith exercised as a reasonable person viewing the circumstances as they appeared to him at the time. In this instruction the court not only says that the ground of apprehension must be real, but in addition thereto that it must have so appeared to the accused. The effect of this instruction required the jury to find, before the accused was entitled to the right of self-defense: First, that the danger was real and actual; second, that it must have appeared real and actual to the accused at the time. The trial court evidently did not intend to place this burden upon the accused, but the effect of the instruction does so nevertheless. For a complete discussion of this question, see the case of Frank B. Rogers v. State, ante, 127 Pac. 365; also, Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, and the authorities in these cases cited.

It is not every case that would be reversed when a similar instruction is included in the charge of the court, but such instructions should be avoided. When the issues are sharply drawn and the facts are sufficient to justify an acquittal or to sustain a conviction, such erroneous instructions cannot be held harmless. In the interest of justice we do not feel that this conviction should be affirmed. ■ In the trial of criminal cases substantial justice is the end to be obtained, and it is essential that a fair and impartial trial be had and that the instructions of the court be free from errors such as are reasonably calculated to prejudice the substantial rights of the accused.

For the error indicated, the judgment is reversed, and the cause remanded, with direction to grant a new trial.

FURMAN, P. J., and DOYLE, J., concur.


text:
    JOHN C. CLEMONS v. STATE.
    No. A-1260.
    Opinion Filed December 31, 1912.
    (128 Pac. 739.)
    1. HOMICIDE — Assault With Intent to Kill — Instructions. On an information based on section 2307 of the Penal Code, charging the defendant with assault and battery with a certain lcnife, said knife being then and there a deadly weapon, in a manner likely to produce death, and with felonious intent to kill, lie may properly be convicted of the offense defined by section 2308, of “assault with intent to kill,” or the offense defined by section 2337, of “assault with any sharp or dangerous weapon, with intent to do bodily harm,” and the court should submit the case to the jury for consideration upon every degree of assault which the evidence, in any reasonable view of it, suggests.
    2. SAME — Verdict. A verdict finding “the defendant guilty of assault with a deadly weapon as charged in the information” is insufficient as to form, and is too vague and uncertain to support a judgment for the highest degree of the offense charged.
    3. SAME — “Deadly Weapon.” An ordinary pocketknife is not necessarily a deadly weapon, and in this case, it was a question of fact for the jury whether the pocketknife, if they believed one was used, was a deadly weapon.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee County; R. C. Allen, Judge.

    John C. Clemons was convicted of assault with a deadly weapon, and brings error.
    Reversed and remanded.

      Bdward Curd, Jr., and W. J. Crump, for plaintiff in error.
    • Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and S- A. King„ Special Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was charged, tried, and convicted upon an information, which reads as follows:

“In the name and by the authority of the state of Oklahoma. Now comes W. E. Disney, the duly qualified and acting county attorney, in and for Muskogee county, state of Oklahoma, and gives the district court of.Muskogee county, state of Oklahoma, to know and be informed, that John C. Clemons did, in Muskogee county, and in the state of Oklahoma, on or about the twenty-fifth day of December, in the year of our Lord, one thousand nine hundred and ten and anterior to the presentment hereof, commit the crime of assault with a deadly weapon in the manner and form as follows, to wit: That the said John C. Clemons in the county and state aforesaid, on the 35th day of December, 1910, did knowingly, willfully, unlawfully, and feloniously make an assault upon one Albert Washington with a certain knife, said knife being then and there a deadly weapon in the hands of the said John C. Clemons, and did then and there with said knife strike, cut, and stab the said Albert Washington in and upon the neck, chest, and body, in a manner reasonably calculated to produce death, with the unlawful and felonious intent then and there to kill the said Albert Washington, contrary to,” etc.

Upon arraignment the defendant interposed a demurrer, and, the demurrer being overruled, he pleaded not guilty. Upon the trial the jury rendered their verdict as follows:

“We, the jury, find the defendant, John C. Clemons, guilty of assault with a deadly weapon, as charged in the information, but fail to agree upon the punishment.”

Motions for a new trial and in arrest of judgment were duly filed and overruled. And on May 33, 1911, judgment was pronounced, and the court sentenced the defendant to imprisonment for a term of ten years in the penitentiary. An appeal by case-made was perfected.

The assignments of error relied upon for a reversal of the judgment are as follows: Error in overruling the demurrer to the information and denying the motion in arrest of judgment. That the court erred in not properly instructing the jury as to the law of this case. That the verdict of the jury is contrary to law and to the evidence, and is not sustained by sufficient evidence.

The language of the information is that the defendant did “commit the crime of assault with a deadly weapon.” Counsel contend that the word “battery” being left out of the information in the charging part, the information is not direct and certain as to the offense charged, and is not sufficient to charge the defendant with the offense of which he was convicted and sentenced. The omission of the word “battery” might have been serious in the face of a demurrer if the battery had not been charged in the body of the information. The Constitution (section 20, Bill of Rights) and the statute (section 6627, Procedure Criminal [Comp. Laws 1909]) both declare the salutary rule of the common law that in a criminal prosecution the accused shall be informed of the nature and cause of the accusation against him, and that the indictment or information must be direct and certain, that is, that it must set forth the special manner of the whole fact, so that it can be clearly seen what particular offense, and not merely what nature of offense, is intended to be charged.

It will be observed that the act constituting the offense of “assault and battery with a deadly weapon” is clearly and distinctly set forth in the information. The information is also sufficiently direct and certain to charge a violation of the included offenses defined by section 2308 and section 2337 of the Penal Code (Comp. Laws 1909). The demurrer thereto was therefore properly overruled.

The court instructed the jury that the defendant was charged with the offense defined by section 2307 (Comp. Laws 1909) of the Penal Code, as follows:

“Gentlemen of the jury, in this case the defendant is charged by information with the crime of assault with a deadly weapon. The defendant is charged with having violated the following provision of the Criminal Code of Oklahoma: ‘Every person who intentionally and wrongfully commits an assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death, is punishable by imprisonment in the state prison not exceeding ten years.’ You are instructed that if you believe from the evidence in this case beyond a reasonable doubt that in the county of Muskogee, and state of Oklahoma, on or about the 25th day of December, 1910, and within three years before the filing of the information herein in court, acting alone or with another or others, the defendant did intentionally and wrongfully strike, cut, and stab one Albert Washington with a certain knife with intent to kill him, the said Washington, or did so cut him in a manner reasonably calculated to produce death, you will be justified in finding the defendant guilty. If upon consideration of all of the evidence, facts, and circumstances in this case you have a reasonable doubt as to the guilt of the defendant, you should resolve that doubt in his favor and acquit him. Objected to by the defendant. Objection overruled. Defendant excepts. R. C. Allen, Judge. You are further instructed that, should you find the defendant guilty, you will declare in your verdict the degree of crime with which you find him guilty, and fix the punishment to be inflicted, provided, however, that, should you be unable to agree upon the punishment to be inflicted, you will so declare in your verdict, in which event the court will assess the punishment. Objected to by the defendant. Objection overruled. Defendant excepts. R. C. Allen, Judge.”

The court also instructed on the lesser offense of assault and battery as follows:

“The court further instructs the jury that if, after consideration of all the evidence, facts, and circumstances in this case, you have a reasonable doubt as to whether or not the defendant is guilty of the crime of assault with intent to kill, as charged in these instructions, then you will consider whether or not he is guilty of the lesser offense of assault and battery, and in this connection the court instructs you that an assault is any willful and unlawful attempt, or offer, with force or violence to do a corporal hurt to another. Assault or assault and battery shall be punishable by imprisonment in the county jail not exceeding 30 days or by fine not less than $5 or more than $100, or both, at the discretion of the court. Bearing the foregoing instruction in mind, the court instructs you that if you believe from the evidence in this case beyond a reasonable doubt that the defendant willfully and unlawfully committed an assault and battery upon the person of one Albert Washington, but did not intend to kill the said Washington, then you may find him guilty of assault and battery. If, after consideration of all the evidence, facts, and circumstances in this case, you have a reasonable doubt as to his guilt, you will resolve that doubt in his favor and acquit him.”

The judgment and sentence of the court was based on section 2307 of the Penal Code (Comp. Laws 1909). Section 2308' provides:

“Every person who is guilty of an assault with intent to kill any person the punishment for which is not prescribed by the foregoing section, is punishable by imprisonment in the state prison for a term not exceeding five years, or in a county jail not exceeding one. year, or by a fine not exceeding five hundred dollars or by both such fine and imprisonment.”

Section 2337 provides:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause, commits with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the state prison not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

The means prescribed in sections 2307 and 2308 by which the offense may be committed are in substance identical, and the material difference arises only in the punishment prescribed. In the first, punishment must be by imprisonment in the penitentiary, with ten years the maximum; in the second, the maximum is five years, and the punishment may be as for a misdemeanor. In the first, the essential element is an assault and battery by means of a deadly weapon or by such other means or force as is likely to produce death. In the second, the assault must be with intent to kill. In section 2337 the essential element is the intent to do bodily harm with any sharp or dangerous weapon. The offenses are all of the same character. An assault with intent to kill necessarily includes an assault with intent to do bodily harm; for a person cannot be killed without bodily harm being done, and an assault and battery by means of a deadly weapon necessarily includes an assault with any sharp or dangerous weapon. Section 6857, Procedure Criminal (Comp. Laws 1909) provides:

“In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict.”

Section 6875 provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.”

Under the statute, the trial court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests, and the instructions must be applicable to the testimony introduced upon the trial. .The testimony tended to show that one Washington was assaulted by the defendant and received'a cut an inch and a half long in the triangle of the neck. The only witness who testified as to the nature of the weapon used was the assaulted party who testified that the defendant used “an ordinary pocketknife.” The knife was not introduced in evidence. Alabama Jim testified that he saw the defendant strike Washington, but did not know what he had in his hand; “that he might have stuck his finger in there.” Dr. Hill and Dr. Prague testified that in their opinion death would likely have resulted from the wound if they had not treated it. The defendant as a witness on his own behalf denied making the assault. Without entering upon any análysis of the testimony, it is sufficient to say that there was no testimony offered to show. that the knife used in making the assault was a deadly weapon, except the manner and probable effect of its use.

An ordinary penknife is not necessarily a deadly weapon. Brown v. State, 3 Okla. Cr. 42, 104 Pac. 78. A deadly weapon is one likely to produce death or great bodily harm by the use made of it, but a weapon capable of producing death is not necessarily a weapon likely to produce death. In many cases the court may declare as a matter of law that the particular weapon was or was not a deadly weapon, but where the weapon used may be a deadly weapon or not, according to the manner in which it was used or the part of the body struck, the question must be submitted to the jury. To convict of the highest degree of the offense charged in this information, it was necessary to show that the assault and battery was committed by means of a deadly weapon, and not by means of any sharp or dangerous weapon as prescribed by section 2337, Comp. Laws 1909. And in this case it was the peculiar and exclusive province of the jury to say whether the pocketknife, if they believe one was used, was a deadly weapon, or merely a sharp and dangerous weapon. And the court erred in not submitting the question- of the character of the weapon used by proper instructions' to the jury, and under the evidence in this case the court erred in not instructing the jury upon the offenses included in the crime charged as defined by sections 2308 and 2337.

The Attorney General concludes his brief- for the state in the following language:

“If this court cannot be reconciled on the point of this word ‘battery’ being left out of the verdict of the jury, then the state asks that five years of this sentence be remitted and the defendant receive the maximum penalty for the offense of assault with intent to kill, as contemplated by„section 2308 [Comp. Laws 1909].”

While this court under section 6955 is given the power in a proper case, if necessary in the furtherance of justice, to modify a judgment so as to prevent the imposition of punishment which the evidence will not warrant (Fritz v. State, ante, 128 Pac. 170), we do not think that that power should be exercised in this case.

The verdict is very vague, and is too uncertain to support a judgment for the highest degree of the offense charged. Neither is it responsive to the issue under the proof, which was not of assault by a deadly weapon, but of an assault and battery by means and force likely to produce death, with intent to kill.

There is another view of the case which must dispose of the questions presented. The defendant had not only the right to the judgment of the jury upon the facts, but he also hád the right, if the jury under proper instructions had found him guilty of either one of the lesser offenses included in the charge, to have the jury assess and declare the punishment by their verdict. Section 2028 of the Penal Code provides (Comp. Laws 1909) :

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury'may, and shall upon the request of the defendant, assess and declare the punishment in their verdict, and the court shall render a judgment, according to such verdict, except as hereinafter provided.”

See, also, section 2029 and section 2030 (Comp. Laws 1909). In the case of Dew v. State, ante, 126 Pac. 592, it is said:

“These sections deliminate the respective provinces of the court and jury as to assessment of punishment in criminal cases. To the constitutional right of a speedy and public trial by an impartial jury of the county in which the crime shall have been committed the statute gives the supplemental right to have the jury assess the punishment, where the defendant demands it. A refusal to instruct the jury of this right when requested by the defendant is prejudicial error, as being a denial of a substantial right given to him under the statute.”

The case having been tried upon a wrong theory, and the issues under the pleadings and the evidence not having been fully submitted to the jury, all to the prejudice of the substantial rights of the defendant, it is our opinion that the defendant was not accorded a legal trial, and we are without doubt as to the propriety and necessity of reversing this judgment. If the defendant be guilty, it can be shown on another trial.

The judgment of the district court of Muskogee county is therefore reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.

FURMAN, P. J, and ARMSTRONG, J., concur.


text:
    GEORGE TURNBULL v. STATE.
    No. A-972.
    Opinion Filed December 31, 1912.
    (128 Pac. 743.)
    1. HOMICIDE — Evidence—Admissibility. In the trial of a person charged with murder, when tho question of who was the aggressor in the fatal difficulty becomes material to the issues, the state of mind of the deceased at the time of the homicide and immediately prior thereto with reference to the accused may become material, and, when it does, testimony tending to establish a hostile state of mind and mental attitude on the part of the deceased toward the accused should be admitted.
    2. SAME — Instructions—Self-Defense, (a) When, in the trial of a person charged with murder, it becomes necessary for the trial court to instruct .the jury on the doctrine of seeking or provoking the difficulty, and the proof discloses that the accused did any act or thing which he had a right to do, which could be reasonably construed by the jury to come within the general terms of the court’s charge, it is necessary for the court to tell . the jury what acts under the law would be justifiable, and discriminate as to acts unlawful and which would deprive him of the right of self-defense, leaving to the jury to determine whether or not, under the facts and the law, the acts were lawful or otherwise. When this is not done and instructions are given which, reasonably construed, deprived the accused of the right of self-defense, if he by any willful act of his own, lawful or unlawful, brought on the difficulty, a conviction cannot be upheld by this court.
    (b) Under the facts disclosed by the record in this ease, the court should have told the jury the nature or quality of the provocative act or acts upon the part of the accused which would operate to limit or destroy the right of self-defense.
    3. SAME — Evidence—Admissibility. In the trial of a person charged with murder, it is error for the trial court to admit evidence tending to establish the fact that the person at whose house the homicide occurred did not request the accused to do certain acts which he had a right to do whether in his own home or in the home of another.
    (Syllabus by the Court.)

      Appeal from District Court, Johnston County; A. T. West, Judge.

    George Turnbull was convicted of manslaughter, and brings error.
    Reversed and remanded, with directions to grant a new trial.

      McPherren & Abbott, W. M. Lucas, Cullett & O’Bryan, and Walter J. Turnbull, for plaintiff in error.

      Cornelius Hardy, for the State.
   ARMSTRONG, J.

The plaintiff in error, George Turnbull, was tried in the district court of Johnston county at the June, 1911, term on a charge of murder and convicted of manslaughter in the first degree. His punishment was fixed at imprisonment in the state penitentiary for a period of ten years. From the judgment imposing this sentence, he has perfected his appeal in this court.

The homicide out of which this conviction grew occurred at the home of O. R. Taylor in Johnston county on the 9th day of April, 1910. It appears that the accused spent the day in the “bottoms” hunting his horses and cattle; that he got home about sundown; that his wife and children had spent the day in the town of Milburn, returning home late in the afternoon; that the deceased and certain companions spent the afternoon in the town of Milburn'and were drinking; that about sundown the deceased with Os Whatley, Bert Helms, and others went to the home of the accused where the deceased and accused had some trouble, and later all went to the home of Taylor to a dance. The accused and deceased took several drinks together leaving for the dance and some after arriving at Taylor's, and both were pretty well intoxicated. During the evening the deceased went into the house where the accused, his wife and children, and Mrs. Taylor were, and used vile and profane language. The accused was sitting by the fire when this language was used and got up, walked over to the deceased, laid his hand on his shoulder, and asked him to “cut out the language.” Whereupon the deceased knocked him down, got on him, and was beating him in the face. The proof on the part of the accused tends to show that deceased was using a knife and beating and stabbing him; that on the part of the state tends to show that deceased was beating the accused with his fists. The weight of the testimony on this point, however, appears to be with the contention of the accused. While the accused was lying on the floor upon his back and the deceased was on him beating him, the accused drew a revolver and fired one shot into the body of the deceased,. which proved fatal. The record discloses numerous acfs of misconduct upon the part of the deceased on the evening of the tragedy, which we do not deem it necessary to recount for the purposes of this opinion. Many assignments of error were briefed and argued on behalf of the accused and supported by numerous citations of authorities. Counsel for the state has filed an elaborate abstract of the testimony, but has not undertaken to answer the legal propositions advanced in the brief and argument of the accused.

The first, fourth, seventh, eighth, ninth, and tenth assignments of error were jointly briefed and argued, and are based upon a ruling of the court excluding certain testimony offered by the accused tending to establish the state of mind of the deceased on the evening of the homicide and his mental attitude toward the accused. The trial court erred in excluding this testimony; it should have been admitted. See Price v. United States, 1 Okla. Cr. 291, 97 Pac. 1056; Wharton on Homicide (3rd Ed.) sec. 249.

The only other assignments which we deem it necessary to discuss in this connection were briefed and argued jointly as 15 to 19, inclusive, in which the accused complains of the action of the trial court in giving instructions number^ 11, 12, 13, 14, and 16.

Instruction No. 11 is as follows:

“The court instructs you that every person has a right to act in his own necessary self-defense, and where a person is in a place where he has a right to be and is not the aggressor in bringing on the conflict, and is assaulted by another person in such a way as to place him in danger of death or serious bodily harm, a person thus assaulted is not bound to retreat, but on the contrary may stand his ground and repel the danger in which he is placed with (such) force as will repel the attack and protect himself from serious bodily harm, and when it is necessary to protect himself from the assault or from receiving great bodily harm even to take the life of his assailant; and such person will not be held responsible criminally for his act or acts in self-defense, from real and honest convictions as to the character of the danger, induced by reasonable evidence, although he may be mistaken as to the extent of the actual danger. But on the other hand the law does not permit a person to voluntarily seek or invite a combat or put himself in the way of being assaulted in order that when he is hard pressed he may have a pretext to take the life of his assailant. The right of self-defense does not imply the right of attack, and will not avail anything where the difficulty was sought for or induced by the defendant by any willful or unlawful act of his, or where he voluntarily of his own free will enters into it, and this is true no matter how imminent his peril may become during the progress of the affray, the necessity being of his own creation will not operate to excuse him; nor is any one justified in using any more force than is necessary to get rid of his assailant, but if he does not bring on the difficulty or provoke it he is not bound to flee to avoid it, but may resist with adequate and necessary force until he is safe.”

Instruction No. 13 is as follows:

“But on the other hand, if you believe from all the evidence in the case that the defendant, George Turnbull, voluntarily sought the difficutly with the deceased, Luther Campbell, in which the deceased lost his life, and that the defendant provoked, commenced, or brought on the difficulty with the deceased by any willful act of his own, then you are not authorized to acquit the defendant on the ground of self-defense, and this is true no matter how violent his passion became or how hard pressed he was and how imminent his peril became during the affray.”

Aside from the puzzling character of instruction No. 11 when it is considered with instruction No. 13, it is the source of serious prejudicial error. The court among other things tells the jur}^ that if they believed the accused, Turnbull, voluntarily sought the difficulty with the deceased, Campbell, in which the deceased lost his life, and that the accused provoked, commenced, or brought on the difficulty with the deceased by any willful act of his own, then they were not authorized to acquit the accused on the ground of self-defense, and that this was true no matter how violent his passion became or how hard pressed he was or how imminent his danger during the affray.

The only act on the part of the accused that can be urged as tending to prove that he soitght or brought on the difficulty or invited the combat, or put himself in the way of being assaulted in order that when he became hard pressed he might have a pretext to take the life of his assailant, was his act in placing his hand upon the shoulder of the deceased and requesting him to “cut out” his vile, obscene, and profane language in the presence of the wife and children of the accused and other women in the room. There is no question but that the accused was in a place where he had a right to be; that he was sitting peaceably by the fire, and in our judgment, under the proof, did no more than he had a right to do, or than it was his duty to do, when he got up, walked over to the deceased,.and asked him to cease the use of the indecent and profane language in the presence of the women. In giving the foregoing instructions the court eliminated from the jury every element of the provocative act necessarily required to be present in said act in order to destroy the right of self-defense. The court should have told the jury the nature and quality of the provocative act or acts upon the part of the accused which would limit or destroy the right of self-defense. Many of the trial courts apparently do not seem to realize the serious consequences which necessarily follow the giving of instructions of this character.

In Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129, in discussing a similar instruction, this court said:

“When in a homicide case the state endeavors to show that the defendant sought or brought on the difficulty, and the general rules of law are charged on this phase of the case, the court should define and state what character of acts on the part of the ‘accused would deprive him of the right of self-defense.”

This is always essential when there is proof in the record tending to show that the overt act relied upon by the state to establish the contention that the accused provoked the difficulty was an act which he had a right to do. Counsel for the state do not contend that the accused in this case did not have a right to ask the deceased to refrain from the use of the language complained of, and to remonstrate with him in the manner the proof tends to show he did. The court should have told the jury just how far the accused could go before he would forfeit his right of self-defense and be held the aggressor or liable a's unwar-rantedly provoking the difficulty under the law.

It is said by,Wharton in his work on Homicide, sec. 320 (3d Ed.) :

“The rule that to justify homicide as committed in self-defense the slayer must not have been the original aggressor, and must not have been at fault in bringing on the difficulty, applies in cases where there was no felonious intent on his part at the time he entered into or provoked the difficulty as well as where such intention existed. And if the slayer provoked the combat, or produced the occasion for it, in order to have a pretext for killing his adversary or doing him great bodily harm, the killing would be murder no matter to what extremity he may be reduced. So, if the slayer intended to provoke a difficulty, it is immaterial whether his acts were such as to be reasonably calculated to provoke one or not. And this is particularly the case where the intent was a deliberate and premeditated one. A person would be considered as provoking or bringing on a difficulty in cases where he seeks another and brings on a difficulty with him for the purpose of wreaking malice upon him. And this is so though the intent was simply to engage in a hard combat and not to kill. If the slayer had no felonious intent and did not intend to provoke a difficulty, intending only slight punishment for some other slight offense, the final killing in self-defense will be manslaughter only, the distinction being between the right of perfect and imperfect self-defense; and this is so though his acts were reasonably calculated to provoke a difficulty. And the slayer must have willingly and knowingly used language or committed an act reasonably calculated to lead to an affray or deadly conflict in order to preclude him from pleading self-defense; andj unless the acts are clearly calculated or intended to have that effect, the right to plead self-defense exists. And this is so though he intended to. provoke a difficulty with intent to kill; the mere purpose or intent unaccompanied by an overt act is not enough. So a person committing a homicide should not be deprived of his right of self-defense where the occasion for killing was accidentally, unintentionally, or innocently produced. Nor is a person committing a homicide precluded from pleading self-defense upon the ground that he was the aggressor where the act which gave offense and led to the difficulty was a lawful act.”

The Supreme Court of Tennessee, in discussing the principle here involved, in the case of Foutch v. State, 95 Tenn. 711, 34 S. W. 423, 45 L. R. A. 687, after stating the theories of the accused and of the state, said:

“These were the respective theories of the state and defendant, supported by evidence tending to show the facts as each side claimed them to have existed. Under these circumstances, and upon these facts, the circuit judge charged, among other things, as follows: Tf a party brings on a quarrel with no felonious intent or malice or premeditated purpose of killing or doing bodily harm, and a difficulty results in which the person with whom he brought on the quarrel is killed, it will not be murder, let the result be what it may.’ But ‘ * * * if one provokes a combat or produces the' occasion to kill, and kills his adversary, it is murder, no matter to what extremity he - (the slayer) may have been reduced in the combat.’ The first proposition is not technically accurate. The judge should have said: Tf a party brings on a quarrel with another with no felonious intent or malice or premeditated purpose to kill or do great bodily harm, and a difficulty results, in which the person with whom he brought on the quarrel assaults the provoking party, or by overt act so menaces him as to endanger his life or threaten him with great bodily harm,' or so as to induce the belief of the party thus assailed or menaced that he was in danger of death or great bodily harm, and upon reasonable grounds, and he thereupon kills his assailant or menacing adversary, it is not murder.’ The second proposition charged by the trial judge is contrary to the first and is not the law. It is true that such statements are to be found in many books that if one be the 'aggressor’ or be ‘in fault’ or ‘provokes a difficulty’ he cannot rely upon the plea of self-defense. But such general statements are only true when taken in the limited sense in which they must be understood, and with the qualifications with which judicial utterances that gave them existence have guarded their application. In order to make a man guilty of murder, who is the ‘aggressor’, or ‘in fault’ or who- ‘.provokes a difficulty’ in which his adversary is killed, he must have provoked it with the intent to kill his adversary or do him great bodily harm, or to afford him a pretext for wreaking his malice upon his adversary. Smith v. State, 8 Lea (Tenn.) 402; Daniel v. State, 10 Lea (Tenn.) 261; Brown v. State, 58 Ga. 212; Hash v. Commonwealth, 88 Va. 172, 13 S. E. 398; Massie v. Common-Wealth (Ky.) 24 S. W. 611; Cotton v. State, 31 Miss. 504; Radford v. Commonwealth (Ky.) 5 S. W. 343. In order to deny such party the right to rely upon the plea of self-defense, it must appear that he was the ‘aggressor’ or ‘in fault’ or ‘provoked the difficulty’ in such way and with such intent as the law contemplates in the use of those terms. It is not every ‘aggression’ which produces a difficulty that is an unlawful one within the meaning of this phrase, nor is it every ‘fault’ which a man might commit that precludes him from defending himself when violently assaulted or menaced, nor is it every ‘provocation of a difficulty’ which robs him of the right of self-defense. Cases already cited and hereinafter cited illustrate the true meaning and show the sense in which these words must be understood. They are really intended to imply the same thing, and what they do mean may be best indicated by suggestion of some things they do not mean, taking them up separately: First, as to the ‘aggressor.’ It is not intended that every one shall be held in law to be an aggressor who says something provoking to another, which does cause a difficulty, for oftentimes such an aggression is a just one and sometimes a necessary one. * * * After all the aggression, the fault, or the provocation depends upon its character and its intent. If it is an assault, or the menace of one by an overt act, or the provocation of a difficulty with intent to inflict death or great bodily harm in the event it is resisted, made of malice to bring about that result and enable the provoking party to wreak his malice on the assailant, that is an ‘aggression’ or ‘fault’ and a ‘provoking of a difficulty’ within the legal sense and meaning of the terms. If the ‘combat is provoked’ or ‘the occasion to kill is produced,’ in the language of the charge, on this account, with this intent and for this purpose, defendant cannot rely upon the plea of self-defense.”

The accused complains that the trial court erred in permitting the state to show that O. R. Taylor, at whose house the trouble occurred, did not request the accused to remonstrate with the deceased relative to the misconduct. This testimony was evidently admitted upon the theory that the accused had no right to remonstrate with the deceased concerning his misconduct without having been first requested to do so by Taylor or his wife. This testimony should not have been admitted. A man does not have to be requested by some one else to remonstrate with another for misconduct in the presence of his own family and other respectable women by the use of the character of language the deceased was indulging in at the time of this difficulty. While the use of the language would not justify the accused in perpetrating a deadly assault upon the deceased, yet he was justified in remonstrating with him and requesting that he desist from the use of the character of language disclosed by the record; and, so long as he did no more than place his hands on the deceased and ask him to discontinue the use of such language, he could not be held to have forfeited his right of self-defense as being the aggressor or liable under the doctrine of provoking the difficulty. The question of the necessity of the force used after the deceased assaulted the accused is not here under consideration, and is a question solely for the jury.

For the errors indicated, the judgment is reversed, and the cause remanded, with direction to grant a new trial.

FURMAN, P. J., and DOYLE, J., concur.


text:
      In re OPINION OF THE JUDGES.
    Opinion Filed December 31, 1912.
    (128 Pac. 734.)
    COURTS — Advisory Opinion to Governor. An advisory opinion to the Governor as to the regularity of the record in a ease in which the defendant has been sentenced to death should not be given’ when the time for taking an appeal has not expired, and when the defendant has not waived his right to an appeal.
    (Syllabus by the CouTt.)
   To His Excellency, the Governor of Oklahoma:

The judges of the Criminal Court of Appeals, responding to the official communication of Hon. Lee Cruce, Governor of Oklahoma, to this court, which presents to the judges of this court a certified copy of the record of the conviction of George Reedy, who was on the 4th day of December, 1912, by the judgment of the district court of Pittsburg county sentenced to death for the crime of murder, the said sentence of death to be inflicted on the 10th day of January, 1913, by electricity, with the request that we give an opinion thereon as prescribed by section 6928, Comp.. Laws 1909, do hereby respectfully submit the following opinion of the judges:

FURMAN, P. J.

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 an ex parte proceeding 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.

The record is therefore respectfully returned to his excellency, the Governor.

ARMSTRONG and DOYLE, JJ., concur.


text:
    JESSE McINTOSH v. STATE.
    No. A-1251.
    Opinion Filed December 31, 1912.
    (128 Pac. 735.)
    1. JURY — Challenge to Panel — Discrimination—Negroes, (a) When a negro is charged with violating the criminal laws of a state, and when under oath he challenges the panel of the jury upon the ground that the commissioners who selected such jury and the sheriff who summoned them had excluded from the jury all persons of African descent solely on account of their race and' color, and offers evidence to sustain this ground of challenge, the trial court should hear the evidence, and, if it is of the opinion that as a matter of fact negroes were intentionally excluded from the panel solely upon the ground of their race and color, said motion should be sustained. This has been repeatedly decided by the Supreme Court of the United States, and all state tribunals are bound thereby.
    (b) The mere fact that the jury was composed solely of white men will not be ground for challenge in such case. There is no law requiring that negroes shall be selected to sit upon juries. The only law upon this subject is they must not be excluded therefrom solely on account of their race or color.
    (c) Officers charged with the duty of selecting and summoning jurors can exercise their own discretion in selecting those persons who in their judgment are competent and qualified to serve as such jurors, provided. that they do not exclude competent persons who are negroes solely on account of their race or color.
    (d) For facts which did not sustain a motion .to quash the panel of the jury upon the ground that negroes had been illegally excluded from the panel, see opinion.
    2. HOMICIDE — Trial—Instructions—Self-Defense. For a correct instruction upon the subject of uneommunieated threats, see opinion.
    3. SAME — Instructions — Requests—Self-Defense. (a) Where an issue is properly presented by the evidence and the defendant requests it, he is entitled to an instruction upon the hypothesis that his testimony is true.
    (b) Where the evidence reasonably presents that issue in a murder case, it is the right of the defendant to have a clear, affirmative, and clean-cut instruction upon the law of self-defense.
    (e) Where an instruction requested by the defendant is not in proper form but pertains to a material issue in the case as made by the evidence, the court should correct it and give it in proper form, if it has not otherwise properly instructed the jury upon that issue.
    (Syllabus by the Court.)

      Appeal from District Court, Wagoner County; R. C. Allen, Judge.

    Jesse McIntosh was convicted of murder, and his punishment assessed at imprisonment in the penitentiary for life, and he appeals.
    Reversed and remanded for new trial.

      E. P. Rhea, W. B. Moss, and Watts & Watts, for appellant.

      R. B. Gishj Asst. Atty. Gen., for the State.
   FURMAN, P. J.

First. Appellant filed a motion to quash the panel of the jury in this cause upon the following grounds:

“Comes the defendant, Jesse McIntosh, and objects to the panel of the jury in this court for the purpose of sitting as a jury in this cause, and objects to going to trial because he says: That he is a person of African descent, known as a negro, and that the panel from which all jurors must be called in this cause is composed exclusively of white persons, and that' all persons of color or African descent known as negroes were excluded from serving on said panel of jury by the jury commissioners of Wagoner county on account of their race and color and for no other reason. (2) That the jury commissioners of this, Wagoner county, have for a long period of time, to wit, 12 months last past, neglected and refused and excluded all colored persons, or persons of African descent, from serving on juries in said county solely on account of their race and color. That said exclusion, neglect, and refusal is a discrimination against this defendant, who is a negro, and is a denial to him of an equal protection of the law as guaranteed to him under the Constitution of the United States. (3) The defendant says that more than one-third of the inhabitants and more than one-fourth of the legal electors of Wagoner county are persons of color or African descent, known as negroes, and were excluded from such jury service by the jüry commissioners of said Wagoner county, and other officers whose duty it was to summon juries, on account.of their race and color and for no other purpose.”

In support of this motion appellant placed two witnesses upon the stand. A. L. Harris testified on behalf of appellant that he was deputy clerk in the county clerk’s office of Wagoner county; that he was present and acted as clerk when the jury commissioners selected this jury list; that he did not know whether any negroes were selected on the jury or not, but does know that no negroes were placed on the list; that no reasons were given by the commissioners for this action, and witness did not know why it was taken; that witness did not hear either of the commissioners say that they were excluding negroes on account of their race or color. W. B. Moss testified for appellant that he was a lawyer and resided in Wagoner, Okla.; that Wagoner county had a negro population of between 8,000 and 9,000; that he and the preceding witness Harris were both Republicans in politics; that only a very small per cent., something like 4 or 5 per cent., of the negroes of Wagoner county participated in the last election as qualified voters. This is all of the testimony that was offered in support of appellant’s motion. Upon this showing the trial judge found as a matter of fact that it had not been established that the jury commissioners had discriminated against the negroes on account of their race or color. With this finding we agree. No person is competent for jury service unless he is a duly qualified elector.

Section 3991, Comp. Raws 1909, is as follows:

“That all male citizens, residing in any of the counties of this state, having the qualifications of electors, of sound mind and discretion, of good moral character, not judges of the Supreme •Court or district courts, or county courts, sheriffs or deputy sheriffs, constables, jailers, licensed attorneys, engaged in the practice of law, habitual drunkards, any one not afflicted with a bodily infirmity amounting to a disability, and those who have never been convicted of any infamous crime and served a term of imprisonment in any penitentiary in any state or territory in the United States, for the commission of a felony, are, and shall be competent jurors to serve on all grand and petit juries within their counties, or subdivisions respectively in this state; provided, persons over sixty years of age, ministers of the gospel, and county, or district officials, practicing physicians, undertakers, pharmacists, teachers in public schools, postmasters, and carriers of the United States mail, members of the National Guard and all members of good standing of any regular organized fire department, if they claim their exemption, shall not be compelled to serve as jurors in this state.”

It appears from the testimony and the finding of the trial court that the jury commissioners were simply endeavoring to get qualified men to serve on the jury. The question as to the ex-elusion of negroes from the jury in a case where the defendant is a negro was before this court 'in the case of Smith v. State, 4 Okla. Cr. 328, 111 Pac. 960, 140 Am. St. Rep. 688, on a motion in every way similar to that now before us. AVe then gave this question our most careful attention, and cannot do better than to repeat what was there said:

“The defendant then offered to introduce evidence in support of the motion, but the court refused to receive such evidence, and overruled the motion, to all of which the defendant excepted. In this there was error. The Supreme Court of the United States has repeatedly passed upon this question. The substance and effect of their decisions is that whenever by any action of a state, whether through its Legislature, through its courts, or through its executive and administrative officers, persons of African descent are excluded solely on account of their race or color from serving on grand or petit juries in a criminal prosecution against a negro, the equal protection of the law is denied to such defendant, contrary to the fourteenth amendment to the Constitution of the United States, and that in such cases, if a defendant makes a timely challenge to the jury, -and it is denied by the state court, a conviction upon appeal to the United States courts will be set aside. See Strauder v. W. Va., 100 U. S. 303 [25 L. Ed. 664]; Neal v. Delaware, 103 U. S. 370-379 [26 L. Ed. 567]; Gibson v. Miss., 162 U. S. 565 [16 Sup. Ct. 904, 40 L. Ed. 1075]; Carter v. Texas, 177 U. S. 442 [20 Sup. Ct. 687, 44 L. Ed. 839]; Rogers v. Ala., 192 U. S. 226 [24 Sup. Ct. 257, 48 L. Ed. 417], By these decisions we are bound. See, also, Castleberry v. State, 69 Ark. 346 [63 S. W. 670, 86 Am. St. Rep. 197]; Wilson v. State, 69 Ga. 224; Green v. State, 73 Ala. 26; Tarrance v. State, 43 Fla, 446, 30 South. 685; Haggard v. Commonwealth, 79 Ky. 366; Commonwealth v. Johnson, 78 Ky. 509; Cooper v. State, 64 Md. 40, 20 Atl. 986; Smith v. State, 44 Tex. Cr. R. 90, 69 S. W. 151; Leach v. State (Tex. Cr. App.) 62 S. W. 422; Kipper v. State, 42 Tex. Cr. R. 613, 62 S. W. 420. We therefore hold that the trial court should have heard the testimony offered by the defendant, and that, if it appeared therefrom that negroes were excluded from the jury by the officers of the court solely upon the ground of their color, the challenge to the jury should have been sustained. The fourteenth amendment to the Constitution of the United States does not require the jury commissioners or other officers charged with the selection of juries to place negroes upon the jury list simply because they are negroes. The allegation that the jury was composed solely of white men does not violate the fourteenth amendment to the Constitution of the United States, and proof of that fact would not support the motion. The ground upon which the decisions of the Supreme Court of the United States rest is not that negroes were not selected to sit upon juries, but that they were excluded therefrom solely on account of their race or color. In other words, there is no law to compel the jury commissioners or other officers of the court to select or summon negroes as jurors. They can select any persons whom they regard as competent to serve as jurors without regard to their race or color, but the law prohibits them from excluding negroes solely on account of their race or color. Therefore the judge should have heard the testimony, and if he found from the evidence that there was an agreement among the jury commissioners to exclude negroes from the jury panel simply because they were negroes, or that the officers charged with the duty of selecting and summoning said juries had refused to select or summon negroes on the jury, and had excluded them therefrom solely upon the ground that they were negroes, then the judge should have sustained said motion. There is no law requiring an officer to place negroes on the panel simply because they are negroes. It is his duty to select the best jurors without regard to race or color. When this is done, the law is satisfied.”

The court did not err in overruling the motion to quash, the panel.

Second. Upon the trial of this cause there was a square conflict in the evidence. The testimony for the state, if true, established a cold-blooded assassination, while'the testimony of the defendant, if true, established a case of self-defense. Upon the trial of this cause the court instructed the jury as follows upon the subj ect of threats:

“You are instructed, if one kills another merely because the other has threatened him, it is murder. Where the plea is self-defense, and where there is evidence other than mere threats tending to show that the deceased was the aggressor and that the defendant acted in his real or apparent necessary self-defense, then evidence that prior to the fatal difficulty the deceased had made threats of violence against the defendant is admissible, and may be considered with all the other evidence in the case in determining the state of the deceased’s feelings toward the defendant and who was the probable aggressor in the fatal difficulty.”

In their brief counsel for appellant make the following objection to this instruction:

“The trouble with this instruction is that it did not give the defendant the advantage of one important point. Had the court added to the instruction ‘that threats were material for the purpose of determining what the defendant might reasonably have apprehended from the overt actions and demonstrations of the deceased,’ we would have no room to complain, but the instruction as it stands does not give the jury the right bo pass upon what the defendant might have reasonably apprehended at the time the defendant claims the deceased -drew the pistol from under her apron.”

In reply to the argument of counsel for appellant, the Assistant Attorney General takes the position that an instruction is not defective because it fails to state all of the purposes for which the jury might consider threats, and then proceeds as follows:

“The court did not tell the jury that they must not consider threats for any other purpose, and consequently it left the jury at liberty to take threats into consideration if they believed that the defendant really acted under a reasonable apprehension of fear for his own safety and under the apparent necessity for self-defense. If the jury believed in this latter state of facts, which is indispensable in order to make threats material, then they would without any specific instruction take into consideration evidence of threats in order to construe the overt acts of the deceased if any, in the light in which they appeared or would appear to the defendant.”

With this contention we cannot agree. When an instruction informs a jury as 'to the purpose for which they may consider threats, the necessary effect of such instruction is to confine the consideration of the jury to the purpose stated, and, if the court neglects to correctly state all of the purposes for which threats are admitted and for which they may properly be considered by the jury, it cannot be said that such an instruction is correct, and that the jury may consider threats for other purposes than those enumerated. Such a contention would make the jury the judges of the law. This is inconsistent with our statute which requires the jury to be guided by the law given them by the court. Neither is it the law as stated by the Assistant Attorney General, that it is indispensable for the jury to believe that the defendant really acted under a reasonable apprehension of fear for his own safety and under the apparent necessity for self-defense before they could take into consideration evidence of threats in the light in which they appeared to the defendant, because, if the jury believed anything of the kind, it would be their duty to acquit the defendant whether threats were made or not. This statement would entirely wipe out and destroy the doctrine of threats, and the position is altogether untenable. There is, however, another view upon which the instruction given in this case must be sustained. If it had been proven that the threats testified to had been communicated to the appellant prior to the time of the commission of the homicide, then this objection would have been good, but there was no evidence that appellant was informed of the alleged threats at the time of the homicide, and appellant himself did not claim that he acted upon threats. Under these circumstances, even if threats had been made, they could not have been the basis of any apprehension of danger on the part of appellant. The trial court therefore did not err in the instruction given. But this instruction would not have been sufficient if the testimony had shown that the threats had been communicated to the appellant prior to the time of the killing. For a full discussion of this question, see Rogers v. State, decided at the October term of this court, ante, 127 Pac. 365.

Third. Upon the law of self-defense the court instructed the jury as follows:

“You are instructed that the law of self-defense is solely and emphatically a law of necessity, that it does not imply the right of attack, and could not avail the defendant if he was the aggressor, or if the difficulty was sought for by him, or was provoked by him by any willful act of his own, reasonably calculated to bring it about, no matter how hard he was pressed, or how great his danger became, during the progress of the difficulty, he would not be justified in taking the life of the deceased; but if the testimony upon this point raises in your minds a reasonable doubt as to whether or not the defendant at the time of the homicide acted in good faith and upon reasonable appearances of danger of receiving great bodily harm or death at the hands of his assailant, and that defendant was not himself the aggressor, the jury should resolve that doubt in favor of the defendant and acquit him. Given and excepted to by defendant.”

Counsel for the state in his brief says:

“This instruction we submit complies with the requirement of the rule in Payton v. State, 4 Okla. Cr. 316 [111 Pac. 666].”

This is an unfortunate citation for counsel for the state. In Payton’s case this court said:

“Upon the trial of this case there was a square conflict in the evidence. The testimony for the state tended to sustain the charge contained in the indictment. The defendant and his witnesses testified that the defendant had purchased the hogs in question in good faith from one Dánieh Webster. The court instructed the jury with reference to the law applicable to the evidence for the state, but the charge is silent as to the issue presented by the testimony for the defendant. As we understand the law, a defendant has the right to have a clear affirmative charge based upon the hypothesis that his testimony and the testimony of his witnesses is true, when this testimony affects a material issue in the case. Counsel for defendant requested eight special instructions, all of which were refused by the court. While we are not prepared to say that the court erred in refusing any one of the requested instructions, yet their general effect was to call the attention of the court to the point in issue, and the court should have instructed the jury correctly as to the law with reference to purchasing property in good faith, and then left it to the jury to say which testimony they believed. For this defect in the instructions the case is reversed and remanded.”

It will be observed that in the instruction in the case now before us the court repeatedly informed the jury in positive terms under what circumstances the defendant would be guilty and under which they could not lawfully acquit him. But it fails to inform the jury in a clear, affirmative, and clean-cut manner as to his right of self-defense. For a discussion of the necessary elements of an instruction on the law of self-defense when this issue is properly presented by the evidence, see Price v. State, 1 Okla. Cr. 358, 98 Pac. 447; and for a still more recent and elaborate discussion of this question, see Rogers v. State, decided at the October term of this court, ante, 127 Pac. 365.

Counsel for appellant on this question requested the court to instruct the jury as follows:

“Gentlemen of the jury, you are instructed that if you believe from the evidence that the deceased attempted to take the life of the defendant, or do him great bodily harm, then the defendant had the right to act in his self-defense, and it matters not whether the danger was real or apparent, if, viewing the situation from the defendant’s' standpoint, as a reasonable person, he had the right to believe and did believe that he was in danger of losing his life, or having great bodily harm inflicted upon him, and killed the deceased, then your verdict should be for the defendant.”

Counsel for appellant in their brief say:

“We believe this was a fair instruction on the law of self-defense, and, as the court nowhere gave us an instruction on self-defense, we were entitled to it. Blashfield, Instructions to Juries, vol. 2, 1508-1517, in substance lays this instruction down as proper. At any rate, an instruction on the ground of self-defense being material, it was error, after request, for the court to refuse to give a proper instruction.”

While the instruction requested was not as full as it should have been (see Rogers v. State, supra), yet the attention of the court being called directly to this matter the court should either have given the instruction requested, or it should have corrected it, and given it in proper form if it had not otherwise properly instructed the jury. See Roberson v. United States, 4 Okla. Cr. 336, 111 Pac. 984; Morris v. Territory, 1 Okla. Cr. 617, 99 Pac, 760, 101 Pac. 111. It is a fundamental principle of law that in a criminal case, where an issue is properly presented by the evidence and the defendant requests it, he is entitled to a correct instruction based upon the hypothesis that his testimony is true. This court expresses no opinion as to the guilt or innocence of appellant, but we are of the opinion that upon a vital point in this case the jury were not fully and correctly instructed as to appellant’s right of self-defense. As to what would be a correct instruction, see Rogers v. State, supra. It is true that appellant is only a poor and friendless negro, but his rights must be determined by the law, and not by the color of his skin, or by the position which he occupies in society. The rich, the strong, and the influential can, as a rule, take care of themselves. It is the poor, the weak, and the humble who need the strong arm of the law for their defense. Courts should be ready to extend this protection to all persons alike. There can be no question but that the issue of self-defense is presented by the testimony in this case.

For the error of the court in not fully instructing the jury on this question, the judgment of the lower court is reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.


text:
    CHARLEY QUINN v. STATE.
    No. A-1498.
    Opinion Filed January 13, 1913.
    (128 Pac. 1104.)
    1. INTOXICATING LIQUORS — Possession With Intent to Sell-Eviclence. The mere possession of beer, without any facts from which it could be reasonably inferred that the same was had for the purpose and with the intent of sale, is not sufficient upon which to base a judgment of conviction upon a charge of having such beer in possession with intent to sell same.
    2. SAME. The possession of an unusually large quantity of beer, or other intoxicating liquor, is a circumstance to be considered by the jury in arriving at a verdict. But such circumstance must be supported by other testimony from which, taken together, a legitimate deduction of guilt can be drawn.
    3. SAME. This court has universally held that the intent with which intoxicating liquors are possessed is an essential element of the crime of unlawful possession with intent to sell same, and it is the duty of the prosecuting officer to keep this in mind and introduce at the trial testimony which will warrant the jury in finding as a reasonable deduction from all the evidence that the intent to sell existed, and not merely the possession. Both possession and intent to sell are indispensable to a conviction under this provision of the law.
    (Syllabus by the Court.)

      Appeal from Love County Court; R. A. Keller, Judge.

    Charley Quinn was convicted of violating the prohibitory law, and he appeals.
    Reversed.

      Bddleman & Graham, for plaintiff in error.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Charley Quinn, was tried and convicted at the October, 1911, term of the county court of Love county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days. Deputy Sheriff Blake testified on behalf of the state that he searched a livery stable belonging to the accused and found 35 bottles of beer in a box of cold water; that he was assisted by Gus Culwell; that when they went to the barn the accused told him to search all he wanted to, and when the beer was found the accused told him it was his; further, that the accused was talking to him early on the afternoon before the search and told him that he had a barrel of beer coming in on the train from Ft. Worth, this particular testimony being as follows:

“Q. Before you had the search warrant delivered to you, Mr. Blake, did you have a conversation with Chas. Quinn? A. Over at the train, just as the train got ready to pull out. Q. Did he make any statement to you about having any beer there ? A. Yes, sir; he said he had a barrel of beer there in the station, and said, ‘I have it for my own use, and I want to take it out and take it up to the house,’ and I said, ‘There is no law to keep you from it.’ ”

Gus Culwell testified that when they went to the barn the accused told them to go ahead and search. Another witness on behalf of the state testified that some one, he did not remember who, gave him a bottle of beer at this barn a considerable length of time prior to the date of this search. At the conclusion of the state’s testimony, counsel for the accused asked the court to advise the jury to return a verdict of not guilty, which motion was overruled.

There was a total failure upon the part of the state to establish the intent to sell the beer in question. The motion to advise a verdict should have been sustained. The proof introduced on behalf of the accused following the overruling of the motion to advise a verdict, in our judgment, was a complete explanation of why he was in possession of the beer and the purpose for and intent with which he purchased it and had it in possession.

Prosecuting attorneys and courts should be vigilant in enforcing the provisions of the prohibitory law, but, unless one is in fact violating the law, he should not be subjected to such prosecution. The conviction in this case should not have resulted, and when it did the trial court should not have permitted it to come to this court on appeal. The mere possession of-intoxicating liquor when at a legitimate place of business or one’s house, not a place of public resort, has never been held sufficient by this court to sustain a conviction when there is a reasonable explanation on behalf of the accused concerning the purpose and intent with which the liquor was held; and, although the possession of an unusual quantity of liquor is a circumstance to be considered by the jury in determining the guilt or innocence of a person on trial charged with this character of offense, yet that alone is not sufficient. It is a matter of common knowledge that many good citizens order a cask of1 beer at one shipment for legitimate use. There is no rule of law which makes the possession of a quantity-of liquor for legitimate purposes presumptive evidence of guilt under the provisions of the prohibitory law upon which this prosecution is based, and, in the absence of a proper statute making it so, we cannot uphold this character of conviction.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

FURMAN, P. J., and DOYLE, J., concur.


text:
    WADE FOREMAN v. STATE.
    No. A-1512.
    Opinion Filed January 13, 1913.
    (128 Pac. 1101.)
    INTOXICATING- LIQUORS — Unlawful Possession — Sufficiency of Evidence. In a prosecution for having possession of intoxicating liquors with intent to violate provisions of the prohibition law, where there is a total absence of direct or presumptive evidence to sustain the charge, the judgment of conviction will be reversed.
    (Syllabus by the dourt.)

      Appeal from Okmulgee County Court; George A. Johns„ Judge.

    Wade Foreman was convicted of violating the prohibitory law, and appeals.
    Reversed.

      George James, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted in the county court of Okmulgee county upon an information which charged:

“Did then and there, unlawfully and wrongfully, have the possession of certain intoxicating liquors, to wit, six gallons of whisky, with the intent on the part of him, the said Wade Foreman, of violating the provisions of article 3 of chapter 69 of the Session Laws of 1907-08 of the state of Oklahoma.”

October 7,1911, he was sentenced to be confined .in the county jail for a period of 60 days and to pay a fine of $50. To reverse this judgment an appeal was taken.

It is contended that the testimony is wholly insufficient to support the judgment of conviction. After an examination of the evidence, we are without doubt as to the propriety and necessity of reversing this judgment. The only evidence on the part of the state was that of Mark Moore, who testified that he was a deputy sheriff, and on May 24, 1911, he, with the'sheriff, went to the home of the defendant, two miles north of Okmulgee; that on that day he had been inspecting the depot and noticed that there were two cases of whisky for the defendant, and that afternoon he secured a search warrant and went to the home of the defendant and found nobody there, but found the defendant out in the field plowing cotton; that they went to the house and found two cases of whisky, one of them stored in a dresser drawer, and the other one lying on the floor of the kitchen; that he asked the defendant what he was going to do with it, and he answered that he was going to drink it; that one of the bottles had been opened, and probably a gill taken from it; and that he seized the liquor. He further stated that prior to this time he had never'seen the defendant take any shipment of liquor from the depot. This was all the testimony introduced by the state.

On behalf of the defendant, Dr. J. E. Porter testified that he was a duly licensed and practicing physician at Okmulgee; that he had professionally treated the defendant for about six years off and on; that during the past year the defendant was in poor physical condition; that since last winter his lungs have been affected, and that in his weakened condition it was necessary for him to have a stimulant or tonic to he able to work; that he also treated him for bronchitis; and that, as his physician, he had prescribed whisky for him.

The defendant, testifying on his own behalf, stated that he bought the two cases of whisky, and had them in his home on his farm, where they were found by the prosecuting witness and taken by him under a search warrant, and that the whisky was purchased for the use of himself and his wife; that he had had a bad spell in the winter; and that to be able to1 work on his farm he had to stimulate himself. He further testified that he had never sold any whisky. This was all of the evidence in the case.

In the case of McCarthy v. State, 6 Okla. Cr. 483, 119 Pac. 1020, this court said:

“The mere naked presumption, founded on the fact of possession, standing alone, is insufficient to support a conviction. The rule declared by justice and reason requires that the fact of criminal intent be proved and not presumed. Another rule which is approved by all thinking and just men requires that guilt should flow naturally and easily from the facts proved, and be consistent with all the facts. The evidence should be of such a character as to overcome prima facie the presumption of innocence. If the evidence raises a mere suspicion, or, admitting all it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to acquit the defendant.”

The Bill of Rights is something more than a mere compilation of glittering generalities. Some of its provisions constitute a formal and public declaration of popular rights and liberties. The guarantee in article 2, sec. 30 (38 Williams’), that the right of the people to be secure in their persons, houses,' papers, and effects against unreasonable searches or seizures shall not be violated, should be respected by all peace officers and law-abiding citizens. Section 4188 of the enforcement act (Comp. Lawá 1909) provides:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

And the statute is in accordance with the Bill of Rights.

There is nothing in the testimony of the prosecuting witness that tends to show that the defendant’s home, where the liquor was seized, came within any of the exceptions of the statute. It was the lawful right of the defendant to have this liquor for his own use, and there was no evidence tending to show that he intended to violate the prohibitory law.

The judgment is therefore reversed.

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