text:
    WILLIAM F. TURPEN v. STATE.
    No. A-11077.
    March 16, 1949.
    (204 P. 2d 298.)

      Ash & Bailey, of Cordell, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen.,.and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, William F. Turpén, was charged by information filed in the district court of Washita county, with the crime of murder, the information alleging that on August 18, 1947, he shot and killed one Ted Garner. Upon a trial to a jury, the defendant was found guilty but the jury being unable to agree on the punishment, the defendant was sentenced by the court to serve a term of 15 years’ imprisonment in the State Penitentiary.

For a reversal of the judgment of conviction, it is contended that the trial court erred in refusing to give requested instructions numbered 3 and 4 of the defendant, and that under all the circumstances of the case, the punishment assessed by the court was excessive and should be reduced.

The defendant was a section foreman for the Frisco Railroad. He had been working for the railroad for about 20 years and lived in the town of Rocky. The deceased, Ted Garner, was 27 years of age, unmarried, also lived in Rocky, Okla., with his parents. He had just been recently discharged from the United States Army where he had seen four years’ service. While in the Army, the deceased taught boxing and was an instructor in judo for the purpose of training soldiers for combat duty. The evidence is also conclusive that before the deceased enlisted in the Army, he did some amateur boxing in and around the community where he resided.

Early in the evening of August 17, 1947, one Everett Smith, who also was a section hand working under the direction of defendant, came to the home of the defendant and invited him to go with Smith to the home of Shortly Warnke, who lived out in the country, to get some intoxicating drinks. Smith and the defendant, Turpén, drove to Warnke’s home, but not finding him there, they started back to town and on the way met the deceased, Ted Garner, and Warnke. They all four returned to Warnke’s house where they drank some whisky and' a considerable amount of wine. About midnight, Turpén, the deceased, Garner, and Smith started home. They were all under the influence of the intoxicants which they had drunk and Smith especially appeared to be thoroughly inebriated.

According to the evidence of the state, when the parties arrived at the home of Smith, Smith got out of the door of the car and fell on the ground, and his wife came and helped him into the house. The defendant and deceased then proceeded on to the home of the defendant where they continued to drink some of the wine which they had brought with them from Warnke’s.

The defendant swore that Smith and the deceased both got out of the automobile at Smith’s house and that he drove on home. That shortly after he arrived at home, the deceased, Garner, appeared and entered his house, asking for a drink of wine.

The wife of defendant who testified on behalf of defendant, however, swore that the defendant and deceased entered their home together.

The wife of defendant brought them some ice from the refrigerator and defendant and deceased sat at a table in the kitchen and continued to drink more wine. The deceased according to the testimony of defendant was provocative and told his wife she was very good-looking and he couldn’t understand how a good-looking woman like her had married a bum like the defendant. The defendant further testified that the deceased kept talking to his wife and would wink at her when deceased thought defendant was not looking and that this aggravated him, bnt he knew that deceased was drunk so he did not say anything about it; that he finally insisted that deceased go home as it was time for them to go to bed and offered to drive the deceased home in defendant’s car; that deceased said “No, I will walk”, and struck the defendant across the table; that deceased started pulling his shirt off and said that he was going to pull the head off of defendant; that defendant’s wife came in and talked to him and quieted him down; that defendant entered the kitchen and when deceased saw him, he again repeated that he was going to pull defendant’s head off and throw it at him; that when he said that, defendant went into the front room and got his shotgun; that when he returned with the gun, the deceased said “shoot it you---you haven’t got the guts”; and deceased also said that he had a six-shooter at home and if the defendant would give him 10 minutes to go get it he would shoot it out with him; that the deceased had removed his shirt, but defendant’s wife pitched his shirt to him and deceased walked out of the house; that defendant thought the deceased had gone and he walked out on the back porch, but that he saw the deceased come around the corner of the house and that he said to the defendant, “Come on out and fight like a man”; that an argument then ensued during which deceased said that if the defendant would let him have a cigarette, he would go home; that deceased then came back into the house and entered the kitchen; that his wife said “You are not going to come back in here,” and deceased said “If you will give me. my cigarettes, I will go”; that she turned around to get the cigarettes and deceased went on into the kitchen; that deceased then refused to leave, and when defendant entered the room with a gun, the deceased cursed him and dared him to shoot; that deceased commenced to unbutton his shirt and made for defendant and defendant shot him.

The deceased was struck over the right eye by the charge from the shotgun, was killed instantly, and fell near the washstand in the kitchen.

Immediately after the shooting occurred, the defendant and. his wife went to the home.of a neighbor and asked to be driven to Cordell. He told the neighbor that the deceased had drawn an ice-pick on him and struck at him with it and he shot and killed him; that defendant pointed to a scratched place where he said the icepick had struck him. The neighbors drove the defendant to Cordell where he was delivered to the officers.

The officers testified that the first time defendant talked to them he said that the deceased had struck at him with an ice-pick, but that after they had gone to the home of defendant to view the premises and to look at the deceased, they returned and told the defendant they could find no ice-pick close to the deceased, at which time the defendant told them he had made up the ice-pick story and that defendant didn’t attempt to hit him with an ice-pick.

The officers further testified that they found the deceased slumped over the washstand with one arm in the sleeve of his shirt and the other out and that the pants pockets' of deceased were turned inside out, which fact substantiated the theory of the state that the deceased was showing the defendant that he was unarmed and without a weapon at the time he was shot.

Requested instruction No. 3 of the defendants reads:

“You are instructed that in determining whether or not the defendant, as a reasonable man, in good faith, believed at the time of the killing that he was in danger of suffering death or serious bodily injury at the hands of the deceased, you should take into consideration all the facts and circumstances that transpired at the home of the defendant just prior to and at the time of the killing, and also the defendant’s knowledge of the deceased, and his reputation as a violent and dangerous man, or a successful mid experienced fighter(Emphasis ours.)

It is contended by counsel for defendant that it was important that the trial court insert into his instruction the underscored words in the above requested instruction for the reason that it was the personal knowledge of the defendant as to the trained boxing experience of the deceased that caused the defendant to have the fear of the deceased that he had on the occasion when he took his life.

It is well settled that the defendant is entitled to an affirmative instruction embracing his theory of the defense. Skelley v. State, 64 Okla. Cr. 112, 77 P. 2d 1162.

The trial court gave five separate instructions on the law of self-defense. Each of these instructions was a correct .general statement of the law pertaining to the issue of self-defense. We quote a part of them as illustrative of the court’s interpretation of the law:

“You are instructed that in considering the question of the innocence, or guilt of the defendant, you are to take into consideration all of the facts and circumstances, surrounding the scene of the killing, and view the same from the standpoint of the defendant as they actually appeared to him at the time and immediately preceding the firing of the shot; and if you find from such evidence, facts, and circumstances that the defendant as a reasonable man honestly believed that it was necessary to take the life of the deceased, to protect the defendant from losing his life, or from suffering great bodily injury, it will be your duty to find the defendant not guilty.
“While a person need not be in actual imminent peril of his life being taken, or of great personal injury being done him, yet if the jury believes that the defendant had reasonable grounds to believe and did believe, from the facts as they reasonably appeared to him at the time, that the danger was so urgent and pressing, that the de-. fendant could not avoid the necessity of firing the shots that killed the deceased, in safety to himself to protect himself from death or great personal injury, then, if under such circumstances the killing took place, it was justifiable.
“You are further instructed that while one unlawfully attacked has the right to use such force as under the circumstances reasonably appears to him to be necessary to repel the attack and avoid injury to himself, yet he. will not be justified in using greater force than reasonably appears necessary and sufficient to avoid the danger, or apparent danger, and thereby kills the person who made the attack, and it so appeared to him when he killed the person making the attack, he will be guilty of manslaughter in the first degree; and in determining the question as to whether or not the defendant was in danger, or apparent danger, under these instructions, you are told that the law requires you to view the circumstances at the time from the defendant’s standpoint as they reasonably appeared to him.”

It is our conclusion that it was not necessary for the court to specifically call attention to the jury in the instructions to the alleged knowledge of the defendant that deceased was a successful and experienced fighter. This was a matter that counsel for the defendant argued to the jury and rightly so under his theory to show the state of mind of defendant and to sustain his argument that deceased was the aggressor in the fatal difficulty. A large number of the witnesses at some place or other in their testimony mentioned the fact that the deceased was an able boxer and this fact no doubt was taken into consideration by tbe jury when they undertook to view the facts and circumstances surrounding the killing as they reasonably appeared to the defendant at such time. It is not proper for the court to comment upon or stress particular evidence of either the state or defendant and in this case, if the disputed words in the above instruction had been given, it would have been a comment by the court on the evidence.

In the case of Sherman v. State, 20 Okla. Cr. 306, 202 P. 521, 523, it is stated:

“It is urged also that the court erred in refusing to in some manner instruct the jury in substance as stated in the concluding language of defendant’s requested instruction No. 5, which was refused by the court, namely:
“ ‘You have the right, in this connection, to consider the relative strength, weight and physical condition of the deceased and the defendant at the time of the homicide.’
“There was no error in the failure of the court to give such a specific instruction. The testimony is undisputed that there was a marked difference between the strength, weight, and physical condition of the defendant and the deceased, and this testimony raised an issue of fact for the jury, and was doubtless considered by them, along with all the other circumstances in the case. The court did instruct the jury fully and fairly upon the right of the defendant to defend himself against death or serious bodily harm, real or apparent, as appeared from the evidence. The accused, as a matter of right, may not demand an instruction touching upon every feature of the evidence in all of its details, not involving issues of law. Indeed, the court should abstain from giving an instruction that might be construed as a comment upon the weight or importance of any particular evidence. Roddie v. State [19 Okla. Cr. 63], 198 P. 342.q”

The various instructions that were given in the instant case in regard to the law of self defense were correct statements of the law, and we do not feel that the court erred in refusing to emphasize in the instructions the knowledge of defendant as to the success and. experience which the deceased had enjoyed as an instructor in boxing.

Requested instruction No. 4 of the defendant reads :

“You are instructed that the defendant, at the time of the killing of deceased, was in his own home, where he had a right to be. If you find that the deceased, Ted Garner, went to the home .of the defendant uninvited, or that having been invited therein by defendant, that he thereafter made hostile threats or demonstrations toward the defendant, the deceased would be, in either such event a trespasser, and defendant would have the right to defend himself and use all force necessary to resist further invasion of his home by deceased.”

The facts are disputed as to whether the deceased was a trespasser in the home of the defendant. Assuming that he was a trespasser, then just what duty, if any, was owed by the defendant to the deceased.

. In the recent case of Grindstaff v. State, 82 Okla. Cr. 31, 165 P. 2d 846, 851, this court had occasion to discuss at length the question as to justifiable homicide committed where the deceased was an alleged trespasser. It was there stated:

“There was no contention in this case by the defendant that he took the life of the deceased because he was making an unlawful invasion, of his home. * * * The law pertaining to defense against a trespasser becomes applicable where the accused contends that he was defending his domicile against an unlawful trespass. * * *
“Assuming for the purpose of disposing of this contention that after the defendant told Joe Young to go home that he was a trespasser, it would not justify the home owner, under such circumstances, in taking his life. The law in this regard is well stated in Jackson v. State, 49 Okla. Cr. 337, 293 P. 567, 568, as follows:
‘A person may resist a trespass on real property in his possession, where such trespass does not amount to a felony, and may eject the trespasser therefrom by the use of any reasonable force short of taking or endangering human life; but if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking or endangering human life, he must suffer the trespass and seek redress at the hands of the law rather than commit homicide.’ And see Garrison v. State, 19 Okla. Cr. 3,197 P. 517.
“In Dickinson v. State, 3 Okla. Cr. 151, 104 P. 923, 925, this court said:
“ ‘A mere trespass upon the land of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner to use a dangerous or deadly weapon to resist the trespass. * * * The putting in use of a deadly weapon shows a wanton disregard of human life. Clark in his work on Criminal Law, at page 145, lays down the proposition in this terse and explicit language:
“ ‘ “A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of property, and seek redress at the hands of the law, rather than commit homicide.” ’
“In the case of Marshall v. State, 11 Okla. Cr. 52, 142 P. 1046, syllabus 2, this court said:
‘A landowner is not justified in making an assault upon another with a dangerous or deadly weapon in resisting a trespass on his premises, when no felony is attempted.’ ”

Another recent case is Hovis v. State, 83 Okla. Cr. 299, 176 P. 2d 833, in which the- second syllabus, reads:

“Proprietor of beer tavern is not justified in killing another with a deadly weapon in resisting a trespass on his premises when no felony is attempted.”

The language of this court in disposing of that case could very well be used in disposing of the instant case. It was there stated:

“The deceased and Martin were certainly acting improperly at the defendant’s tavern. Their words and general conduct were very provocative. The defendant was authorized to evict them from his premises. Under the state’s evidence, the deceased was doing no more than uttering abusive language and threatening to fight when slain. He and his companion were both unarmed. According to the state’s, evidence, the deceased -had returned to the tavern to secure a cap which he had left. Human life is a precious thing. Once taken, it cannot be restored. It appears to us that the jury acted in a reasonable manner when they concluded that the defendant was not justified in taking- the life of the deceased to prevent a threatened breach of the peace or trespass on his premises.”

The defendant and deceased were both under the influence of intoxicating liquor. Had either of them been sober, the tragedy probably would not have occurred. As to what the deceased said while in the home of the the defendant, we have only the word of the defendant and his wife. The defendant said that deceased drew himself up in the pose of a fighter and offered to pull off defendant’s head.

The deceased did not have so much as a pocket knife in his pockets. The physical facts show that the deceased was 10 or 20 feet away from the defendant at the time the fatal shot was fired. There was no justification for the taking of the life of the deceased. The defendant, if he thought it was necessary to shoot the deceased, could have wounded him, but instead he chose to shoot him directly in the head, blowing out the brains of the deceased on the floor and causing instant death.

In this case there was no contention in the evidence of defendant that he was defending his home from invasion nor to prevent a felony from being committed against it. The requested instruction contains only a partially correct statement of the law. It would have been proper for the court to have told the jury that the killing occurred in defendant’s home where defendant had a right to be, and that if the deceased remained in his home after being ordered to leave he became a trespasser, and that a person in possession of real property has the lawful right to eject a trespasser by the use of any reasonable force short of taking or endangering human life; but if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking human life, he must suffer the trespass and seek redress at the hands of the law rather than commit homicide.

The court did not err in refusing to give the requested instruction and did not commit fundamental error in failing to give an instruction on the theory that deceased was a trespasser. The testimony of defendant did not raise an issue of defense of home or of his wife or to repel a threatened or continued invasion of the home, but his defense rested solely on his claim that deceased was about to commit a felony on defendant’s person by assaulting defendant and that he was put in fear of his life. This theory of defense was amply covered by the instructions which were given.

The arguments of the assistant county attorney and county attorney are reported in full. We have examined them and do not find any improper argument. Great latitudé should be given to both counsel for the state and defendant and a wide freedom of expression is authorized in presenting their arguments. However, if counsel for the state exceed the bounds of propriety and attempt to resort to prejudicial statements to secure a conviction, this Court will not hesitate to set aside a conviction because of such tactics. However, nothing of that sort is found in this record.

Contention is also made as to the error of the court in admonishing counsel for defendant “to not lead the witness”. This statement of the court occurred while counsel for the defendant was cross-examining one of the state’s witnesses and, of course, counsel had a perfect right under such circumstances to lead the witness. The court was evidently confused at the time he made the statement as to who had placed the witness on the stand, but this matter is so insignificant and immaterial that it had no bearing on the outcome of the case. This is just a case where the defendant exceeded the bounds of the law in taking the life of the deceased. We do not feel that the punishment assessed under the circumstances was excessive.

The judgment and sentence of the district court of Washita county is affirmed.

BAREFOOT and BRETT, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    FRANCIS RAY WALKER v. STATE.
    No. A-11063.
    March 23, 1949.
    (204 P. 2d 552.)

      John Howard Payne and John C. Head, both of Oklahoma City, for plaintiff in error.

      Mae Q. Williamson, Atty Gen., Sam ,H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, County Atty., Oklahoma County, of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Francis Ray Walker, was charged in the district court of Oklahoma county with the crime of larceny of an automobile; was tried, found guilty by a jury and by the court sentenced to serve a term of five years in the State Penitentiary, and has appealed.

For reversal of this case, it is contended:

“I. The court erred in admitting hearsay evidence and overruling motion to suppress.
“II. The court erred in overruling the demurrer to the evidence and in refusing an advisory verdict.
“III. The lower court erred in giving instruction No. 5.”

The first and second errors may be considered together, and this necessitates a short statement of the facts as revealed by the record.

F. E. O’Banion, of Oklahoma City, was a used-car dealer. On the night of July 3, or morning of July 4, 1947, there was stolen from his lot in Oklahoma City a 1940 Chevrolet coach, blue-green color, bearing 1946 Oklahoma license tag No. 1-73446. Mr. O’Banion was the owner of this automobile.

On the morning of July 4, 1947, two boys were seen by a lady living two miles north of Mineo, in Grady county, as they broke a glass window in a filling station, while attempting to enter therein. Her home was adjacent to the filling station. She immediately notified DeArthur Wilson, the sheriff of Grady county, and then followed the boys in her automobile. They had run down toward the Rock Island Railroad track. She lost sight of them, and when she returned home, Sheriff Wilson and a deputy were at the filling station. She gave them the information she had, and a description of the boys, and the sheriff and his deputy soon picked up defendant, Francis Ray Walker, and Samuel Thomas Bayless near the place where they had last been seen. The defendant, at the time he was found, was carrying, a satchel or bag which contained clothing and two cameras. The boys were returned to the filling station by the sheriff, and identified by the lady who had followed them, as being the ones who had broken the glass and attempted to enter the filling station. The sheriff then found' the automobile above described in a roadside park in close proximity to the filling station. The boys and the automobile were taken by the sheriff to Chickasha, and the boys placed in the Grady county jail.

The sheriff, observing that the automobile had an Oklahoma county license tag, communicated with the officers . of that county and ascertained that the car had been stolen in Oklahoma City on the night of July B, or early morning of July 4, 1947. Officers from Oklahoma county went to Chickasha, and the two defendants were returned to Oklahoma county, and charges filed there, charging them with the larceny of the automobile, as above stated.

It is also revealed by the record that Mr. W. R. Kahnert, who lived at No. 11 Northeast Seventh street, in Oklahoma City, owned two kodaks, or cameras, which he left in his car, parked in front of his house on the night of July 3, 1947. On the morning of July 4, 1947, the cameras were gone from his car. These cameras were identified by Mr. Kahnert as the ones found in possession of the defendant at tlie time of his arrest near Mineo. One means of identification of the cameras was that Mr. Kahnert had just returned from a trip to Fort Sill, and had taken some pictures while there, one of his wife atop of Mount Scott and another of Mount Scott, and these pictures were on the film in the cameras, and undeveloped. When the cameras were brought to Oklahoma City, the films therein were developed and printed by officers of the police department, and the pictures were introduced in evidence, and identified by the witness Kahnert.

Mr. Everett W. Sanders, testifying for the State, said that he lived at 2123 N. W. 39th street, in Oklahoma City.- That he owned a 1939 Chevrolet two-door sedan, and that license tag No. 1-28182 (Oklahoma county) had been issued to him. That on the night of July 3, 1947, his automobile was parked at No. 718 West Poplar street, in Yukon, Okla., and the next morning he noticed that the license plate was loose, and tightened it, but did not notice the number. On July 6, 1947, he checked the license plate on his car, and found that it was No. 1-73466. He recovered the license plate issued to him from the stolen goods department of the police department of Oklahoma City.

Several expert witnesses, from the Oklahoma City police department laboratory testified to the finding of fingerprints of the defendant upon the stolen automobile. It was fully demonstrated to the jury how these fingerprints were obtained. They also testified to developing and printing the pictures found in the cameras, and identified them.

' The codefendant, Samuel Thomas Bayless, age 17 years, Avas placed upon the witness stand by the state and testified that he knew the defendant and had seen and talked with him in downtown Oklahoma City on July 3, 19J7. That on that night, about 12 o’clock, witness and a brother of defendant went to the home of defendant’s mother, and that defendant was in bed asleep. Defendant awoke, and dressed, and suggested to • witness that they go to California. The witness agreed to this, and they decided to steal a car. He then detailed how the car was stolen, and also the two cameras above mentioned. He told of stealing and changing the license plates at Yukon, and of the trip to the roadside park near Mineo, and of breaking the glass and attempting to enter the filling station and being frightened away by the lady who called the sheriff. He also testified that after they parked the automobile in the roadside park they went to sleep, leaving the radio on, and when they awoke the battery had run down, and they abandoned the car. He also testified to taking pictures with the cameras which had been stolen. These pictures were developed at the police headquarters in Oklahoma City, and were pictures of the defendants and the car which they had stolen in Oklahoma City. The pictures were introduced in evidence, and clearly show the license number which had been stolen by the defendants at Yukon.

From the above statement of the facts, it is our opinion that the court did not err in overruling the demurrer to the evidence, and in refusing to instruct the jury to return a verdict of not guilty.

The first contention of defendant is based upon the identification of the cameras and the pictures taken, and also the evidence of the sheriff, DeArthur Wilson, as to the information received which caused him to go in search of the persons who had attempted to burglarize the filling station, and also to the information he received as to the location of the automobile.

We have examined the record carefully, and do not find that the evidence given by Sheriff Wilson was incompetent in any way.

The third error complained of is, that the court committed error in giving instruction No. 5, which is as follows :

“You are instructed that an accomplice, as used in these instructions, means one culpably implicated in the commission of a crime of which the defendant is accused, that is, an associate, one who knowingly and voluntarily co-operates or aids or assists in the commission of the crime charged.
“You are instructed that the prosecution in this case uses the testimony of a witness who may be culpably implicated in the commission of the crime of which the defendant is accused, that is, he may be one who knowingly and voluntarily co-operated or aided or assisted in the commission of the crime of which the defendant is accused; and whether or not he is such a person is a question of fact for you to determine from the evidence before you.”

The objection of defendant to this instruction is that the court should have instructed the jury that under the evidence the codefendant Bayless was an accomplice, as a matter of law, and this issue should not have been left to the jury as a question of fact.

We are inclined to agree that if defendant had presented a requested instruction to this effect, that under the evidence in this case the court should have given the same. The true rule with reference to an instruction proper to be given by the court is found in the case of Sipes v. State, 36 Okla. Cr. 1, 251 P. 511:

“Where the evidence is conflicting as to whether a witness participated in committing the crime charged, the question as to whether or not such witness is an accomplice is one of fact for the jury. But where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice.”

This rule has been announced and followed since the early decisions of this court. Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L.R.A. 1916F, 1251; Weems v. State, 16 Okla. Cr. 198, 182 P. 264; McKinney v. State, 20 Okla. Cr. 134, 201 P. 673; Hewett v. State, 38 Okla. Cr. 105, 259 P. 144; Hogan v. State, 42 Okla. Cr. 188, 275 P. 355; Becker v. State, 45 Okla. Cr. 350, 283 P. 796; Vardeman v. State, 54 Okla. Cr. 329, 20 P. 2d 194; Carter v. State, 55 Okla. Cr. 234, 28 P. 2d 581; Evinger v. State, 57 Okla. Cr. 63, 45 P. 2d 552.

In the case of Sipes v. State, supra, the defendant presented a requested instruction which was refused, and the case was reversed. A number of other cited cases are to the same effect, but in numerous instances were reversed on other grounds, and especially on the ground that the evidence was insufficient to sustain the judgment and sentence. There have been so many decisions of this court since its establishment construing 22 O.S. 1941 § 742, which is as follows:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof,”

that there seems to be some conflict in statements made with reference to the construction to be placed upon this statute, and especially as to the instructions to be given by the court, but in practically all of the decisions the rule above announced has been adhered to as to the question of when a witness is an accomplice. Counsel for defendant in his brief has cited and quoted from many of the cases decided by this court. They are cited above. Counsel for the state has lightly passed over the question, making no attempt to distinguish the cases cited by defendant, or to cite any cases to uphold the contention made by the state that where defendant failed to request an instruction he could not object that one was not given by the court.

In the case of Sigler v. State, 54 Okla. Cr. 353, 21 P. 2d 1073, 1074, this court said:

“Counsel, if they desired an instruction on corroboration of an accomplice’s testimony, should have requested it. Failing to do so, it was not error for the court to omit such instruction.”

In connection with the instant case, it may be stated that instruction No. 6, given by the court, fully instructed the jury as to their duty with reference to its being necessary under the law for the witness to be corroborated if they found as a matter of fact that he was an accomplice. While we are of the opinion that the facts here justified the court in finding as a matter of law that the witness Bayless was an accomplice, and instructing the jury to this effect, yet, by instruction No. 6 he did instruct the jury as to the law and their duty if they found as a question of fact that the witness Bayless was an accomplice. In passing upon the sufficiency of the instructions, all of the instructions will be considered by the court.

The evidence produced by the state in this case was sufficient to justify the jury in returning a verdict of guilty against this defendant, regardless of the testimony of the codefendant Bayless. We have often held under the harmless error doctrine, 22 O.S. 1941 § 1068, that a judgment shall not be set aside or new trial granted because of alleged error in the instructions, unless “after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Certainly, this does not appear from the record in this case.

For the reasons above stated, the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES, P. J., and BRETT, J., concur.


author: JONES, P. J.

text:
    Ex parte ROY MATHIS.
    No. A-11186.
    March 23, 1949.
    (204 P. 2d 550.)
    Roy Mathis, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for-respondent.
   JONES, P. J.

The petitioner, Eoy Mathis, filed his verified petition for habeas corpus seeking release from confinement in the State Penitentiary where he is allegedly incarcerated by reason of a judgment and sentence pronounced against him in the district court of Oklahoma county, upon his conviction of the crime of burglary in the second degree after former conviction of a felony.

In the verified petition it is alleged that petitioner was arrested in the month of July, 1944, by certain police officers and charged with th§ crime of burglary; that he remained incarcerated in the county jail for more than three months and then was released from custody; that in October, 1945, he was again arrested on the same charge, held in jail for 50 days, at which time he was tried and convicted, and pursuant to the verdict of the jury was sentenced to serve a term of 10 years imprisonment in the State Penitentiary.

The petition alleged that at the time of the trial, the petitioner was represented by J. G. Connelly, the public defender; that there was no evidence at the trial that petitioner had actually broken into or entered any building, and no evidence to show that he had formerly been convicted of a felony, and that on the contrary the owner of the property alleged to have been burglarized testified positively that his property had not been burglariously entered.

The Attorney General has filed a demurrer to the petition on the ground that there are no facts alleged which are sufficient to show lack of jurisdiction in the district court to pronounce the judgment and sentence which is the basis of the commitment of the petitioner to the penitentiary.

It is established law that the writ of babeas corpus cannot be used to perform the office of a writ of error on appeal and that the Criminal Court of Appeals will not review by habeas corpus the facts surrounding the trial of an accused nor to determine his guilt or innocence. The court confines its inquiry to the determination as to whether the prisoner is restrained of his liberty by due process of law and whether the court which rendered the judgment imposing the sentence was, without jurisdiction. In re Maynard, 79 Okla. Cr. 215, 153 P.2d 505; Ex parte Goff, 87 Okla. Cr. 33, 194 P. 2d 206.

The demurrer of the Attorney General to the petition is sustained and the writ of habeas corpus is denied.

BAREFOOT and BRETT, JJ., concur.


author: BRETT, J.

text:
    NOAH TUCKER v. STATE.
    No. A-11136.
    March 23, 1949.
    (204 P. 2d 540.)

      E. J. Lucas, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, Noah Tucker, defendant below, was charged by information, tried and convicted of the crime of robbery of Harris Condreay in Tulsa county, Okla., on the 26th day of January, 1948, by means of force and fear by hse of firearms, to wit, a pistol, and was sentenced to 25 years in the penitentiary.

Briefly, the record discloses that Harris Condreay, a filling station attendant employed by John Marlar, was operating a filling station at Third and Denver in Tulsa, Okla. On the night of January 26, 1948, while said Con-dreay was alone in attendance at the said station, about 2:30 a.m., the defendant Noah Tucker came in to use the restroom, and remarked it was awfully cold. He remained in the restroom only a few minutes and walked out, again mentioning the fact it was cold. Immediately thereafter Condreay heard a car door slam and got up and walked to the door to see if a car was going to pull out on either side of the station but he saw no car there and did not look behind the station. He started to walk to the east door, and the car pulled out into the east drive. Richard Johnson, who participated in the robbery, got out on the left-hand side of the car, on the driver’s side. Con-dreay asked him what he wanted, and he told him to put in three gallons of gas, which he did. Johnson then asked him where the restroom was, and he told him inside. Henry Zot Deck, another participant in the robbery, had gotten out on the right-hand side of the car and walked inside of the station to the restroom. Condreay said that he noticed another man in the car but did not pay any attention, and did not recognize who it was. Johnson and Deck walked out of the restroom as Condreay was leaning up against the cash register. Johnson walked up to Con-dreay’s side and had his left hand in his overcoat pocket all of the time; he stuck his hand in Condreay’s left side and told him to get in there and pushed and pulled him into the restroom, going into his pockets and taking everything. From Condreay’s pockets he took five or six dollars and asked where the rest of the money was and Condreay told him it was in the cash register and he wanted to know how to get into the cash register. Condreay said he would have to use the crank and Johnson asked where it was. Condreay took the crank from his hip pocket and handed it to Deck who opened the cash register and took $56 therefrom. Johnson then asked if the door to the restroom could be locked. Condreay told him “No, not from the outside”, whereupon Johnson pulled the door to and told Condreay to stay “in there until we get gone”. Condreay said he stayed until the ’38 Plymouth coupe pulled out of the driveway, in which he said the men were riding, and thereafter he reported the robbery to the police station. He was unable to identify the defendant as the third man who remained in the car, and stated positively he did not know who the man was.

The record further discloses that Officers Walter Turner and Jim Cleveland of the Tulsa police force earlier in the night had received a radio flash on their 2-way radio about a 1939 Plymouth coupe that had been stolen that night, and some time thereafter they received another flash that there had been a robbery of the Wilcox Filling Station at Third and Denver with a description of the automobile. The two descriptions tallied and they began a search. Shortly thereafter they drove out on the Sand Springs road hunting for the automobile. On the Sand Springs road they spotted the car, a ’39 model coupe, dirty color and a commercial tag on it as described in the flash. They drove within ten or fifteen feet of the back of the car and opened their siren whereupon the automobile being signalled drove faster. The occupants of the car began to get excited and tried to get it to go faster. It would not take them like they wanted to go, so one man jumped out and got away. The officers said they shot twice in the air, then they shot into the back of the car and. the two remaining occupants pulled over to a stop and the defendant Noah Tucker and Richard Johnson got out of the car. Thereafter Johnson and Tucker were returned to the filling station. Johnson was identified as the man who shoved him in the restroom and Noah Tucker was identified not as a participant in the robbery but as the man who came into the restroom immediately before. The next morning they picked up Henry Zot Deck. He was brought back to the filling station and identified by Condreay as being one of the men who participated in the robbery.

The record further discloses that Detectives Fisher and Smith and John Marlar talked to the defendant at the police station; that the defendant admitted that he was with the other two men Johnson and Deck; that they had been together all night and had been riding in a taxi until they picked up the Plymouth coupe on South Peoria about the 500 block in Tulsa, and drove around awhile and into the Wilcox Service Station at Third and Denver. The record further discloses that he told them that he got out and went to use the restroom and sat in the car while the other boys robbed the place. He said he went inside to see what was going on and who all was in there, that thereafter he went and got back in the car, and Johnson and Deck drove the car around the front of the filling: station, and he sat in the car while the station was robbed; that thereafter they drove out on the Sand Springs road where they were apprehended by the officers; that he told them Deck jumped out of the car and took the money and the pistol with him.

The record further discloses that at the time defendant Tucker, Johnson and Deck were arrested they had been drinking, in fact, they were drunk.

The competency of the foregoing evidence is unquestioned.

The day after the robbery was committed a pistol was found on the Sand Springs road by a police officer. There was no evidence tending to connect defendant, Tucker, with this pistol, and no evidence introduced to show this pistol was used in the robbery. This evidence was permitted to go to the jury over the defendant’s objection.

The record discloses the state was permitted to offer evidence through officer Fisher in relation to the conversation he had with defendant Tucker as follows:

“Q. Did you have any other conversation with him with reference to how long he had been with these boys; how long he knew them or anything? A. That is right, we did, we asked him how long he had known the boys and lie said several years, because they had been in the penitentiary at McAlester— Mr. Lucas: Just a minute. A. And Granite together. Mr. Lucas: Objected to as incompetent, irrelevant and immaterial. He may tell how long he had known them. The Court: Objection overruled. Mr. Lucas: Exception. Q. (By Mr. Devine) : Just repeat that answer. A. He said he had known them several years because they had been in McAlester and Granite Penitentiary together.”

The defendant’s objection to this evidence was overruled. In this connection the defendant at no time took the stand or put his character in issue. Upon this state of the record the case was permitted to go to the jury.

The defendant contends that the evidence was wholly insufficient to support the verdict. With this contention we cannot agree. This court has repeatedly held that where there is competent evidence in the record from which the jury could reasonably conclude that defendant was guilty as charged, Criminal Court of Appeals will not interfere with the verdict, and that it is the exclusive province of the jury to weigh the evidence and determine the facts. Butler v. State, 87 Okla. Cr. 369, 198 P. 2d 221, Boulding v. State, 83 Okla. Cr. 352, 177 P. 2d 152; Smiley v. State, 72 Okla. Cr. 100, 113 P. 2d 838; Sweat v. State, 69 Okla. Cr. 229, 101 P. 2d 648; Freeman v. State, 69 Okla. Cr. 164, 101 P. 2d 653, 654, and many .others. In this connection this court has repeatedly held it will not reverse a case for insufficiency of evidence unless it can say there was no positive evidence in the record upon which the verdict could be based. Wire v. State, 87 Okla. Cr. 44, 194 P. 2d 212. We are convinced there is ample basis in the competent evidence upon which the jury could conclude beyond a reasonable doubt the defendant was guilty as charged.

The defendant relies on Carrico v. State, 16 Okla. Cr. 118, 180 P. 870, to the effect:

“To constitute one a party to a crime, it is necessary that such person be concerned in its commission. He must either commit it, or aid and abet in its commission, and it is not sufficient that he merely acquiesces therein with knowledge that another is committing the offense.”

And Crabtree v. State, 18 Okla. Cr. 125, 193 P. 1005, as follows:

“It may be stated, as a general proposition, that no one can be properly convicted of a crime that he did not commit, or to the commission of which he has never expressly or impliedly given his assent.”

And Sanders v. State, 48 Okla. Cr. 65, 289 P. 798:

“To constitute one a party to a crime * * * it is necessary that such person be concerned in the commission of the offense; that is, that he either committed it himself or that he procured it to be done, or aided, assisted, abetted, advised, or encouraged its commission, and it is not sufficient that he merely acquiesced therein.”

And also Thompson v. State, 14 Okla. Cr. 209, 169 P. 1125; Smith v. State, 66 Okla. Cr. 408, 92 P. 2d 582; Moore v. State, 4 Okla. Cr. 212, 111 P. 822; Drury v. Territory, 9 Okla. 398, 60 P. 101; and Anderson v. State, 66 Okla. Cr. 291, 91 P. 2d 794, wherein in the latter case it was held that a mere mental assent or acquiescence in a crime was not sufficient to warrant a conviction. These cases are not in point with the case at bar. Here the defendant did not merely acquiesce in the commission of this crime, but, first, he aided and abetted as a scout or observer who got the lay of the land before the crime was committed. We are convinced that the only object in Ms going into the restroom before the robbery, as he admitted he did, was to get the lay-out and report back to Johnson and Deck if the attendant was alone, which proved to be the case. Second, we are also convinced that the circumstances point conclusively to the fact that he was the third party in the car at the time of the robbery. Third, positive evidence in his own admissions establish he fled with and accompanied the perpetrators of the robbery, Deck and Johnson, until his arrest and the arrest of Johnson. So far as competent evidence is concerned the foregoing was proper for the consideration of the jury.

Next the defendant contends that the pistol found in the vicinity of the place of his arrest and the arrest of Johnson was introduced in evidence without identification that it had been used in the robbery, and that the evidence does not connect him with this identical pistol in any way. The record discloses the only connection shown is that, by the defendant’s admissions to the police, a pistol was used in the robbery, and that Zot Deck fled from the car with a pistol, immediately preceding the arrest of the defendant and Johnson. It is fundamental that without connecting identification it was error to introduce the said pistol in evidence, but not such error standing in face of the defendant’s admissions as would merit reversal. Under these conditions, he was not prejudiced by the introduction in evidence of the pistol.

In relation to the foregoing evidence by Officer Fisher as to the defendant admitting he' had known Johnson and Deck in the penitentiary at McAlester and the reformatory at Granite, and his voluntary statements, counsel for the defendant immediately objected to this testimony and his objection was overruled. The county attorney requested the witness Fisher to repeat the answer. Both the court and the county attorney were in error. In this connection this court has repeatedly condemned the practice of experienced peace officers while on the witness stand making voluntary statements prejudicial to the rights of the defendant on trial. Wire v. State, supra; Harris v. State, 88 Okla. Cr. 422, 204 P. 2d 305; Holleman v. State, 74 Okla. Cr. 258, 125 P. 2d 239.

This case presents one of the most deliberately flagrant situations of a prejudicial voluntary statement by an experienced peace officer, presented to this court. The trial court should have sustained the objection to the voluntary statement and admonished the jury, but it did not do so. However, a review of the entire record convinces us that the jury was justified in finding the defendant guilty. Moreover, we are convinced a re-trial of this case would only result in another jury finding the defendant guilty. Since the imposition of penalty was left up to the court and the court made no further inquiry as to the defendant’s prior record, we could only assume that in pronouncing the judgment and sentence, the trial court was influenced by this highly incompetent evidence in fixing the penalty, to the defendant’s prejudice. Therefore, under the conditions and the provisions of Title 22 O.S.A. 1941 § 1066, the judgment and sentence should be and hereby is accordingly modified to 15 years in the penitentiary, and as so modified, is affirmed.

JONES, P. J., and BAREFOOT, J., concur.


text:
    HENRY CLYDE WALKUP v. STATE.
    No. A-10957.
    March 30, 1949.
    (205 P. 2d 332.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Henry Clyde Walkup, was charged by information filed in the county court of Coal county, with the offense of driving an automobile on a highway while under the influence of intoxicating liquor, was tried to a jury who returned a verdict of guilty and fixed the punishment at a fine of $1. Sentence was pronounced in conformity with the verdict of the jury.

Two assignments of error are presented by the appeal : First, it is alleged the trial court erred in overruling the motion of the defendant to quash the special venire; second, that the closing argument of the county attorney was improper and prejudicial.

At the commencement of the trial, counsel for defendant objected to the special venire which was summoned by the sheriff of coal county for the reason that one of the sheriffs deputies, Alfred Morrison, was endorsed on the information as a witness.

By statute it is provided:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in. the same form, and determined in the same manner as if made to a juror.” Tit. 22 O.S. 1941 § 639.

It was the purpose of this statute to provide that the open or special venire to complete a jury should be summoned by an officer not disqualified by reason of interest, bias, or prejudice. The burden is upon the defendant to make a showing in support of his objection to the special. venire that it was summoned by an officer who was disqualified by reason of his interest, bias, or prejudice. Hammock v. State, 52 Okla. Cr. 429, 6 P. 2d 16; Welch v. State, 36 Okla. Cr. 298, 254 P. 503; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Donaldson v. State, 73 Okla. Cr. 41, 117 P. 2d 555.

In Koontz v. State, supra [10 Okla. Cr. 553, 139 P. 844], it is stated:

“The language of the statute is so plain that no room is left for interpretation. It authorizes a challenge to the panel on account of the bias of the officer who summons a jury on an open or special venire, upon what would be good ground of challenge to a juror for bias. If, then, a challenge for cause would have been sustained against a person called as a juror because he was a material witness for the state, a challenge would also lie upon the same ground to a panel summoned by him. If he would not be qualified as a juror because of actual or implied bias, as defined by sections 5858 and 5859 (Kev. Laws 1910) [22 O.S. 1941 §§ 659, 660], he would also be disqualified for the same reason to summon a jury, in whole or in part, whose names are not drawn as jurors from the jury box.”

Counsel for defendant did not contend that the sheriff was a witness for the state or that he had any bias or prejudice against the defendant; but, apparently based his objection solely upon the ground that there was implied Mas on the part of the sheriff where he had a deputy whose name was endorsed as a witness on the information.

Counsel for the defendant had the right to offer proof in support of his objection by having the deputy sheriff sworn and also the sheriff, or any other evidence he might wish to offer in support of his objection. The burden was upon him to present evidence to sustain his objection to the panel. If the deputy sheriff had summoned the jury, then the fact that he was endorsed as a witness on the information and intended to testify on behalf of the state would have been sufficient under the above authorities to show implied bias of the summoning officer, and a denial of the challenge to the special venire would have constituted reversible error; but, the record as presented to us is insufficient to warrant this court in saying that the objection should have been sustained. Not only was no evidence offered in support of the objection to the special venire, but the record fails to disclose any specific challenge for cause made to any of the individual jurors or whether any of the individual jurors came from the special venire which was summoned by the sheriff.

Counsel for defendant states in his brief that there were eleven of the members of the regular jury panel in attendance upon the court at the time the order was issued to the sheriff directing him to summons the special panel. The record does not show just how many members of the regular jury panel were in attendance upon the court, nor does it show how many of the members of the regular jury panel served as jurors in the instant case.

It is our conclusion that the record is insufficient to justify this court in concluding that the trial court erred in denying the objection to the special venire.

The contention that the argument of the county attorney was prejudicial is meritorious. In this case the principal witnesses against the accused were two members of the highway patrol who testified that the deceased was in a drunken condition at the time he was arrested in his automobile on main street in Coalgate about 1:45 a. m. The argument to which this assignment of error is directed is as follows:

“The record is written all over this county and over the State of Oklahoma, that the good citizens of Coal county, Okla., contributed $1000.00 towards the purchase of an antennae and to procure a Highway Patrol station in Coal county. Why? They know why. For such men as this defendant, Henry Clyde Walkup, on trial here today. That is why we have' them here. We asked for them, and we have them here. The good citizens purchased the antennae and radio and furnished an office in the American Legion Hut. He makes much ado about Lt. Merriot, Harvey Hawkins and W. H. Bailey. Let me tell you something. If it was not for such men as Henry Clyde Walkup and others who violate the law, Lt. Merriot, Harvey Hawkins, W. H. Bailey, and I and you would not have to be here or would not have to have the Court; but we have to have them to deal with those who violate the law. * * * There is no question if the State has not made the case of driving while under the influence of intoxicating liquor; the evidence is here. The evidence was in the car. It is up to you whether you want to let him go free or whether you want to penalize him. I have done my duty. He was tried today, as a last resort. You Gentlemen shall determine whether you want drunken driving stopped or whether you want Henry Clyde Walkup or various other men in the county to drive while under the influence of intoxicating liquor.”

This was a close case where the jury assessed only a $1 fine. If the defendant was guilty of driving his automobile in a drunken condition, he deserved a more severe punishment. The fact that the jurors gave him only what might be termed a light tap on the wrist is strong evidence that the verdict was the result of compromise and the verdict might have been influenced by reason of the improper argument of the county attorney concerning the work and expenditure made by the citizens of Coal county to procure a highway patrol station in Coal county. Such argument had nothing to do with the guilt or innocence of the defendant, but when called to the attention of the jurors, it might have caused them to return the verdict of guilt solely because the citizens of the county were anxious to have a highway patrol unit stationed there. There was ample evidence to have justified the jury in finding the defendant guilty but if they had believed the evidence of defendant and his witnesses,. they could have returned a verdict of not guilty.

In the recent case of Turpen v. State, 89 Okla. Cr. 6, 204 P. 2d 298, this court stated:

“Counsel for state and defendant are entitled to great latitude and a wide freedom of expression in presenting their arguments to the jury. However, this latitude given to counsel does not authorize the use of prejudicial statements calculated to inflame the passion of the jury.”

By reason of the improper argument of the county attorney, the judgment and sentence of the county court of Coal county is reversed and the cause is remanded for a new trial.

BAREFOOT and BRETT, JJ., concur.


text:
    CHARLES THOMAS WINGFIELD v. STATE.
    No. A-10936.
    March 30, 1949.
    (205 P. 2d 320.)

      W. J. Crump, of Muskogee, and Geo. C. Crump, of Wewoka, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, Charles Thomas Wingfield, -defendant below, was charged in the district court of Muskogee county, Okla., with the murder of a soldier, Edward F. Kucza, 21 years of age. He was tried, convicted of first degree manslaughter, and sentenced to 20 years in the penitentiary at McAlester, Okla. From the judgment and sentence therein this appeal is perfected. . *•

The first contention of the defendant is that the evidence is not sufficient to sustain the conviction. This contention calls for a brief resume of the evidence. This case has been twice tried and twice appealed. There is no substantial difference in the facts in this appeal and the prior appeal reported in Wingfield v. State, 81 Okla. Cr. 146, 160 P. 2d 945. Herein the facts appear to be that on or about September 20, 1942, the defendant was the owner of two cabin apartments about a block from the business section in Braggs, Okla., near Camp Gruber, wherein the defendant was employed as a warehouseman by the Government of the United States. A corporal, Elliott W. Sanders and his wife, occupied the cabin just south of the one in which the defendant and his wife resided. The cabins were about 12 feet apart. It further appears that on the night of September 20th the Sanders had retired rather early. On realizing that they had no bread for breakfast Mrs. Sanders suggested that her husband dress and go to a nearby store and get some. Mrs. Sanders worked in a laundry and had to be on the job between 7 and 8 o’clock in the morning. When Sanders returned he saw some one loitering near his cabin window. His wife was inside with the light burning. Sanders accosted the man and told him to go back to town or wherever he came from. Thereupon he said the deceased staggered off. He then went inside and was told by Mrs. Sanders that some one had been peeping in the window, and prowling around the house. Sanders then went outside to see if the man had gone. He found the deceased still there, and said he had a gun in his hand. He told Kucza to put it away, that he was not afraid of him. The deceased then said “Now, by God, if you want anybody to go, you son of a bitch, you start moving — by God, you turn around,” which he did and started back to the cabin. Sanders then turned around and the deceased shot at him. Sanders then turned back around and returned to his cabin, helped his wife put her coat on and they went to the Wingfields for aid. Wingfield suggested that he should report the matter to the Military Police up town. Leaving his wife at the Wingfields’ he went to town for the M. P.’s. The M. P.’s came back with him and made a search and found no one, and together with Sanders they returned to town, to look for the window-peeper in a beer joint. While Sanders and the M. P.’s were gone, Mrs. Sanders suggested she heard a noise at her cabin. Wingfield loaded his double barreled .410 shotgun and went outside to investigate. He found the deceased Kucza coming around the corner of the cabin. He said that the deceased looked as though he was drunk. He admonished Kucza to leave the premises which he did not do, so he put him under arrest and told him he was going to deliver him to the M. P.’s. Wingfield said he was marching him down the street and he did not move as he thought he should and he fired the .410 into the air to frighten Kucza. He then proceeded down the street 8 or 10 feet behind the deceased, until they reached the shadow of a large elm tree, where the deceased suddenly turned on him and it looked to him he said as though he were going for a gun. He said, his wife hollered “Look out, he is going to shoot,” and the defendant shot intending “to wing” him; instead the deceased Kucza was shot just below the right nipple from which wound he died. Some of the shotgun pellets were removed from the heart and some of the wadding was taken from his liver. Defendant claimed he fired in self-defense believing 'that his life was in peril or that he was in danger of suffering great bodily injury.

A Mr. Harris who lived in the vicinity of the killing testified he heard defendant say “God damn you, don’t make no gun play at me.” In this connection the record is conclusive that the deceased was unarmed.

Three times at the suggestion of the defendant the M. P.’s searched Kucza in Wingfield’s presence for firearms and found nothing. The record does disclose, however, that when Kucza was searched at the hospital he had three cartons of .45 caliber pistol shells on his person.

Mrs. Wingfield testified that when Kucza turned around and put his hand up to his shirt, Wingfield shouted, “Look out, Esther, he is going to shoot,” and when her husband shot she did not recall him saying, “God damn you, don’t make no gun play at me.”

This constitutes the gist of the evidence. We have carefully examined the record as a whole. As herein-before pointed out the defendant’s theory is that it appeared to him that he was in danger of losing his life or suffering serious bodily injury and that in killing Kucza he acted in self-defense. The state’s contention was that even though he was defending against an assault, the plea of self-defense would not be available to him because he used unreasonable and unnecessary force to repel the same. Upon the foregoing evidence the jury decided the issue against the defendant. This court has repeatedly held that before the Criminal Court of Appeals will interfere with the jury’s verdict on the ground that the evidence was insufficient to sustain the conviction, there must be no competent evidence in the record upon which the verdict could be based. Rule v. State, 84 Okla. Cr. 347, 182 P. 2d 525; Ritter v. State, 84 Okla. Cr. 418, 183 P. 2d 257. Furthermore, we have held that the function of the Criminal Court of Appeals in considering the sufficiency of the evidence is limited to ascertaining whether there is a basis in the evidence on which the jury can reasonably conclude that the defendant is guilty as charged. Ray v. State, 86 Okla. Cr. 68, 189 P. 2d 620; Peterson v. State, 86 Okla. Cr. 302, 192 P. 2d 286. Moreover, it has been held that the evidence is sufficient unless there is no testimony in the record from which the jury reasonably could conclude that the defendant was guilty. Sweat v. State, 69 Okla. Cr. 229, 101 P. 2d 648. Furthermore, if there is evidence to support the conviction, this court will not weigh the sufficiency of the same to support the verdict. Freeman v. State, 69 Okla. Cr. 164, 101 P. 2d 653. The weight and sufficiency of the evidence is a matter for the jury to determine. Doty v. State, 71 Okla. Cr. 171, 110 P. 2d 298; Fleetwood v. State, 71 Okla. Cr. 147, 109 P. 2d 240. Applying the foregoing rules to the evidence herein the jury’s verdict is binding on this court. The deceased being unarmed and some 8 or 10 feet from the defendant, the jury could with reason have concluded that the defendant used more force in repelling the assault than was reasonably necessary. Apparently they believed he was too eager to pull the trigger. In any event it is the jury’s province to weigh the evidence and here, it is ample from which they could draw the foregoing-conclusion.

The defendant’s second contention is that the court committed reversible error in giving as a part of instruction No. 2 the following language:

“For your information and so that you may understand clearly the issues herein, you are told that the law governing the facts before you has, upon review, been laid down by the Criminal Court of Appeals of this State * * * and. based upon said statute and such facts said Court has held that the defendant, Wingfield, had the right to arrest the deceased and, therefore, no question is submitted for your consideration on this point.
“Further and in this connection you are told that under said opinion of said Court * * *”

This contention is predicated upon Title 22 O.S.A. 19-11 § 951, reading as follows to-wit:

“A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew except of witnesses who are absent from the state or dead, in which event the evidence of such witnesses on the former trial may be presented; and the former verdict cannot be used or referred to either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment or information.”

In Stough v. State, 75 Okla. Cr. 62, 128 P. 2d 1028, 1010, this court said:

“It has often been decided by this court that when a new trial is granted this places the defendant in the exact status as if no trial had been had. Watson et al. v. State, 26 Okla. Cr. 377, 221 P. 368; Snelling v. State, 41 Okla. Cr. 124, 271 P. 687; Duncan v. State, 41 Okla. Cr. 89, 270 P. 335; Bayne v. State, 48 Okla. Cr. 195, 290 P. 351.”

The foregoing statute and cases must be construed and applied in the light of reason. In the trial of this case there were many references to the former trial and much reading from the testimony given by witnesses therein who were absent at the trial now under consideration. Under these conditions, a reasonably intelligent jury might rightly conclude that there may have been a former conviction, which had been set aside on either a motion for new trial or by reason of reversal on appeal. To not so reason would be to indulge the presumption that the jury was composed of men wholly unversed in such matters. In this enlightened age we believe such an assumption would be based on a false premise. However, we do not in any sense approve the court’s allusion to the reviewing of the opinion of the Criminal Court of Appeals in relation to the defendant’s right to make the arrest of the deceased. It was entirely unnecessary, and was error for the court so to do, but error of a technical and not a substantial nature. It did not tell the jury anything, which, under the conditions, they did not already know. We are therefore of-the opinion that it was not such an error that merits a reversal of this case, but falls within the harmless error doctrine under Title 22 O.S.A. 1941 § 1068. In this connection, however, we must point out that each case of this nature must stand or fall upon the circumstances therein involved. We can visualize circumstances and conditions where such a situation would be highly prejudicial to the defendant and might warrant reversal, but such is not the situation in the case at bar.

Further under this proposition the defendant contends the court committed reversible error in not giving instruction No. 2 as requested by the defendant. With this contention we cannot agree. It would have been erroneous to have given said instruction, for the reason that it contains the following language in reference to the defendant to the effect “it was Ms duty to arrest Kucza at the time be arrested him.” We know of no statute placing upon the defendant, as a private citizen, such a duty, under the conditions herein involved, and to have so instructed the jury would have been erroneous. Nor would it have been proper to have instructed the jury that “the Military Police were the proper persons to whom the defendant should have been delivered.” The defendant being a civilian and hot having committed an offense on a military reservation, it is obvious that the civil and not the military authorities were the proper persons to whom to deliver the defendant. To have given this instruction certainly would have been error, and the defendant’s contention in this connection is wholly without merit.

Moreover, under this proposition the defendant contends that instruction No. 2 was erroneous in that the court concluded with the clause “and whether or not the defendant used unreasonable and unnecessary force to repel the assault.” We believe the question stated is in keeping with sound law, in fact, the test is whether the defendant used unnecessary and unreasonable force in making the assault in his attempt to deliver the deceased to the proper authorities and in resisting the alleged assault. In State v. Cephus, 6 Pennewill, Del. 160, 67 A. 150, it was said:

“In resisting an assault no more force may be used than is necessary, and if the person assaulted uses in his defense greater force he becomes the aggressor.”

To the same effect is State v. De Paolo, 26 Del. 176, 84 A. 213. We believe this to be a correct statement of the law. Under the facts herein the jury apparently believed more force than reasonably necessary was used to repel the assault, resulting in the death of Kucza, and therefore the jury found the defendant guilty of manslaughter. There is a distinction in this instruction and the one given in Franks v. State, 8 Okla. Cr. 71, 126 P. 582, 584, cited by the defendant. Therein the trial court said “the defendant, Franks, had a right to use just such force as was necessary in order to save himself from receiving great bodily injury and no more.” That instruction required the jury to determine whether defendant had measured the force with much exactness which men do not do under heat of passion. To so instruct the jury was clearly erroneous. But here, the jury was instructed that they were to determine from the facts whether the defendant used unreasonable or unnecessary force to repel the assault. Therein lies, the distinction in the case at bar and the Franks case, supra. Such distinctions are well recognized in the law. If they were not there would be no such thing as varying degrees of guilt. We find such distinctions running all the way through the law such as simple assault and aggravated assault. The effect of the instruction in the Franks case was to place upon the defendant the duty of measuring under the heat of passion the force to be applied. The effect of the instruction in the case at bar placed upon the jury the responsibility of measuring under the circumstances, the force applied by the defendant and to determine whether or not he used more force than was reasonably necessary to repel the assault. For the foregoing reasons we do not believe instruction No. 2 is erroneous and this contention is without merit.

Defendant’s, third contention is that the trial court erred in giving instruction No. 3. The first point in relation thereto is that it placed upon the defendant the burden of retreat and required him to run. This is wholly without merit for the reason that in briefing this contention defendant apparently through oversight omitted to observe the word “not” in said instruction. When inserted as it appears in the case-made it would have made the last clause in the instruction read “except that he is not bound to retreat to avoid the necessity of so doing.” The lack of merit of this contention is obvious.

The balance of defendant’s third contention relates to the last paragraph of instruction No. 3, reading as follows:

“The foregoing are in short the governing laws of self-defense but the plea of self-defense is not available to a person who uses unreasonable or unnecessary force to repel the assault.”

He contends that this part of instruction No. 3 does not submit to the jury the proposition of whether the defendant reasonably believed that he was in danger of losing his life or having great bodily injury done to him. Standing alone, this part of the instruction would be inadequate, but such is not the case. Subsections (c) and (d) of instruction No. 3 do submit the question of whether defendant reasonably believed he was in danger of losing his life or having great bodily injury done him. They read as follows:

“(c) The danger, or apparent danger, must be viewed from the defendant’s standpoint, and no other — with the further reservation, however, that he cannot use greater force in repelling the threatened attack than reasonably appears to him sufficient to do so, and that he must exercise his judgment with respect thereto as a reasonable man.
“(d) The defendant has the right to use whatever force reasonably appears to him under the circumstances to be necessary to repel the attack or threatened attack and avoid injury to himself, even to the extent of taking human life — and if, when viewed from his standpoint at the time, it reasonably appears that the killing was necessary to prevent death or great personal injury to himself, then the killing will be justifiable.”

The objection to the first quoted portion of instruction No. 3 is not unlike the complaint raised hereinbe-fore as to instruction No. 2, and what we have said in relation thereto hereinbefore applies to this contention. See Rich v. State, 31 Okla. Cr. 391, 395, 239 P. 183, 184, cited and relied on by the defendant, wherein the court had instructed the jury “a person who is unlawfully attacked has a right to use force, and'no more, as reasonably appears to him to be necessary under the circumstances.” This court said:

“The defendant claims that this declaration is condemned in the case of Franks v. State, 8 Okla. Cr. 71, 126 P. 582. An examination of that case will disclose that the instruction there given and the facts to which it was meant to apply are different from those in the instant case.
“The clause, ‘as reasonably appears to him to be necessary under the circumstances’ (for his protection), states the true rule, and this instruction is not subject to condemnation as pointed out in the Franks case, or the case of Brown v. State, 15 Okla. Cr. 64, 175 P. 66.”

The situation there confronting the court was similar to the one confronting us in the case at bar. As indicated in the Rich case the instruction must be read as a whole. If the court had given only the portion of instruction No. 3, as complained of by the defendant, in the concluding clause of said instruction, we are inclined to believe that there might be merit in defendant’s contention, but when read in the light of subsection (4), hereinbefore referred to, and when considered in the light of Rich, v. State, we can reach no other conclusion than that this contention is without substantial foundation. We do not see how instruction No. 3 could have been any more favorable to the defendant without being, unfair to the state.

The fourth contention of the defendant is wholly without merit. It is an attempt to make a play on words given by the court in instruction No. 6 to the effect “about to make an attack upon him” and the language contended for by the defendant “about to be assaulted by the deceased with a pistol ” It is worthwhile to note in this connection that the language complained of in this instruction compares favorably with the language used by the defendant in his requested instruction No. 1 reading in part as follows:

“While in such custody committed an overt act and made demonstration or demonstrations in such a way as to cause the defendant to reasonably believe that he was about to be assaulted by the deceased.”

There is little difference in the substance of the two expressions. Certainly the language complained of, in our opinion, does not deprive the defendant of any substantial right by failing to use the word pistol in the said instruction; equally is this true, in view of the language of instruction No. 9 hereinafter set forth, wherein the court used the expression “about to make an assault upon him with some weapon.”

The fifth contention of the defendant relates to the trial court’s instruction No. 9 and the court’s failure to give defendant’s requested instruction No. 1. We have carefully examined both instruction No. 9 given by the court and instruction No. 1 as requested by the defendant. Instruction No. 9 given by the court is substantially the same as instruction No. 6 given at the former trial of the defendant. Judge Barefoot in the former opinion by this court, found no error in instruction No. 6 therein given, and we find none in instruction No. 9. In our opinion, it constitutes a fair statement of the law of self-defense, fair both to the state and to the defendant. We will not set out defendant’s requested instruction No. 1. It is sufficient to observe that said instruction as requested by the defendant is more favorable to him than to the state. It places undue emphasis upon facts favorable to the defendant to the prejudice of the state. To give such an instruction is contrary to the law. In Turpen v. State, 89 Okla. Cr. 6, 204 P. 2d 298, we said:

“It is improper for the court to comment upon or stress particular evidence of either the State or defendant in the instructions given to the jury. ■ The instructions should fairly state the law applicable to all of the issues raised by the evidence, but should leave the questions of fact for the determination of the jury.
“Court did not err in refusing requested instruction of defendant Avhich would have emphasized certain evidence of the defendant and Avould have amounted to a comment upon the weight of the evidence.”

In the light of the foregoing we are of the opinion that this contention is without merit.

The defendant’s sixth contention is that the court erred in not giving his requested instruction No. 4, reading as follows:

“You are further instructed that there are two kinds of danger known in law:
“First, there is real danger of death or great bodily harm. Second, from the appearances presented to the defendant, he thought at the time of the shooting he was in danger of death or great bodily harm, though in truth and in fact, there Avas no such danger, and in this connection, you are instructed that the defendant has the same right to act upon the appearance of danger as if the danger was real.”

To have given this instruction would have been entirely improper, particularly the language “he thought at the time of the shooting he was in danger of death or great bodily harm” amounts to an instruction on the facts which could only be calculated to influence the jury in favor of the defendant to the prejudice of the state. It certainly would have been construed as a comment by the court, indicating its opinion, as to the evidence in the case. This contention is without merit. That part of the requested instruction that is proper is fully covered in the instructions that were given.

The defendant’s seventh contention is that the court erred in not giving defendant’s instruction No. 7 reading as follows:

“You are/ further instructed that if there is a fact or circumstance growing out of the hilling of the deceased that is capable of more than one construction, you are instructed to place upon that fact or circumstance the construction most favorable to the defendant.”

This requested instruction is but another way of instructing on the doctrine of reasonable doubt, which had been adequately covered in the court’s instructions. Hence there was no reason to give requested instruction No. 7 and it was not error not to give it.

The defendant’s eighth contention relates to the court’s refusal to give defendant’s requested instruction No. 13, in relation to the defendant’s right of self-defense. The trial court had adequately instructed the jury on the right of self-defense in instruction No. 3. In our opinion it was not error under the conditions to refuse to give defendant’s requested instruction No. 13 in the face of instruction No. 3 as given, adequately instructing the jury on the right of self-defense, the pertinent portion of which is quoted in the discussion of proposition No. 3.

We have carefully examined the instructions given by the court in the case at bar as -well as the entire record. This record is particularly free of substantial errors. This court has repeatedly held in conformity with the provisions of Title 22 O.S.A. 1941 § 1068, that a judgment of conviction will not be reversed on the ground of misdirection of the jury, unless, after an examination of the entire record it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of. the constitutional or statutory rights of the defendant. Curtis v. State, 69 Okla. Cr. 278, 101 P. 2d 1062; Bradley v. State, 85 Okla. Cr. 288, 187 P. 2d 677. The foregoing instructions complained of in our opinion do not amount to a miscarriage of justice nor constitute a violation of any of the defendant’s constitutional or statutory rights.

The defendant’s ninth contention relates to the disqualification of the county attorney, who was of counsel for the defendant in the first trial, and to the appointment of a special county attorney and a special prosecutor both of whom did not take an oath of office before performing the duties of special county attorney and special prosecutor. The pertinent part of the court’s order reads as follows:

“It is further ordered that Douglas Garrett and June Bliss be and are hereby appointed as special county attorney and prosecutor in such Court and after they have taken the oath, they are to assume all responsibilities and duties in the prosecution of said action that the county attorney may rightfully assume.”

The foregoing order appointing a special county attorney is authorized under the provisions of Title 19 O. S. A. 1941 § 187, as follows:

“The district court, whenever there shall he no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to act may, appoint, by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose.”

It is apparent that the court was without authority to appoint June Bliss as special prosecutor under the foregoing provisions of the statute. The law only provides for the appointment of one. If he could appoint more than one he could appoint many. Such is not the law. However, in the absence of an affirmative showing of substantial prejudice,-the error can only be regarded as technical. In the instant case there is no such showing. It appears only to put the county to an unnecessary and unauthorized expense. It was not such an error as would avail the defendant.

In this connection it is further contended that Juné Bliss could not qualify as special prosecutor since he was not a resident of the county. Such contention might apply to the special county attorney, Douglas Garrett, who should possess the same legal qualifications of a duly elected county attorney, among which is that he must be a resident of the county from which he is elected. For the qualifications of county- attorney and special county attorney see Title 19 O.S.A. 1941 §§ 131, 181, 187. But a special prosecutor does' not necessarily have to reside in the county where the case is being tried. To hold otherwise would eliminate in many cases able special prosecutors privately employed. Such qualifications of special appointees therefore as to residence applies only to a special county attorney serving as a substitute for tbe duly elected county attorney. If the appointment of the special county attorney is regular, the fact he may have been assisted by others would be immaterial. In this connection, it is not contended that Douglas Garrett was not a resident of the county. He was therefore eligible to serve as special county attorney if otherwise qualified. It is not contended that he was not qualified except in one regard, which brings us to the final contention of the defendant.

Finally, defendant contends that neither Douglas Garrett or June Bliss were qualified to act as special county attorney or special prosecutors since they did not take and file a special oath of office as such special officers. This court has held in Dodd v. State, 5 Okla. Cr. 513, 115 P. 632, 633, that:

“* * * (b) A special county attorney, when properly appointed by a trial court, before attempting to exercise the functions incumbent upon him by the appointment, should qualify as the law requires.
“(c) A special county attorney, although lawfully appointed by proper order of the trial court, cannot lawfully perform any of the duties incumbent upon him until he first qualifies as provided by law.”

In addition to the Dodd case, the cases of Bethel v. State, 8 Okla. Cr. 61, 126 P. 698, and Lizar v. State, 82 Okla. Cr. 56, 166 P. 2d 119, both indicate by implication the necessity for the special county attorney taking and filing a special oath before assuming such special duties. We know of no statute requiring the same. Quite frankly in view of the oath every-member of the bar must take, Title 5 O.S.A. 1941, § 2, we are of the opinion that little could be gained by requiring another oath to perform special duties. In fact, we are impressed with the logic in State v. Buhler, 132 La. 1065, 62 So. 145, 149, as follows:

“It is true that counsel appointed by a court under the act cited above had important functions to discharge. None the less he is not a regularly elected or appointed officer; and, although his duties are highly important to the state, the law certainly does, not require an oath to be taken. He is at all times an officer of the court, who may be called upon by the court to perform a special service. Was he an officer in the sense of the Constitution? If he was, an oath should have been administered; but he is not an officer in that sense, and therefore it does not follow that an oath should be administered, although, as abundance does not vitiate, it may be preferable to administer an oath. Under the Act of 1817, p. 42, regarding the appointment by the court, the court had authority to appoint an attorney to prosecute. In State v. Viaux, 8 La. Ann. [514] 517, an appointment was made under the authority of the cited act, which is similar to the act, before cited, of 1886 as relates to the particular point in discussion. The question arose in the cited case whether the appointee was an officer in the sense of the Constitution. This court held that he was not; that he was acting for an officer but not as an officer. If that decision be correct (and there is no intimation anywhere that it was ever held otherwise), there was no necessity of administering an oath. We will state, in order to cite another authority, it is, as before suggested, advisable that the oath be taken, but, if no objection be made at the time, it does not give rise to grounds sufficient to set aside a verdict. State v. Cato, 116 La. [195] 198, 40 So. 633; Eng. & Am. Ency. of Law, vol. 23, p. 299, No. 5.”

While it may be advisable to require such an oath, and certainly could not be objectionable, it is not necessary for us to pass upon the question for the reason that no objection was interposed at the proper time to such failure so to do. From all of the cases we have found on the subject such ground is unavailing unless timely objection was interposed. Here, the protest and objection was not urged at the proper time, or urged at all. The defendant filed what he labeled a protest and objection, the pertinent part of which is as follows:

“ * * * That the said Douglas Garrett and June Bliss are not, nor is either of them, the duly elected or appointed and qualified county attorney of Muskogee county, Okla., and have never been elected, appointed or qualified as such in the manner and form required by law, nor have they, or either of them, ever been elected, appointed and qualified as special county attorney or prosecutor as required by law. That June Bliss is not a resident of Muskogee county.”

The record discloses that counsel for the defendant in presenting the said protest did not urge the contention they now make as to failure of the special county attorney and prosecutor to take an oath before assuming such duties. On the contrary, it clearly shows, quoting from Judge Summers, the discussion on the protest “was limited to the fact that there was an assistant county attorney who was not legally disqualified to try the case and the attention of the court specially directed to that ground of the objection” and “the suggestion that the special counsel were not legally qualified was not otherwise given any direct consideration, either by. counsel or by the court,” other than the allegations contained in the protest, supra. In other words, it appears that counsel for the defendant were “laying behind a log” which practice we do not approve. It takes unfair advantage of the trial court and the state. It is an attempt to create a point by technical silence which if urged would be obviated and the technicality destroyed. Such conduct is similar to complaining about the court’s failure to instruct on a certain feature of a case, without at the time of trial suggesting the necessity of such an instruction. This court has often said it will not permit that kind of contention to prevail. Likewise we are of the opinion that since this contention relative to the failure of the special county attorney and prosecutor to take an oath was never argued to the court, merely filing a protest which did not clearly disclose such grounds hut from which such argument might have been made, but was not made, does not amount to a valid presentment and objection. To hold otherwise would compel us to look at form and not at substance. We are therefore of the opinion that this ground was waived by failure to present the same to the trial court so that he could intelligently pass upon the objection hidden in the protest, but never disclosed to the trial court until the filing of the motion for new trial. We do not feel constrained to make of criminal procedure a game, where the trial court must match wits with the lawyers in an effort to ascertain hidden purposes, which they may not choose to disclose, in order to gain future advantage. Under the conditions herein presented we must conclude this proposition is likewise without merit.

We are aware, however, of the fact that this case was tried during a time of excitement created by war, and the deceased Nueza was a soldier. We are inclined to believe that the severity of the penalty imposed may have been prompted by the heat of wartime temper and prejudice. Moreover, we are impressed with the fact that the defendant had never before had a brush with the law, but had been a good, peaceable law-abiding citizen as disclosed by the record. Furthermore, the record discloses that the killing was without malice. The defendant had never seen or known the deceased and therefore was unlikely to have had any malice toward him. It further appears that by now the defendant is at least 66 years of age and to let the 20 year sentence stand would be equivalent to imposing a life sentence, which certainly the facts do not warrant. For these reasons and under the provisions of Title 22 O.S.A. 1941 § 1066, and in keeping with the ends of justice, we are of the opinion the sentence herein imposed should be and the same is hereby modified to ten years; otherwise the same is in all things affirmed.

JONES, P. J., and BAREFOOT, J., concur.