text:
    ODUS W. DAVIS v. STATE.
    No. A-3083
    Opinion Filed April 21, 1919.
    Rehearing Denied Sept. 6, 1919.
    (182 Pac. 908.)
    1. INTOXICATING LIQUORS — Possession with Intent to Sell'— Evidence. In a prosecution for having possession of intoxicating liquor with intent to sell the same, where the evidence shows that the place where intoxicating liquor is found is a public place to which any person might resort, evidence that the general reputation of said place is that it is a place where liquors are sold is competent and admissible.
    2. SAME — Sufficiency of Evidence. The entire record in this case carefully considered, and the evidence found sufficient to support the verdict and the judgment thereon rendered, and that the record is free from prejudicial error.

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

    Odus W. Davis was convicted of having possession of intoxicating liquors with the unlawful intent of selling the same, and appeals.
    Affirmed.

      W. J. Crump, M. G. Bailey, and Don M. Crump, for plaintiff in error. ' '

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

The plaintiff in error, Odus W. Davis, hereinafter • styled defendant, was informed against for the offense of having possession of intoxicating liquors with the unlawful intention of selling the same, convicted, and sentenced to serve a term of 60 days in the county jail of Muskogee county, Okla., to pay a fine of $250, and to pay the costs of this prosecution, and to stand committed until said fine and costs were paid. To reverse the judgment rendered, he prosecutes this appeal.

The evidence in this case is that there was a drug store, known as the “Owl Drug Store,” being conducted in the town of Haskell, in Muskogee county; that said drug store had upon it a sign reading,. “Owl Drug Store — Davis, Prop.”; that it was generally reputed in the community that the said store was the place of 'business of the defendant, where he usually was found, and that the defendant stated that he owned the said drug store; that there were also others in said store aiding in conducting the same; that the general reputation of said drug store w;as that it was a place where liquors were kept and sold; that liquor was sold in said store, but that the defendant in person did not make said sales; that on the 3rd day of January, 1917, officers of the law raided the said store, and found therein, behind the prescription case and in other places in said store, about “three quarts of Crystal Brook whisky, a quart of Gordon gin, a part of a quart of Crystal Brook whisky, and a quart of Violet Springs whisky”; that a part of a quart of the gin and some of the whisky were sitting at the end of the prescription case, and one quart of Crystal Brook whisky was in one of the drawers about the center of the drug store; that there were also found glasses a little larger than a whisky-glass in said store; that, when the officers went into said store to search the same, the defendant was using the toilet in said store, and that, when they found said whisky, one of the officers called the defendant, who came out of the toilet into the room where the whisky was found; that ■ one of the officers showed the defendant the whisky that had been found in the store; that the defendant • made no replies to questions asked him 'by the officers, went to the front of the store, slipped out, and was not again seen by the officers that day.

The defendant did not offer any evidence in the case.

The defendant first complains that the court erred in overruling the demurrer to the evidéncé.

A demurrer to the evidence is not authorized under Procedure Criminal of this state as the proper procedure to attack the sufficiency of the evidence. If the defendant thinks the evidence insufficient to sustain a conviction, he should request the court to direct the jury to acquit. Section 5896, Rev. Laws 1910; Frisby v. State, 5 Okla. Cr. 660, 115 Pac. 472.

However, we will consider said demurrer to the evidence as in effect requesting a directed verdict.

The uncontradicted evidence which clearly shows that a large quantity of intoxicating liquors was found in the drug store, generally reputed to be, and stated 'by the defendant as being, his place of business, at the time averred in the information; that within the time covered by said information whisky had been unlawfully sold in said drug store by persons engaged in aiding to conduct said store, but that such sales were not made by the defendant in person — together with evidence that the general reputation of the drug store in which said liquors were found was that it was a place where whisky was sold, was, especially in view of the fact that the defendant did not offer any defense to the offense charged, .sufficient to authorize the jury to reasonably infer that .the defendant was interested in the intoxicating liquors found upon his premises, said drug store; and the quantity of intoxicating liquors found in said store was prima facie evidence, which was not rebutted, that his intention was to unlawfully dispose of the same; and the court would have erred had he directed the jury to acquit the defendant.

In Ex parte Metcalf, 8 Okla. Cr. 605, 129 Pac. 675, 44 L. R. A. (N. S.) 513, it is held:

“In prosecutions for illegal possession of intoxicating liquors for the purpose of violating the prohibitory liquor law, it is not necessary to prove that the defendant actually owned the liquors in question. Proof that the defendant was in possession of such liquors, with the intention of violating the prohibitory liquor law, will sustain a conviction.”

In Billy Miles v. State, 14 Okla. Cr. 97, 167 Pac. 636, it is said:

“That the evidence shows that in the execution of a search warrant against the Diamond Drug Store, in the city of Tulsa, the officers found a sack containing about 40 bottles of beer behind the prescription case. There was' evidence tending to show that Billy Miles was the owner and proprietor of said drug store. There was no evidence offered” by the defendant.

It was held in said case that the evidence was sufficient to support the verdict.

Questions of fact are to be decided by the jury, and, when competent evidence has been introduced tending to prove the material allegations of the information, its weight and sufficiency are for the jury, not for the court. Section 5873, Revised Laws 1910.

It is contended that illegal testimony was erroneously admitted as to the ownership of said drug store, and as to the general reputation of the same, and with this contention we cannot agree. The defendant stated that it was his place of business in which said liquors were found, and the sign over its door read “Owl Drug Store — Davis, Prop.” The evidence that said drug store had the general reputation of being a place where whisky was sold was properly admitted.

In Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699, it is said:

“It is also contended that the court erred in permitting the state to prove the general reputation of the place where intoxicating liquors were found in defendant’s possession, as being a place where intoxicating liquors were unlawfully sold. This contention is without substantial merit; there being some evidence to the effect that such place was one . commonly resorted to by divers persons who were in the habit of drinking intoxicating liquors, and also evidence to the effect that defendant had made sales of intoxicating liquors at such place a short time previous to the time these particular liquors were found there.”

See Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557. See, also, Cameron v. State, 13 Okla. Cr. 692, 167 Pac. 339.

“In a trial for possession of intoxicating liquor with intent to sell the same, where the proof shows such possession at a place of public resort, and that such place was used for the purpose of selling intoxicating liquor, evidence of the general reputation of the place is admissible on the question of intent.” Caffee v. State, 11 Okla. Cr. 263, 145 Pac. 499.

Complaint is also made of the giving of the third instruction, given the jury, but, when the same is considered, as it must be, in connection with the other instructions of the court, the law of the case is sufficiently covered, and the giving of said third instruction is not prejudicial to the substantial rights of the defendant.

The motion for a new trial was properly overruled.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed.

DOYLE, P. J„ and MATSON, J., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    ODUS W. DAVIS v. STATE.
    No. A-3082
    Opinion Filed April 21, 1919.
    Rehearing Denied Sept. 6, 1919.
    (182 Pac. 909.)
    1 APPEAL AND ERROR — Review—Instructions as a Whole. Tlie instructions given tlie jury liy the court must be considered as a whole, and unless fundamental error is shown in the giving of a paragraph of said instructions, the case will not be reversed on account of the giving of such paragraph.
    2. SAME — Instruction—Fundamental Error. The paragraph of tlie instructions given in this case of which tlie defendant complains carefully considered, and held not to be fundamental error.
    S. APPEAL AND ERROR — Remarks of County Attorney — Review— Record. In order to have alleged improper- remarks of the county attorney to the jury reviewed, tlie record, outside of an averment in the motion for a new trial, must show that such remarks were made, and that such alleged remarks were objected to when made and request made to the court to withdraw same from consideration of the jury.

      4 INTOXICATING LIQUORS — Possession with Intent to Sell-Sufficiency of Evidence. Tie entire record in this case carefully read and considered, and the evidence found sufficient to sustain the verdict, and the judgment thereon rendered, and that no error prejudicial to the defendant intervened in the trial of the ease.

      Appeal, from Superior Court, Mitskogee County; H. C. Thurman, Judge.

    Odus W. Davis was convicted of having unlawful possession of intoxicating liquor with intent to sell the same, and appeals.
    Affirmed.

      W. J. Crump, H. G. Bailey, and Don M. Crump-, for plaintiff in error.

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

The plaintiff in error, Odus W. Davis, hereinafter called defendant, was by information charged with the offense of having intoxicating liquor in his possession with the intention to unlawfully sell the same, convicted and sentenced to servé ,a term of six months in the county jail of Muskogee county, Okla., at hard labor, to pay a fine in the sum of $500 and the costs of this prosecution, and to stand committed until said fine and costs are paid. To reverse the judgment rendered, he prosecutes this appeal.

The undenied evidence in this cáse shows that deputy sheriffs raided a dwelling in the town of Haskell, Okla., and found therein a very large quantity of intoxicating liquors, 200 or 300 quarts, at the time alleged in the information, and there was evidence tending to show that the dwelling in which said liquors were found was the dwelling of the defendant. The defendant did not offer any evidence in defense of the offense charged.

Upon the conclusion of the evidence the defendant demurred to the evidence, which the court overruled, and the defendant excepted. Demurrer to the evidence is not authorized by procedure of this state. If the evidence is thought insufficient, a request for a directed instruction of acquittal should be asked. We will consider the demurrer to the evidence as a request for a verdict for defendant to be directed by the court.

We have carefully read and considered all the evidence in the case, and we cannot agree with the contention of the defendant that the evidence is insufficient to show that the dwelling in which said intoxicating liquors were lound was the dwelling of the defendant, and to support the verdict and judgment thereon rendered, as we are of the opinion that such evidence was sufficient to reasonably es> tablish that said residence was the residence of the defendant, and that the quantity of whisky found was sufficient to show that the defendant intended to sell the same. The court would have erred if he had directed the acquittal of the defendant. •

The defendant contends that the court erred in giving the jury the third paragraph of the instructions given. Not so. The instructions must be considered as a whole, and, when so considered, we are unable to see that said instructions as a whole probably resulted in a miscarriage of justice or constituted a violation of a constitutional or statutory right of the defendant, and that the court erred in giving said paragraph. West v. State, 13 Okla. Cr. 312, 164 Pac. 327, L. R. A. 1917E, 1129; Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308.

The defendant further complains that the assistant county attorney, in addressing the jury, was guilty of remarks violative of section 5881, Rev. Laws 1910, 'but the record fails to show that the remarks alleged to have been made were made, except by an averment in the motion for a new trial, and the defendant admits in his brief that he did not object to said remarks at the time they were alleged to have been made. Under this state of the record we must decline to review said alleged improper remarks of the said attorney. Bob Walker v. State, 6 Okla. Cr. 370, 118 Pac. 1005; Normam Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57.

We think that the motion for a new trial was without merit, and properly overruled. •

The judgment of the trial court is affirmed. .

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


author: DOYLE, P. J.

text:
    W. C. PHILLIPS v. STATE.
    No. A-3325
    Opinion Filed Sept 13, 1919.
    (183 Pac. 521.)
    INTOXICATING LIQUORS — Unlawful Possession — Evidence. In a prosecution far the unlawful possession of intoxicating liquor, it was error to permit the prosecution to prove that three or four weeks after the filing of the information the officers found intoxicating liquors at the same place.

      Appeal from County Court, Stephens County; J. W. Marshall, Judge.

    W. C. Phillips was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.

      J. B. Wilkinson, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Phillips, was convicted on an information charging that in Stephens county, on or about the 17th day of July, 1917, he did have in his possession one pint of whisky with the intent to sell the same, and his punishment was fixed at confinement in the county jail for 30 days and a fine of $50. He has appealed from the judgment rendered upon such conviction.

There is hut a single question presented by the record in this case for our determination. It appears that Bush Rayburn testified that on the 17th day of July, 1917, he was deputy United States marshal, and about said date he went to a place about seven or eight miles east of Duncan with some parties with a search warrant and searched the defendant’s premises, finding a pint bottle of whisky with about a drink taken out. After other witnesses had testified, the witness Rayburn was recalled by the state, and over the defendant’s objection was permitted to testify that three or four weeks later, and after the information was filed in this case, he with other parties searched the same place and found 84 quarts of whisky in the loft of the residence. The testimony was objected to on the part of the' defendant as irrelevant, incompetent, and prejudicial, because the transaction testified to occurred after the offense is alleged to have occurred in this case, which objection was overruled. Thereupon counsel for the defendant moved the court to exclude this testimony from the jury, for the reasons stated. The motion was denied, and exceptions allowed.

This testimony was wholly incompetent, and the only effect of it must have been to prejudice the jury against the defendant in the case upon trial, and for this reason it was error to overrule defendant’s motion to strike. It follows that the judgment of conviction must toe reversed.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    W. P. HAWKINS et al. v. STATE.
    No. A-2825
    Opinion Filed Aug. 11, 1919.
    Rehearing Denied Sept. 13, 1919.
    (186 Pac. 490.)
    1. INDICTMENT AND INFORMATION — Joinder of Parties. Members of a lodge, which maintains a clubroom in which intoxicating liquors are sold to its members, and the barkeeper who makes such sales, though not a member of such lodge, may be legally jointly charged in one count for a violation of section 3610, Rev. Laws 1910.
    2. APPEAL AND ERROR — Instructions!—Reversible Error. The instructions given by the court to the jury and complained of by the defendant duly considered and found free from reversible error.
    3. INTOXICATING LIQUORS — .Sales in Clubroom — Evidence. The record of this ease carefully read, and found that the verdict of the jury is sufficiently sxipported by legal evidence, and the trial of the case free from fundamental error.

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

    W. P. Hawkins, C. S. 'Steele, D. N. Millhauser, R. W. Billingsley, Jess Campbell, A. S. Jones, and Charles Goucher were convicted of violating section 3610, Rev. Laws 1910, and appeal.
    Affirmed.

      George H. Giddings, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, W. P. Hawkins, C. S. Steele, D. N. Millhauser, R. W. Billingsley, Jess Campbell, A. S. Jones, and Charles Goucher, hereinafter called defendants, were jointly informed against for unlawfully, willfully, and knowingly keeping and maintaining a “clubroom” and place where whisky and beer were kept for sale to members of the Moose lodge, convicted, and 'Charles Goucher, Jess Campbell, D. N. Millhauser, and A. S. Jones each sentenced to imprisonment in the county jail of Oklahoma county for 30 days and each fined in the sum of $50, and W. P. Hawkins, C. S. Steele, and R. W. Billingsley each sentenced to imprisonment in said jail for 60 days and each fined in the sum of $100. To reverse the judgments rendered, they jointly prosecute this appeal.

It is assigned as error, but not argued, or authorities cited in brief in support thereof, that the court committed reversible error in overruling demurrer to the information ; therefore it must be regarded that said assignment of error is abandoned, and hence will not be considered.

The defendants have not in their brief abstracted the evidence as required by the rules of this court, and we do not feel it necessary to do so, especially in view of the candid admission on the part of the defendants in their brief that the law has been violated as charged in the information in this case, but averring that the guilt of all of the defendants has not been legally proved, because there is a want of corroboration of the evidence of accomplices by which the guilt of some of the defendants is shown. It is admitted in defendants’ brief that this does not apply to Hawkins, Steele, Millhauser, and Campbell by saying:

“With reference to Hawkins, Steele, Millhauser, and Campbell there is some corroborating testimony, because there are exhibits in the record, whereby they 0. K.’d certain bills for whisky, and there are certain declarations made by them with reference to the matter which probably were sufficient to carry the case to the jury on the question of corroboration. It is shown by the evidence and admitted by the defendants, that Billingsley was employed by the Moose lodge as its barkeeper, at a salary of 8100 a month, and sold intoxicating liquors in the buffet, which was an adjunct of said lodge and was maintained and run by it, and that said A. S. Jones was an officer of said lodge and a constant attendant thereof, and that Goucher was a member of said lodge and a member of its auditing committee, and at times was seen behind the bar of said buffet.”

It is most earnestly insisted by the defendants that, by reason of a want of corroboration of the evidence of accomplices by which the guilt of the defendants is shown, the evidence is insufficient to support the verdict of the jury, at least as to a part of the defendants, if not as to all. The defendants did not offer any evidence in their defense. In short, they contended that they are entitled to a Scotch verdict “of guilty, but not legally proven.”

If the statements made by Hawkins and Millhauser were illegally admitted, as to which it is unnecessary to express an opinion, under the admissions in defendants’ brief that there is some corroborating testimony of their statements sufficient to take the case to the jury, because there are exhibits in the record whereby Hawkins, Mill-hauser, Steele, and Campbell 0. K.’d certain bills for whisky, and there are certain declarations made by them with reference to the matter, the admissions of said'state-' ments were not prejudicial error as to' them.

That there was corroboration, other than by accomplices, as to the guilt of Jones, is shown by evidence that he was a member and officer of said lodge, and a regular' attendant thereof, and that’he was given a check by said lodge for beer that had 'been shipped in his name, arid hence there was sufficient evidence to sustain his conviction, if the statements of Hawkins and Millhauser be eliminated. Goucher is shown by the evidence, other than the statements of Hawkins and Millhauser, to be a member of the lodge and a member of its-auditing committee, and' • must thereby have had knowledge of the illicit sales of intoxicating liquors by said lodge, and also aided in the actuál sale of the same.

It being admitted by the defendants in their brief, and shown by evidence, other than by accoinplices, that Bil-lingsley was the barkeeper, hired by the lodge, and, dressed as such, actively engaged in selling intoxicating liquors in • the buffet of the lodge at the time the club was raided by * the officers, this evidence was sufficient to show his guilt without corroborating testimony.

Section 3610, Rev. Laws 1910, the law upon which this prosecution is founded, is as follows:

“Every person who shall within this state, directly or.. indirectly, keep or maintain by himself, or by associating' or combining with others, any clubroom or other place in which any liquor, the sale of which is prohibited by this chapter, is received or kept for the purpose of selling, bar-, tering, giving away, or otherwise furnishing, or for' dis--' tribution or division among members of any club or association by any means whatsoever, and every person who.' shall sell, barter, give away or otherwise furnish, dis-. tribute or divide any such liquors so received or kept shall be guilty of a misdemeanor.”

It necessarily follows that not only those directly en-' gaged in maintaining a place in which intoxicating liquors are kept for sale, though the place be the .buffet of a duly incorporated lodge, as in the instant case, but those who indirectly aid in doing so, are guilty of a violation of said section 3610; the directors and managers for authorizing, permitting, and directing such sales to be made, and the barkeeper for actually making such sale.

The contention that under the facts of this case the barkeeper must be separately prosecuted is without merit. Section 2104, Rev. Laws 1910, is as follows:

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

We are of the opinion that 'by sufficient legal evidence, especially in view of the admissions of defendants, speaking through their brief, in regard to the corroborating evidence as to a part of said defendants, all of the defendants are shown to be guilty of the offense with which they are charged, and that the verdict of the jury is sufficiently supported by legal evidence.

The court, amohg other instructions, gave the jury the following, viz.:

“You are further instructed that a conviction cannot be had upon the testimony of an accomplice or accomplices, unless corroborated by other evidence tending to connect the defendant, or one or more of said defendants, with the commission of the offense as alleged in the information; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice, as the word is here used, means any one connected with the crime committed, either as a principal offender or as one who aids and abets in the commission of the offense, though not present; it includes all persons who are connected with the crime by unlawful acts on their part committed either before or at the time of the commission of the offense, and if you find that the crime, as alleged in the information,, was committed by the said defendants, or by one or more of said named defendants; and if you.find that any witness or witnesses who have testified herein against said defendants, or any one or more of said named defendants, was an accomplice in the commission of said offense, then under the law it will be your duty to disregard the testimony of such witness or witnesses in so far as the same is against the said defendants, or either one or more of said named defendants, unless you further find that the testimony of such witness or witnesses is corroborated as herein stated.”

To the giving of said instruction the defendants duly objected, because the instruction “was utterly misleading and confusing,” and excepted to the giving thereof.

While said instruction might have been more clearly stated, we think, when the instructions as a whole are considered, as they must be, that it was not such as to confuse or mislead the jury, and that the court did not commit reversible error in giving said instruction. The court did not err in overruling the motion for a new trial.

Finding no reversible error in the record, the judgment of the trial court is affirmed.


text:
    D. B. BOYER v. STATE.
    No. A-2964
    Opinion Filed Sept. 16, 1919.
    (183 Pac. 620.)
    APPEAL AND ERROR — Denial of Continúame — Abuse of Discretion — Review. In order to causé a reversal of a conviction on account of the overruling of a motion for continuance, it must be clearly shown that the court in so doing abused its discretion.
    TRIAL — Remarks of Court. It is not proper for a court, when passing upon a motion for continuance, in the presence of attending jurors from whom a jury is to be selected to try the ease in which the motion is made, to express his opinion that “the motion is simply a ruse to pass the case over.”
    HOMICIDE — Information—Manner of Killing — Demurrer. An information charging, in substance, that a homicide was committed by means of a certain dangerous weapon, to wit, a neck yoke of a wagon, about three feet long, which they and each of them then and there held in their hands, then and thereby inflicting upon the body of the deceased mortal wounds, charges the length of the neck yoke and not the length of the wagon, and that the defendants held the neck yoke and not the wagon in their hands when they struck the deceased said fatal blows, and a demurrer to such information on the ground that it does not charge an offense, because it does not allege “the manner of use, the size of the neck yoke, and the place upon the body of the deceased which was beaten and wounded,” was' properly overruled.
    SAME — Location of Wound. Where a homicide is committed by •blows inflicted upon the body of the deceased with a neck yoke of a wagon, it is not necessary to charge in an information for such homicide, the particular parts of the body of the deceased upon which said blows were inflicted.
    HOMICIDE — Self-Defense—Instructions. The instruction given the jury in the instant case as to what facts would deny the defendant the right to avail himself of the defense of self-defense carefully considered, and held not to correctly state the law.
    APPEAL AND ERROR — Conduct of Trial Court — Reprimanding the Defendant’s Counsel Where the trial court, without just grounds therefor, in the presence of the jury severely reprimands the defendant’s counsel, assesses heavy fines against him, and orders that he be committed until said fines are paid, said action and conduct clearly tending to prejudice the defense before the jury, is held reversible error in this' case.

      WITNESSES — Exclusion of Evidence — Discretion of Trial Court. On trial for homicide, exclusion of questions to deceased’s wife, a witness for the state, as to character of place at which she had registered under an assumed name, as to whether she had occupied a room there with a named man the night before the trial, offered to show her want of virtue, was not an abuse of court’s discretion. t* .
    8. SAME — Admissibility of Evidence — Bias of Witness. On such trial for murder, her cross-examination as to whether she had executed a power of attorney of her interest in the prosecution, and as to whether she had endeavored to settle it for a money consideration, and failed, was improperly excluded, as it bore on the, weight and bias of her testimony and as to her feeling against defendant.

      Appeal from District Court, Tulsa County; George C. Crump, Assigned Judge.

    D. B. Boyer was convicted of manslaughter in the first degree, and appeals.
    Reversed and remanded.

      Woodson E. Norvell, for plaintiff in error.
    - S. P. Freeling, Atty. Gen., and R. McMillan, Asst; Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, D. B. Boyer, hereinafter called the defendant, was informed against jointly with Bill McGinnis for the murder of 'Claud Rima, tried separately, convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary at McAlester at hard labor for a term of five years. To reverse the judgment rendered, he prosecutes this appeal.

The defendant filed a verified motion for a continuance supported by an affidavit of his attorney’s physician, on the ground that his said attorney was physically unfit to undertake the trial of the defendant. The court, in -the presence of the attending jurors, remarked:

“That he anticipated that this action would be taken two or three days ago, before this case was called,- that Mr. Norvell was in the courtroom two days previous to the calling of the case, in the court’s chambers, and the court took judicial notice that when the case was called he got sick all at once, and from the conduct of the attorney just before the case was called, the court is of the opinion that this is simply a ruse to pass the case over. While the court is not a physician, the attorney representing the defendant was in the courtroom all day and in the court’s chambers and talked with him, and when the case was called for trial began to complain of feeling bad. It may be the excitement of this case that has unnerved him. This court gave the defendant from last Saturday until to-day to procure other counsel, and if the defendant didn’t procure counsel, it is his fault.”

The affidavit of the physician filed in support of said motion in substance was: That said attorney — Mr. Norvell —was at the bedside of his wife when a serious operation was performed on her, and for the succeeding 48 hours was almost in constant attendance upon her at the hospital; that anxiety, loss of sleep, and strain upon Mr. Norvell had greatly and seriously exhausted his vitality, and in consequence he was not at this time able to undergo any prolonged strain upon his mind, body, or nerves; that any continued draft upon his decreased vitality might, and probably would, result in complete nervous exhaustion and total collapse.

An exhaustive examination of the defendant developed that the defendant had employed Mr. Norvell as his attorney from the first of the case, and frequently conferred with him, that he had paid him $1,500 on account of his fee, and that he was unable to employ another attorney by reason of the fact that he had only $2.50 in his pocket and about $25 owing him, and had no other property except two horses, and that he had made no effort to get other counsel since the Saturday before.

Mr. Norvell being absent from the courthouse, the court appointed two attorneys to represent the defendant, overruled the motion for a continuance, to which the defendant excepted, and the selection of the jury began. Thereupon Mr. Norvell appeared in the courtroom and requested that the stenographer read the list of jurors that had been excused and the peremptory challenges, to which the court replied, “The record shows.” Mr. Norvell said he could not read the stenographer’s notes, to which the court replied:

“You can read the long hand made by the clerk. I have had a few cases myself and know how they run. If attorneys play fair with the court, the court will play fair with the attorneys.”

Thereupon Mr. Norvell said:

“I do not understand what your honor means by that. Your honor, I have sat on that very seat myself arid tried men for murder, and no member of the bar excels me in respect for the court.”

The court then said:

“Well, I don’t know the bar very well. Call the jury.”

Thereupon the selection of the jury was completed and the trial proceeded, with Mr. Norvell acting as attorney for the defendant.

The charging part of the information is as follows:

“D. B. Boyer and Bill McGinnis, on the 22d day of September, A. D. 1915, in Tulsa county, state of Oklahoma, and within the jurisdiction of this court, did commit the crime of murder in manner and form as follows, to wit: The said D. B. Boyer and Bill McGinnis, while acting together and in concert with each other, then and there willfully, unlawfully, feloniously, and maliciously, and without authority of law, and with a premeditated design then and there upon the part of the said defendants and each of them to effect the death of one Claud Rima, strike, beat and wound the said Claud Rima with a certain dangerous weapon, to wit, a neck yoke of a wagon, about three feet long, which they and each of them then and there held in their hands, then and there and thereby inflicting upon the body of the said Claud Rima mortal wounds, from which he, the said Claud Rima, then and there languished and died, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The defendant demurred to the information upon the ground, among other grounds, that the information fails to state facts' sufficient to constitute a public offense. The court overruled the demurrer, and the defendant excepted.

The uncontradicted material evidence is: That a teamster driving a wagon loaded with whisky drove into Phillips Lake, lost his load of whisky, broke his coupling from his wagon, and he and the horses attached to said wagon were drowned; that, the water receding, the bodies of the horses drifted ashore near a road along said lake; that the owner of the said horses came to where the bodies of the said horses were, to arrange for their burial; that the deceased, in a wagon accompanied by his wife and others, stopped near said dead horses, and was employed to and did aid in burying said horses; that a quantity of whisky was found on the lake shore, and that while preparation for said burial was in progress the defendant in a partly intoxicated condition came to the scene of the .burial, having in a sack bottles of whisky, was in an angry mood and expressed a desire to fight, threw his hat on the ground, and said he could whip any son of a bitch that got on it; that the deceased' and defendant drank whisky together, became involved in heated arguments and indulged in profanity towards .each other which resulted in a fight; that while said fight was in progress the wife of the deceased struck the defendant; that upon becoming separated the •defendant went a short distance, secured a “neck yoke of a wagon,” immediately returned to where the deceased was, and struck deceased on his forehead and across his ear, from which blows the deceased died the same day he was struck.

The evidence was in sharp conflict as to whether or not the deceased at the time he was struck by the defendant was armed with a piece of wagon coupling about three feet long and endeavoring to strike the defendant, and as to what the wifé of the deceased struck the defendant with, and there was evidence that at the time the defendant struck the deceased the blows that caused his death the deceased was down, without anything in his hands and unarmed, and in a helpless condition from intoxication.

The wife of the deceased, a witness for the state, upon cross-examination, having testified that on September 13, 1916, she had registered at the “Mistletoe Rooms” in Tulsa under the assumed name of Stella Wright, and that she knew Mr. Máddox, was asked the following questions by the defendant, viz.:

“That is a bawdyhouse, isn't it? Was Mr. Maddox registered at the Mistletoe Rooms on the night you registered under the name of Stella Wright? What room did you have?”

To each of said questions an objection was interposed by the state, and sustained by the court, and separate exceptions saved to said action of the court.

A general power of attorney executed by said witness. to Charles Hann having been put in evidence, she was asked by the defendant the following questions, viz.:

“What business was it you wanted Mr. Hann to transact for you? Did the execution of this power of attorney have anything to do with the prosecution of this lawsuit? Where were you married? When were you married?”

To each of said questions an objection was interposed by the state and sustained by the court, and to said action of the court separate exceptions saved. The defendant then offered to show by this witness that the business .which she-authorized Charles Hann to transact under the said power of attorney was the collection of money for a settlement of this prosecution, which offer the court refused to permit the defendant to perform, and the defendant excepted. ■

The court, addressing the defendant’s attorney, said, “Hadn’t you better sit down so the jury can see the witness ?” .to which Mr, Norvell replied that the ruling of one of the federal courts is to require counsel to stand. The court then said, “You may stánd if you don’t be spectacular.”

The defendant then asked the witness, “Didn’t you and Mr. Maddox return from Sand Springs and go to the Mistletoe Rooms and occupy the same room? The court sustained an objection to this said question, and said: “If you ask any more questions about that I am going to fine you. If that does not stop you, I am going to stop you some other way.”

Thereupon the following proceedings were had: Mr. Norvell, attorney for the defendant, was ordered to proceed with the case, to which he replied, “I am proceeding with it, and am offering to make an offer,” to which the court replied, “The offer will be denied.” Mr. Norvell then said, “I offer it anyhow, your honor cannot — ” The court then asked if Mr. Norvell had any more questions, and Mr. Norvell replied, “Your honor cannot refuse to make a record.” Thereupon the court directed the clerk to enter a fine of $50 against Mr. Norvell, and that Mr. Nor-vell stand committed until said fine was paid.

Among other instructions, the court gave the following instruction, to which the defendant excepted:

“No. 19. The plea of self-defense is given to a citizen for his protection, and cannot be pleaded as a defense •to homicide by one who is the aggressor or voluntarily enters into a difficulty; and in this connection you are instructed . that if you believe from the evidence that the defendant sought, brought on, or voluntarily entered into the fatal difficulty in which the deceased lost his life, the defendant cannot avail himself of the right of self-defense, for the plea of self-defense is a defense growing out of necessity to take human life; the party taking life must be without fault.”

The following occurred during the argument of Mr. Wallace, assistant county attorney, to the jury:

“Mr. Norvell: I challenge the statements of the county attorney. He knows the evidence wasn’t anything like that.

“The Court: Mr. Norvell, for that statement you are fined $25, and you will be committed to the sheriff of this county until that fine is paid. The sheriff will so receive him as such, and I don’t want to hear any more of it. This is a civilized country where God rules, and men’s lives ought to be protected and their liberties ought to be protected. You have acted in this case all the way through by sitting on the table, by slamming doors, by your reprehensible conduct, in a way, Mr. Norvell, that you ought not to do.”

The defendant excepted to the said remarks of the court in the presence of the jury.

The defendant timely moved for a new trial, which was overruled and exception saved.

There are very many errors assigned, other than alleged errors herein stated, which, from the view we take of the case, we deem unnecessary to state.

The defendant first contends that, as the grounds set up in the verified motion for a. continuance were not denied by the state, the court committed reversible error in overruling said motion. We are unable to say that the court abused its discretion in overruling said motion,' and think the fact that prior to the completion of the jury Mr. Nooryell appeared in the courtroom and took charge of and most' actively conducted the defense to the conclusion of the trial shows that the court did not err in overruling said motion. But we do not approve the remarks of the court made in open court and in the presence of the jurors assembled from which a jury to try the case was to be selected, in connection with said motion, that “the ¡court took judicial knowledge that when the case was called he (Mr. Norvell) got sick all at once, and from the conduct of the attorney just before the case was called .that this [the motion] is simply a ruse to pass the case Ywer,” but we do not think that in making said remarks -the court committed such error as alone should cause a reversal of this case.

The defendant also contends that the court committed , reversible error in overruling the demurrer to the information because “it is not averred therein the manner of use, the size of neck yoke, and the place upon the body of deceased which was beaten and wounded, as the averment in the information ‘about three feet long’ is descriptive of the size of the wagon, and not descriptive of the size of .'the wagon yoke, and that it is averred that the defendants held the wagon and not the' wagon yoke in their hands.” We are satisfied that the averment “three feet long” describes the size of the wagon yoke and cannot be con-, torted as referring to the size of the wagon, and that the information clearly avers that the defendants held the wagon yoke in their hands, and not the wagon. It was sufficient to aver that the blows struck by the defendants with the wagon yoke caused the death of the deceased,' without specifically stating upon what part of his body such blows were struck; If the blows caused the death of' the’ deceased it was entirely immaterial upon what part of his body they were inflicted. We are of the opinion that -the information is “certain and direct as to the' parties charged, the offense charged, and particular circumstances of the offense charged,” so far as necessary to constitute a complete offense, and is strictly within all the requirements of section 5739, Rev. Laws 1910, cited by defendant to sustain his attack upon said information. We conclude that the court did not err in overruling the demurrer to the information. • ,

The defendant earnestly ' insists that the court committed reversible error in sustaining objections to’ questions asked the wife of the deceased as to the character of the “Mistletoe Rooms” and as to her having occupied' there a room with Mr. Maddox the night previous to this trial, and also as to the business to be transacted under the power of attorney executed by her to 'Charles Hann. We hre of the opinion that the questions in regard to matters not connected with the facts of trial, and.tending to degrade a witness by .proof of her want of virtue, “should be closely guarded, and allowed only upon the exercise of 'sound judicial discretion, and then only to affect the •credibility of the witness” (Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132), and we are unable to say that in sustaining objections to the said questions seeking to elicit evidence of the want of virtue on the part of the witness the court “wrongfully exercised his sound judicial discretion.”

The question as to the purpose for which said power of attorney was executed by the witness to Charles Hann went to the interest of said witness in the prosecution. If ■it was a fact that she had endeavored to settle this prosecution for a money consideration and failed it would be at least proper that the jury have such evidence in order to properly weigh her testimony, as it logically follows that such attempt and failure to so settle this prosecution would quicken her natural feeling against the defendant and bias her testimony, and hence the court committed error in refusing to permit the witness to explain for what purpose said power of attorney was executed by her.

The defendant further complains that the evidence is insufficient to support the verdict of the jury, and with •this contention we are unable to agree. It is true that the evidence is in sharp conflict as to whether or not the defendant acted in self-defense in striking the blows which caused the death of the deceased, but there was evidence that at the time the deceased received the wounds inflicted upon him by the defendant the deceased was down, without anything in his hands and unarmed, and in a helpless condition by reason of being intoxicated. There being evidence to sustain the verdict of the jury though the evidence be in conflict, this court, as held by an unbroken line of decisions, will not disturb the verdict.

“In a homicide case, where there is evidence supporting the theory of the state that the defendant did not act in self-defense, and also evidence supporting the theory of the defendant that he acted in self-defense, it is the exclusive province of the jury to determine which is the correct theory, and, having done so, if the instructions of the court properly present the law of the ease, this court 'will not disturb the verdict.” ' McClatchey v. State, 15 Okla. 448, 177 Pac. 922.

The defendant complains that the court committed reversible error in giving the jury instruction numbered 19/ and this complainant we think well grounded. Said instruction does not sufficiently state what character of acts on the part of the defendant would deprive him of the right of self-defense, does not correctly define the right of self-defense, and the court committed reversible error in giving the jury said instruction.

In Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129, it is held:

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

“(c) When the prosecution in a homicide case is based on the theory that the defendant provoked the difficulty, the character of the provocation in connection with the intent should be set out and defined in separate affirmative charges.”

In Turnbull v. State, 8 Okla. Cr. 459, 128 Pac. 743, it is held:

“When, in the trial of a person charged with murder, it becomes necessary for the trial court to instruct the jury on the doctrine of seeking or provoking the difficulty, and the proof discloses that the accused did any , act or thing which he had a right to do, which could be reasonably construed by the jury to come within the terms of the court’s charge, it is necessary for the court to tell the jury what acts under the law would be justifiable, and discriminate as to acts unlawful which would , deprive him of the right of self-defense, leaving to the jury to determine whether or not, under the facts and the law, the acts were lawful or otherwise. When this is done, and instructions are given which, reasonably construed, deprive the accused of the right of self-defense, if he by any willful act of his own, lawful or unlawful, brought on the difficulty, a conviction cannot be upheld by this .court.”

In order to deprive a defendant of the right of self-■defense “the difficulty must be prepared for, sought, and provoked for the purpose and with the intent on the • part of the accused to take the life of the deceased or do him great bodily harm,” and the jury should be so instructed. Swan v. State, 13 Okla. Cr. 556, 165 Pac. 627.

In Foutch v. State, 95 Tenn. 711, 34 S. W. 423, 45 L. R. A. 687, it is said:

■ “In order to make a man guilty of murder who is the ‘aggressor’ or ‘in fault,’ or who ‘provokes a difficulty,’ in which his adversary is killed, he must have provoked it with the intent to kill his adversary, or do him great ' bodily harm, or to afford him a pretext for wreaking his malice upon his adversary. * * * In order to deny to such party the right to rely on the plea of self-defense, it must appear that he was the ‘aggressor’ or ‘in fault,’ or ‘provoked the difficulty’ in such way and with such intent as the law contemplates in the use of these terms. It is not every ‘aggression’ which produces a difficulty that is an unlawful one within the meaning of this phrase, nor is it every ‘fault’ which a man might commit that precludes him from defending himself when violently assaulted or menaced, nor is it every ‘provocation of a difficulty’ which robs him of the right of self-defense.”

The defendant in his motion for a new trial alleges many grounds therefor, which said grounds we deem unnecessary to set out or review in detail. Considering the -entire record, we are of the opinion that at the beginning of the trial friction arose between the defendant’s attorney and the court, and which continued throughout the trial, which should not have arisen; that the remarks of the court when the motion for a continuance was being considered, and the expression of the court’s opinion in open court and in the presence of attending jurors from whom the jury was to be selected, “that said motion was a ruse to pass the case over,” the heavy fines assessed against the defendant’s attorney during the trial of the case, notwithstanding said fines were remitted after the verdict of the jury was rendered, and the several very severe -reprimands administered to the defendant’s attorney in the presence of the jury trying the case ‘without just ground® therefor, together with other acts of the court which we deem unnecessary to recite, created an atmosphere surrounding the trial which prevented the defendant having that fair and. impartial trial to which he was entitled, and hence the court committed reversible error in refusing to grant the defendant a new trial.

In McSpadden v. State, 8 Okla. Cr. 489, 129 Pac. 72, it is held:

“Attorneys for a defendant are entitled to and must receive * * * fair treatment at the hands of a trial court, and when this is not accorded them, and the error is of such a character that it may have influenced the jury in finding a verdict, a conviction will be reversed.”

In said case it is said:

“Courts have no right to humiliate and outrage lawyers for the defense for doing their duty. The effect of this necessarily creates the impression upon the minds of the jury that the counsel for the defense has been guilty of unfairness, and improper conduct, and this is calculated to excite their prejudice against the defendant. It may be accepted as a cardinal principle of criminal jurisprudence that fairness is a necessary element in the trial of criminal case,s in this state. Attorneys for the defense may rely with confidence upon the protection of this court as long as they act within their legal rights. This is as much our duty as it is to condemn their conduct when they are guilty of unprofessional practice.”

As the errors pointed out must cause a reversal of the judgment rendered, we deem it unnecessary to consider any other of the many errors assigned, especially in view of the great probability that the said errors not considered will not occur in another trial of this case.

The judgment of the trial court is reversed, and the cause remanded.

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


text:
    ALCIE WALDON v. STATE.
    No. A-2990.
    Opinion Filed Sept. 16, 1919.
    (183 Pac. 637.)
    1. HOMICIDE — Self-Defense—Motives. In a homicide case, where the defendant testifies that he killed the deceased “partly on account of wrongs done his mother by the deceased,” his plea of self-defense held not sustained.

      2. HOMICIDE — Manslaughter in First Degree — Sufficiency of Evidence. The record in this ease carefully considered, and found that the verdict is sufficiently supported by the evidence, and the trial of the ease free from prejudicial error.

      Appeal from District Court, Jefferson County; Cham Jones, Judge.

    Alcie Waldon was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      Bob Turner and Bridges & Vertrees, for plaintiff in error.

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

The plaintiff in error Alcie Waldon, hereinafter referred to as defendant, was informed against jointly with Fred Wratislaw and Martha E. Wratislaw for the murder of O. J. McCarty; a severance was granted on the motion of the state; the defendant was tried separately, convicted, and sentenced to imprisonment in the penitentiary at McAlester at hard labor for SO years. To reverse the judgment rendered, he prosecutes this appeal.

The material uncontradicted evidence is: That on the morning of the day that the deceased was killed the defendant came to the city of Ringling, and after going to several places, and after he had secured a pistol which belonged to him, and which he had previously loaned tó another, the defendant went to a law office, where his mother and stepfather were, and about 15 minutes after leaving said office met the deceased, whom, prior thereto, he did not know was in the city, and shot him three times, from the effects of which said shots the deceased about four months later died; that immediately after the shooting a pistol was found in the overcoat pocket of the deceased.

The evidence was in conflict as to the circumstances surrounding said killing — witnesses testifying that they were near the scene of the homicide, and saw the defendant and the deceased just before and at the time the defendant shot the deceased; that deceased, just before he was shot, did not say anything to, or make any demonstrations against, the defendant. The defendant testified that on the' day he killed the deceased he met him in the middle of the street in Ringling; that he was five or ten feet from him when he first saw him; that the deceased ran his hand back and said, “You son of a bitch, I am going to kill you”; and “that he [defendant] then got his gun and shot him.” On cross-examination, the defendant testified that he knew the deceased had whipped and wronged his mother; “that he was thinking about it when he killed him; that that was not all he killed him for, just partly”; that he shot him to prevent the deceased from shooting him; that he shot in selfr defense.

On the cross-examination of the defendant, in response to questions propounded to him about what occurred at the store of the deceased on the Thursday preceding the Monday on which the deceased was killed, he answered:

“That he was at said store at the time named in company with his mother, brother, and stepfather; that deceased was asked if he was ready for a settlement, and said, ‘Yes,’ and that he would rather that Brooks and Elder were there; that he did not feel like going to town; that the defendant went to Ringling for Brooks and Elder, who declined to come, and upon the defendant’s return to the store, and reporting the result of his trip, the deceased said, ‘We will go,’ which they' did; that he [defendant] did not in said store, and in the presence of his mother and Fred Wratislaw, tell the deceased that he had to make a deed to the land, and that he was going to get a notary public to take the acknowledgment; that there was no gun in the party, and that no unpleasantness occurred at said store at the time named'.”

As it is not even suggested in defendant’s brief that the verdict of the jury is not sufficiently supported by the evidence, and he rests a reversal of this case alone upon the alleged error of the trial court in excluding evidence, offered on redirect examination, that the defendant, his mother, and stepfather were at the store of deceased, which was situated about four miles from Ringling, on the Thursday preceding the killing of the deceased on the following Monday, by the invitation of the deceased, we deem it unnecessary to detail more of the evidence than we have done, other than as may be necessary to an intelligent review of the error complained of, to which an exception was saved. The offered evidence, on redirect examination, which was excluded, was. that a day or two before the defendant, his mother, and stepfather went to the store of the deceased, the deceased requested the witness Wilson to go to the defendant, his mother, and stepfather, and ask them to 'come to his store that he might settle with them and deed them back the property of which he had defrauded them and a letter, the only identification of which was the admission of the deceased that he had the letter written, and that it had been received by the addressee, through the due course of mail, from the deceased to the mother of the defendant, who resided in New Mexico, requesting her to return to Oklahoma, that he might, as he desired to do, make restitution to her of the property of which he had defrauded her and pay her an indebtedness he was owing her, and expressing great appreciation of his treatment by her, and asking her to go to Mexico, to which country he intended shortly to remove.

It was stated by counsel for defendant, when offering said evidence as to defendant having been at the store of the deceased by invitation of deceased, on Thursday preceding Monday on which the deceased was killed:

“That it was offered principally for the reason that the state had attempted to show that this defendant, together with his mother and stepfather, had gone to the place of business of the deceased, and practically forced him to execute a certain deed and a bill of sale to certain personal property.”

The evidence developed by the cross-examination of the defendant as to what occurred at the store of the deceased on the Thursday preceding the Monday on which the homicide was committed, was not germane to any issue involved in this case, and ought to have been, and doubtless would have been, excluded on proper motion, which was not made.

“The admission of evidence not germane to the issue involved, but which in no wise tends to show the guilt of the defendant, while not approved, is not prejudicial error.” Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621.

After a very careful reading of the entire record we have been unable to find that there was any evidence on the part of the state tending to show that the defendant, together with his mother and stepfather, had gone to the place of business of the' deceased and practically forced him to execute a deed and a bill of sale on Thursday preceding the Monday on which the deceased was killed. 'Whether or not the defendant and others went to the store of the deceased by his invitation, and what the state attempted to show, and failed to show by evidence, is entirely foreign to any issue involved in this case, and the evidence offered on redirect examination of the defendant, including said letter, even if it was sufficiently identified, which we deem unnecessary to determine, to show that the defendant went to said store at the invitation of the deceased, was not in rebuttal of any evidence elicited on his cross-examination, and the court did not commit reversible error in excluding the said evidence, which is the basis of the only alleged error assigned and argued in defendant’s brief.

It is the well-settled law of this state that, to maintain the plea of self-defense, it must be made to appear that the accused was free from fault in bringing on the difficulty, and had reasonable grounds to believe that he was in imminent danger of suffering death or great bodily harm at the hands of the person slain, and that there was a necessity to kill in order to save himself therefrom, and though the evidence as to self-defense be in conflict, if there is evidence, as in the instant case, to support the verdict, this court will not disturb it.

“In a homicide case, where there is evidence supporting the theory of the state that the defendant did not act in self-defense and also evidence * * * that he acted in self-defense, it is the exclusive province of the jury to determine which is the correct theory, and, having done so, if the instructions of the court properly present the law of the case, this court will not disturb the verdict.” McClatchey v. State, 15 Okla. Cr. 448, 177 Pac. 922.

Where the accused, as in the instant case, admits the killing, and testifies that he killed the deceased “partly on account of wrongs done his mother by deceased,” his plea of self-defense is not sustained. In Wells v. Territory, 14 Okla. 436, 78 Pac. 124, it is held:

“The law of self-defense does not imply the right of attack, nor will it permit of acts done in retaliation, or for revenge.”

In Caughorn v. State, 99 Ark. 462, 139 S. W. 315, it is held:

“If defendant sought, brought on, or voluntarily entered into a difficulty * * * for the purpose of vengeance, or if he shot and killed deceased with no reasonable apprehension of immediate and impending injury to himself, but from a spirit of retaliation and revenge for past injuries, he could not avail himself of the law of self-defense and should not be acquitted, no matter how great the danger or imminent the peril to which the defendant may have believed himself exposed during the difficulty.”

In Gibson v. State, 89 Ala. 121, 8 South. 98, 18 Am. St. Rep. 96, it is held:

“If the defendant sought the difficulty with the deceased, for the purpose of chastising or beating him for some real or imaginary cause, and armed himself -with a pistol for use, if necessary, and did use it, and killed the deceased, he is guilty of murder, although it may have become necessary for him to use the pistol during the encounter in order to save his own life or to prevent great bodily harm.”

In Young v. State, 53 Tex. Cr. R. 416, 110 S. W. 445, 126 Am. St. Rep. 792, it is held:

“If one provokes a difficulty intentionally, to secure a pretext to inflict some unlawful injury on the person attacked, but not for the purpose of killing him or inflicting serious injury upon him, he cannot thereafter justify the killing of such person on the ground of self-defense.”

In State v. Herrell, 97 Mo. 105, 10 S. W. 387, 10 Am. St. Rep. 289, it is held:

“One who brings on a difficulty with the purpose of wreaking his malice by slaying his adversary or doing him some great bodily harm, and, actuated by , such felonious purpose, does the homicidal act, cannot avail himself of the right of self-defense and is guilty of murder in the first degree.”

In 13 R. C. L. sec. 138, it is said:

“The rule is thoroughly established, and its general terms are universally recognized, that a plea of self-defense cannot be sustained, when the defendant shows-that he was the aggressor and provoked the difficulty, or where he acted in retaliation. Neither state of facts ■is sufficient to show that necessity upon which the law' of self-defense is based.”

The above text is supported by citations of the courts of last resort of Alabama, California, Florida, Georgia, Illinois, Kansas, Missouri, New York, North Carolina, South Carolina, Ohio, Pennsylvania, Tennessee, and Texas.

The defendant by his own evidence is shown to be guilty of at least manslaughter in the' first degree, as found by the jury, while the entire evidence warranted his conviction for murder.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

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


text:
    W. D. PEYTON v. STATE.
    No. A-3235.
    Opinion Filed Sept. 20, 1919.
    (183 Pac. 639.)
    TRIAL — Requested Instructions — Material Issue. The defendant has a right to have, when requested, an affirmative instruction given to the jury applicable to his testimony, based upon the hypothesis that it is true, when such testimony affects a material issue in the case and would constitute ground for acquittal.

      Appeal from County Court, Payne County; Wilberforce Jones, Judge.

    W. D. Peyton was convicted of unlawfully conveying intoxicating liquors, and punishment assessed at a fine of $50 and 30 days’ imprisonment in the county jail, and he appeals.
    Reversed and remanded.

      Thos. A. Higgins and Sylvester J. Berton, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

W. D. Peyton was convicted in the county court of Payne county of the crime of unlawfully conveying intoxicating liquors, and his punishment fixed at a fine of $50 and 30 days’ imprisonment in the county jail. From this judgment of conviction, he has appealed to this court, and has assigned numerous errors, all of which are without substantial merit, except, one, which is treated in this opinion as the basis for reversal of the judgment.

The facts, are substantially as follows:

The defendant, Peyton, lived in Cushing, Okla., had been constable of the city, and a member of the police force, and was the owner of an automobile, which he had used as a livery car. Numerous prominent citizens of the town testified that Peyton bore the general reputation of being a law-abiding citizen, and this fact was not controverted by the state.

According to the state’s testimony, Peyton drove his car between the hours of 10 and 11 on the night of August 10, 1917 to a house northeast of the Katy depot in the city of Cushing, where one Spiker resided, and was seen to go into the house and come out with a gunny sack, which proved to be partially filled with nine quarts of whisky.

Spiker, who was a witness for the state, testified that, some days before the night on which defendant was arrested, the defendant and one Reed had brought a large quantity of whisky to his (Spiker’s) house, and had stored it there, and knowing that the defendant was coming after some of the whisky on this particular night, he (Spiker) notified the sheriff, and arrangements were made to intercept the defendant in the act of transporting said whisky, and the evidence discloses that the arrest of the defendant was the result of such arrangement.

In substance, the defendant’s testimony is as follows:

. “I live in Cushing. I am now working by the day, dressing tools. I have been constable of the ehy o-f Cush-ing, and worked on the police force there, and aside from ' my official duties I have driven a livery car. I begun in July. Have also worked for the Oklahoma State Bank of Cushing, collecting and delivering money for them. On the 8th of August, 1917, at 2:30 a. m.. I was home in bed. I bought my car on August 4th, on the Sunday before Friday when I was arrested. I was up on the livery stand usually occupied by livery drivers. At 3 o’clock in the afternoon I went driving, and was gone until 3 0 :30; went home to bed. Monday I was on the stand. Sunday night my car stood in front of my house. Monday afternoon I went to Drumright, and drové from there some distance northeast, where my passengers looked at some leases; got back to Drumright at 5:30, and to enable them to catch a train I took them to Shamrock, arriving there at 7 o’clock and turned right around and came home. I stood on the livery stand awhile and went home. The night policeman went with me and drove my car back. I left the livery stand Monday night about 10:30 and went home; and there was no one else at home but my wife. On Tuesday I drove to the Consumers’ Refinery in the afternoon. Tuesday night I went home and went to bed. Mr. Robinett went with me. Wednesday night I was home in bed. I went home at 5 o’clock, when my wife closed her office, which is the city clerk’s office. I got my car about 9 o’clock Monday morning. Tuesday morning I got my car about the same time from the garage where I kept it. I didn’t take the car out at all on Wednesday. It was raining, and I went home with my wife at 5 o’clock in the evening. During the day I did some work on the car; and the car was not out of the garage either Wednesday or Thursday. On Friday, the day I was arrested, I got the car about 7:30, came down to the cafe, got my passenger, and drove to Quay oil fields, and from there I drove to Cleveland, Okla., where I took my passengers to a hotel, and after telling them that I would check them out at the Thompson Hotel in Cushing, I started home. I never at any time had any arrangement with Bill Reed to transport any liquor for him or with him to Spiker’s residence. I never went to Spiker’s with Bill Reed. I never at any time nor with any person carried whisky or other intoxicants to Spiker’s house and put it in a cave. Bill Reed never asked me to do so. Reed knew I was an officer. I had raided him at least a half dozen times. I left Cleveland on August 10th at 5:30, and got to Cushing about 9:30. . I never at any time or in' any way had any communication with Bill Reed, in which he asked me to procure or haul any liquor for him. After arriving in Cushing, I first drove home. My wife was there, and she informed me that someone had been calling for me. I had to go down to the hotel to check my passengers out as I had agreed to do, and while there went to the American Cafe to eat lunch. While standing at the cash register the telephone rang and asked if Peyton’s livery car was there. I answered the phone and said, ‘This is Pey-ton talking.’ They told me to come over to the Katy depot, and described the place for me to come to, and how to get in. After this telephone conversation I drove across the Katy tracks and turned east; had my light on all the time. I drove up to Spiker’s house and stopped on the south side of it; about 25 feet. I saw 'Spiker and had a little conversation with him. I opened the door of my car, put my foot on the running board, and started to get out; he came around behind the car and set in something in a sack; I didn’t ask him what; put it in the front seat. He told me the way was rough out to the east, and he would go back behind my car and tell me how far I could back to get out, and said, ‘Now, you go ■across the Katy tracks and wait, and I will meet you there’; and I didn’t see him any more, and before I got oif the road I was arrested. I didn’t go in the house that night, nor get out of the car. I did not have my hands oif the steering wheel, except to open the door, and I certainly didn’t know that was whisky in that sack at that time, and didn’t see Spiker for some time after that. At the time I was arrested I did not tell Lilley l’had some whisky. They asked me what I was doing, and I told them I had come to make a drive. They didn’t ask me what I' had. I didn’t know it was whisky that was in the sack; in fact, didn’t know what it was.”

The defendant, among other instructions, requested the court to instruct the jury as follows:

“The jury is further instructed that evidence has been introduced by the defendant, tending to explain his connection with the whisky testified to by the witnesses for the state; the contention of the defendant in this respect being that, while admitting there was whisky in the package testified to, he had no knowledge that the same contained whisky, or any other liquor or substance, the transportation of which is prohibited by the laws of the state. You are told that, before the defendant can be convicted of the charge against him, you must be satisfied from the evidence beyond a reasonable doubt thht the defendant did know, or did have reasonable cau'se to know, that the contents of said package were such that their conveyance or transportation from one place within this state to another therein was in violation of law; and if you entertain a reasonable doubt as to whether the defendant knew or did not know the character of the contents of said package, and that its conveyance or transportation was prohibited by the laws of this state, then your verdict must be not guilty. You are further instructed, in determining this question, namely, whether the defendant knew of the actual contents of said package, you have a right to take into consideration all of the evidence and circumstances. testified to on the trial.

“Refused and exception allowed defendant.

“WlLBERFORCE Jones, Trial Judge.”

The refusal to give this instruction, which was excepted to by counsel for the defendant, is urged as grounds for reversal of this judgment. The trial court nowhere gave an affirmative instruction covering the law as applied to the defense interposed. The Attorney General admits that the refusal to give this instruction, or one similar thereto, was error, but contends that the error was harmless because a new trial could not result in any other verdict than that "of guilty.

This court has repeatedly held that it is error for the trial court to fail and refuse to instruct on the law applicable to a theory of the defense which the evidence tends to support, when the defendant requests it, and when such evidence affects a material issue in the case. Crittenden v. State, 13 Okla. Cr. 851, 164 Pac. 675; Payton v. State, 4 Okla. Cr. 316, 111 Pac. 666; McIntosh v. State, 8 Okla. Cr. 469, 128 Pac. 735; State v. Hill, 63 Or. 451, 128 Pac. 444; Harris v. State, 11 Okla. Cr. 412, 146 Pac. 1086.

Instruction No. 5, given by the court, is as follows:

"The court instructs the jury that any person who receives intoxicating liquors from a bootlegger or other person not lawfully in possession thereof, and carries it any distance, however short, is subject to the sanie penalties for so doing as the person who unlawfully transferred the same, either by sale, gift, or otherwise furnishing the same to the person receiving the same; and if you believe from the evidence that the defendant received the liquor as shown in the evidence in this case from J. L. Spiker, and conveyed the same from- one point to another as set forth in the information,' you should find the defendant guilty and assess his punishment not to exceed six months in the county jail of Payne county and a fine of not more than $500, or imprisonment in the county jail not less than 30 days and a fine not less than $50.

“To which the defendant excepts; exception allowed.

“Wilberforce Jones, County Judge.”

This instruction was given over the objection arid! exception of counsel for the defendant. When instruction No. 5, given by the court, is considered in connection with the refusal to give the instruction requested, as hereinbefore set out, it is evident that the court de-_ prived the defendant of the benefit of his theory of defense, that he had no actual knowledge whatever of, or reasonable cause to know, the contents of the package which be claims the witness Spiker placed in his (defendant’s) automobile, and which contained -the whisky which-he was charged with transporting. Instruction No. 5 practically informs the jury that the evidence shows that the defendant received whisky from the witness Spiker (inferentially with knowledge that it was whisky), and the instructions given, considered as a whole, leave no alternative to the jury but to convict the defendant, irrespective of the question of whether or not the defendant bad any knowledge of, or reason to know, the con-, tents of the package received from the witness Spiker. The defense, if believed, entitled defendant to an acquittal. Golpi v. State, 14 Okla. Cr. 564, 174 Pac. 288.

In view of the fact that the defendant had borne a good reputation as a law-abiding citizen in that community, had held both the office of constable and deputy sheriff in that county, and had never been shown to be a violator of the law, it cannot be assumed that the failure of the court to give an affirmative instruction covering the law as applicable to the defense interposed was not prejudicial error.

The judgment of conviction is reversed, and the cause remanded for a new trial.


text:
    H. A. ASHBURN v. STATE.
    No. A-3267.
    Opinion Filed Sept. 20, 1919.
    (183 Pac. 521.)
    1. APPEAL AND ERROR — Admission of Evidence — Objection and Exception. Admission of alleged incompetent evidence cannot be reviewed, where no objection was made or exception reserved. .<
    2.- LARCENY — Grand Larceny — Sufficiency, of Evidence. In a pros-; ecution for grand larceny, the evidence considered, and conviction affirmed. ' ' ■’

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

    H. A. Ashiburn was convicted of grand larceny,. and he appeals.
    Affirmed.

      Pardue & Hamilton, for plaintiff in error.

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

Plaintiff in error, H. A. Ashburn^ was charged jointly with B. M. Whittamore, E, Si. Starkey, and J. E. Hocker, with the larceny of 600 feet of 2% 'New Bedford cable, of the value of $300, 1,000" feet of 2*4 New Bedford cable, of the value of $400, and' 250 feet of two-inch Trojan cable, of the value of $150, all of the aggregate value of $850, the property of S. ,M".’ Gordon. A severance was granted, and upon his separate trial plaintiff in error was convicted, and his punishment assessed at three years’ imprisonment in the penitentiary. He has appealed from the judgment rendered upon such, conviction.

The errors assigned are: (1) The court erred in overruling plaintiff in error’s motion for a continuance-; (2) the court erred in admitting certain testimony on the part of the state over the objections of the plaintiff in error; (3) the court erred in overruling the motion to instruct the jury to return a verdict of acquittal.

The evidence for the state shows that S. M. Gordon, an oil and gas well contractor, was drilling a well in the Healdton field in Carter county; that the cable described was coiled on the ground near the well the evening before he missed the same; the next morning he found the tracks of two wagons near the well, one drawn by a span of mules and the other by a team of ponies; one was a narrow-wheel wagon, and the other one was wide; he followed the tracks towards Ardmore; there he found the defendants, who had been arrested. He then went out near Lone Grove, and found the cable on two wagons. The officers testified they met the defendants near Wolf Creek. Ashhum was driving one of the wagons and said he had bought the cable from a fellow that he had met on the other side of Dundee the day before. Another witness testified that he was driller for S. M. Gordon, and was familiar with the cable used on the well; that he helped splice the cable, and identified the cable found in the defendant’s wagon as S. M. Gordon’s property.

Codefendant J. E. Hocker, as a witness for the state, testified that he, with the other defendants, left Ardmore and went to the defendant Ashburn’s place; that they left there and went towards Ragtown; that he was with Ash-bum, who was driving one team, and the defendant Starkey was driving the mules, and B. M. Whittamore was with him; that about midnight they stopped the wagons near an oil derrick and Ashburn said, “We can get this rope here”; that Ashburn had a double edge ax and chopped the rope with it, and they loaded it on the wagons and started for Ardmore, and that morning he threw the ax out near the Hewitt graveyard; that daylight came when they were near Wilson'; about that time' the narrow tread wagon broke down, and they borrowed another wagon; that between Bayou and Wolf Creek the sheriff and his deputies arrested them.

Ethel Earl, as a witness for the defendant, testified she was peddling milk in Ragtown, and on her way home met Hardy Ashburn and Barney Whittamore about’ a mile and a half north of Ragtown, and was talking to them when a man came along, and Hardy and -Barney bought this rope from him and paid him $17.50 for it;that this was the day before they were arrested. H. A.; Ashburn, as a witness in his own behalf, testified that he bought the rope a mile and a half north of Ragtown from á fellow, and paid him $17.50 for it; that he did not know who the fellow was.

The motion for continuance was filed on the day that the case was called for trial, September 10, 1917. It was stated in the motion that Otto McCarty, if present, would testify that he was present when Hardy Ashburn purchased the rope in question; that on the 4th day of September, 1917, he caused a subpoena to be issued for Ótto McCarty, and that such subpoena had not.been served; that said defendant could not safely go to trial without said testimony. The record shows that the testimony of McCarty would have been cumulative, and we cannot say-that the court abused its discretion in overruling the motion for continuance.

As to the second assignment of error, counsel have not pointed out, and we have failed to find, any except . tions reserved to- rulings of the court on the admission of evidence.

The third assignment of error is not well taken. The evidence is ample to support the verdict and judgment of conviction.

The judgment is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    WESLEY W. COLE v. STATE.
    No. A-3099.
    Opinion Filed Sept. 29, 1919.
    (183 Pac. 734.)
    ■LARCENY — Person Innocently Aiding in Driving Stolen Cattle— “Accomplice.” A person who aids another, at his request to gather up and drive cattle which are stolen, in the absence of evidence that such person so acted with guilty knowledge 'of the larceny, is not an accomplice in the larceny of such cattle.
    APPEAL AND ERROR — Credibility of Witnesses — Conflicting Evidence. Notwithstanding a witness is shown to have been pro-viously convicted of the larceny of live stock and served a sentence therefor, and that his general reputation for truth and veracity is bad. the jury may believe his testimony, and if his testimony be sufficient to legally convict the accused of the offense charged, this court will not set aside such conviction, though the evidence be in direct conflict with the evidence for the accused; the credibility of the witnesses being the exclusive province of the jury to determine.
    APPEAL AND ERROR — Review—Instructions—Refusal. It is not reversible error to refuse a requested instruction not applicable to the evidence, notwithstanding such refused instruction states a correct rule of law. • ' ' ■■ ■
    APPEAL AND ERROR — Harmless Error — Instructions. After a. misdirection of the jury by the court, where an examination of the entire record discloses that such misdirection has not resulted in a miscarriage of justice, nor constitutes a substantial violation of a 'constitutional or statutory right, this court is powerless to set aside a conviction on account of such misdirection of -.the. jury. 1 .

      Appeal from District Court, Caddo County; Witt Linn, Judge.

    Wesley W. Cole was convicted of stealing domestic, animals, and he appeals.
    Affirmed.

      Bristow & McFadyen, for plaintiif in error.

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

The plaintiff in error, Wesley W. Cole, hereinafter styled defendant, was, together with John Weems and A. J. Blankenship, jointly informed against for the larceny of domestic animals, tried separately, convicted, and sentenced to imprisonment in the' penitentiary at McAle'ster,- for a term of two and one-half years. To reverse the judgment rendered, he prosecutes this appeal.

We have carefully read the entire evidence ,in this case, and, believing that no good would thereby be accomplished, we will not set out the voluminous evidence in. detail. The evidence conclusively shows that John, Weems, who was jointly informed against in this case, with the defendant and his partner, Blankinship, and whose conviction on his separate trial was recently affirmed by this court for the larceny of the live stock described in the information in this case, committed lar-., ceny of the live sock as alleged in the information in this case. The evidence as to whether or not the defendant advised, aided, or abetted the said John Weems was in direct conflict. Milt Boydston, a witness for the state, substantially testified that he knew John Weems, Wesley Colé, and A. J. Blankenship; that he knew Blankenship when he was sheriff, and had known him for about five years; that he had known John Weems about nine years, and Wesley Cole, the defendant, about four years; that a year prior to the trial he saw Cole and Blankinship quite often; that he knew where the slaughter pen of the said Cole and Blankinship was; that it was situated about a mile west of Anadarko; that he was out there quite often; that he knew about the taking on February 26, 1916, of the cattle described in the information in this case on February 25th; that on the 25th he saw Weems down close to the tracks, and hád a conversation with him. in which Weems stated that he'had some stuff east and north of Gracemont which he wanted to bring down for' Cole and Blankinship for butchering,- and that he wanted witness to help him bring' them down and hold them at witness’ father-in-law’s and help Cole butcher them out; that on the 26th day of February, 1916, Weems came out •to the witness’ father-in-law’s, where the witness was then living, and said he wanted witness to go up and help him get these cattle; that he went with him, stopped at Gracemont for dinner and 'to feed their horses, for which witness paid; that said payment for dinner was made by a check on the First National Bank for $2 (which check was identified and put in evidence), he receiving back $1.30, out of which he paid the livery barn 50 cents; that he and Weems went on to the pasture, where a large number of cattle were, and took out. eight head which were branded with a circle over the .left hip bone; that they took said cattle west about four miles, where they were overtaken by a man on horseback, who held conversation with them; and shortly thereafter Weems and the said person turned off on another road, and before doing so Weems directed witness to take the said eight cattle to witness’ father-in-law’s, stating that the defendant would meet him there; that witness took the said cattle to the place directed, and put them in a stalkfield near the home of his father-in-law; that the defendant came to said home about sundown on the following day after said cattle had been taken, and witness and defendant went together out to the stalkfield in which the said stolen cattle were, cut three of them out, and took them through the government pasture to the slaughter pen of the defendant and his partner, and that he held a lantern while the defendant butchered said three cattle, cut the brands from their hides, and put the said brands in his pocket; that subsequently, by request, witness took at separate times two other of said cattle to said slaughter pen, and that a few days thereafter witness and Weems took the three remaining cattle of the eight stolen cattle to the said slaughter pen, and defendant and Weems slaughtered them, and the defendant cut the brands out of their hides and carried them off; that. when he carried said fifth animal to the slaughter pen, Blank-inship paid him $35 or $40 for his services.

The evidence of the defendant most positively denied all of the material evidence of Milt Boydston so far as it related to his connection with the offense charged, and offered evidence by his family and his connections and his partner, Blankinship, in support of an alibi pleaded. There was also uncontradicted evidence that the witness Boydston had previously been convicted of larceny of cattle, and served a term in the penitentiary of this state, and that his reputation for truth and veracity was bad, and that at. the time said larceny was committed Cole, the defendant, and Blankinship were engaged in the wholesale butcher business, and the defendant testified that on Sunday night succeeding the Saturday on which the said cattle were stolen he (defendant Blanks inship) slaughtered two.cattle of :the heifer kind at said slaughter pen, and one and maybe more than one hog, and in this the defendant was corroborated by the evidence of his brother-in-law, except the brother-in-law testified that three hogs were slaughtered at said time.

The defendant saved exceptions separately to an instruction given, and to instructions requested and refused, which instructions we deem unnecessary to' set out in haee verba.

The defendant made a timely motion for a new trial, which was overruled and exceptions saved.

The errors assigned and argued in defendant’s brief —all errors in petition in error not assigned and argued in brief being regarded as abandoned — are:

“That the evidence is contrary to the verdict rendered; the giving and the refusal to give certain instructions: and the overruling the motion for a new trial.”

It is earnestly contended by the defendant that the evidence is insufficient to support the conviction had in this case, and especially so because the evidence of the only material witness for the prosecution was that of an accomplice, whose evidence was not corroborated, and with this contention we cannot agree. After a most careful examination of the evidence, we think there is no evidence showing that the witness Boydston" was an accomplice in the theft- charged; that it shows that said witness simply aided the codefendant of the defendant in gathering up and driving said stolen cattle, at the request of said codefendant, and does not show that' said witness “had guilty knowledge of the larceny charged.” Harless v. United States, 1 Ind. T. 447, 45 S. W. 133.

“An accomplice” is “one culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one who knowingly and voluntarily cooperates or aids or. assists in the commission of the crime.” Hendrix v. State, 8 Okla. Cr. 530, 129 Pac. 78, 43 L. R. A. (N. S.) 546.

Applying in the instant case the definition given in Hendrix v. State, supra, to the acts of the witness Boyd-ston as shown by the evidence, we do not think that his. said acts bring him within said definition of an accomplice; and hence it was not necessary that his evidence be corroborated to sustain a conviction.

It is true that the undisputed evidence shows that said witness Boydston had been previously, on a plea of guilty, convicted of the larceny of domestic animals, and that his general reputation for truth and veracity was bad, but this evidence did not require the jury to reject his testimony in the instant case. It was the peculiar province of the jury, notwithstanding said bad character of the witness, to' determine whether or not in the instant case he told the truth, and that they believed that he did is conclusively shown by the verdict rendered, and doubtless, in weighing the conflicting evidence of the defendant and said witness, as' was proper they should do, they considered the paramount interest of the defendant in the outcome of the trial.

“The impeachment of a witness does not require that his testimony .shall be disregarded, but goes merely to his credibility, which still remains a question for the jury, who should give his testimony such weight as it is entitled to, and may, if they see fit, believe him.” 40 Cyc. 2652 — 2.

“Where a defendant in a criminal case testifies in his own' behalf, his interest in the result is a proper matter to be considered as bearing upon his credibility' and' it has been considered that his position of itself renders his testimony less credible than a disinterested witness.” 40 Cyc. 2652 — 2, and the many authorities there cited in support of said text.

“(a) Under the law in Oklahoma controverted questions of fact, involving the guilt or innocence of a person . on trial in a court of competent jurisdiction, before a jury, are to be settled exclusively by such jury.

“(b) When the accused is on trial and there is a direct conflict in the testimony between witnesses for the state and witnesses for the accused, * * * this court, in the absence of’ error of law, will not on appeal reverse a conviction.” Calvert v. State, 10 Okla. Cr. 185, 185 Pac. 737.

“Where there is any legal evidence to reasonably support the verdict rendered, this court will not disturb such verdict, notwithstanding the evidence is in conflict.” Arnold v. State, 15 Okla. Cr. 519, 178 Pac. 897.

It is a pertinent question: Why was Weems, who was accessible to defendant, and who, having been convicted as a codefendant of the defendant, could have no interest or reason to testify other than truthfully, not called by the defendant as a witness? Is it not a legitimate inference that if examined Weems would have testified to facts tending to show, that the defendant advised and abetted the commission of said larceny, and hence was not called. -

In Graves v. United States, 150 U. S. 118, 14 Sup. Ct. 40, 37 L. Ed. 1021, it is said :

“The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable” — citing Starkie on Evidence, 54; People v. Hovey, 92 N. Y. 554; Mercer v. State, 17 Tex. App. 452; Gordon v. People, 33 N. Y. 501.

See also, Crumes v. State, 28 Tex. App. 516, 13 S. W. 868, 19 Am. St. Rep. 853; Jackson v. State, 31 Tex. Cr. R. 342, 20 S. W. 921; State v. Weddington, 103 N. C. 364, 9 S. E. 577; People v. McGrath, 5 Utah, 525, 17 Pac. 116; State v. Toombs, 79 Iowa, 741, 45 N. W. 300; Commonwealth v. Clark, 14 Gray (Mass.) 372; People v. Hovey, 92 N. Y. 559; Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; Sutton v. Commonwealth, 85 Va. 128, 7 S. E. 323; People v. Mills, 94 Mich. 630, 54 N. W. 488; State v. Ward, 61 Vt. 191, 17 Atl. 483; State v. Mathews, 98 Mo. 125, 10 S. W. 30, 11 S. W. 1136.

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

The defendant further insists that the court committed reversible error in refusing to instruct the jury “that, in order to convict on the evidence of an accomplice, the evidence must be corroborated.” While as an abstract proposition the refused instruction requested correctly states the law, we think the court did not commit prejudicial error in refusing to give said instruction, for the reason that said requested instruction is not applicable to the evidence in the instant case.

“An instruction should never b¿ given upon any question of law which is not applicable to the evidence.” Inklebarger v. State, 8 Okla. Cr. 321, 127 Pac. 710.

The defendant also urges that the court committed reversible error in instructing the jury that:

“If you find and believe any witness has testified falsely as 'to any material fact, you may disregard such witness’ testimony, yet you are not bound to do so. It may bé considered as the evidence of any other witness when the same is corroborated .by other evidence,.”

Said instruction given is not technically correct, because said instruction “leaves out of consideration the question whether such false testimony was willfully and knowingly given.” Hendrix v. State, 4 Okla. Cr. 611, 112 Pap. 244.

But we,, after an examination of the entire record, think that it appears that the giving of said instruction has not. resulted in a miscarriage of justice, and does not constitute a substantial violation of a constitutional or statutory right. Hence we are prohibited by law from setting aside the judgment rendered by the trial court in this case, on account of the giving of said instruction. Section 6005, Rev. Laws 1910.

It follows that the court did not err in overruling the. motion for a new trial.

The judgment of the trial court is affirmed, and mandate ordered to issue instanter,

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