text:
    JIMMIE CUDJOE v. STATE.
    No. A-2326.
    Opinion Filed January 29, 1916.
    (154 Pac. 500.)
    1. FORGERY — “Principal” and Accessory. One who is present at the forgery of a deed, knowingly aiding, abetting or assisting such forgery, is guilty as a principal, although the act of signing the name with intent to forge the same was done by another person.
    2. TRIAL — Questions of Law and Pact. Where the evidence is conflicting as to whether a witness participated in committing the crime charged, the question as to whether or not such witness is an accomplice, is one of fact for the jury. But where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice.
    3. TESTIMONY OF ACCOMPLICE — Corroboration. Under Procedure Criminal, see. 5884, Rev. Laws, “a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect tho' defendant with the commission of the offense,” and if two or more accomplices testify, the same corroboration is required as if there be but one. An accomplice can neither corroborate himself nor another. accomplice.
    4. FORGERY — Sufficiency of Evidence. Evidence in a prosecution for forgery, considered and held to be sufficient to sustain a conviction.

      Appeal from District Court, Seminole County; Frank Mathews, Judge.

    Jimmie Cudjoe, convicted of forgery, appeals.
    Affirmed.

      B. L. Harris, for plaintiff in error.

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

This appeal is from a judgment of conviction for the crime of forgery in the first degree, rendered by the District Court of Seminole county, on the 28th day of January, 1914, wherein Jimmie Cudjoe, plaintiff in error was sentenced to imprisonment in the penitentiary for the term of seven years. The information charged Jimmie Cudjoe, and Willie Barkus, with forging a warranty deed, purporting to convey the following described land in Seminole county: The southeast quarter of the northwest quarter of section eleven, township five, north, of range five east. The deed purported to be executed by Ben Grayson to W. E. Grisso dates March 15, 1913, acknowledged before H. A. Born, notary public, in and for Seminole county on said date.

On the part of the state the evidence tended to prove the following facts: That on the date alleged the said Jimmie Cudjoe, with one Willie Barkus went to the drug store of one W. E. Grisso in the town of Seminole, introduced said Barkus as Ben Grayson, and stated that he wanted to sell his land. After talking the matter over Grisso agreed to buy the land, and Barkus signed the deed as Ben Grayson, and acknowledged the same before H. A. Born, a notary public. The consideration for the deed was two hundred and fifty dollars. Grisso also gave Jimmie Cudjoe one dollar.

Ben Grayson testified that he had lived in Seminole county all his life; that he had known Jimmie Cudjoe for fjve years, that they were at school together at Mekusukey; that the land described in said deed was his homestead allotment that he had never authorized Willie Barkus or any one else to sign a deed; that he was in possession of the land described in the Grisso deed on .the 15th day of March, 1913.

H. A. Born, notary public, testified that he took the acknowledgment of the deed in question and that Ben Grayson was not the person who signed the deed; that Willie Barkus signed the name of Grayson to the deed and Jimmie Cudjoe said at the time that he was Ben Grayson. Willie Barkus testified that he had plead guilty to forgery in connection with signing this deed; that he had known Jimmie Cudjoe all his life; that on the day in question he arrived at the town of Seminole'and was going up the street when he met Jimmie Cudjoe who said to him, “A fellow wants you to sign a deed,” and witness said “What for,” and Jimmie Cudjoe said, “He will give me seven dollars if you can, write it like he says.” And he said “All right” and went with Cudjoe to sign the deed and they gave him seven dollars, a check and a paper or two; when they left he gave the papers to Jimmie Cudjoe. The defendant Cudjoe as a witness in his own behalf testified -that he was in Shawnee a few weeks before the deed was signed, and a fellow walked up to him and said, “Don’t’ you remember Ben Grayson, that boy that went to school with you ?” And he said “Jimmie, do you know where a fellow could sell any land down there where you live” and he told him he thought he could, and he said “I will be down there sometime and see about it.” That on the day the deed was signed he was standing near the depot at Seminole, when the same fellow walked up and said, “Hello, I have come down here to sell that land I was talking to you about,” and they went down to Mr. Grisso w1k> bought the land. That he thought Willie Barkus was Ben Grayson, who had went to school with him at Mekushkey.

The first ássignment of error is based upon the action of the court in overruling the motion for a new trial on the ground of newly discovered evidence, as set forth in the affidavit of one Bunnie Bruner. It appears that the day before the case was called for trial, upon due-notice to the defendant and his counsel; the court permitted the county attorney to endorse the name of the co-defendant Willie Barkus on the information. When the case was called for trial, counsel for defendant filed an application for a continuance on the ground that “neither the defendant nor his attorneys knows what the testimony of Willie Barkus will be and had no opportunity to consult with their client.” The application was overruled. It is argued that the defendant was thus deprived of an opportunity to show diligence in obtaining the attendance of the witness Bunnie Bruner. Under the statute every defendant jointly indicted or informed against is charged with notice that the state may, if it so desires, use a co-defendant as a witness against him. (Proc. Or. Sec. 5879, Rev. Laws.)

Willie Barkus had entered his plea of guilty and had been sentenced prior to this trial. Bruner it appears was a neighbor of Cudjoe, his failure to learn what Bruner would testify to before the trial was a lack of diligence on his part, had the defendant exercised any diligence whatever he could have secured the attendance of this witness at the trial. A defendant must use all reasonable. diligence; not only to find out what witnesses he will need, but also.to secure the attendance of such witnesses at the trial. (Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438.)

We think the motion for a new trial was properly overruled.

The second assignment is that the court erred in giving the following instruction:

“You are further instructed that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense. An accomplice, as the word is here used, means any one connected with the crime committed, either as principal offender, or as an accessory, or one who aids and abets in the commission of an offense; it includes all persons who are connected with the crime by unlawful acts on their parts committed, either before or at the time of the commission of the offense, and if you find that the deed set out 'in the information was forged, and that any witness who has testified herein against the defendant was an accomplice in said forgery, then you must disregard the testimony of such witness, in so far as the same is against said defendant, in so far as the same is not corroborated as herein stated.’
(Excepted to by defendant and exception allowed.)
Frank Mathews, Judge.”

The criticism made upon this instruction in the defendant’s, brief, is as follows:

“The court ought to have included in the above instruction the further charge that if they found all of the witnesses above mentioned to be accomplices, then that one accomplice could not corroborate another and that before they could convict the defendant they must have other testimony corroborating that of BarJkus, Grisso and Born, tending to connect the defendant with the commission of the offense before they could find Cudjoe, the defendant, guilty.”

This criticism is based upon the theory that the witnesses Barltus, Grisso and Born, were all accomplices. There was no evidence tending to prove that the witness Born was an accomplice. The testimony of Barkus a co-defendant, as to what Cudjoe said to him just before and after the forgery was committed tends to prove that Grisso was an accomplice. Grisso’s testimony tended to show that he was an innocent purchaser. When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to instruct the jury on the law of accomplice testimony and leave the question as to whether or not the witness is an accomplice for the determination of the jury as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Where he is admitted to be such, or where the undisputed facts show" him to be an accomplice, the court may so charge without invading the rule that the court should not comment on the credibility of any witness.

Driggers v. U. S., 1st Okla. Cr. 167, 95 Pac. 612, Am. St. Rep., 823, Id. 21 Okla. 60, 95 Pac. 612, 129 Am. St. Rep. 823, 17 Ann. Cas. 66.

See People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A. (N. S.) 706.

Underhill on Criminal Evidence, section 69.

If two or more accomplices testify, the same corroboration is required as if there be but one; an accomplice can neither corroborate himself, nor another accomplice. Whether the witness Grisso was or was not an accomplice was a question of fact for the jury.

The instruction objected to was amply sufficient, and fully and fairly submitted the law applicable to accomplice testimony. This was the only instruction objected to. It appears that the case was fairly submitted to the jury in a clear, concise and fully adequate charge.

Finally it is insisted-that the evidence is insufficient to support the conviction. That the deed was forgery and that the defendant was present when the name of Ben Grayson was signed thereto by Barkus with intent to defraud, was undisputed. 'If the defendant knowingly' or intentionally aided or abetted in the commission of the crime he was guilty also, as much so as if he had forged Grayson’s name himself. The testimony of Born, a disinterested witness, was sufficient to, show his guilt, unless it was as the defendant testified, a case of mistaken identity and that he believed. Barkus was Grayson. The defendant Cudjoe, Barkus and Grayson, are Seminole negroes, and in the face of the undisputed facts, that the defendant and Barkus had known each other from childhood, and that both had attended school with Grayson several years, we are inclined to think the defense attempted to be made was without merit.

It would seem that the defendant' Cudjoe was the arch-conspirator and that “Barkus was willing.” We think the evidence was amply sufficient for the purpose of conviction. Having reviewed the errors assigned and finding no error in the record, the'judgment is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    CLIFFORD RENTIE v. STATE.
    No. A-2452.
    Opinion Filed February 5, 1916.
    (154 Pac. 502.)
    HOMICIDE' — Appeal—Verdict—-Evidence. Becord and evidence examined and held sufficient to sustain a conviction for assault with intent to kill, and that no reversible error was committed on the trial.

      Appeal from District Court, Okmulgee County; Wade S. Stand field, Judge.

    Clifford Rentie, convicted, of assault with intent to kill, appeals.
    Affirmed.

      B. M. Carter and C. L. Phillips, for plaintiff in error.,

      R. MlMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Clifford Rentie, plaintiff in error, was convicted of assault with intent to kill T. L. Dunigan, and was sentenced to imprisonment in the penitentiary for the term of three years. From the judgment an appeal was taken by filing in this court on May 4, 1915, a petition in error with case-made.

The errors assigned are:

1. That the court erred in overruling the motion for a new trial.

2. That the verdict is contrary to law and the evidence and is based wholly upon passion and prejudice.

3. That the court erred in giving instruction No. 6 to the jury.

It appears that the plaintiff in error, a negro, assaulted the prosecuting witness Dunigan with a knife, inflicting nine wounds, one of which penetrated the pleural cavity:

No briefs have been filed and when the case was called for final submission no appearance was made in behalf of the plaintiff 'in error. The case was thereupon submitted on the record. We have carefully examined the record and find that it is exceptionally free of error, and we find no reason to think that the verdict was the result of passion or prejudice. No objection was made or exception taken to the instructions given by the court.

Having reviewed the errors assigned and finding no substantial error in the record, the judgment is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    BUD WINGO v. STATE.
    No. A-2457.
    Opinion Filed February 5, 1916.
    (154 Pac. 502.)
    HARMLESS ERROR — Instructions. The letter and spirit of the law is that if the defendant has had a fair trial, and if this court is satisfied that the verdict against the defendant was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed. In this case the erroneous instruction was harmless for the reason that the evidence did not leave the guilt of the defendant in doubt. No defense was made and no prejudice could have resulted.

      Appeal from County Court, Grady County; R. B. Davenport, Judge.

    Bud Wingo, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Holding & Herr, for plaintiff in error.
    R. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Bud Wingo, was convicted in the County Court of- Grady county on an information charging that in said county on or about the 10th day of November, 1914, he did then and there wilfully and unlawfully have in his possession three hundred and sixty gallons of whisky with the unlawful intent to violate provisions o'f the prohibitory lari. Judgment was rendered on the 13th day of March, 1915, and he was sentenced to pay a fine of one hundred dollars and to be confined in the county jail of Grady county for a period of thirty days.

From the judgment an appeal was taken by filing in this court on May 10, 1915, a petition in error with case-made.

The evidence for the- state shows that the defendant was found driving through the country south of Chickasha with two wagons; he driving one team and his little boy another. That in one wagon was four barrels of whisky and in the other three barrels and a case of whisky, and when arrested the defendant produced what he called a bill of lading purporting to show that the whisky had been delivered to him at Wichita Falls and consigned to one John Jackson at Hope, Arkansas.

There was no evidence offered on the part of the defense. The errors assigned are based upon the refusal of the court to give certain requested instructions, and on an exception taken to one of the instructions given.

The instructions Requested were properly refused-; The instruction excepted'to was incorrect. Similar instructions have been condemned by this court in the case of Huff v. The State, 12th Okla. Cr. —, 152 Pac. 464; Beal v. The State, 12th Okla. Cr. —, 152 Pac. 808, and Sellers v. The State, 11th Okla. Cr. 558, 149 Pac. 1071. However, upon a consideration of the record we are of the opinion that on the undisputed facts of this case the defendant could not be prejudiced by the instruction complained of, for the reason that the evidence did not leave the guilt of the defenadnt in doubt. This court has often held where the case is clearly made out against the defendant and the jury has so found, the judgment will not be reversed for errors which do not affect the substantial merits of the case. Every citizen when charged with crime is entitled to a fair trial according to the due and orderly course of the law,.but he cannot be heard to complain if an error is comitted that cannot operate to his prejudice.

Cooper v. The State, 12th Okla. Cr. —, 152 Pac. 608.

Upon the undisputed facts and the law as we understand it, the plaintiff in error was rightfully and legally convicted. The judgment of the County Court of Grady county herein is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.


author: ARMSTRONG, J.

text:
    JOE JONES v. STATE.
    No. A-2141.
    Opinion Filed February 7, 1916,
    (154 Pac. 689.)
    1. HOMICIDE — Assault With Intent to Kill — Instructions—Evidence. In a prosecution for assault with intent to kill, it was not incumbent on the court to charge the law of assault with intent to do bodily harm, or assault and battery when, under the evidence the defendant was either entirely innocent of any offense whatever, or was guilty of an assault with intent to kill.
    2. PRESUMPTION — Natural Consequences' of Acts. When the intent is the gist of the crime, the presumption that every sane man contemplates, and intends the natural and probable consequences that necessarily result from his acts and conduct though a very important circumstance in making the proof necessary, upon this point, is not conclusive, nor alone sufficient to convict, and should be supplemented by other evidence to avoid a reasonable doubt.
    3. APPEAL — Verdict—Conflicting Evidence. Where the evidence is conflicting, and that on the part of the state such that, if believed by the jury, a verdict of guilty should result, a conviction will not be set aside on the ground that it is not warranted by the evidence.

      Appeal from District Court, Okmulgee County; Wade S. Stand field, Judge.

    Joe Jones was convicted of assault with intent to kill, and appeals.
    Affirmed.

      Baton & Cowley and Crump & Crump, for plaintiff in error.

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

The plaintiff in error, Joe Jones, herein referred to as defendant, was convicted at the District Court of Okmulgee county during the June, 1913, term thereof, on a charge of assault with intent to kill, and his punishment fixed at imprisonment in the state penitentiary for one year and one day.

It appears that defendant and the assaulted party, L. J. Pounds, were farmers living in the neighborhood of the Salt Creek school house in Okmulgee county. The assaulted party was the constable of that township. On the 22nd day of December, 1911, in the evening óf that,day, certain Christmas exercises were held at that school house for the benefit and amusement of the children of that neighborhood. The constable was requested to be present in order to preserve order, and he did attend. Defendant also attended, together with certain members of his family, among whom was his son, Ernest Jones.

After the exercises had been going on for some time, Ernest Jones and the young man who was with him created a disturbance in the room, and the constable went to them and admonished them to be quiet. The disturbance subsided for a short time, but was afterwards renewed by the parties,, and the constable went to them and started to put them out of the house. During his attempt to eject Ernest Jones from the room, Joe Jones, father of Ernest, assaulted Pounds.

The testimony on the part of the state tended to show that the constable had Er'nest Jones with his arms around him and was at the rear of Ernest, pulling him out backwards; .that he was making 'no effort to strike; or in any way mistreat him; that defendant, Joe Jones, was in another part of the room and started to the place where the constable and Ernest were, pulling a ■knife out of his pocket as he went, and making certain threats against the constable. He rushed up to the scene of the assault, as the state’s witnesses testified. He reached around his son and stabbed the constable in the back with a knife, the blade of which was three inches or more in length, inflicting a wound that penetrated into the lung, causing hemorrhage from the lung, and confining the constable to his bed for some period of time.

As a witness in his own behalf the defendant denied that he stabbed the constable at all, and his witnesses testify that they did not see him stab him, nor did they see a knife in his hands at the time.

The defendant admits that he went to the scene of the difficulty, but says that his only purpose was to separate his son from the constable and to restore order.

The constable, Pounds, died in the February following, but there is no evidence to show whether his death was the result of the wound inflicted on this occasion. Prior to his death, however, a preliminary examination was held, and his testimony was reduced to writing. The physician who attended the deceased testified that the wound was inflicted in a vital spot on the deceased’s body, and that it was a serious and probably fatal wound.

The evidence was uncontradicted on part of the defendant. The jury found by their verdict that the weapon used was a deadly weapon.

The first assignment of error is based upon the proposition that the court erred in refusing to submit to the jury the question of an assault with a sharp and dangerous instrument with the intent to do bodily harm, and, also, simple assault and battery.

Justifying this contention counsel contends that the doctrine in Clemens v. State, 8th Okla. Crim. 452, 128 Pac. 739, is conclusive.

In this counsel is in error for the reason that the proof in the Clemmens case failed to show that the weapon used was a deadly weapon per se, and the jury’s verdict was silent on that point. In the case at bar the jury specifically found that the weapon used was a deadly weapon. The doctrine of the Clem-meus case is not applicable to the facts in this record. Where there is evidence that might tend to lessen the offense, or to reduce the crime to a degre'e lower than that charged in the indictment, or information, it is the duty of the trial court at all times to fully instruct the jury as to the law upon such lower degrees, or included offense. But,> where there is no evidence to support such lower degree, or included offense, it is not only unnecessary to instruct thereon, but the court has no right to ask the jury to consider such questions.

In the case at bar, if the evidence of the state is to'be believed, this plaintiff in error was guilty of assault with intent to kill — and nothing less. Upon the other hand, if his testimony must be believed — that is, testimony offered by him in his defense —then, he was guilty of no crime whatever. The jury found that he was guilty of assault with intent to kill — and we believe, correctly so.

See also, Simms v. State, 4 Tex. Crim. App. 144;

State v. Robb, 90 Mo. 30, 2 S. W. Rep. 1;

State v. Doyle, 107 Mo. 36, 17 S. W. Rep. 751;

State v. Barton, 142 Mo. 450, 44 S. W. Rep. 239.

The next assignment of error is based upon the proposition that the court erred in giving the following instruction to the jury:

“The jury are instructed that on the question of intent, the law presumes a person intends all the natural, probable and usual consequences of his acts, and this presumption of law will always prevail unless from a consideration of all the evidence bearing upon the point, the jury entertains a reasonable doubt as to whether such intent did exist.”

This instruction is not a correct statement of' the law applicable to the case at bar. When the intent is the gist of the crime, the presumption that every sane man contemplates, and intends the natural and probable consequences that necessarily result from his acts and conduct, though a very important circumstance in making the proof necessary, upon this point, is not conclusive, nor alone sufficient, to convict, and should be supplemented by other evidence to avoid a reasonable doubt. It is, therefore, incumbent upon the state to prove, as a matter of fact, not only that the act itself was done, but also, that the defendant at the time that he did the same had the specific intent in mind which is required to constitute the crime of assault with intent to kill.

We do not feel warranted, however, in reversing this judgment on the ground that this instruction is erroneous, for the reason that the court gave other instructions on the question of intent, which clarified the matter to a great extent; and, in effect, took away from the jury the presumption that this instruction told them was the rule, which they could entertain as a matter of law.

The legislature of this state has enacted a statute providing that a new trial shall not be granted by any Appellate Court of this state, in any cause, civil or criminal, on the ground of a misdirection of the jury, unless in the opinion of the court in which application is made, after an examination of the entire record, it appears that the error complained of .has probably resulted in a miscarriage of justice, or constitutes “a substantial violation of a constitutional right.

We cannot say, after a careful examination of this record that plaintiff in error was deprived of any substantial right, or that a miscarriage of justice resulted in this case. In fact, we are thoroughly of opinion that a miscarriage of justice would result if a new trial should be awarded, and this plaintiff in error not convicted.

There are other minor irregularities complained of, but we are unable to find from a full and complete examination of the record that error substantially prejudicial was committed.

It is, therefore, the judgment of this court that the judgment of the trial court should be affirmed. And it is so ordered.

DOYTE, P. J., and FURMAN, J., concur.


text:
    HENRY JOHNSON v. STATE.
    No. A-2412.
    Opinion Filed February 12, 1916.
    (154 Pac. 1004.)
    1. APPEAL — Correction of Sentence. Under Procedure Criminal, sec. 6003, Rev. Laws, the appellate court has plenary power to rectify the judgment appealed from by reducing the sentence in conformity to the punishment prescribed by the statute.
    2. PUNISHMENT — Correction of Sentence — Assault With Dangerous Weapon. Upon an information charging assault with intent to kill by shooting with a pistol, the verdict was "guilty of assault with a dangerous weapon, as charged in the information,” and assessing the punishment at "one year in the county jail and one hundred dollars fine.” The sentence was in accordance with the verdict, held, that the .words, ‘ ‘ one hundred dollar fine ’ ’ in the verdict and that part of the judgment imposing such fine should be treated as mere surplusage, and the judgment and sentence should be so modified.
    3. SUFFICIENCY OF EVIDENCE. The evidence in this case considered, and held sufficient to sustain the conviction for assault with a dangerous weapon.

      Appeal from District Court, Cherokee County; John H. Pitchford, Judge.

    Henry Johnson, convicted of assault with a dangerous weapon, appeals.
    Affirmed.
    J. Berry King, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information filed in the District Court of Cherokee county, charging the crime of assault with intent to kill, the plaintiff in error, Henry Johnson was convicted of the included offense of assault with a dangerous weapon, and the punishment assessed at confinement for one year in the county jail and a fine of one hundred dollars.

From the judgment rendered .in accordance with the verdict, the defendant appealed by filing in this court on March 11, 1915, a petition in error with case-made.

No brief has been filed and no appearance was made in behalf of the plaintiff in error when the case was called for final submission, whereupon the case was submitted on the record.

The errors assigned are that:

1. The court erred in overruling the motion for a new trial.

2. That the verdict was not sustained by sufficient evidence.

3. That the verdict is contrary to law in assessing the punishment by a fine and confinement.

The information, charged:

. “The said Henry Johnson did wilfully, feloniously and with a premeditated design to effect the death of Henry Sanders, make an assault upon the said Henry Sanders with a deadly weapon, to-wit: An automatic pistol, and did then and there unlawfully, wilfully, feloniously and with a premeditated design to effect the death of the said Henry Sanders, shoot and wound him the said Henry Sanders, contrary to,” etc.

The evidence shows that the shooting took place at a Sunday school picnic held near Dykes’ Chapel, about nine miles south of Tahlequah. There is a direct conflict in the testimony as to the character of the encounter, which took place between the parties when the shooting occurred.

The defendant testified that Sanders was the aggressor and struck him with his fist and that he fired two shots at him with an automatic pistol in self-defense, one of the shots striking Sanders in the side.

Upon the facts, of which the foregoing is a brief outline, the case was submitted to the jury in a charge fully and fairly covering the law. But one instruction therein was objected to. The exception thereto was not well taken. The fifth instruction was as follows:

“You are further instructed, that while the information in this case contains a charge of assault with intent to kill, it also contains a charge of assault with a dangerous weapon, which is defined as follows:
‘Any person who, with intent to do bodily harm, and without justifiable or excusable cause, commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.’ ”

The verdict of the jury was:

“We, the Jury, duly empaneled and sworn in the above entitled action, do upon our oaths find the defendant guilty of Assault with a dangerous weapon as charged in the information, and assess his punishment as follows: One year in the County Jail and One Hundred Dollar fine.”

It-will be observed that the statute, section 2344, already quoted in the aforesaid instruction No. 5, does not prescribe the payment of a fine as punishment for the crime therein defined. It appears from the record that when this verdict was received no objection to the same was made by the defendant, and the objection to the verdict was first made on a supplemental motion for new trial.

We cannot understand why the court failed to render the judgment in conformity with the provision of the statute which was included and made a part of instruction No. 5. However, we think that the words, “and one hundred dollar fine,” in the verdict, and that part of the judgment imposing a fine of one hundred dollars should be rejected as surplusage, and the judgment should be so modified.

Our criminal procedure act provides:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial.”

Section 6003 Rev. Daws.

Under this provision this court exercising its revisory jurisdiction has the power and authority to modify any judgment appealed from by reducing the sentence.

Fritz v. State, 8th Okla. Cr. 342. 128 Pac. 107.

The judgment appealed from will be modified by striking out the words, “and to pay a fine of one hundred dollars.”

Having carefully examined the record and finding no material error therein, the judgment and sentence of the District Court of Cherokee county as thus modified will be affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    DENNIS CLARK v. STATE.
    No. A-2103.
    Opinion Filed February 15, 1916.
    (154 Pac. 1005.)
    APPEAL — Verdict—Uncorroborated Testimony of Accomplice. In this jurisdiction a conviction for crime cannot be sustained upon the uncorroborated testimony of an accomplice.

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

    Dennis Clark was convicted of larceny of domestic animals and appeals.
    Reversed.

      Echols & Merrill, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error Dennis Clark was convicted at the-December, 1911, term of the District Court of Custer county on the charge of larceny of live stock and his punishment fixed at one year in the state penitentiary.

A careful examination of the record discloses the fact that this conviction is based wholly upon the testimony of an admitted accomplice, which accomplice had been tried and convicted upon the separate charge of larceny of the same animals upon which the conviction in the case at bar rests.

It appears that this accomplice caused the arrest and prosecution of the plaintiff in error herein after he had been convicted himself.

The assistant attorney general has filed a confession in error in this cause based upon the ground that the accomplice was wholly unsupported. Under the law it is necessary that there be corroborating testimony sufficient, in addition to the testimony of an accomplice, to connect plaintiff in error with the crime charged, and support the material points in such testimony.

The state having failed to corroborate the accomplice it becomes the duty of the court to reverse the judgment.

Judgment reversed. Mandate ordered forthwith.

DOYLE, P. J., concurs; FURMAN, J., absent.


text:
    ANDREW RUSHING v. STATE.
    No. A-2299.
    Opinion Filed February 14, 1916.
    (154 Pac. 1005.)
    1. ASSAULT AND BATTERY — Intent to Do Bodily Harm — Sufficiency of Evidence. In a prosecution for assault witli intent to kill, the evidence examined and held to be sufficient to sustain a verdict finding the defendant guilty of assault with intent to do bodily harm.
    2. VERDICT — Refusal to Discharge Jury. After the jury retired to consider of their verdict they returned into court and announced that they had come to an unanimous agreement with respect to the guilt of the defendant, but could not agree as to the degree of the offense and the punishment. Thereupon defendant moved the court to discharge the jury, which was overruled and the court then ordered the jury to again retire and consider of their verdict. ' Held, that the court very properly overruled defendant’s motion to discharge*the jury.

      Appeal from Superior Court, Oklahoma County; Bdzvard Dezues Oldfield, Judge.

    Andrew Rushing, was convicted of assault with intent to do bodily harm, and appeals.
    Affirmed.

      A. N. Munden and William Harrison, for plaintiff in error.
    S'. P. Preeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of'conviction in the Superior Court of Oklahoma county upon an information charging that plaintiff in error, Andrew Rushing, did feloniously commit an assault' and battery upon William C. Puckett, with a razor, a dangerous weapon, and did then and there and thereby inflict certain dangerous wounds upon the said Puckett with the felonious intent to kill him.

The defendant was by the jury found guilty of “assadlt with intent to do bodily harm,” but failed to agree upon the punishment. The court sentenced the defendant to imprisonment in the penitentiary for the term of two years.

From the judgment an appeal was taken by filing in this court on May 29, 1914, a petition in error with case-made. ■

The evidence tends to show that W. C. Puckett, a grocery-man in Oklahoma City had a dispute with the defendant over the price of some meat, involving ten cents. About two hours later the defendant met Puckett on the street and said to him, “God damn you, you insulted me,” struck him in the face, knocking his glasses off, and then cut him with a razor or knife across the neck, cutting off about one-third of the lobe of the left ear, and cutting the neck over the jugular vein.

Several eye witnesses testified that the defendant was the aggressor. The defendant running from his victim, was stopped by a policeman who asked, what was the matter and the defendant said, “He had cut a white man.”

As a witness in his own behalf the defendant testified that he went to Puckett’s place of business to buy some meat and that “there was a little misunderstanding about the price,” that later meeting Mr. Puckett on the street he said to him, “You ought not to do me that way,” and that Mr. Puckett struck him twice saying, “Come on boys, here is a bad negro,” and, “I got out my knife and cut him on the arm to get myself loose.”

The errors assigned are predicated upon the proceedings had in receiving the verdict. It appears from the record that the jury having retired to deliberate of their verdict, returned into court and announced that they had agreed on the question of the guilt of the defendant, but could not agree as to the punishment.

The record is then as follows:

“By the court: If you find that you cannot agree as to the matter of fixing the punishment, you may then so state in your verdict, and leave the punishment to be fixed by the court.
By Mr. Munden: I suggest that such a form of verdict be furnished the jurors.
By the Court: Gentlemen of the jury, if you are unable to agree as to the punishment to be assessed, you may sign one of the three forms of .verdict now submitted to you. That is, finding him guilty of the charge you find him to be guilty of, and if it is assault with intent to kill, you will sign this verdict, finding him guilty of assault with intent to kill, and leave the punishment to be fixed by the court. If you find him guilty of assault with intent to do bodily harm, you will sign that verdict, and if you find him guilty of simple assault and battery, you will find him guilty and leave the punishment to be fixed by the court.
By a juror: Shall we all sign the same verdict? There are three forms of verdict.
By the Court: There are three forms of verdict, one of assault with intent to kill, one, assault with intent to do bodily harm, and one of assault and battery. You will sign one of those three forms.
By a juror: That is just where we split up.
By the Court: You mean as to the degree of the crime?
By the juror: Yes sir.
By the Court: You are not then agreed as to the guilt or innocence of the defendant as to the degree of the crime?
By the juror: No sir.
By the Court: Then gentlemen, you have not attempted to fix the punishment because you have not agreed as to the guilt or innocence of the defendant.
By the juror: I thought we should find him guilty or innocent, and then vote on the punishment, but they are trying to vote on the punishment and the guilt all at the same time.
By the Court: You gentlemen will have to fight those matters out by yourselves. The court cannot assist you in that regard.
By Mr. Munden: Comes now the defendant and moves the court to discharge the jury because of the mistakes which have been here and now made both by statements of the jurors and by his Honor.
By the Court: If you will specify what mistake the court has made, the court will be very glad to rectify any mistake made. If the court has mis-spoke himself in any way the court will be very glad to rectify any mistake that may have been made if counsel will draw his attention to any mistake.
By Mr. Munden: All of the statements pre-supposed the jury had found him guilty which was perfectly proper under the statement by the foreman, but that has had its effect on the jury in finding him guilty when as a matter of fact they have not yet agreed upon his guilt.
By the Court: The court fails to detect any error in the statement as made by counsel. The statements of the court were made under the mis-apprehension of the statement of the foreman. It has developed that the jury have not arrived on an agreement as to the guilt or innocence of the defendant, and the court now makes this statement to the jury: Mr. Foreman, after hearing from the several members of the jury, it is evident that you have not agreed as to the guilt or innocence of the defendant. You will therefore retire and deliberate further. The forms of verdict will not be submitted at this time.
By the Court: The motion to discharge the jury is overruled.
By Mr. Munden: To which the defendant excepts.”

We think the court very properly overruled the defendant’s motion to discharge the jury.

Our procedure criminal provides:

“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his'counsel, or after they have been called.”

Section 5913 Rev. Laws.

It is further provided:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.”

Section 5936 Rev. Laws.

Under the statutes it was clearly within the province of the court to order the jury to retire further to deliberate and render a verdict responsive to the issue. Nothing appears in the record tending to show that the action of the trial court improperly influenced the jury in returning the verdict upon which the judgment was rendered. To constitute error it must appear that the defendant was prejudiced by the answers of the jurors, or that the action of the court was such as would tend to coerce the jury in arriving at a verdict of guilty. It is not claimed that the court said anything that in any way would tend to influence the jury to return the verdict that was rendered.

This was the only exception taken upon the trial.

Upon a careful consideration of the whole record we are of the opinion that the defendant has no just cause of complaint.

The judgment appealed from is affirmed with directions to the court clerk of Oklahoma county to issue forthwith a commitment in accordance with the judgment of the Superior Court of Oklahoma county, as rendered on the verdict.

FURMAN and ARMSTRONG, JJ., concur.


author: ' DOYLE, P. J.

text:
    DOW AKINS AND BILL CARDEN v. STATE.
    No. A-2411.
    Opinion Filed February 19, 1916.
    (154 Pac. 1007.)
    LARCENY — Theft of Domestic Animals — Felonious Intent — Sufficiency of Evidence. In a prosecution for theft, where the taking was open, without fraud, or stealth, and there was no subsequent attempt to coneeal the property, and no denial, but an avowal of the taking, and the testimony for the state, standing alone, raises a presumption of fact in favor of an innocent taking, held, there being no evidence tending to prove a felonious intent, the evidence is insufficient to sustain the conviction.

      Appeal from District Court, Adair County; John H. Pitchford, Judge.

    Dow Akins and Bill Carden, were convicted of larceny of live stock, and appeal.
    Reversed.

      R. Y. Nance, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ' DOYLE, P. J.

The plaintiffs in error, Akins and Carden, were jointly charged, tried and convicted of stealing two hogs, the personal property of J. L. Brown, and in pursuance of the verdict they were each sentenced to imprisonment in the penitentiary for the term of one year.

From the judgments rendered on the verdict, they appeal.

The only question necessary to be reviewed is the sufficiency of the evidence to sustain the verdict.

A substantial statement of the evidence is as follows:

J. L. Brown testified that he missed two sucking pigs Tuesday night and found them the next Sunday morning at Ed. Adair’s; that he stopped at the New Hope church that morning and Ed West told him he thought they were at Ed. Adair’s in the chicken yard; that he asked Mr. Ford to go with him; that they carried the pigs to his place and put them down near the sow to see if she wpuld own them, and she did. That Ed. Adair told him they, belonged to Dow Akins and Bill Carden.

J. H. Neff testified that he was deputy sheriff and went with J. D. Brown on Sunday morning to the home of Ed. Adair; that Adair’s place was about three-quarters of a mile from Brown’s place; that they were having Sunday school at the New Hope church that morning, which was about one hundred and fifty yards from Brown’s house; that it was about three hundred yards from Brown’s house to Quil Leatherwood’s.

Hugh Adair testified that both of the defendants had been living with his parents; that the family had no hogs, and that the defendants Dow and Bill brought two small pigs there and told the family that they got them from their uncles, Quil Leatherwood and Will Leatherwood; that while he was attending Sunday school with the defendants on Sunday morning the pigs where taken away.

To the same effect is the testimony of Walter Adair, brother of Hugh Adair.

The defendant Dow Akins testified that on the Tuesday the pigs were said to have been stolen, he and Bill Carden were going by the New Hope church and each picked up a pig and walked on to Ed. Adair’s where they were staying; that they got them about midway between Mr. Brown’s house and Quil Leatherwood’s house; that his uncle Quil had two red sows and a black one and he told him that he was going to take two pigs, and his uncle told him which ones to get; that when he took these pigs he thought they were Leatherwood’s pigs; that Brown’s pigs were about the same age and they all looked alike; that at Sunday school that morning he asked his uncle if he had missed the two pigs; that Ed. Adair is his step-father, but he used to live with Quil Eeatherwood; that Eeatherwood’s and the Brown’s sows were together when they took the pigs; that fifteen or sixteen pigs belonged to his uncle;-that Bill Carden is his first cousin.

The defendant Bill Carden testified that they took the pigs Tuesday afternoon; that there were three sows, two red and one black, and a large number of pigs in the bunch.

Quil Eeatherwood testified that the Sunday before the arrest the defendants were at his place and Dow Akins said that they were going to get the pigs and his brother Eee told Dow not to take a certain pig; that he and his brother had been expecting Dow to take the pigs; that he raised one of these boys.

Eee Eeatherwood testified that he lived with Quil Eeather-wood and one of the boys spoke to them about taking the pigs and he told them not to take a little bob tail one; that their stock' were supposed to be Red Durocs and were running out there at the time of the alleged theft; and he had seen Brown’s sow and pigs running out there with them.

Dan Hill testified that he was at the New Hope church when the boys were arrested; that he was teacher of the bible class and the defendants were there; that he heard the defendant Akins ask Eee Leatherwood there that morning in a joking way how his pigs were getting along. That after that the deputy sheriff called the defendants out and arrested them.

The charge of the court, consisting of seven instructions, makes no reference as to the law of circumstantial evidence, or as to the law in respect to the possession of property recently stolen.

The sixth instruction is as follows:

“6. You are instructed, that if the hogs in question were the property of Quil Leatherwood or Lee Leatherwood, it would be your duty to acquit the defendant; or if the testimony in the case raises in your minds a reasonable doubt as to whether said hogs were the property of said Quil Eeatherwood.or Lee Eeatherwood, you should resolve the doubt in favor of the defendants and acquit them. (To the giving of this instruction the defendants objected. The objection is by the court overruled, to which the defendant excepts. John H. Pitchford, Judge.)”

Obviously this instruction was inapplicable. Brown’s ownership of the pigs in question was undisputed and the giving of this instruction was prejudicial to the defendants. However,- we are clearly of the opinion that the evidence is insufficient to sustain a verdict, in that the evidence does not tend to prove a felonious taking.

In cases of theft, the question of the intent with which the accused took the property, is one of fact to be decided by the jury, except where the taking is open and without fraud or stealth, under a claim of ownership, or where, as in this case, the testimony as to the taking standing alone, raises a presumption of fact in favor of an innocent taking, and there being no evidence from which the jury may legitimately infer a felonious intent, such evidence is insufficient to sustain a verdict of guilty.

Two of the four witnesses for the state in this case testified that the defendants stated when they brought the pigs home, that they had taken them from their uncle. Upon the whole case we are without doubt as to the propriety of reversing the-judgments rendered upon the verdict of the jury in this case.

For the reasons stated, the judgments appealed from are reversed and the cause remanded with direction to dismiss the prosecution.

FURMAN and ARMSTRONG, JJ., concur.


author: PER CURIAM.

text:
    GEORGE H. DOUD v. STATE.
    No. A-2441.
    Opinion Filed February 19, 1916.
    (154 Pac. 1008.)
    1. WEAPONS — Pointing of Pistol — Defense—Instructions—Evidence. In a prosecution for pointing a pistol, when the evidence tends to show justification in self-defense, and in defense of habitation, it is error for the court to refuse to give a requested instruction which fairly presents the law of the ease on the theory contended for by the defendant.
    2. INSTRUCTIONS — Credibility of Accused. It is error for the trial court to single out the defendant, and, mentioning him by name, instruct the jury upon his credibility as a witness.
    (Syllabus by the Court.)

      Appeal from County Court, Blaine County; R. J. Puderbaugh, Special Judge.

    George H. Doud, convicted of pointing- a pistol, appeals.
    Reversed.

      I. H. Lookabaugh, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried and convicted upon an information charging that in Blaine county, on the 9th day of February, 1914, he George H. Doud, “did then and there unlawfully, wifully, and maliciously point at Raymond Whiteshield a person then and there being, a deadly weapon, to-wit: a pistol, contrary,” etc., and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of three months.

From the judgment rendered in pursuance of the verdict the defendant appeals.

The evidence shows that Whiteshield, a Cheyenne Indian, twenty-two years old and another Indian boy on the date alleged borrowed five dollars of the defendant, by pawning a saddle, and that evening they returned to the defendant’s home and demanded three dollars more on the saddle, finally accepting two dollars and fifty cents additional as the purchase price of the saddle.

The complaining witness Whiteshield testified that in the dispute, the defendant took from a drawer a pistol and pointed it at him. The other Indian and another white man who were present, a$ witnesses for the state did not testify that the defendant pointed the pistol.

The defendant’s grown daughter and son testified that White-shield used profane and threatening language and said he had a gun and threatened to shoot the defendant and his son; that the defendant then took his gun from a drawer and told Whiteshield to leave, but did not point the, gun at Whiteshield. To the same effect was the testimony of the defendant as a witness in his own behalf. The evidence tended to show that Whiteshield was drunk at the time.

Of the numerous errors assigned we deem it only necessary to notice those predicated upon the instructions given, and those requested and refused.

Among others the court gave the following instructions:

“You are instructed that if you find that any witness has wilfully testified falsely, to any material matter on trial, you - are at liberty to'disregard the whole of such witness’ testimony.”
“You are further instructed that evidence of the general reputation of the defendant George H. Doud for truth and veracity is proper for your consideration and you will give it such weight, as you think it entitled to and that if you find that such reputation is established as bad, you have the right to.disregard the whole of his testimony.”

The attorney general confesses that the giving of these instructions under the evidence in this case constitute reversible error. Citing Billingsley v. State, 4th Okla. Cr. 597, 113 Pac. 241, and Hendrix v. State, 4th Okla. Cr. 611, 113 Pac. 244, as to the first instruction above quoted, and Vreen v. State, 2nd Okla. Cr. 55, 101 Pac. 112; Fletcher v. State, 2nd Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Hughes v. State, 3rd Okla. Cr. 387, 106 Pac. 546, and Heacock v. State, 4th Okla. Cr. 606, 112 Pac. 949, as to the second instruction above quoted.

We think the confession of error is well founded and should be sustained.

The defendant further contends that the court erred in failing to instruct the jury upon the law applicable to the case.

It appears that the court wholly failed to instruct upon the law of self-defense, although the defendant requested such an instruction, which was refused and exception allowed.

Upon a careful examination of the record we are inclined to think that there is no merit in this prosecution. For the reasons stated the judgment is reversed.


text:
    J. A. MITCHELL v. STATE.
    No. A-2407.
    Opinion Filed February 19, 1916.
    (154 Pac. 1197.)
    1. APPEAL — Verdict—Evidence. It is the exclusive province of the jury to pass upon the weight of the evidence and the credibility of the witnesses, and where competent evidence has been introduced tending to prove all the material allegations of the information, its weight and sufficiency to sustain a conviction is for the jury.
    2. INTOXICATING- LIQUORS — Unlawful Possession — Sufficiency of Evidence. Evidence considered and held sufficient to sustain a conviction for unlawful possession of intoxicating liquor with intent to sell the same.
    (Syllabus by the Court.)

      Appeal from County Court, Canadian County; W. H. Maurer, Judge.

    A. J. Mitchell, convicted of violating the prohibitory law, appeals.
    Affirmed.
    /. I. Phelps, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried and convicted on an information charging the unlawful possession of intoxicating liquors, and was sentenced to pay a fine of fifty dollars and be confined in the county jail for thirty days. From that sentence and judgment he appeals.

The only noticeable assignment of error is that, “The evidence is not sufficient to justify or sustain the verdict of the jury.”

The testimony of J. M. Carter, under-sheriff, and P. G. Rowe, deputy sheriff was in substance as follows:

That the defendant was the keeper of a restaurant at Union City, and in serving a search warrant the officers found sixty-three pint bottles of beer; part of it was in a refrigerator along with some soda-pop and other light drinks.

James Sanders, and Lacy Bennett testified to having bought beer from the defendant.

The defendant did not testify as a witness, but his wife testified that the beer was kept for the personal use of the family.

Under the statute, questions of fact are to be decided by the jury (section 5873 Rev. Laws), and where competent evidence has been introduced tending to prove the material allegations of the information, its weight and sufficiency to sustain the conviction is for the jury.

Finding no error, the judgment of the lower court is affirmed.


text:
    JAMES BALLARD v. STATE.
    No. A-2171.
    Opinion Filed February 19, 1916.
    (154 Pac. 1197.)
    1. HOMICIDE — Degrees—Instructions—Evidence. While the jury has the right to determine the degree of crime committed in a homicide case, it is for the court to determine what degrees of homicide the evidence tends to establish, and it is the duty of the court to confine its charge to such degrees.
    2. HOMICIDE — Manslaughter in Second Degree. Where the killing with a deadly weapon is admitted, and there is no pretense that the killing was accidental, and where the defense is justifiable homicide in self-defense, there can be no issue of manslaughter in the second degree.
    3.’ REVIEW — Presentation Below — Instructions. A defendant who has been convicted of manslaughter in the second degree cannot complain that the court charged the law of manslaughter in the second degree, and that the evidence did not justify such a charge, where the record shows no objection was made or exception taken to this part of the charge in the court below.

      Appeal from District Court, Grady County; Frank M. Bailey, Judge.

    James Ballard, convicted of manslaughter in the second degree, appeals.
    Affirmed.

      Bond, Melton & Melton, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, herein referred to as the defendant, was convicted of the crime of manslaughter in the second degree, and in accordance with the verdict of the jury was sentenced to imprisonment in the county jail of Grady county for the period of twelve months.

The information charged that the defendant, James Ballard, did in Grady county, on or about the 5th day of July, 1913, kill and murder Arthur Goodnight, by shooting him with a shot gun.

From the judgment and sentence he appeals to this court:

The evidence shows that the deceased, Arthur Goodnight, was a brother-in-law of the defendant James Ballard, having married his sister. The defendant lived with his parents on a farm near Dutton P. O., in Grady county, and the deceased with his wife and three children lived in the same neighborhood. On the third of July, the deceased with his wife and children visited her parents, and stayed there that night. The next day the deceased assisted his father-in-law to save some alfalfa hay. When the deceased came to the house that evening, there was some family trouble. The evidence offered by the defendant was to the effect that the deceased became angry because the women folks did not save some of the Fourth of July ice cream and cake for him. However, the deceased left his wife there and returned home. On the next day, during the forenoon, the deceased returned in a buggy to his father-in-law’s place, and took away his three-year-old daughter. No trouble occurred at that time. About mid-day, he passed by the house again, accompanied by his little girl. After passing the house the wife of the deceased waved to him and he stopped down the road from the house a distance of more than one hundred yards, saying to his wife that she would have to come down there if she wanted to talk to him. The wife of the deceased with her baby in her arms started to the place where he had stopped on the section line road. The defendant went to the house and reached behind the door and got his shot gun, saying to his sister that if she was going he would go along and protect her. They went on inside of the fence and when they reached the point where the deceased had stopped, the defendant stepped on the wire so his sister could cross. About this time the deceased got out of the buggy and started towards the fence, then started back to the buggy.

According to the defendant’s statements before the trial, he asked the deceased if he had a gun, the deceased said, no. The deceased then told him to go and put the gun up, that he did not need any gun. The deceased then started to cross over the fence and the defendant hit him with the shot gun, and then fired a shot over his- head. The defendant backed off fifteen or twenty steps with the deceased following him up. He then fired the fatal shot, the charge entered the left breast above the heart. Death was almost instantaneous. The deceased did not have a weapon of any kind.

For the state Cecil Gatewood testified that he lived near the town of Dutton; that he was at the Ballard place on the day of the tragedy; that Arthur Goodnight lived a mile and a quarter west of the Ballard place; that he was standing about seventy-five yards northwest of the parties when the shooting occurred, and saw Jim Ballard fire the shot that killed Arthur Goodnight; that they were five or six steps apart when the fatal shot was fired; that he was “a great friend of Jim Ballard.”

As a witness for the defendant Mrs. Bessie Goodnight testified that she was the widow of the deceased Arthur Goodnight; that on Thursday, with her husband and children she went to her father’s house and stayed there that night so that her husband could help her father spread his alfalfa the next day; that the next evening her husband came in from the hay field for supper and became angry because they did not save any ice cream for him, and said he was going home; that her mother asked him not to go, but he got into his buggy and told witness if she was going home with him to get in, and she went to get ready and looked out and saw him driving away; that about 11 o’clock the next day he came and got the little girl off the porch; that he had his single barrel shot gun leaning against the seat by his side in the buggy at that time; that about an hour or two later, he drove down the road in the buggy with the child, that as he drove by she waved good-bye to him and he stopped. That he had often made threats against the Ballards, and she had told her brother Jim about these threats; that when he stopped she asked him where he was going, and he said, “come down here and talk to me.” That as she started to go she asked her brother Jim to go with her; that she was carrying her baby in her arms; when they reached the fence her husband said to Jim, “I will have you arrested before night for bringing that gun with you,” and Jim said, “Go ahead, that’s all right, we have an officer at the end of the road for you.” That her husband got out of the buggy and started towards her brother, and Jim told him to stand back, that he did not want to hurt him, “that he came over the wire and grabbed for Jim, and Jim knocked the lick off with the gun,” and she told her husband to stand back and not get any closer to Jim. That when the second shot was fired they were four or five steps apart.

Janies Ballard, the defendant testified that he was at Verden attending a Fourth of July picnic, and did not return home until about midnight that night; that his mother told him about Arthur Goodnight going away angry that evening and told him about what his sister had said about their trouble, and that he had threatened to kill all of the Ballards; that he was working in the field the next day and came to the house for water and the folks said that Goodnight had been there and stole the little girl, and • that he had his gun with him, and his sister, Mrs. Goodnight told him about the threats her husband had made against “her, him and all of us,” that when the deceased drove by Mrs. Goodnight waved her hand at him and he stopped; that he told his sister not to go down there to him; that she started and he took his gun and went along to protect her. That when they reached the fence-the deceased asked him where he was going with that gun, and told him to go back, and he did not make any answer; that the deceased said, “I will get you,” and got out of the buggy and came at him; that as he was crossing the fence he struck him with the gun and shot over his head to scare him and try to keep him back; that he kept on coming and witness kept backing from him and he shot him.

He further testified as follows:

“Q. ITow far were you from him the last time you shot? A. About the same distance when I first shot at him.
“Q. Did you shoot to kill that shot? A. Yes, sir.
“Q. State to the jury why you shot the last shot to kill? A. I run from him and backed from him as long as I could, and I thought that was the otily chance to save my life.
“Q. How large was he? A. Weighed more than two hundred pounds and more than six foot tall.”

On cross examination he stated that he did not remember whether or not his sister asked him to go down there to the road with her.

In rebuttal, Dr. Messner testified that he lived at Dutton, and the Ballards lived about a mile west, and that Arthur Goodnight lived about three hundred yards east; that he had a store there and that Arthur «Goodnight passed the store three times that day; that he talked with him about ten o’clock that morning while he was sitting in his buggy and that he did not have a shot gun, and he drove east and about twenty-five minutes later he returned, going towards his home with the little girl in the buggy with him; that Mr. Goodnight stopped and he went out to his buggy with some lunch stuff and put it in the back part of the buggy and he gave some candy to the little girl. That he did not see any gun in the buggy and about an hour later he drove past the store and the little girl was in the buggy with him. .

Mrs. Dr. Messner testified that on the day of the tragedy the deceased stopped at their store three times; that the first time he was going toward Ballard’s and stopped at the store to use the phone; that she saw his buggy-plain, and did not see any gun; that the little girl was with him when he came back and she stood by the buggy talking to him and did not see any gun.

The errors assigned are predicated upon exceptions to the charge of the court. Only one of the instructions excepted to is complained of in the defendant’s brief. It is contended that the testimony of the defendant and that of Mrs.'Bessie Good-’ night show's conclusively that the defendant abandoned the conflict with the deceased and attempted to withdraw from the same, and that the deceased pursued the defendant after such withdrawal, and that under said testimony, conceding that the instruction complained of to be the law, the court should have gone further and instructed the jury that from that time forward, the defendant had the right to defend himself and was entitled to the benefit of the law of self-defense.

Under the law and the evidence in this case the issues to be determined by the jury were murder or manslaughter in the first degree, or justifiable homicide in self-defense. The action of the court in.submitting to the jury the issue of manslaughter in the second degree is inexplicable. However, no objection was made or exception taken by the defendant to this part of the charge of the court. It is a sufficient answer to say that the rule is that if the court commits error in instructing the jury upon the law applicable tó a higher degree, of such crime and the jury renders a verdict of guilty of the lower degree, the defendant cannot complain, and a defendant who has been convicted of manslaughter in the second degree, cannot complain that the court charged the law of manslaughter in the second degree, and that the evidence did not justify such a charge.

Weatherholt v. State, 9th Okla. Cr. 161, 131 Pac. 185.

The jury has the right to determine the degree of the crime committed in a homicide case, yet its determination must be based upon evidence. It is for the court to determine what degree of homicide the evidence tends to establish, and it is the duty of the court to confine its charge to such degrees. Where the killing with a deadly weapon is admitted, and there is no pretense that the killing was accidental, and where the defense is justifiable homicide in self-defense, there can be no issue of manslaughter in the second degree.

Upon the undisputed facts and the testimony of the defendant in his own behalf, he was guilty at least of manslaughter in the first degree. 'However, upon the record before us, our duty is performed by an affirmance of the judgment. The judgment of the District Court of Grady county is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concúr.


text:
    LOT RAVENSCRAFT v. STATE. (Two Cases.)
    No. A-2536.
    Opinion Filed February 1, 1916.
    (155 Pac. 198.)
    1. SUPERSEDEAS BOND — Leaving Jurisdiction Pending Appeal. When a person is convicted of crime and perfects an appeal to this court, he is not entitled to give a supersedeas bond and leave the jurisdiction without proper orders permitting him to do so.
    2. APPEAL — Dismissal—Grounds. A motion to dismiss an appeal on the ground that the person taking the same has left.the jurisdiction of the court and become a non-resident of the state, and is therefore no longer amenable to the orders of the court, in the absence of answer or any showing, will be sustained and the appeal dismissed. ,

      Appeal from District Court, Beaver County in A-2194; R. H. Loofbourrow, Judge.

      Appeal from District Court, Harper County in A-2334; W. C. Crow, Judge.

    Dismissed.

      Charles Swindall, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Eot Ravenscraft, was convicted at the August, 1913, term of the District Court of Beaver county in cause No. A-2194 on a charge of larceny of live stock and his punishment fixed as imprisonment in the state penitentiary for a term of two years.

The conviction in No. A-2334 occurred in the District Court of Harper county, Oklahoma, at the March, 1914, term of said court. The charge in that court being larceny of domestic animals, and the punishment fixed at two years in the penitentiary.

The prosecution in these cases grew out of a transaction which occurred about the 19th day of April, 1913, and involves the charge of stealing cattle from two different individuals.

Upon the submission of this cause on the briefs and oral arguments the attention of the court was not called to the fact that plaintiff in error was a non-resident of Oklahoma.

On the 12th day of January, 1916, the attorney general filed . a motion to dismiss the appeals in both of the above styled and numbered causes on the ground that the said plaintiff in error had left the jurisdiction of this court and had become a non-resident of the state of Oklahoma.

Attached to the motion to dismiss and in support thereof a number of affidavits have been filed; among them that of John W. Bain, postmaster at LaVerne in Harper county, Oklahoma, which was the home of plaintiff in error at the time of his arrest and conviction. In this affidavit facts are set forth which indicate that plaintiff in error left Oklahoma some two years ago; had lived at Cuba, Kansas, a portion of the time and at Logan, Kansas, a portion of the time. His present whereabouts appear to be unknown. The facts set forth, however, indicate that plaintiff in error is a resident of the state of Kansas.

There has been no answer filed to the motion. The plaintiff ' in error has not been produced in person to answer to the orders of this court.

In the absence of a showing to the contrary, the motion of the attorney general, supported by affidavits, as this is, should be and is conclusive.

The appeal is dismissed in both cases. Mandate ordered forthwith.

DOYLE, P. J., concurs; FURMAN, J., absent.


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    BILL BROWDER v. STATE.
    No. A-2451.
    Opinion Filed March 4, 1916.
    (155 Pac. 198.)
    1 APPEAL — Weight of Evidence — Reversal. The credibility of ■witnesses and the weight and value to be given their testimony is a question solely for the jury’s determination; and, to reverse a judgment on the ground that the verdict is contrary to law and the evidence, this court must find as a matter of law that the evidence is insufficient to warrant the conviction.
    2. INTOXICATING LIQUORS — Unlawful Conveying — Sufficiency of Evidence. In a prosecution for the unlawful conveyance of intoxicating liquor, the evidence considered and held sufficient to sustain the eonvietion.

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

    Bill Browder, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      J. B. Wilkinson, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information filed in the County Court of Stephens county, charging that he did unlawfully convey intoxicating liquor, the plaintiff in error, Bill Browder, was tried and found guilty and was sentenced to be confined in the county jail for sixty days and to pay a fine of two hundred dollars.

From the judgment rendered on the 18th day of February, 1915, he appealed by filing in this court on May 4, 1915, a petition in error with case-made.

The one question presented by the record in this case which we are asked to review, is the sufficiency of the evidence to sustain the conviction. ■

The sheriff and two other officers, as witnesses for the state testified that they saw the defendant driving from his home and followed him and just before they overtook him saw him break a bottle of alcohol over the wheel of his buggy, that they picked up two broken bottles that had contained alcohol while they were following him.

The defendant as a witness in his own behalf denied that he was conveying the alcohol or that he broke the bottles.

Another witness testified that he was with the defendant in his buggy on the occasion of his arrest; and that he did not see any bottles thrown out of the buggy before they met the sheriff.

After a careful examination of the evidence in this case we are not prepared to say that the jury were not warranted in finding the verdict returned by them. The credibility of witnesses and the weight and value to be given to their testimony was a question solely for the jury’s determination, and to reverse the judgment on the ground that the verdict is contrary to law and to the evidence this court must find as a matter of law that the evidence is insufficient to warrant the conviction.

We find nothing in the record indicating improper motive or passion or prejudice on the part of the jury, and the court fully and fairly covered the law of the case in a" charge to which no objection was made nor exception taken. It follows that the judgment must be and the same is hereby affirmed.

FURMAN and ARMSTRONG, JJ., concur.


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    E. F. GLOVER et al. v. STATE.
    No. A-2536.
    Opinion Filed March 4, 1916.
    (155 Pac. 199.)
    APPEAL — Dismissal—Fugitive. Where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and where a defendant becomes a- fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss the appeal.

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

    E. F. Glover, convicted of a violation of the prohibition law, appeals.
    Appeal dismissed.

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

      R. McMillan, Asst. Atty. Gen,, Bred P. Branson, Co. Atty. and Glen Alcorn, Asst. Co. Atty., for the State.
   DOYLE, P. J.

Plaintiff in error, E. E. Glover, was convicted in the Superior Court of Muskogee county of a violation of the prohibition law. From the judgment rendered on the verdict he appealed by filing in this court on September 14, 1913, a petition in error with case-made. On January 28, 1915, counsel for the state filed a motion to dismiss the appeal, in part 'as follows:

“That on or about the 20th day of April, 1915, the said plaintiff in error, E. F. Glover, was tried in the Superior Court in and for Muskogee County, Oklahoma, upon the charge of having the^unlawful possession of intoxicating liquors, and was there convicted of said crime; that on the 24th day of April, 1915, the said E. F. Glover was, by the judgment of said Superior Court, sentenced to 30 days in jail and to pay a fine of $100.00. That said plaintiff in error, E. F. Glover, thereupon served notice of appeal and has filed in this Court his appeal from said judgment and sentence of said Superior Court. That on or about the 24th day of April, 1915, the said E. F. Glover, plaintiff in error herein, filed in the Superior Court of Muskogee County and in said cause, his supersedeas and appeal bond from said judgment and sentence and was released upon said bond pending his appeal to this Court.
That on or about the 16th day of December, 1915, an indictment against B. S. Glover, alias E. F. Glover, for keeping and maintaining a place for the purpose of violating the liquor laws of the State of Oklahoma, was returned and filed in the District Court by the legally sworn and impaneled grand jury of the District Court in and for Muskogee County, Oklahoma; that thereupon a bench warrant was issued for the said B. S. Glover, alias E. F. Glover, and placed in the hands of the Sheriff of Muskogee County for service; that the said Sheriff and his deputies have made diligent search for the said B. S. Glover, alias E. F. Glover, and have been unable to find him within Muskogee County, Oklahoma, nor have they been able to learn his whereabouts since the return of the said indictment; that the said E. F. Glover plaintiff in error herein, and the said B. S. Glover, alias E. F. Glover, the defendant named in said indictment, is one and the same person; that the said E. F. Glover has removed from Muskogee County to some place unknown to the Sheriff of Muskogee County or any of his deputies, and that they have not been able to locate him or learn his whereabouts after diligent search; that in support of this motion there is attached hereto the affidavits of J. D. Robbins and B. G. Hughes, deputies Sheriff of Muskogee County, ’Oklahoma.”

In the response filed the material averments of the motion are not denied: It is claimed that plaintiff in error is only temporarily absent from the state and that he intends to, and will return if his conviction is affirmed.

On the facts as averred in the motion and in the affidavits attached thereto, we think the motion to dismiss the appeal should be sustained as coming within the rule declared by this court in numerous decisions. That this court will not consider an appeal unless the plaintiff in error is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and when the plaintiff in error becomes a fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss the appeal.

Williams v. The State, 11th Okla. Cr. 35, 141 Pac. 453.

We are of the opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined. The appeal as to plaintiff in error, -E. E. Glover, is therefore dismissed. Mandate forthwith.

FURMAN and ARMSTRONG, JJ., concur.


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    CROCKET DAGGS v. STATE.
    No. A-2087.
    Opinion Filed November 11, 1915.
    (155 Pac. 489.)
    1. INDICTMENT AND INFORMATION — Motion to Set Aside-Conditions Precedent. Before a defendant in a criminal action is entitled to be heard on a motion to set aside an indictment, he must bring himself clearly within the provisions of the code of ei'iminal procedure. (Section 5780, Rev. Laws.)
    2. INDICTMENT AND INFORMATION — Impanehnent of Grand Jury — Right to Challenge — Waiver. In order to entitle a defendant who is in jail and who desires to be present at the impanelment of the grand jury, or when the grand jury is charged as to the offense for which he is held, he or his counsel should ask permission to appear for the purpose of making challenge. When this has not been done, he cannot be heard to attack the indictment because he was not present and accorded the right to challenge.
    3. WITNESSES — Cross-Examination—Relations With Accused. The state has the right, on cross-examination, to show the nature of the relations existing between the witness and the defendant, so far as their relations are such as would create a bias that might reasonably be supposed to affect the credibility of the witness, and. this rule cannot be changed by the fact that such evidence would probably prejudice the defendant in the minds of the jury.

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

      Crocket Daggs, was indicted for murder and convicted of manslaughter in the first degree; and he appeals.
    Affirmed.

      Crawford & Bolen and West & Willborn, for plaintiff in error.
    N P. Freeling, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Crocket Daggs, Mart Lancaster, and Jim Rogers, were indicted in the District Court of Pontotoc county for the murder of Mrs. May Plarrison, in said county on the 18th day of February, 1913.

When the case was called for trial a severance was demanded and allowed, and the state elected to try Crocket Daggs. Upon his separate trial he was found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for a term of twenty years. From the judgment rendered in pursuance of the verdict, he appeals.

The evidence shows, or tends to show the following facts: On the night of the tragedy, a dance was given at the country home of J. A. Tillery, eight or nine miles west of Ada, which was attended by several peoplfe in the neighborhood, including Lon Plarrison, and Mrs. May Harrison, his wife, who had with them their two babies. The defendants Crocket Daggs and Mart Lancaster, accompanied by two women known among other names as Ida Eldridge and Zada McGee, drove out from Ada that evening, and arrived at Mr. Tillery’s home ab.out nine o’clock; they had not been invited and were known to only a few of those present.

Shortly after their arrival Mart Lancaster made an insulting remark to Stella Stewart, who was talking to her sister, Mrs. May Harrison at the time. Lon C. Conley spoke to Lancaster and said, “Please do not insult any more ladies,” and Lancaster answered that “he had not insulted any ladies, and whoever said that he insulted a girl was a damn liar.” Miss Stewart stepped between them and said she did not want to have any trouble. Crocket Daggs went to the front door and called the defendant Jim Rogers, saying: “Oh Jim, come here they are beating Mart up.” Rogers came into the room and pulled a six shooter and struck Charley Stewart over the head and knocked him down and then struck Roy Page with it, instantly the shooting commenced. Several witnesses for the state testified that Mart Lancaster had a small automatic pistol in his hand at the time, and that Crocket Daggs fired the first shot. Five or six shots were fired in quick succession. Four bullets entered the ceiling; the lamp went out when the.first shot was fired. Those present rushed out of the room. A light was brought and Mrs. May Harrison was found lying on the floor dead* with a gun shot wound in the head. A thirty-eight caliber soft nose bullet had entered her left temple. Crocket Daggs and Mart Lancaster and the two women who came with them left and drove back to Ada. Reaching there they, stopped at the home of Mrs. Frank Winters, a sister of Crocket Daggs, where Daggs' left a thirty-eight caliber pistol, which was found there the next morning. They then went to Shorty Worth-ington’s where they were found and arrested by the chief of police of Ada.

Two or three witnesses for the defense testified that Jim Rogers fired the first shot. Crocket Daggs did not testify.

The defendants when called upon to plead moved to set aside the indictment, because the grand jury returning the same was not drawn and impaneled as provided by law; that said defendánts were in custody and were not permitted to be present in court at the time said grand jury was by the court specially charged as to this offense as required by law.

The motion did not conform to the requirements of Procedure > Criminal, sec. 5780 Rev. Laws, and it appears from the record that the indictment was returned by a grand jury duly and regularly impaneled at the February term, 1913, begun on the 3rd day of January, 1913. On the 18th day of February the homicide charged was committed and on the 21st day of February, three days later, the grand jury returned this indictment. No «request was made to the district judge by the defendants, or on their , behalf to bring them into court when the grand jury was specially charged as to this offense, and there is no showing made that any of said grand jurors were biased or prejudiced against this defendant.

“Neither the State, nor a person held to answer a charge for a public offense, can take advantage of any objection to the panel or to an individual grand juror unless it be by challenge, and before the grand jury is sworn, except that after the grand jury is sworn, and before -the indictment is found, the court may, in its discretion, upon a good cause shown, receive and allow a challenge.”

Section 5705 Rev. Raws.

In the case of Fooshee v. State, 3rd Okla. Cr. 666, 108 Pac. 554, it is.held: “after a grand juror has been examined as to his qualifications, his answer under oath that he is qualified, has been received by the court and permitted to act, and after an indictment has been found, no possible issue can be made upon the" competency or incompetency of such juror for the purpose of invalidating the indictment.”

For the reasons stated the motion to set aside the indictment was very properly overruled.'

Error is assigned upon the ruling of the court admitting the evidence of .Lon Conley that Mart Lancaster insulted Miss Stewart at the dance. The record shows that said insult led to the final difficulty which occurred a few minutes after. It was clearly a part of the res gestae, and was explanatory of what immediately followed and so intimately connected with the killing as to form an integral part of the same transaction.' This evidence was also competent to show the motive that led to the trouble out of which this killing arose; in fact, the main event could not have been clearly understood had not this evidence been admitted.

The next assignment is that the court erred in permitting the cross examination of Ida Eklridge to the effect that -she and the defendant Crocket Daggs occupied the same bed on the night of the killing.

The question presented has been fully passed upon by this court in the case of Castleberry v. The State, 10th Okla. Cr. 504, 139 Pac. 132, where upon review of the authorities it is held:

“The state has the right, on cross-examination, to show the nature of the relations existing between the witness and the defendant, so far as their relations are such as would create a bias that might reasonably be supposed to effect the credibility of the witnesses, and this rule cannot be changed by the fact that such evidence would probably prejudice the defendant in the minds of the jury.”

There- are several other assignments of error, which we do not discuss, because we deem them destitute of merit.

The evidence shows that the crime in question was committed under circumstances indicating on the part of the perpetrator a depraved mind and a wanton and reckless disregard for human life. Upon the whole case, we are satisfied that the verdict was neither against the weight of evidence, nor against law; that the trial was conducted in substantial conformity with the law, and that the result was such as the jury might properly reach upon the evidence. The judgment of the District Court of Pontotoc county herein is therefore affirmed.-

FURMAN and ARMSTRONG, JJ., concur.