text:
    MIRRAL DEWEY SCOTT v. STATE.
    No. A-10389.
    May 2, 1945.
    (158 P. 2d 728.)

      Hughes & Hughes, of Hobart, and Ross Cox, of Hollis, for plaintiff in error.
    Randell S. Cobb, Atty. Cen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Mirral Dewey Scott, was charged in the county court of Kiowa county with the offense of driving an automobile on a public highway while under the influence of intoxicating liquor; was tried, convicted, and sentenced to pay a fine of $250 and has appealed.

For a reversal of the judgment of conviction, two propositions are presented: (1) The evidence is insufficient to support the conviction. (2) The county attorney was guilty of misconduct in making prejudicial statements to the jury which deprived the defendant of a fair and impartial trial.

E. N. Haynes, a highway patrolman, testified that on September 1, 1942, he saw defendant on State Highway No. 9, east of Lonewolf; that defendant was driving his automobile about 20 miles an hour and was weaving back and forth across the road. That he was forced off of the road as defendant passed him. That he turned his car around, pursued defendant, stopped him, and placed him under arrest. That defendant was drunk. On the seat of defendant’s car, he found a bottle of Hiram Walker whisky which had not been opened. In the glove compartment, he found a pint bottle of whisky about two-fifths full. That defendant staggered when he tried to walk and was thick-tongued when he talked.

Tom Overstreet, a constable, testified that he was in the jail at Hobart when the highway patrolman brought the defendant into the jail. That he saw the defendant and that he was so drunk that he could hardly stand alone.' That his eyes, breath, talk, and every appearance showed that he was drunk.

John White, deputy sheriff, testified that he locked the defendant in jail when he was brought to the Kiowa county jail by the highway patrolman. When questioned by the county attorney as to defendant’s condition, he stated:

“Well, I have seen men soberer than he was, and I have seen men drunker than he was. The man was drinking. He could handle himself all right.”

The evidence on the part of the defendant was that the defendant, in company with a negro man, had taken a load of wool from defendant’s farm northeast of Hollis, in Harmon county, to the city of Clinton. That after he had sold the wool, he purchased two pints of whisky intending to take them home with him. That he opened one of the pints of whisky and gave a drink to the wool buyer and took a drink himself. That he poured out part of the whisky in a pop bottle and gave to the negro. That as they proceeded home, he stopped his pick-up west of Hobart at a grocery store and bought a loaf of bread and some wienies. That he was driving down the road with a piece of the bread and a wienie in his left hand, which might have caused him to drive across the center line of the road. That one of his tires was in bad shape which caused his car to be hard to handle. That defendant was not under the influence of intoxicating liquor, but was scared, as it was the first time he had ever been arrested in his life or was ever in jail.

The groceryman where defendant purchased the bread and wienies testified that defendant came in his store and made the purchase, that he acted in a normal manner and did not appear to be drinking.

Other witnesses testified as to the good reputation of the defendant.

It is contended in defendant’s brief that because Deputy Sheriff White testified as hereinabove quoted, that the same was in conflict with other evidence of the state and because of such conflict the judgment should be reversed.

Although the testimony of the witness White is not as strong as that of the other two state witnesses, it is not in conflict with their testimony. The most that can be said for the evidence in this case is that it presented an issue for determination of the jury, and the jury’s finding under such circumstances will be sustained by this court.

As to the alleged improper statements made by the county attorney in his opening and closing arguments to the jury, there is no sufficient record that would justify this court in concluding that the statements as alleged in defendant’s brief were-made. The record does disclose that during the course of the opening argument of the prosecutor, counsel for defendant made an interruption and dictated into the record a statement which he alleged had been made to the jury by the prosecuting attorney. The prosecuting attorney replied that he did not make the statement as alleged by counsel for defendant. The trial court thereupon made the following statement:

“Gentlemen of the Jury: The court didn’t just get the opening statement made by the county attorney, but if the county attorney made any statement to the effect that the outcome of the trial of this case would govern the outcome of other cases in this court, you will wholly disregard such statement and give it no consideration.”

Subsequently and during the closing argument of the county attorney, the record discloses the following:

“By Counsel for Defendant: We object to the statement of the county attorney that Mr. Haynes, the patrolman, gave a warrant to one of the very men that testified here as to his character. By the Court: Proceed. Overruled. By Counsel for Defendant: We request that the court instruct the jury to disregard that statement. By the Court: Overruled. By Counsel for Defendant: Exception.”

It would have been better when this issue was presented for the trial court to have made a specific finding as to whether the county attorney made the alleged objectionable remark. Counsel for the state contend that the action of the trial court in oyerruling the objection of counsel for defendant was a finding that the statement was not made by the prosecutor.

In the case of Roach v. State, 46 Okla. Cr. 85, 287 P. 1095, it is stated :

“Where the argument of the county attorney is not taken down in shorthand and embodied in the record in full, and a dispute arises as to what was said in argument, this court is bound by the finding of the trial court recited in the record as to what occurred.”

In the Roach Case, however, a specific finding was made by the trial court in connection with the alleged objectionable remark. Here, there is no such specific finding, although the court did overrule the objection of the defendant. We shall consider this assignment of error in connection with the punishment which was assessed the defendant.

The record discloses that the defendant was a farmer who had a large number of livestock, consisting of cattle and sheep. He had a good reputation as an honest, law-abiding citizen. His neighbors testified that they had never heard of his being drunk.

It is undisputed that the defendant was eating on the loaf of bread and wienies which he had purchased, at the time he was stopped by the patrolman. There was no traffic on the road at the time of his arrest, except the highway patrolman. Under these circumstances, it would appear that the county attorney may have said or done something to cause the jury to assess the punishment which they did. If the county attorney did make the statement that the patrolman had given a warrant to one of the men who testified to the good reputation of the defendant, it was wholly outside of the record and was likely to canse the jury to believe that defendant was only bringing over men to testify in his behalf who had had difficulties with officers of the law.

After consideration of this entire record, it is our conclusion that the punishment assessed the defendant is excessive and should be reduced to a fine of $100.

It is therefore ordered that the judgment a'nd sentence of the county court of Kiowa county be reduced from a fine of $250 to a fine of $100, and the judgment and sentence as thus modified is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    FRED NIX v. STATE.
    No. A-10443.
    May 9, 1945.
    (158 P. 2d 726.)

      W. L. Curtis, of Fort Smith, Ark., for plaintiff in error.
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., W. S. Agent, Co. Atty. of Sequoyah County, of Sallisaw, for defendant in error.
   BAREFOOT, P. J.

Defendant Fred Nix was charged in the district court of Sequoyah county with the crime of larceny of livestock, to wit: one yearling; was tried, convicted, sentenced by the court to serve a term of three years in the State Penitentiary, and has appealed.

For reversal of this case, it is contended:

First, that the court erred in overruling the motion for continuance.
Second: “The court erred in permitting the county attorney to recall the witness, Homer Underwood, purportedly on rebuttal, for the reason that the testimony of said witness, if admissible at all, should have been called in connection with the state’s case in chief, and for the further reason that after having once been called on the theory that he was only a rebuttal witness, he was recalled on two occasions thereafter, to all of which the plaintiff in error at the time excepted and caused his exceptions to be noted of record.”
Third: “The court erred in sustaining an objection on the part of the state to the testimony of C. B. Sanders with reference to a conversation purported to have been had by this witness with Homer Underwood, who was jointly informed against in this action with the defendant, said conversation being with reference to the calf which this defendant was alleged to have stolen, to which action of the court the plaintiff in error, at the time excepted and caused his exceptions to be noted of record.”
Fourth, that the verdict of the jury is contrary to the law and the evidence.

The motion for continuance was based upon the absence of two witnesses, Earl Edwards and Athel Riddle:

We deem it unnecessary to give a lengthy statement as to this contention, and to the purported evidence of these witnesses. We have given this motion careful consideration, and find that the court did not abuse its discretion in overruling the same. Both of these witnesses were in the Army, but had both been back in Sequoyah county for ten days just prior to the trial, and no effort had been made by defendant or his attorney to take the deposition of these witnesses. The testimony which it is alleged these witnesses would have given was not such as would change the result of this trial, or prejudice his rights. There was no allegation as to when either of the witnesses could be produced to testify. . The defendant contends that he was employed in Kansas City in defense work, and was therefore unable to prepare his case for trial. His lawyer could have made the necessary preparation in his absence. We find nothing in the record that would cause us to hold that the court abused its discretion in overruling the motion for continuance. Jackson v. State, 77 Okla. Cr. 60, 140 P. 2d 606; McKendree v. State, 78 Okla. Cr. 321, 148 P. 2d 210.

As to the second contention, the evidence of the witness Homer Underwood was clearly rebuttal testimony, as it rebutted the testimony of the defendant. The fact of his being twice called to the witness stand on rebuttal did not alter the situation. Pulliam v. State, 61 Okla. Cr. 18, 65 P. 2d 426; Waldrep v. State, 74 Okla. Cr. 438, 127 P. 2d 860.

As to the third assignment of error, C. B. Sanders, a surety on defendant’s bond, testified that about two days before defendant was arrested Homer Underwood, the codefendant and from whom defendant testified he purchased the calf, approached him and wanted to leave a calf fitting the description of the one stolen at his place until he could sell it, or could get a truck to haul it, and offered to pay Sanders $10 for the privilege. The court would not permit the witness to give details of the conversation with Underwood, and the defendant excepted to the ruling of the court. The undisputed facts were that the crime was committed on February 9, 1942. The calf was taken to the commission company pens at Mof-fett, Okla., on February 10th and was sold on the market on February 11, 1942. Defendant was arrested on February 18, 1942. The testimony of the witness Sanders was that Homer Underwood had talked to him two days prior to the arrest of Underwood and the defendant, trying to get him to let him put the calf in his pasture. This evidence just could not have been true, in the light of the admitted facts, and the court did not err in refusing to permit this witness to make a detailed statement thereof.

The fourth assignment of error, that the verdict of the jury is contrary to the law and the evidence and that -the court erred in overruling the motion for new trial, cannot be sustained.

It is revealed, by tbe record that Richard Huff was the owner of certain cattle which were being kept in the pasture of Bryce Randolph, in Sequoyah county. Among the cattle was the yearling in question, which was missed by the owners soon after its disappearance from the pasture. Upon investigation it was found where the calf had been loaded into a truck, and where it had been sold. Homer Underwood, the codefendant, lived in the pasture with a woman by the name of Mary Black. The calf was sold by defendant through a commission company at Mof-fett, in Sequoyah county, Okla., to Harrison Cotner, of near Booneville, Ark., for the sum of $28.43. The calf was later found in his possession, identified as the property of Richard Huff, and returned to him. Defendant admitted that he hauled the calf to Moffett in his truck, and that he sold the same. He directed how the checks should be made for the payment of the calf. A check for $3.50 was issued to Homer Blackard to cover a draft drawn on the commission company by the defendant, a check for $21.50 was issued to Homer Underwood, and the remainder of the sale price was used to cover commissions, feed bills, and to apply on the defendant’s account with the commission company. The defendant assisted Underwood in getting the cheek cashed, and endorsed Underwood’s name on the check, and also endorsed it himself. He cashed the check at Earl Edward’s place of business. He knew Edwards, but Underwood did not. There was some conflict in the evidence as to whether Underwood’was present at the time the check was cashed; whether Underwood directed the defendant to sign his name on the back of the check, and whether Underwood was able to write.

The defendant and Underwood were seen loading the calf in the truck by two disinterested witnesses, Jess Gann and Elmer Cauthern, who were hauling wood for a Mr. Kendrick. They reported the incident to Mr. Kendrick, and went with him in his car to near where the calf had been loaded. They stopped the truck, and the defendant told them he had bought the calf from a man named George Denny for $25, and that it had jumped out of the truck over on the highway, and defendant had asked his codefendant, Underwood, to help him catch and reload it. Underwood got out of the truck, and defendant asked him in their presence how much he owed him, and Underwood said 50 cents. Defendant told Underwood he did not have any change, but would leave the money at Butler’s filling station, and drove on alone in the truck with the calf.

On February 12, 1942, the sheriff of Sequoyah county, Raymond P. Drake, and Bryce Randolph and his son, who had been taking care of the calf for the owner, went to the stockyards at Moffett and saw the defendant, and the sheriff asked him where he got the heifer he sold the preceding day. The defendant told him he got it from Charley Toon, near Marble City. Upon being confronted with the sales slips of cattle that had been sold by defendant on the market, he stated that he had bought the calf from Homer Underwood, and gave as a reason for not telling about it at first that the calf belonged to Mary Black, who was living with Homer Underwood. That the calf had been given to Mary Black by Joe Taylor, and that Underwood did not want her to know he had sold her calf. Defendant testified that he purchased the calf from his codefendant Underwood for $25. It is unnecessary to detail his testimony. He admitted getting the calf and hauling it to the market in his truck, and selling the same. Underwood did not accompany him in the truck. Other evidence was offered, but it is unnecessary to refer to the same.

From the above, it may be clearly seen that the evidence was sufficient to sustain the verdict, and the judgment and sentence imposed. It was clearly a question for the determination of the jury, and we find no reason for setting aside their verdict.

For the reasons stated, the judgment of the district court of Sequoyah county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


author: JONES, J.

text:
    CY BURROUGHS v. STATE.
    No. A-10399.
    May 9, 1945.
    (158 P. 2d 723.)

      Hatcher & Bond, of Chickasha, for plaintiff in error.
    BandeJ 1 jfí. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Cy Burroughs, was charged in the district court of Grady county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve four years in the State Penitentiary, and has appealed.

For a reversal of this case, three assignments of error are presented: (1) The verdict is contrary to law and contrary to the evidence. (2) The court committed error in giving instructions Nos. 17 and 22, over the objections and exceptions of the defendant. (3) The court erred in admitting incompetent testimony offered by the state in rebuttal.

The defendant was 71 years of age. At the time of the homicide, he was employed by Bill’s Grill in the city of Chickasha, which was a place where beer drinking and dancing were permitted, to keep the peace. He had been given a special commission by the sheriff for this purpose.

The deceased, Arthur Leon Hill, had served a term in the penitentiary and was frequently seen loitering around Bill’s' Grill and other similar establishments. It is agreed by all parties that there was considerable ill-feeling between the defendant and the deceased. A short time before the homicide occurred, the deceased went to the office of the county attorney and complained about the defendant, Cy Burroughs, having a special deputy sheriff’s commission. The county attorney called Bill Brummitt, the owner of Bill’s Grill, the sheriff, and the defendant to his office, and, after listening to their stories, advised the deceased that the owner of the Grill did not want him in his establishment because he and the defendant could not get along and for him to remain out of the place.

Shortly after dark, on April 9, 1942, the deceased went into Bill’s Grill. He sat down on a stool at the counter used by the patrons of the cafe and engaged the owner of the establishment in conversation. The testimony of the witnesses varied as to what was said between the deceased and Bill Brummitt, the proprietor, but all agreed that the defendant came to the front of the building where the deceased was sitting and ordered him out of the building. Many witnesses testified. Most of those who testified for the state swore that the deceased did not say a word, but got up, walked out of the building, turned when he reached the sidewalk, and started walking south. That the defendant with his pistol in his hand followed deceased to the. door. That when deceased was about 30 feet away, the defendant shot him in the back. Some of the witnesses heard deceased cursing as he left.

The defendant testified that the deceased backed out of the building with his right hand in his pocket, and was cursing him violently. That when the deceased reached the sidewalk, he was still facing the defendant and made a motion as if to draw a gun, and the defendant shot him.

The deceased was unarmed and, so far as the record discloses, did not have even so much as a pocket knife on his person at the time he was shot.

The undertaker and the doctor who examined the deceased after Ms death each testified that he was shot in the back near the spine and the ballet came out in front.

All of the eyewitnesses to the shooting, except defendant, swore that the defendant shot the deceased in the back. The defendant swore that the deceased was facing him. The only testimony in any way corroborative of defendant’s statement that the deceased was facing him at the time he was shot was the testimony of the sheriff that, in his opinion, from an examination of the body of the deceased, the bullet had entered the chest and came out near the spine in the back.

After reading this record, a reasonable person could only conclude that the deceased had been shot in the back by the defendant. Even those witnesses favorable to the defendant on other points and avIio were his friends testified that the deceased was walking down the sidewalk with his back to the defendant.

The defendant shoAved that the deceased had made threats against his life, and the state in turn showed that the defendant was high-tempered and easily lost control of himself when he became aggravated. It was shown by the testimony of the police chief on cross-examination that the defendant on one occasion had pulled his pistol on a drunk and had fired it, almost hitting some other officers who were standing nearby.

The only way that the verdict is contrary to the evidence is that the evidence, even under the most favorable light to the defendant, would have justified a more severe punishment.

Instruction No; 17, complained of, provides:

“You are instructed, gentlemen, that neither insulting words, nor insulting conduct or epithets, nor assaults previously made, that is, anterior to the actual time of the killing, had and done to the defendant at other and different places than at the scene of the homicide, nor insulting epithets, no matter how opprobrious, at the time of the killing, will justify or mitigate a homicide.”

This instruction has been approved by this court in Brantley v. State, 15 Okla. Cr. 6, 175 P. 51. This instruction must he read in connection with all of the other instructions Avhich were given. Counsel for defendant contend that this instruction nullified other instructions which were given stating the law in connection with threats which were allegedly made by deceased and in effect told the jury not to consider statements previously made by the deceased concerning the defendant in considering his justification of the homicidal act. We think that the jury thoroughly understood the law of the case and were not confused. Counsel for defendant himself states in his brief the following:

“The court went into great detail on its instructions on self-defense and the instructions on self-defense seem to be all right and announce the proper rule of law in this jurisdiction.”

There were certain parts of instruction No. 22 with reference to the defendant which could very well have been omitted, or the law in reference thereto included in another instruction and not joined with an instruction concerning the reputation of the deceased for being of a quarrelsome and fighting disposition. If this instruction or any other instruction which was given prejudiced the defendant, it was not shown by the verdict. The harmless error doctrine as defined by statute would certainly here apply. 22 O. S. 1941 § 1068. Counsel for defendant evidently handled the defendant’s case with skill because the writer of this opinion can hardly conceive, after reviewing this record, how a reasonable jury could have been so lenient with the defendant. It can only be explained by the fact that the deceased was a trouble-maker, and that counsel for defendant cleverly portrayed this bad character of the deceased before the jury. There were certainly no circumstances at the time of the immediate commission of the homicide which would have justified the leniency shown the defendant.

Complaint is made of a question asked of the chief of police by the county attorney on rebuttal. The question asked was improper. However, no exception was reserved by counsel for defendant. In addition, on cross-examination, counsel for defendant went into the same field and brought out additional matters far more damaging to his client than the answer given to the county attorney about which complaint is made.

We have carefully considered the entire record and the argument presented by counsel in his brief, but we have not found any material error in the record which this court could say substantially prejudiced the defendant. The physical facts clearly show that the defendant lost his temper over the abusive language directed at him by the deceased, as he was leaving the cafe, and having thus lost control of himself, fired the fatal shot without anything more provoking than abusive language.

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

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    FRANK EMMETT RICE v. STATE.
    No. A-10378.
    May 16, 1945.
    (158 P. 2d 912.)

      F. E. Riddle and Russell Linker, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Frank Rice, was charged in the district court of Tulsa county with the crime of robbery with firearms; was tried, convicted and given a sentence of life imprisonment in the State Penitentiary at McAlester; and has appealed.

Defendant was charged with having robbed Mr. and Mrs. W. B. Dossey on the night of April 26th, or the early morning of April 27, 1941. At the trial, a plea of insanity at the time of the alleged commission of the crime was entered.

The facts with reference to the commission of the crime with which defendant stood charged were as follows :

The defendant had been released from the State Penitentiary at McAlester about March 1, 1941. The evidence revealed that he had been “in and out of the penitentiary since 1932.” At the time of the alleged crime, he was living with his mother, Mrs. Ruth Rice, in the city of Tulsa, and had secured work'as a welder’s helper at the Bethlehem Steel plant, in Tulsa.

On Saturday night, April 26, 1941, defendant did not go to work, but went to th^ Saratoga Bar, located at Peoria and Admiral streets, in the city of Tulsa, a place where beer was sold and dancing permitted in the rear. He was at the Saratoga Bar on four different occasions during the evening, and was arrested there about 1 o’clock, the morning of April 27, 1941. His mother testified that he had about $20 in money at the time; that he owned two suits of clothes, one of which he was wearing, and that he took the other suit from his closet and pawned it for $20.

Mrs. Hazel Hudgins worked at the Saratoga Bar, and had known the defendant for several years. She testified that he came in the Saratoga Bar early in the evening and gave her a sack containing a hamburger and some green onions. She had not eaten dinner, and was glad to accept this. He left, and about one hour later he returned and again brought her a sack containing a hamburger and green onions. She thought this action strange, but accepted it. While she was talking with him this time, she noticed a bulge in his clothes, and saw that he had a gun.- She asked him what he was doing with it, and he told her he was going to take it home. She asked him to let her keep it until he got ready to go home, and he immediately turned it over to her. A little later he came to her and asked for the gun, saying that soneone was going to take him home, and she gave the gun to him, and he left. In about an hour and 45 minutes he returned, and again brought her a hamburger and green onions. He talked with her a few minutes and left. He returned in about 30 minutes and asked her to have a drink with him, and they each drank a “coke.” While drinking the “coke” she again noticed the bulge in his clothing, pulled his coat back, and saw the gun. A short time thereafter the officers arrived and arrested him.

Mr. and Mrs. W. B. Dossey testified that they had been in Bill Cleveland’s grill, located at Fifteenth and Peoria streets, in Tulsa, and were leaving about 11 o’clock. Mr. Dossey assisted his wife in entering the car, and when he turned to go around the car to get in, he was confronted by the defendant, with a gun in his hand. He tried to take the gun, knocked the defendant up against the car, and went around to the driver’s side. As he did, the defendant held his gun on Mrs. Dossey, and told Mr. Dossey that if he did not get in the car, he would shoot Mrs. Dossey. Defendant then told Mrs. Dossey to open the rear door of the car, and he got in and told Mr. Dossey to “start driving.” Mr. and Mrs. Dossey both testified that the defendant directed where they should drive, and tried to impress upon them that he was a bad man. He told Mr. Dossey he should never interfere with a man with a gnn who was holding him up, and that his gnn was not loaded at the time or it would have been too bad. Shortly thereafter, he fired his gnn between them, through the windshield. Several times during the ride defendant mentioned that he needed “potatoes.”

Defendant directed Mr. Dossey where to drive, and they drove over the river bridge, and on out to Bed Fork, adjacent to Tulsa. There he looked for a bank, and had them drive around, and finally told them to stop. Mr. Dossey told him, “If you want our money, let’s get this thing over with, and you can have what we have.” The defendant then directed Mrs. Dossey to take the billfold from her husband’s pocket and hand it to him, warning Mr. Dossey to keep his hands on the steering wheel. Defendant took $22 and all papers from the billfold, and handed the billfold and $11 back to Mrs. Dossey, saying, “f will take half and you can have half.” He then had them drive back to Tulsa, but on the way stopped and had Mrs. Dossey look in the back seat for the empty shell from his gun. He had them drive him back to the main business district of Tulsa, where the electric lights were burning brightly, and got out of the car not far from the police station.

Mr. and Mrs. Dossey drove directly to the police station and reported the incident, and the police officers found defendant at the Saratoga Bar “around 1 o’clock.” They took the gun from him,* and found the discharged shell in his pocket. He was in the back room when the officers arrived and asked for him. Mrs. Hudgins heard the officers, and told the defendant, “They are looking for you — what for?” He answered her, “I don’t know, but I will tell them I am here.” Defendant was taken to the city jail, and upon being questioned by the officers, freely admitted what he had done.

The mother of the defendant, Mrs. Ruth Rice, testified to the defendant having been confined in the State Penitentiary at McAlester the last time for a period of four years. That after he had been there about two years she was called to McAlester and informed that defendant had suffered a nervous break-down. She found him in the prison hospital, where he remained three weeks, and was strapped to the bed for eight days. Her brother went with her, and defendant did not recognize either of them. He was later taken back to his cell, and remained in the penitentiary for 18 months thereafter. When she went to visit him, he would just sit at the table, look into space, and jump up and say, “I am going, Mother;” and did not appear to want her there.

She also testified that the father of defendant had wandered off and left her to support the children. That his mind became weak, and he was just like a little child. That he would not work, and knew nothing about the children, or where they were, and finally just wandered off, and never did come hack. It was also revealed that defendant had a grandmother who had been committed to the insane asylum.

Mrs. Rice testified to the nervous condition of the defendant after he returned from the penitentiary at Mc-Alester, and that he would go to the kitchen and just sit there and say nothing; and that on one occasion he accused her of trying to poison him, and refused to drink his coffee. This was only a few days before the robbery was committed by the defendant. The defendant committed this crime about 56 days after his return from the penitentiary the last time.

The importance of the issues involved in this case have caused us to give it very careful consideration. It has been twice orally argued by request of the court, and additional briefs. have -been filed both by the state and the defendant. All of the questions raised may be considered together.

As to the question of insanity, we desire to quote certain statutes of this state, which were in effect prior to 1935. Sections 3211, 3212, and 3213, O. S. 1931, provide:

“3211. An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried, adjudged to punishment, or punished for a public offense, while he is insane.”
“3212. When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.” (Tit. 22 O. S. 1941 § 1162.)
“3213. The trial of the cause or the pronouncing the judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury.” (Tit. 22, O. S. 1941 § 1163.)

These statutes have been in force and effect in this state for many years. In 1935 the Legislature amended section 3211 so that it now reads as follows: Tit. 22 O. S. 1941, § 1161:

“An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried, adjudged to punishment, or punished for a public offense, while he or she, as the case may be, is insane; but where in any criminal action by indictment or information the defense of insanity is interposed either singly or in conjunction with some other defense the jury must state in the verdict, if it is one of acquittal, whether or not the defendant is acquitted on the ground of insanity and where the defendant is acquitted on the ground that he or she, as the case-may be, was insane at the time of the commission of the crime charged, such person shall if the jury returning such verdict state therein that they deem the discharge of said-person dangerous to the public peace, or safety, be by the trial court committed to one of the State’s hospitals for insane, there to be held and kept as a patient until legally discharged therefrom. * * *”

The amendment of 1935 did not affect or change sections 3212 or 3213 of the 1931 statute, and they are carried forward in the 19.41 statute as Tit. 22, §§ 1162, 1163, in their original form. The only change made by the amendment of 1935 was to the effect that if the jury returned a verdict of not guilty where the defense of insanity was interposed, they must state in their verdict whether they deemed the discharge of said person dangerous to the public peace or safety. And if so, he should be by the trial court committed to one of the state hospitals for the insane, to be there kept until legally discharged.

The Criminal Court of Appeals has had occasion many times to construe the above statutes prior to the amendment of 1935. Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139; Maas v. Territory, 10 Okla. 714, 63 P. 960, 53 L.R.A. 814; Signs v. State, 35 Okla. Cr. 340, 250 P. 938; Weiland v. State, 58 Okla. Cr. 108, 50 P. 2d 741; Alder v. State, 53 Okla. Cr. 374, 12 P. 2d 545; Johnson v. State, 73 Okla. Cr. 370, 121 P. 2d 625; Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205.

The amendment to the statute has never been considered by this court.

We do not desire to unduly lengthen this opinion by quoting from the opinions above cited. In the late cases of Johnson v. State, supra, and Ex parte Gilbert, supra, we have cited and fully discussed the earlier opinions. These opinions set out in full the procedure to be followed when the question of present insanity is called to the attention of the court; and the manner in which it may be called to the court’s attention.

In the case of Weiland v. State, supra, distinction is made in the manner of procedure where the question of insanity of a defendant at the time of the trial is presented; and where the question of insanity at the time of the commission of the offense is interposed.

In the first instance, if the trial has not started, the court impanels a jury for the sole purpose of trying the issue of defendant’s present sanity. The same procedure is followed if at any time during the trial the question arises as to the present insanity of the defendant. In the second instance, the question of defendant’s insanity at the time of the commission of the offense is presented to the jury under proper instructions, with the question of his guilt or innocence of the offense with which he stands charged.

In the instant case, the defendant having entered a plea of insanity at the time of the commission of the offense, both the issue of his guilt and the question of his insanity at the time of the alleged commission of the crime were presented to the jury in one trial; and while defendant in his brief suggests the unconstitutionality of 22 O. S. 1941 § 1162, as amended in 1935, and as applied to the facts here presented, we do not consider it necessary to pass upon the constitutionality of this statute in deciding this case.

Defendant contends, among other grounds, that by reason of the court permitting to be introduced before the jury certain evidence in rebuttal, he was prevented from having a fair and impartial trial, to which he was entitled under the law. This was the testimony of Deputy Sheriff E. E. Benson, and Sheriff A. Garland Marrs that in their opinion the discharge of the defendant would be dangerous to the public peace or safety.

. This procedure was evidently followed because of the phrase in the statute above quoted, which provides:

“* * * The jury must state in the verdict, if it is one of acquittal, whether or not the defendant is acquitted on the ground of insanity and where the defendant is acquitted on the ground that he or she, as the case may be, was insane at the time of the commission of the crime charged, such person shall if the jury returning such verdict state therein that they deem the discharge of the said person dangerous to the public peace, or safety, be by the court committed to one of the state’s hospitals for insane * *

Attorneys for both the state and the defendant have stated that they have been unable to find a similar provision in the statutes of any other state, and our search has disclosed none.

It is the contention of the defendant that the action of the trial court violated certain .fundamental rights of the accused, and denied him a fair and impartial trial; that it violated the rule against the giving' of opinion evidence and caused other alleged wrongful acts to be brought to the attention of the jury which were improper for their consideration.

We here quote the evidence of the deputy sheriff, E. E. Benson, and the sheriff, A. Garland Marrs, on rebuttal, in which they testified that in their opinion the discharge of defendant would be dangerous to the public peace or safety of the citizens.

E. E. Benson, after testifying that he had been a peace officer in Tulsa county since 1922, testified:

“Q. Do you know the defendant in this case, Frank Bice? A. Yes, sir, I do. Q. How long have you known him, Mr. Benson? A. I would say I have known Frank about 12 years, or 13. Q. Mr. Benson, I will ask you as a peace officer if in your opinion you would deem the discharge of Frank Bice dangerous to the public peace or safety? Mr. Biddle: If the court please, the defendant objects to that question as not in issue here, and not being tried on that issue, and besides, he was released from the hospital at Vinita a few months ago as haying been cured, and if a man is dangerous to the community the law provides— Mr. Simms: We object to the argument. Mr. Biddle: I am not arguing. I am making my objection. The law provides a method whereby a community can be protected by placing him under a peace bond. The Court: Overruled. Mr. Biddle: Give us an exception. The Court: The court bases it on section 1161, Title 22, Oklahoma Statutes Annotated. Q. You may answer that question. A. Will you repeat that question. Q. Bead it to him, Mr. Harry. (Question read by the Be-porter.) A. I would deem it wasn’t safe. Q. Sir? A. It would not be safe. Q. It would not be safe? A. No.”

And the testimony of A. Garland Marrs, sheriff, on rebuttal was as follows:

“Q. You may state your name to the court and jury. A. A. Garland Marrs. Q. You are the sheriff of Tulsa county, and have been for some time? A. Yes, sir. Q. Prior to your becoming sheriff, were you chief of police in the city of Tulsa for a period of time? A. Yes, sir. Q. Mr. Marrs, do you know the defendant, Frank Bice? A. Yes. Q. About how long have you known him? A. About seven years. Q. From your knowledge of Frank Bice, would you deem the discharge of Frank Bice dangerous to the public peace and safety? A. I would. Mr. Riddle: Wait a minute. We object to that question, if the court please, as not an issue in this case, and could not properly be made an issue until after the jury returns a verdict under the statute contended for, and for the further reason that he is not being tried on any issue of being a dangerous person, and is only tried for one specific crime, and for that reason the question is improper, incompetent, and introduced to prejudice the court and jury against the defendant. The Court: Overruled. Mr. Riddle: Exception. Q. Now what was your answer, please? A. I would.”

A careful study of this record can but convince one that the punishment assessed against this defendant— that of life imprisonment in the State Penitentiary — was by reason of the testimony above quoted. We are firmly convinced that no such punishment would have been assessed if this evidence on rebuttal had not been presented. It will be noted that these officers were permitted to testify on direct examination that in their opinion the discharge of the defendant would be dangerous to the public peace or safety. This testimony was given by them without reference to the question of the insanity of the defendant. It was based, if upon anything, on the criminal record of the defendant. Under the statute, this question would arise ■ where the defendant was found not guilty by reason of insanity, and not because of any previous criminal record. We know of no rule of evidence which would permit an officer to give his opinion with reference to a question such as this.

The verdict of the jury, in our opinion, should be based upon the facts in the case on trial and the testimony of medical experts who have examined the defendant, and not based upon other crimes allegedly committed by him, or upon opinion evidence of lay witnesses, based upon other crimes allegedly committed by the defendant.

We have held that where insanity is interposed as a defense, a nonexpert witness, after testifying to the acts, conduct and appearance of the defendant, may state whether such acts, conduct and appearance impressed him as being rational or irrational. That is, whether he was sane or insane. But it has never been held that an officer may give his opinion simply because of the previous criminal record of the defendant. Queenan v. Territory, 11 Okla. 261, 71 P. 218, 61 L.R.A. 324; affirmed 190 U.S. 548, 23 S. Ct. 762, 47 L. Ed. 1175; Hile v. State, 54 Okla. Cr. 137, 15 P. 2d 1049; Tapedo v. State, 34 Okla. Cr. 165, 245 P. 897; Bell v. State, 14 Okla. Cr. 167, 168 P. 827. See also People v. Strait, 148 N. Y. 566, 42 N. E. 1045.

In the early case of Colbert v. State, 4 Okla. Cr. 500, 113 P. 558, 559, this court said:

“It is a well-known general rule that witnesses are not to give their individual opinions, or state their conclusions, when the jury are equally competent as to such matter to form the opinion or deduce the conclusion sought from the facts. The question asked went to the merits of the whole case. There is no appreciable difference between the opinion asked for,, and a request for the witness’ opinion as to whether the alibi was proved. The court properly sustained the objection.”

Here the witnesses on rebuttal were not even asked on direct examination to give the facts, but the direct question to the officer was: “I will ask you as a peace officer if in your opinion you would deem the discharge of Frank Rice dangerous to the public peace or safety.” The .answer was: “It would not be safe.” The verdict of life imprisonment rendered in this case reveals the terrific effect of this testimony on the minds of the jury. It could not have been otherwise than prejudicial to the rights of the defendant, and in our opinion was inadmissible and denied to him a fair and impartial trial as guaranteed by the laws of this state.

At the time of the adoption of the amendment in 1935, the Legislature was endeavoring to curb a very prevalent practice of pleading insanity at the time of the commission of the crime as a defense. The legislators evidently thought that the practice would be stopped if the defendant faced the possibility of incarceration in an institution by reason of his insanity if the jury so determined. The amendment was not copied from the laws of any other state and for this reason we do not have precedent to guide us in laying down rules of procedure under this statute. Being a case of first impression, it appears to us that it would inject too many collateral issues into the case to allow witnesses to express their opinion as to whether the discharge of defendant would be dangerous to the public. This invades the province of the jury and their verdict should be based on the facts in connection with the crime charged in the information. To hold any other way would sustain an unconstitutional application of the statute.

Proof of the commission of other crimes, unrelated and unconnected with the crime for which the defendant is on trial, have always been held to be inadmissible. Herren v. State, 75 Okla. Cr. 251, 130 P. 2d 325; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L.R.A. 1917D, 383; State v. Rule, 11 Okla. Cr. 237, 155 P. 807; Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779; Perdue v. State, 40 Okla. Cr. 9, 266 P. 514; Ricker v. State, 39 Okla. Cr. 58, 263 P. 160; Stanfield v. State, 30 Okla. Cr. 82, 235 P. 256. Unless the crime was such as to show a plan or scheme, or was so connected with the crime as to be a part of the res gestae. Boyer v. State, supra; Chappell v. State, 74 Okla. Cr. 213, 124 P. 2d 742; Herren v. State, supra.

It is true that on cross-examination of these witnesses, there was an attempt on their part to justify their opinion that the discharge of the defendant would be dangerous to the peace or safety of the public by reason of certain acts done by him. But by the cross-examination it was also shown that there was very little justification, if any, for this belief, unless it was based upon the fact that the defendant was insane, not only at the time of the commission of the offense, but was insane at the time of the tidal, and at the time they were testifying. To lay down the rule that an officer may be permitted to giye his opinion that a defendant’s discharge would be dangerous to the public peace or safety and to relate other crimes allegedly committed by defendant as a basis for their opinion would, in our opinion, be setting a precedent that would in many instances deny the defendant that fair and impartial trial to which he is entitled under the law.

As we view it, the facts in the instant case clearly justify the conclusion which we have reached. The minimum punishment prescribed by the statute for this offense was five years in the penitentiary. The maximum punishment was death, or life imprisonment. From a careful reading of the record as to the facts, we can but come to the conclusion that if there had been no plea of insanity in this case, and the defendant had rested when the state closed, that only a very moderate sentence would have been assessed. Certainly not imprisonment for life.

Two reputable physicians testified for the defense in this case, and each positively testified that in his opinion the defendant was insane at the time of the commission of the offense. These two physicians, Dr. Summers and Dr. Perry, had both examined the defendant very soon after the commission of the crime, and at the time he was sent to the insane asylum at Yinita. • He remained in the asylum at Yinita for a period of nine months, when he was returned by the authorities to the custody of the sheriff of Tulsa county, and then tried upon the charge here preferred. Both of these physicians testified that they made a thorough investigation at the time, and that they consulted with the county attorney and the sheriff of Tulsa county, and were familiar with the criminal record of the defendant at the time they came 'to the conclusion that he was insane and should be sent to the asylum at Vinita for treatment. The trial court properly denied the admission in evidence of the report made by the sanity board at the time, for the reason that it was not an adjudication that the person was insane. Ex parte Gilbert, supra.

In many instances parties are sent to the asylum for treatment who are not really insane in a legal sense, but who, in the opinion of the board of examiners, may be improved by the treatment to be received. This is the reason for the rule prohibiting the admission of the order in evidence. However, this does not prohibit the doctors who made the examination from testifying at the trial of defendant that from their examination he was insane at the time of the commission of the offense. The testimony of both Dr. Summers and Dr. Perry that the defendant was insane at the time of the commission of the offense was very positive, and they gave substantial reasons for their opinions.

Tbe acts of tbe defendant jnst prior to tbe commission of tbis crime, and during tbe time of tbe commission of the crime as testified to by tbe prosecuting witnesses, heretofore related; bis conduct after tbe commission of tbe crime, and the testimony /as' to tbe mental condition of bis father, and tbe fact that other relatives bad been insane, all taken together, raise a grave doubt as to tbe defendant’s sanity at tbe time of tbe commission of the offense.

If tbe jury had found the defendant not guilty by reason of insanity, then in compliance with tbe Oklahoma statute, 22 O. S. 1941 § 1161, heretofore quoted, they could have stated in their verdict that they deemed tbe discharge of defendant dangerous to tbe public peace or safety, and be would not have been released, but committed by tbe court to one of the state hospitals for tbe insane, and held there until legally discharged. Tbis action would not have permitted his release, but would have permitted his confinement in the proper place. However, in accordance with our practice, as above outlined, tbis was a question for determination by tbe jury.

We are firmly convinced that when the state was permitted to introduce on rebuttal tbe testimony of Deputy Sheriff Benson and Sheriff Marrs that in their opinion the discharge of defendant would be dangerous to the public peace or safety of the citizens of this state, and to relate other crimes allegedly committed by defendant as the basis for their opinions, the jury evidently did not consider the question of defendant’s guilt or innocence, raised by the issues in this case, but at once came to the conclusion that if defendant was dangerous to the public peace or safety, they would assess against him a punishment of life imprisonment. This, in our opinion, was not justified, and by reason thereof defendant did not have a fair and impartial trial, as contemplated by the Constitution and laws of this state.

The writer of this opinion is inclined to believe that it would be wise for the Legislature of this state to consider the enacting of a law requiring that the question of insanity, whether claimed at the time of the trial or at the time of the commission of the offense, should be submitted to a jury separate and apart, and before the trial of defendant upon the merits of the case with which he stands charged. This, however, is a question for the Legislature, and not for the courts.

The judgment of the district court of Tulsa county is reversed and the case remanded, and the warden of the penitentiary at McAlester is directed to immediately release the defendant to the custody of the sheriff of Tulsa county, to be by him held subject to the order of the district court of Tulsa county.

JONES, J., concurs. DOYLE, J., not participating.


author: PER CURIAM.

text:
    Ex parte ORBIE WINNINGHAM.
    No. A-10566.
    May 16, 1945.
    (158 P. 2d 920.)

      Lewis Hunter, of Lawton, for petitioners.
    Randelí S. Cobb, Atty. Gen., and James G. Welch, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Orbie Winningham, father, and Walter Winningham, grand-father, of Olen Douglas Win-ningham, eight years of age, filed a petition for writ of habeas corpus in behalf of Olen Douglas Winningham on September 13, 1944. It'was alleged that the said Olen Douglas Winningham was illegally held and restrained of his liberty in the State Orphanage at Helena, Okla. A hearing to show cause was had on the petition on September 21, 1944. A response to the order to show cause was filed by the Attorney General. At the hearing it was agreed that the case would be submitted on the petition and response, and that the parties would take up the question of the modification of an order made by the county judge of Comanche county committing said juvenile. Nothing further has been filed in this case and the motion to dismiss the petition as requested in the response of the Attorney General is sustained, and the petition dismissed, for the reason that the- petition for writ of habeas corpus should have first been presented to the district court of the county where said juvenile is being held under restraint.


text:
    E. F. WALROD v. STATE.
    No. A-10444.
    May 16, 1945.
    (158 P. 2d 920.)

      See, also, Ex parte Walrod, 78 Okla. Cr. 406, 149 P. 2d 518.
    J. M. Springer, of Stillwater, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, E. F. Walrod, was charged in a justice of the peace court of Payne county with the offense of assault and battery; was tried, convicted, and sentenced to serve 15 days in jail and pay a fine of $50 and costs. An appeal was taken to the district court of Payne county, and the defendant was therein tried, a verdict of guilty was returned by the concurrence of three-fourths of the members of the jury, and in pursuance to the verdict of the jury, the defendant was sentenced to serve a term of 15 days in the county jail and pay a fine of $25 and costs, and has appealed to this court.

Defendant, according to his testimony, is a minister of the gospel and, as such, is one of Jehovah’s Witnesses. As to some of the trials and tribulations which the defendant has had in the city of Stillwater, see Ex parte Walrod, 73 Okla. Cr. 299, 120 P. 2d 783; Brown v. City of Stillwater, 78 Okla. Cr. 399, 149 P. 2d 509.

In the instant case, the record discloses that on a Saturday afternoon, the defendant was standing near a bank on a street corner, handing out certain literature of his religious denomination. The facts surrounding the alleged assault and battery are disputed. The complainant, Mert Poole, swore that as he passed the accused, the accused stuck some of the literature up under his nose and that he knocked it away and started on up the sidewalk. That he had taken three or four steps when the défendant ran up behind him, jumped on his back, knocked him down and struck him several blows on the face. Apparently there were no eyewitnesses to the beginning of the affray, except the two participants. However, the state used two witnesses who saw the defendant on top of the complainant striking him.

The defendant testified in his own behalf that he was standing with his back against the bank building. That the complainant did not like him and had caused him some trouble in the city of Stillwater on other occasions for distributing his literature. That the complainant came up to him and, without any provocation on the part of the defendant, the complainant, Poole, struck the defendant. Defendant, Walrod, then stated that the attack which he made upon Poole was in his own self-defense and by reason of the assault being first made upon him by Poole.

The witness Poole admitted on cross-examination that he had testified against the defendant' on two different occasions when the defendant had been charged in the municipal court of Stillwater with certain alleged breaches of the peace, and that he had told the defendant never to offer him any of his literature or bring it to his house.

It is first insisted that the judgment is void because it is indefinite and uncertain. The verdict which was returned by the jury is as follows:

“We, the jury, being duly sworn and empanelled in the above entitled case, do on our oaths find the defendant, E. F. Walrod, guilty of the crime of assault and battery as charged in the information, and fix his punishment at 15 days and $25.00.”

The punishment for assault and battery is by imprisonment in a county jail not exceeding 30 days, or by a fine of not less than $5 or more than $100, or both such fine and imprisonment. 21 O. S. 1941 § 644.

The verdict is attacked because the jury omitted stating in their verdict whether the 15 days was to be served in the county jail or elsewhere. However, under the statute, there was no other place that the defendant could serve the punishment assessed by the jury, and we do not think it is subject to the objection insisted upon by counsel. In view of the fact that we shall, as will be hereinafter noted, reduce the sentence assessed against the defendant by eliminating the jail sentence and a part of the fine, this objection to the verdict becomes immaterial.

It is next contended that the jury is guilty of gross misconduct in the discharge of its duty. Defendant’s counsel submitted to this court at the time of oral argument an affidavit allegedly made by one of the jury panel, which related certain things which were said by members of the jury, concerning the defendant while they were deliberating upon the verdict. This affidavit was not a part of the record of this case; the question was not raised in the motion for new trial, nor in the petition in error attached to the case-made. For these reasons, it will not be considered by this court.

The defendant requested the court to instruct the jury that under the law he had a legal right to distribute his literature at the place where the alleged difficulty occurred. The requested instruction as an abstract statement of the law is correct. We have heretofore so held. Brown v. City of Stillwater, supra. However, it was not pertinent to this case, and the refusal to give it was not error.

In McKee et al. v. State, 75 Okla. Cr. 390, 132 P. 2d 173, 174, involving another case where members of the religious cult to which the defendant belonged were convicted of a breach of the peace, this court held:

“Although requested instructions may contain correct abstract principles of law, yet if they are not necessary to a proper decision of the issues involved, it is not error for the court to refuse to give them.”

The jury were given full and fair instructions on all the issues, including the issue of self-defense. The facts were in dispute and such issue was a question for the determination of the' jury.

We have come to the conclusion, after an examination of this record, that the complainant Poole is not altogether without fault in this altercation. Both he and the defendant should have been taken before the police judge of the city of Stillwater and fined for fighting. Poole’s testimony discloses that he felt bitter towards the defendant and thought that he was not a patriotic American citizen because of certain religious practices of the organization to which the accused belonged. The defendant lost his temper or the fighting would not have occurred. Under the record, the verdict of the jury must be sustained. However, the severity of the punishment is not merited by the record. Justice requires a modification. The minimum fine of $5 and costs is a sufficient punishment.

It is therefore ordered that the judgment and sentence of the district court of Payne county is modified by reducing the sentence imposed on defendant from 15 days in the county jail and a fine of $25, to a fine of $5 and all costs of this action, and the judgment and sentence as thus modified is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    WALTER WASHINGTON v. STATE.
    No. A-10402.
    May 23, 1945.
    (159 P. 2d 278.)

      Emmons Arrington, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Walter Washington, was charged in the district court of Pottawatomie county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve 20 years in the State Penitentiary, in accordance with the verdict of the jury.

The defendant, a full-blood Indian, shot and killed the deceased, William Tyner, another Indian, on the farm of the defendant on August 23, 1931. Claudius Tyner, father of the deceased, had separated from his wife and had been living with the defendant for a few1 weeks prior to the homicide. On the date of the homicide, the deceased, accompanied by some other Indians, came from his home near Cushing, to a stomp dance near Shawnee. There they met the defendant. Their relations were friendly. The deceased inquired of the defendant about his father who did not come to the stomp dance, but had remained at the home of the defendant. Later in the day, the deceased, the defendant, and some other Indians, who were eyewitnesses to the tragedy, drove to the home of the defendant so that the deceased could talk to his father and try to persuade him to return home with the deceased. When they arrived at the home of the defendant, all of the parties commenced drinking homebrew which the defendant had made. According to all of the evidence, both the deceased and the defendant showed the effects of the drinking. Some scuffling occurred between deceased .and his father.

According to the evidence of the witnesses for the state, while the deceased and his father were scuffling, the defendant joined in the scuffle on behalf of the father, and got the deceased on the ground. While the deceased was lying on the ground, the defendant told him he was going to hill him. That the defendant got up from the ground, went to his house, returned with a shotgun, went to where all of the parties were standing, and said, “Stand back, or I’ll shoot.” That he then fired the shotgun, striking the deceased, from the effects of which shot he died in about an hour.

The testimony of the state showed that at the time the shot was fired, the deceased and his father had stopped their scuffling and were standing drinking another bottle of homebrew, when the defendant returned with his shotgun. That the deceased was making no overt act towards defendant or any other person at the time the shot was fired.

The defendant testified to substantially the same facts related by the witnesses for the state down to the point where the scuffle occurred between the deceased and his father. The defendant testified that he and Bill Grass, another Indian, separated the deceased and his father, and that he told the deceased to leave his premises. That the deceased then picked up a tooth from a buck-rake and struck him over the head with it. That he again told the deceased to leave, that he was going to get his gun. In this connection, the defendant testified on direct examination as follows:

“I said, 'William, you’d better leave. You came down here and raise trouble.’ I told him that about three times and he didn’t leave, so I told him I was going after my gun. I got so mad so I went and got my gun a.nd he met me out there, and I told him to get back. He didn’t stop, so I thought I’d shoot and scare him. About that time, he threw a rock, and I think it knocked my hat off. About that time I fired the gun, but I didn’t think I hit him, so then I went back down to the house and sat down, and after a while the women folks drove up. Then, I guess they loaded him up and took him off. I didn’t know I hit the fellow until the next morning when Mother came down and told me I had killed William Tyner. Q. Is that the first you knew that you had killed him? A. Yes. Q. Walter, did you go get that gun to kill him? A. Yes, I went down * * *”

There is no contention that the evidence is insufficient to sustain the conviction. The foregoing brief summary of the case is presented for the reason that the evidence should be considered in determining one of the propositions presented by the defendant that the unnecessarily long delay in trying him for this alleged crime prevented him from fairly presenting his case and was a denial of justice.

Two propositions of law are presented for a reversal of this case: (1) Error of the court in overruling defendant’s motion to dismiss the case for laches on the part of the state in presenting the prosecution. (2) Error of the court in overruling objections by counsel for defendant to questions asked defendant on cross-examination.

In connection with the first proposition, it was shown that shortly after the homicide was committed in 1931, an information was filed in case No. 3523, in the district court of Pottawatomie county. That on November 27, 1932, the case was tried, and a jury disagreed as to the guilt of the defendant. That said cause was never reset for trial, and that on January 5, 1935, the case was dismissed on motion of the county attorney for lack of evidence by the district court. The information under which this conviction was secured was filed on August 28, 1942. The case was regularly set for trial on September 23, 1942. Prior to the date of trial, the defendant filed a motion to dismiss and presented evidence in support of said motion, showing the facts in connection with the alleged delay in the trial as herein above recited. This motion was overruled, and the case proceeded to trial, resulting in the conviction of the defendant.

The statutes pertaining to a dismissal involved in this action are as follows:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.” 22 O. S. 1941 § 812.
“If the court direct the action to be dismissed, the defendant must, if in custody, be discharged therefrom, or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him.” 22 O. S. 1941 § 814.
“The court may either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed ; but in that case the reasons of the dismissal must be entered upon the minutes.” 22 O. S. 1941 § 815.
“An order for the dismissal of-the action, as provided in this Article, is not a bar to any other prosecution for the same offense.” 22 O. S. 1941 § 817.

The prosecution for ordinary criminal offenses must commence within three years after the crime is committed, but a prosecution for murder may be commenced at any time after the death of the person killed. 22 O. S. 1941 §§ 151, 152.

We have just recently had under consideration the applicability of the above statute in a murder case where the accused had sought dismissal of the prosecution because of the denial of his constitutional right to a speedy trial. Brummitt v. Higgins, 80 Okla. Cr. 183, 157 P. 2d 922. In that case, the prosecution for murder was ordered dismissed because of unnecessary delay in trying the defendant, the defendant being incarcerated and demanding trial at each of several terms of court which passed without his being tried. It was therein stated that the dismissal was not a bar to the filing of another prosecution for the same offense, when brought within the statutory period, citing 22 O. S. 1941 § 817, supra; Ex parte Warrenburg, 63 Okla. Cr. 125, 73 P. 2d 476.

Since there is no limitation on the time within which a prosecution for murder may be instituted, the dismissal of a prosecution will not bar the institution of another prosecution at any time the state might feel that the proof of the guilt of the accused is ready to be produced.

In Ex parte Warrenburg, supra, this question was discussed at length and the authorities from various jurisdictions thoroughly analyzed. In the body of the opinion, the court quoted from the case of Ex parte Clarke, 54 Cal. 412, as follows [63 Okla. Cr. 125, 73 P. 2d 479] :

“But the order dismissing the prosecution ends the -action commenced by the complaint upon which the magistrate issued his warrant of arrest. It ends the action, however, not by any judgment upon the merits of the case, but by an order in the nature of a judgment of nonsuit, a simple expression of the opinion of the court that that particular proceeding ought not to be further prosecuted. Inasmuch as there is no limitation of time applicable to prosecutions for murder, and as a defendant in whose favor an order of dismissal of the action has been made has never been put in jeopardy within the meaning of the Constitution, a new action on behalf of the people may, in such case, be initiated at any subsequent day, either by presentment of a grand jury or by a complaint filed with any magistrate.”

Further in the opinion, in discussing a statute similar to ours, providing for the dismissal of the prosecution where the accused is not brought to trial within a certain period of time, the court stated:

. “The discharge of Rochelle . . . cannot, upon any sound principle, be considered as an acquittal from the charge so as to bar a subsequent prosecution for the same offense. The act was made to secure the citizens of the state from vexatious arrests and imprisonments, and not to protect them from prosecutions for crimes actually committed. The act in favor of liberty was sufficient to operate the discharge of the prisoner Rochelle from his former imprisonment when the state officer was not ready to produce the proofs of his guilt, but it would be monstrous to say that such a discharge should shield him from a subsequent prosecution, when the proofs of his guilt are ready to be produced.”

See, also, Ex parte Menner, 35 Okla. Cr. 252, 250 P. 541; Bayne v. State, 48 Okla. Cr. 195, 290 P. 354.

It appears from the foregoing that the motion to dismiss was correctly overruled. As to the prejudicial effect on the defendant of the unusual delay in the prosecution, after the date of the homicide, we shall discuss that in connection with another proposition as to the amount of punishment which was assessed.

It is next contended that the court erred in admitting certain evidence which prejudiced the defendant. On cross-examination of the defendant, the county attorney inquired concerning a conviction for a felony which the accused had sustained. The conviction was in a liquor case in the federal court. The contention of the defendant is that the state was attempting to attack the character of the defendant without the defendant’s putting his character in issue, and, further, was attempting to prove other crimes which were collateral and wholly irrelevant to the specific act charged.

This contention is without merit. It is provided by statute that a witness may be asked on cross-examination, for the purpose of affecting his credibility as a witness, whether he has ever been convicted of a crime. 12 O. S. 1941 § 381; Pryor v. State, 51 Okla. Cr. 345, 1 P. 2d 797; Graham v. State, 80 Okla. Cr. 159, 157 P. 2d 758.

When the defendant elected to testify, he occupied the same position as any other witness and for the purpose of affecting his credibility only, inquiry may be made as to any crimes of which he might have been convicted.

At the trial of the case, the defendant made a showing that at the former trial had in 1932, Claudius Tyner, the father of the deceased, testified on behalf of the defendant ; that subsequent thereto in 1935, the said Claudius Tyner, father of the deceased, died. That the court reporter who had reported the first trial was unable to find any notes pertaining to the evidence taken at said trial and, therefore, he was unable to furnish a transcript of the evidence of the said Claudius Tyner. This showing was made as a part of the contention of the defendant that the case should be dismissed on the theory that the unusual delay in the prosecution seriously affected the defendant’s rights because his principal witness had died. We are impressed with the forcefulness of this argument and the fact that at the former trial when this witness had testified, the jury disagreed upon its verdict and was discharged.

However, a careful study of this record impels one to conclude that the accused is guilty of manslaughter in the first degree under his own testimony. The witness, Claudius Tyner, certainly would not testify to facts more favorable to the defendant than those which the defendant himself related. The defendant testified that he left the place where they had been scuffling near his barn and walked over a hundred yards to his house, procured his shotgun, loaded it with three shells, and voluntarily returned to the scene where he fired the fatal shot. Under the testimony of all the witnesses, except that of the defendant, the deceased was committing no overt act at the time the fatal shot was fired. The defendant himself simply states that the deceased refused to leave his place and threw a rock at him when he pointed his gun and directed the deceased to leave.

Under such circumstances, ordinarily this court would not interfere with the punishment of 20 years’ imprisonment assessed the defendant, but because there was a delay of 11 years from the time the act was committed until the defendant was brought to trial upon the second complaint which was filed, and that the testimony of his principal witness could not be produced because of the death of the witness and the inability of the reporter to find his shorthand notes, we feel that justice requires a modification of the sentence imposed to a term of 10 years’ imprisonment in the State Penitentiary.

It is therefore, ordered that the judgment and sentence of the district court of Pottawatomie county is modified by reducing the sentence from 20 years’ imprisonment in the State Penitentiary to 10 years imprisonment in the State Penitentiary, and the judgment and sentence as thus modified is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.