text:
    MARK BEAN v. STATE.
    No. A-8954.
    Feb. 7, 1936.
    (54 Pac. [2d] 675.)

      L.- G. Lewis, Paul Myrick, and R. J. Shive, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience in this opinion referred to as the defendant, was by information charged with the crime of murder; was tried and convicted of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of fifteen years.

The evidence of both the state and the defendant shows that the difficulty occurred at the home of Ben Hahn, near Cushing, Okla., where a dance was in progress; .there was some drinking during the time the parties were there at the dance. It is further shown that Wesley Mc-Coin, the party the defendant is charged with killing, became involved in a fight, or some kind of a difficulty, with the Lauderdale boys; that Mrs. Hahn ordered them out of the house; the defendant, Mark Bean, had been over to the Carroll home, a short distance from the Hahn home, and spent the evening, leaving the Carroll place about 11 o’clock, and stopped at the Hahn place just a few minutes before the difficulty occurred in the house.

It is further shown that as the parties went out the door they broke a glass out of one of the doors, and Mrs. Hahn followed them out in the yard and demanded pay for a new glass. The testimony shows that after they got out of the house, Ben Hahn, who was a brother-in-law of the defendant, became involved with Elmer McCoin, the father of the deceased; there is some dispute in the testimony as to whether this fight between Ben Hahn and Elmer McCoin occurred prior to the difficulty between Wesley McCoin and the defendant, Mark Bean; the defendant insists his brother-in-law and Elmer McCoin engaged in a fight and the deceased rushed in and commenced hitting Ben Hahn in the back, and he went in and separated them, and that he became involved in a fight with Wesley Mc-Coin.

■Several witnesses who saw the fight testify the defendant and deceased fought for several minutes, and the defendant got loose from the deceased and ran through a grape vine that was framed in the yard, and deceased followed him; when they got through the grape vine they clinched and both went to the ground, the defendant being-on top of the deceased, who was trying to get up, and was on his hands and knees; that defendant struck the deceased one or more times while he was in that position, and deceased sank to the ground, and some one caused the defendant to stop fighting, and took him away from the deceased. Later, examinations showed that the deceased had been cut with a knife, from which wounds he after-wards, died in a hospital. Up to the time of the fight between McCoin and the defendant there is no conflict in the testimony. The defendant denies he had a knife or that he cut the deceased. He claims he did not even own a knife at the time. He admits fighting the deceased, but insists that he did not use a knife on him. All of the testimony of the eyewitnesses in detail show the fight between the defendant and the deceased, and its culmination; that the deceased sank to the ground unable to fight longer.

There is no evidence whatever that any one else was near the deceased or struck the deceased but the defendant. The evidence is clear as to the starting of the difficulty in the house, and that the McCoin boys were involved in the difficulty; and when they got out in the yard the father, Elmer McCoin, became involved in the difficulty with Ben Hahn, and that Ben Hahn was cut by some one while the row was going on. The foregoing is the substance of the testimony, andj it is not deemed necessary to set it out in full.

The first error the court will consider is the eighth, in which the defendant insists that the court erred in giving instruction No. 12, for the reason that the instruction set forth is beyond the right of the court or the jury considering the guilt or innocence of the party on trial, and is based on a statute intended by the Legislature as a reward for good behavior while in prison, and should not be considered by the jury in fixing the punishment, and does not aid or assist at arriving at the guilt or innocence of the party on trial.

Instruction No. 12, complained of by the defendant, is as follows:

“You are further instructed that if you find the defendant guilty of any offense in this, case, it is your duty to fix his punishment, and in this connection, you are instructed that when a defendant is convicted of a felony in the State of Oklahoma and receives a prison sentence as a punishment therefor, he does not necessarily serve the entire term of punishment imposed for the reason that the laws of this state make a provision of commutation of time for good behavior. The following table shows the commutation of time given convicts on their good behavior in this state:

Net time served

Sentence Years Months o p

4 years 4% » 2 2 3 5

6 >> 2 8

6 33 3 2

7 33 3 7 H-

8 33 4 1

33 4 6

10 33 4 11

11 33 4 5

12 33 5 ' 10

13 33 6 4

14 33 6 9 to

15 33 7 3

16 33 7 8 H-

17 33 8 2

18 33 8 7

19 33 9 0

20 33 9 6

25 33 11 9

30 33 14 0

40 33 18 7

50 33 23 1 t?

60 33 27 8

99 33 46 3

The foregoing instruction is evidently predicated upon section 5341, O. S. 1931, which is as follows:

“Every convict who shall have no- infractions of the rules and regulations of the prison or laws of the state recorded against him shall be allowed for his term a deduction of two months in each of the first tw<> years; four months in each of the next two years; five months in each of the remaining years of said term, and pro-rated for any part of the year where the sentence is for more or less than a year. The mode of reckoning credits shall he as shown in the following table:

Schedule of Credits.

No. of Good Time Total Good years of Granted Time Made Sentence Time to be served if full time is made

1st year 2 months 2 months 10 months

2nd year 2 months 4 months 1 8

3rd year 4 months 8 months 2 years, 4 mo.

year 4 months 1 year 3 years,

5th year 5 months 1 year, 5 mo. 3 years, 7 mo.

and so on, through as many years as may be the term of the sentence. And, in addition to the deduction above provided for, every convict shall he entitled to a deduction from his sentence of two days for every six days’ work performed by him: Provided, however, that no convict shall be entitled to deduction for good time as herein provided in the event he has been guilty of misconduct or violation of the prison rules and regulations, unless relieved therefrom by the warden.”

Section 3058, O. S. 1931, makes it the duty of the court to decide all questions of law which arise in the course of the trial. Section 3062, O. S. 1931, provides:

“On the trial of an indictment or information, questions of law are to- be decided by the court, and the questions of fact are to be decided by the jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court.”

In Dooling et al. v. State, 3 Okla. Cr. 491, 106 Pac. 982, in the second paragraph of the syllabus, the court said:

“The instructions of the trial court should apply the law to the competent evidence as offered by the state and the accused, and leave the jury to determine as to what facts and circumstances are established by the evidence.”

This court has repeatedly held that the instructions of the court must be applicable to the testimony produced in the trial! of the case.

The court correctly instructed the jury upon the law applicable to the evidence presented on the question of murder and manslaughter in the first degree, as defined by our statute. The instruction complained of is a section of our statute found under the title of “Instructions” governing our penitentiary and reformatory. Under the provisions of the section herein quoted, it is clearly shown that it provides for a condition subsequent to the conviction and sentence and is not germane to the question involved in the trial of the defendant as to the guilt or innocence, but provides for conditions subsequent to conviction and after the party has been incarcerated in our penitentiary or reformatory. It is offered as a reward for good behavior of the convict.

We have searched in vain to find! where any court in the trial of a defendant has instructed the jury that when a defendant is convicted of a felony and' receives a prison sentence as a punishment therefor he does not necessarily serve the entire term of punishment imposed, for the reason that the law makes a provision of commutation of time for good behavior.

Under the statutes of Oklahoma when the court has instructed the jury as to the law as applied to the evidence in the case, it has discharged its full duty under its oath and the law; and when that duty has been fully discharged, the court goes outside of the facts in this case and gives the instruction herein complained of, it committed an error prejudicial to- the rights of the defendant. However, it will be seen in this case that the evidence clearly shows that no- one had an opportunity to strike the fatal blow that) took the life of the deceased but this defendant, and the evidence is amply sufficient to convict the defendant of manslaughter in the first degree. The evil growing out of the instruction complained of can readily be seen for the reason that no provision is made for any one in authority other than a ministerial officer of the state penitentiary or reformatory to say whether or not the prisoner had a good record. Should the prisoner for any reason commit a slight infraction of the rules of the prison or incur the enmity of the warden or any one having supervision over him, a report could be made reporting that the prisoner had broken the rules and regulations and was nob entitled to good time, and the prisoner would be compelled to serve out his entire term for which the court and the jury convicted him.

It is clear the enacting of the statute for commutation for good behavior was never intended by the Legislature to be considered by the jury in the trial of the defendant, on the question of his guilt or innocence, or the punishment imposed by the jury. The instruction complained of as error only goes to the question of the commutation of the defendant after he has been convicted and incarcerated.

This court has many times held that it is not every erroneous instruction that entitles a defendant to reversal, and especially so as in this case, where the testimony clearly shows the defendant guilty of manslaughter in the first degree, the instruction opened the way for the jury, and perhaps did cause it to impose a greater sentence on the prisoner than it would have imposed had the instruction not have been given.

Considering all the facts and circumstances in the case, and the fact of the testimony showing the guilt of the defendant of manslaughter in the' first degree, we do not think that the erroneous instruction given entitles the defendant to have his case reversed. However, we believe the giving of the instruction caused the jury tO' impose a greater punishment on the defendant than it would otherwise have given, and that the judgment of fifteen years should be modified to seven years.

There is no merit in the other errors assigned sufficient to warrant this court in considering them.

For the reasons herein stated the judgment of the trial court is modified to seven years’ imprisonment, and as modified the judgment of the trial court is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    ARLIS WILLIAMS v. STATE.
    No. A-8975.
    Feb. 7, 1936.
    (54 Pac. [2d] 400.)
    Wm. H. Lewis, for plaintiff in error.
    Mac Q. Williamson, Atty. G-en., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of attempting to steal an automobile, and was sentenced to serve a term of five years in the state penitentiary.

At the time charged two police officers in a scout car saw defendant walking along the sidewalk in Oklahoma City looking into automobiles apparently to see if the ignition was locked on the various cars. The officers kept defendant under surveillance for some time. Finally he selected a Ford car parked near the curb on the side street, got into it, started the motor, and attempted to drive it out of the line of cars, but hooked the front bumper into the bumper of the car next ahead and was unable to disengage it. He got out of the car and made an unsuccessful effort to release the bumper. He then left this car and continued his search, and soon found another Ford car which he tried to enter, but as the door was locked he was unable to get into it. After some time he returned to the first car and worked diligently to release it and had the aid of a passing pedestrian, but he finally gave up, left the scene, and was arrested by the officers. Before trial complaint was lodged in the county court, and defendant was sent to the State Hospital for the Insane at Norman “for observation,” where he remained six weeks. He then left the institution without leave and returned to Oklahoma City, where he was later apprehended. Before trial a claim of present insanity was interposed, a jury trial had, which returned its verdict finding defendant sane. The defense is alibi, supported only by1 his own testimony, with the further defense of insanity.

The contention is made that the court erred in an instruction as to punishment. By agreement the court instructed the jury orally and in doing so stated the maximum punishment for the offense is twenty years' imprisonment, evidently having in mind the punishment for stealing- an automobile and not an attempted stealing. The attention of the court was called to this error in stating the maximum punishment, and he immediately corrected the instruction. Counsel argue that this statement of the court misled the jury and caused them* to assess a greater punishment than they otherwise would have done. We are not able to' see how a mere misstatement, corrected by the court before argument began, could have misled the jury. If anything, it called their attention more particularly to the maximum punishment.

Next it is contended the punishment is excessive. It is shown both by the evidence for the state and for the defendant that he is a confirmed thief; he began stealing at an early age; spent some time at the State Training School for White Boys, at Pauls Valley; and after his discharge from that institution he was convicted of an attempt to steal an automobile and served a term in the penitentiary at Granite, from which he had been released a short time when this offense was committed. The testimony is that he is not and never was insane. The record clearly shows he knew the difference between right and wrong and understood the nature and consequences of his acts; that he completed the seventh grade at school' but is deficient in mentality. He presents a condition that might well have the attention of the Legislature, if it should ever get around to establishing some separate institution for the care, confinement, and control of mentally undeveloped criminals of this type. The situation, however, is for the legislative department and not for the judicial.

The case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


author: DAVENPORT, J.

text:
    A. P. BALTHROP v. STATE.
    No. A-8957.
    Feb. 7, 1936.
    (54 Pac. [2d] 407.)
    John Steele Batson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

A. P. Balthrop was by information charged with attempt to set fire and bum and destroy by fire a seven-room frame house and household goods located therein; was tried and sentenced to imprisonment in the state penitentiary for twelve months.

In this opinion A. P. Balthrop will be referred to as the defendant. The testimony shows the defendant was living in Durant, Oída.; that in the forenoon of the 18th day of October, 1931, he and his family left their home for Dallas, Tex.; about 3 o’clock in the afternoon fire was discovered in the home of the defendant; the fire department was called out and extinguished the fire; when the fire department arrived, there was a fire in a closet in one of the rooms that had destroyed some few things in the closet; in the closet of another; room of the building there was found a burning candle between two shoes, with paper packed around the candle; the candle had not burned down to the paper.

The state further showed there were very few things in the way of clothing in the building belonging to the family at the time the fire was discovered. It was also shown that the defendant was carrying $2,000 insurance upon his household goods. At the time the fire was discovered a sign had been left on the door, saying: “Gone to Dallas.” This sign was explained by the defendant as he claimed he had a brother at Sherman who was going through to Ada, and he wanted him to know there was no one at home. It was also shown on behalf of the state that before the fire the wife of the defendant had talked with a party handling real estate, and stated she wanted to buy a better home than they! were living in, telling him they wanted to pay cash for the building. It is admitted by the defendant that he had the insurance claimed by the state, but he denies that he or any of his family had removed anything from the house other than the clothes they were wearing, save and except a few things his wife had taken for herself and the youngest child.

The defendant denied he knew anything about the fire or had anything to do with starting the fire, and claims they left home about 8:30 in the morning, and the fire was not discovered until 3 in the afternoon. All of the state’s testimony is circumstantial. Testimony was introduced on behalf of the defendant as to his previous good character.

The defendant in his 11th assignment of error alleges that the court erred in overruling his motion for a new trial. The motion for a new trial covers all the errors alleged by the defendant to have been committed by the trial court in his case. The testimony, though circumstantial; conflicts with the defendant’s testimony. The jury heard all the evidence and is the sole and exclusive judge of the same. This court has repeatedly held that where there was any testimony, positive or circumstantial, competent to go to the jury, though the testimony is conflicting, the question was for the jury to determine as to the guilt or innocence of the defendant.

An examination of the court’s instructions shows that the court properly instructed the jury as to the law applicable to the facts. The evidence is sufficient to sustain the judgqient. After a careful consideration of the record and the instructions of the court, we fail to find any error in the record warranting a reversal.

The judgment of the trial court is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


text:
    KEITH DECKER v. STATE.
    No. A-8981.
    Feb. 21, 1936.
    (54 Pac. [2d] 1096.)

      Bishop & Bishop, Frank Seay, and Tant & Moss, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of robbery with firearms, and his punishment was fixed at five years in the state penitentiary.

The evidence is that a drug store in Oklahoma City operated by Roy Bow and wife was robbed; the robber, at the point of a gun, forcing Mrs. Bow to open the cash register and give him $22.83 from the till. Some ten days later defendant was arrested and charged with the robbery.

Mrs. Bow testified as above stated and, further, that soon after the robbery she viewed several suspects but did not identify them. About ten days later she saw defendant and was able to identify him positively as the person who- committed the robbery. George Kerr, a deputy sheriff, testified he arrested defendant some seven or eight days after the crime and defendant gave him a fictitious name. The defense was alibi. Defendant testified he was gambling in Ada at thei time. Evidently the jury did not believe this. The evidence is sufficient.

The first contention is that the court admitted incompetent evidence over objection. In support thereof defendant quotes several pages of testimony, but does not point out the particular part claimed prejudicial, but says:

“The evidence having been heretofore set out and shown fully in case-made, it is useless to burden the record by recapitulation of the same.”

This does not comply with the rules of the court and presents no question for review.! Rule 7. This court cannot search the record to discover some evidence that may have been improperly admitted. The evidence complained of must have been objected to and exceptions reserved to an] adverse ruling and the ruling assigned as error in the motion for new trial and the petition in error. Then it must be pointed out in the brief and authorities in support of the contention cited.

Next, defendant argues the court erred in allowing the information to be amended during the trial. The amendment was merely as to form, being the correction of a stenographic error. Defendant at the time stated he had no objection. No authorities are cited. This question Avas passed on adversely to defendant’s contention. Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311, and numerous other cases.

Lastly, defendant asserts the record shows this case was begun by the filing of an information in the district court and not by complaint before a committing magistrate. The presumption is that defendant had a preliminary examination or that same was waived. All preliminary proceedings are waived, unless timely motion to set aside or quash the information is made. Ex parte Robinson, 56 Okla. Cr. 404, 41 Pac. (2d) 127, and authorities cited. No such motion was filed in this case. It appears, moreover, that a preliminary was held and the preliminary information was in court at the trial and at the time the amendment to the information was allowed. The defendant had a fair trial.

The case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


text:
    MRS. R. W. WATSON v. STATE.
    No. A-8946.
    Feb. 21, 1936.
    (54 Pac. [2d] 1097.)
    Grady S. Cornett, for plaintiff in error.
    The Attorney General and H. O. Bland, E. M. Galla-her, Milton Hardy, and Carl Ravis, for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the municipal criminal court of the city of Tulsa, and was sentenced to pay a fine of $300 and to serve 30 days in the county jail. Defendant Avas in charge of certain light housekeeping rooms in an apartment house in Tulsa and resided in a portion of the apartment. Officers, with a search warrant, searched one of the rooms other than that in Avhieh she lived and found 197 pints of whisky and 17 quarts of gin. Defendant furnished them with a key with Avhieh they entered the room in which this liquor was found in a secret cache in the floor. She denied ownership or possession of this liquor, and a witness testified he Avas an employee of defendant and had rented this particular room to the usual mysterious stranger whom he did not know and who, according to defendant’s theory, must have owned the liquor. The jury evidently did not believe this explanation. We are of the opinion they were justified in disbelieving it.

Defendant contends the evidence is insufficient to sustain the judgment. He argues that the judge of the municipal court of Tulsa was Avithout authority to issue a search warrant and the evidence obtained thereby should not be considered, evidently relying, on a line of cases from this court construing section 7009, O. O. S. 1921 (section 2635, O. S. 1931), which in substance authorizes only a justice of. the peace or a judge of a court of record to issue a search warrant in liquor cases and AAdiich cases hold a police judge is Avithout authority to issue a search warrant in such a case. Terry v. State, 31 Okla. Cr. 91, 237 Pac. 465, Reinhart v. State, 32 Okla. Cr. 109, 240 Pac. 139, and authorities therein cited. Counsel must have been moved to make this contention by reason- of the fact the entire proceedings Avere conducted about as a , police court proceeding. The contention is untenable, however, for the act creating the municipal criminal court of Tulsa, sections 6512, 6518, Okla. Stat. 1931, makes such municipal court a court of record. It therefore falls within the terms of section 263'5, O. S. 1931, and the judge has authority to issue a search warrant in liquor cases. The evidence is ample to sustain the judgment.

Complaint is also made that the court did not instruct on the law of circumstantial evidence. No request for such instruction was made nor was any exception taken to the instructions given. It is not error to fail to instruct on circumstantial evidence when not requested. Newcomb v. State, 23 Okla. Cr. 172, 173, 213 Pac. 900; Klaber v. State, 35 Okla. Cr. 238, 250 Pac. 142; Strong v. State, 53 Okla. Cr. 99, 8 Pac. (2d) 76. Several other matters are urged to some extent in the brief, but none have any particular merit and do not require discussion.

The jury did not fix a punishment, but left same to the court, who sentenced defendant to pay a fine of $300 and to serve 30 days in the county jail. He then announced he would suspend the jail sentence, and in his formal journal entry of judgment did attempt to suspend the jail sentence. Just where the court derived his authority to suspend a requirement of the law and to impose a less punishment than the law provides (see section 13774, Okla. Stat. 1931), we are not informed. The attempt to do so is without authority of law. Ex parte McClure, 6 Okla. Cr. 241, 118 Pac. 591.

The judgment is modified by striking therefrom the part attempting to suspend the jail sentence. As modified, the case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


author: DOYLE, J. EDWARDS, P. J.

text:
    J. P. CANNON v. STATE.
    No. A-8849.
    Feb. 21, 1936.
    (55 Pac. [2d] 135.)

      W. W.-Pryor and ,W. C. Hall, for plaintiff.in error.
    The Attorney General, for the State..
   DOYLE, J.

Plaintiff in error was by Geo. C. Crump, judge of the district court of Hughes county, on the 15th day of October, 1934, adjudged to be in direct contempt of court and to pay a fine of $50. To reverse the judgment, he prosecutes this appeal.

It appears from the record that there was a civil case pending in said district court entitled J. W. Hundley et al. v. J. P. Cannon, which involved certain property rights and easements in the town of Calvin. On the 15th day of October there was filed in the office of court clerk for and on behalf of the defendant his motion to disqualify the judge in said cause.

On the same day, all the parties appearing, proceedings were had as follows:

“Let the record show, Mr. Court Beporter, that the court orders a hearing on the application or motion to disqualify.
“J. P. Cannon being called to the stand by the court and after having been first duly sworn, testified in connection with said motion to disqualify, to wit:”

Here follows an examination by the court, in part as follows :

“By the Court: Q. Mr. Cannon, I notice that you filed a motion to disqualify the court in case No. 9601. Did you read that motion before you signed it? A. Yes, sir. Q. Did you thoroughly understand it? A. Well, I think I did. Q. You state in this motion, among other things, ‘that J. W. Hundley lives and resides in the town of Calvin, and has resided there for a number of years and during all of that period of time that he has been in business deals with W. T. Anglin, the purported advisor and dictator to George C. Crump.’ Did you understand that statement? A. Yes, sir. Q. Well, now, who told you that Mr. Anglin was my dictator? A. Well, just from general speaking from over the county it seemed that way. Q. Well, who prepared this affidavit? A. Judge Pryor. Q. Did he advise you in that? A. He didn’t advise me on anything. Q. What did you Ml him? A. I told him I wasn’t willing to be tried and you on the bench. Q. Why ? A. With Anglin & Stevenson and J. W. Hundley.my opponents. Q. Of course, now, that is a' pretty serious charge against the court and a serious charge against a member of the bar of this county. A. Well, that is just like I feel about it. Q. Well, now, I am going to charge you with contempt, predicating it upon this affidavit, for contempt of court — for contemptuous and malicious conduct. Now, have you got anything to say why sentence of the law should not be pronounced upon you? Mr. Pryor: Well, may it please Your Honor, as to the answer or plea to that, we will ask that if the court has any charges to file against him that the court file them that we may answer to them. The Court: Well, I have already filed them. I am taking his motion to disqualify this court and from these contents and the record evidence, which is by the stenographer taken, and that the court, in this county, at this time, in this state, charges the defendant, J. P. Cannon, with contemptuous conduct for filing the following affidavit in this case:
“ ‘Comes now the defendant J. P. Cannon and moves the court tO' disqualify and vacate the bench in the above styled cause for the following reasons:
“ ‘1. That the defendant lives and resides in the town of Calvin, Hughes county, Oklahoma, and has so lived and resided there for thirty-two years; that the defendant J. W. Hundley lives and resides in the town of Calvin and has resided there for a number of years and during all that period of time has been in business deals with W. T. Ang-lin, the purported advisor and dictator to George C.i Crump; that this defendant knows of the relationship existing between the trial judge and W. T. Anglin, the attorney for the said J. W. Hundley, and feels and believes that he cannot have a fair and impartial trial on said account before the said George C. Crump, District Judge, on account of the bias and prejudice in favor of the plaintiff and against this defendant existing in the mind of the said George C. Crump.’
“Now, the court charges that in this affidavit and motion to disqualify your conduct is contemptuous and malicious, and willful, and that there is not a word of truth in it.
“Now, what do you have to say? Guilty or not guilty?
“The Witness (Mr. Cannon) : I am not guilty.
“The Court: Not guilty. Have you any testimony now to offer in support of your defense?
“Mx*. Pryor: We will ash time to prepare for trial in this case and time to file response to the charge of the court and an opportunity to produce our testimony, and right of trial by jury.
“The Court: That will be denied. It is within court.
“Mr. Pryor. We except.
“The Court: The defendant was present when the affidavit was filed this morning, in open court, and was present when you presented it. Any testimony?
“Mr. Pryor: Not right now. We will be ready for trial if given time to get our testimony here.
“The Court: This was in the presence of the court following the Lynn case in which you were instrumental and wherein the defendant Lynn committed the conduct in the presence of the court.
“It will be the judgment and sentence of the law as pronounced by the court that you pay a fine of $50.00, and that you stand committed until that fine and cost is paid.
“Mr. Pryor: To which action of the court Mr. Cannon excepts.
“The Court: Fifteen days will be given in which to prepare and serve case-made. Supersedeas bond will be fixed at $250.00, to be approved by the clerk. The defendant stands committed until bond is approved by the clerk.
“Now, the temporary restraining order in this case will be passed until the 15th day of January, 1935.
“Mr. Bailiff, take charge of this man and keep him in your custody until he makes this bond.
“Mr. Pryor: Can he remain and step into the court clerk’s office in time to make bond?
“The Court: I don’t care what the baliff does with him just so- he makes bond. If he doesn’t make bond in a reasonable time, take him up to jail.”

The errors assigned question the jurisdiction of the court or the judge thereof to render the judgment appealed from, in that the trial judge had no lawful right to try the cause for contempt, because he was disqualified by reason of prejudice, and no complaint was filed nor citation to* the defendant to show cause why he should not be punished for contempt; and that the court erred in denying the defendant time in which to present his defense and “in denying the defendant a jury trial.”

It would serve no useful purpose to review all these questions. It is said that, under the common law, the jurisdiction of courts is a part of the power inherent in the state by virtue of its sovereignty and susceptible of no limitation not imposed by the state itself.

Contempts of court in this state are governed by constitutional and statutory provisions and not by common-law rules.

Section 25 of the Bill of Rights (article 2). abrogates the doctrine that proceedings to punish for contempts are sui generis. There is perhaps no other state with a Constitution containing a provision similar to this provision. So- it may be said that this constitutonal provision is sui generis.

It will be observed that the first clause of section 25 of the Bill of Bights (article 2), interpreted by its own terms, has a meaning perfectly clear and definite. It constitutes a plain and clear grant of power to the Legislature to regulate proceedings in contempt. It reads:

“The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt.”

Having thus delegated the power to the Legislature to regulate the proceedings and punishment in matters of contempt, the framers of our Constitution went further. They provided:

“That any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint, made or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused.”

In the third and last clause they provided: “In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given” — thus prescribing that which the plainest dictates of natural justice must prescribe to every tribunal the law, that “No man shall be condemned unheard.” Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758, 810.

It is essential to the validity of the proceedings in contempt, subjecting a party to a fine or imprisonment or both, that they show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized. Cress v. State, 14 Okla. Cr. 521, 173 Pac. 854; Emery v. State, 29 Okla. Cr. 29, 232 Pac. 128; Ex parte Dawes, 31 Okla. Cr. 397, 239 Pac. 689.

In Ex parte Sullivan, 10 Okla, Cr. 465, 138 Pac. 815, Ann. Cas. 1916A, 719, it is said:

“Under that clause of section 25 of tbe Bill of Rights, providing, Un no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given,’ an opportunity to be heard before a penalty or punishment is imposed for contempt is an indispensable essential to the administration of due process of law as contemplated by the constitutional inhibition that ‘No- person shall be deprived of life, liberty, or property, without due process of law.’ Section 7, Bill of Rights.”

The Legislature, to effectuate this provision of the Bill of Rights, has defined what acts or omissions shall be deemed contempt. Article 31 of chapter 15, St. 1931 (Penal Code), entitled “Contempt.” We quote this article :

“Contempts of court shall be divided into-direct and indirect contempts. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the courti and in its immediate view, and presence, and of the unlawful and willful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings, shall be deemed direct contempt of court, and may be summarily punished as hereinafter provided for. Indirect contempts of court shall consist of willful disobedience of any process or order lawfully issued or made by court; resistance willfully offered by any person to the execution of a lawful order or process of a court.” Section 1956.
“Punishment for contempt shall be by fine or imprisonment, or both, at the discretion of the court.” Section 1957.
“In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.” Section 1958.
“Whenever a person shall be imprisoned for contempt the substance of the offense shall be set forth in the order for his confinement, and made a matter of record in.the court.” Section 1959.

In cases of direct 'contempt under the constitutional and statutory provisions, the contemnor being present in court, neither a formal charge against him in writing or process is required; only an opportunity to be heard is given. No record is made other than the judgment, in this, as the statute provides, “the substance of the offense shall be set forth in the order for his confinement and made a matter of record in the court.” This provision can only mean that the order of commitment must contain a recital of those facts which make it a direct contempt, and is mandatory in its terms. Ex parte Dawes, supra.

Construing section 1956 in Ex parte Owens, supra, it is said:

“In the case at bar we expressly hold that the first clause of section 25 of the Bill of Rights, and the statute (section 1697) defining direct and indirect contempts and specifically enumerating what acts shall constitute contempt, limits the power of the courts to the punishment of contempts of the character defined in the statute, and in the mode and to the extent provided by other provisions of the Penal Code to which reference herein is made.”

In the case of State v. District Court, 76 Mont. 495, 248 Pac. 213, 214, it was held that the filing of*an affidavit of disqualification against the trial judge in cause at issue but when court was not in session for the purpose of hearing that cause, even if contempt, is not committed “in the immediate view and presence of the court,” and the court is without jurisdiction to- punish for contempt without filing affidavit or statement required in cases of indirect contempt.

In the case of In re Wood, 82 Mich. 75, 45 N. W. 1113, the offense consisted of delivering a written statement amounting to a contempt to the clerk of the court, during the noon recess of the court. This was held an indirect and not a direct contempt.

In the case of Wofford v. State, 33 Okla. Cr. 288, 243 Pac. 988, 989, it is said:

“Since the facts contained in the charge did not occur in the immediate view and presence of the court, the proceeding attempted to charge defendant with an indirect criminal contempt. It is necessary that a proceeding to- punish for indirect criminal contempt under section 25, art. 2, of the Constitution and sections 1697 and 1699, Comp. St. 1921 [sections 1956 and 1958, Sts. 1931], be instituted by affidavit, complaint, or information setting forth the facts upon which the charge is based. Where contempt is predicated on affidavit filed with the court or judge, or oral testimony under oath given before the court, a statement of the charge in writing by the court or judge will suffice. Upon the filing of such affidavit, complaint, information, or statement, the accused shall be notified in writing of the accusation and shall have a reasonable time for defense, and upon demand shall have a trial by jury.”

The filing of an affidavit of disqualification against a trial judge in a case pending or presenting the same does not come within the purview of “disorderly or insolent behavior cymmitted during the session of the court, and in its immediate view and presence,” and the court is without jurisdiction to summarily punish as for a direct contempt.

Our Code of Criminal Procedure provides:

“No person can be convicted of a public offense, unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty.” Section 2672, St. 1931.

In a proceeding for contempt of court, if the contem-nor is found guilty, the punishment imposed is a sentence in a criminal case. Such adjudication is a conviction, and the commitment in consequence thereof is in execution, of sentence for a criminal offense. Burnett v. State, 8 Okla. Cr. 639, 129 Pac. 1110, 47 L. R. A. (N. S.) 1175.

In Hosmer v. State, 24 Okla. Cr. 312, 218 Pac. 164, 168, it is said:

“It is clear, then, that, in a contempt proceeding, the right of the accused to a 'hearing/ within the meaning of the term as used in our Constitution, is more than the right to make a mere verbal explanation, or to listen to a speech from the bench by an interested judge denouncing the conduct of the accused. It includes the right to introduce evidence and have that evidence considered. The denial of that right to' the accused in this case, in support of his plea of not guilty, was error. The record indicates that the accused was not accorded a ‘hearing’ as is contemplated by our Constitution.”

Justice, if it be justice, must be even-handed; the scale must balance.

In Ex parte Ellis, 3 Okla. Cr. 220, 105 Pac. 184, 185, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863, this court-held :

“Under the declaration of article 2, § 6, Bill of Rights, that ‘Right and justice shall be administered without sale, denial, delay, or prejudice,’ as well as by the unwritten dictates of natural justice, the courts of this state are commanded to administer justice without prejudice.”

And that:

“Public confidence in our judicial system and courts of justice demands that causes be tried by unprejudiced and unbiased judges, and a denial of a change of judge, applied for on the ground of prejudice, will be presumed to be a denial of justice.”

To effectuate this command of the Constitution, the Legislature enacted article 21 of chapter 17, Procedure Criminal, which provides, among other things, that a judge of any court of record shall be disqualified to sit in any cause or proceeding when in any wise interested or prejudiced. Section 2911.

Upon the record before us the proceedings disclose that the trial court or judge thereof failed to act in accordance with the mode required by law in adjudging the defendant guilty of contempt of court and ordering him into custody, and, in so doing, acted without authority of law and in violation of the constitutional and statutory rights of the defendant.

The judgment appealed from is therefore reversed.

DAVENPORT, J., concurs.

EDWARDS, P. J.

I concur in the conclusion, but dissent as to the statement of law in the fourth and ninth paragraphs of the syllabus.


text:
    EMMETT SEABOLT v. STATE.
    No. A-9001.
    Feb. 7, 1936.
    Rehearing Denied Feb. 25, 1936.
    (57 Pac. [2d] 278.)

      Embry & Embry and Gill & Caldwell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of manslaughter in the first degree, and was sentenced to serve a term of 15 years in the state penitentiary.

The record discloses a state of facts about as follows: At the time charged defendant lived on a farm near Stroud. He had a watermelon patch across the highway from his home. Late in the afternoon a small son of defendant reported that some one was in the watermelon patch, whereupon defendant took his shotgun and went to the scene. The testimony for the state is in substance: Louis Hicks testified that on the Sunday afternoon of the homicide, he, with deceased, Leonard Clark, and the two young women, Mabel Banks and Elizabeth New, went in a Ford car on a picnic. They drove on highway 66 and turned off at Salt Creek bridge, where they had a picnic lunch and then started on their return; Clark, the deceased, driving. When near defendant’s house the cut-out became loose and made a loud noise; they stopped the car and deceased attempted to fix it. Witness went down the road about 50 yards, and defendant, with a shotgun, came up to him and ordered him “come here”; some conversation then ensued; defendant then walked down to the car with witness following him. There defendant said to deceased, “You come here”; deceased answered, “Go away —I’m not bothering you”; that deceased was about halfway under the car, back of the front wheels. Defendant said: “I am going to shoot you,” and fired; that defendant, leaving the body where it fell, then made the two girls and the witness go with him to his house, after which he released them. They then returned to the car, picked up the body of deceased and ‘drove into Stroud.

Elizabeth New testified she lived in Stroud, had known deceased about a year; that they had been out riding, had a picnic, and were on their way back to town; that it was about night, but the lights were not yet lit; that she and Hicks were in the rumble seat and deceased and Mabel Banks were in the front seat; that they stopped the car and deceased left the motor running and was attempting to fix the cut-out; that Hicks went up the road, witness remaining in the rumble seat, and Mabel Banks standing beside the car; she had known defendant a long time; saw him talking to Hicks, but did not hear the conversation; that defendant came to the car and said to deceased, “Get out and come up to the house”; that deceased said, “No, sir, I haven’t done anything and I am going to fix this car”; defendant said, “I will shoot yon, then,” and fired. That at the time deceased was on his side partly under the car. Mabel Banks (Samples) testified she was with deceased on the day he was killed; that they went with Hicks and Elizabeth New out in the country and had a picnic lunch; as they were returning the car was stopped and deceased got out to fix it; Hicks went some distance up the road; that defendant came down the road, stopped and talked to Hicks, then came on to the car with a shotgun and ordered all of them to go to' his house; deceased said he got out to fix the car and was not doing anything and was not going, and started to crawl out from under the car when defendant shot him. Dr. Anderson testified he examined the body and the gunshot wound that caused death was in the back of the right shoulder.

The evidence for the defense in substance is: Defendant testified that his son told him something; that he took his gun and went to the melon patch, there found Hicks in the patch kicking melons around and stomping them; that he rushed up and asked him what he was doing there, and Hicks answered, “What in the hell do you think I am doing, I am getting some melons.” Defendant ordered him to' go along with him, and they walked together down the road and there discovered a car, and he asked Hicks who was with him and he pointed to' the car and said, “That fellow right yonder;” that he told Hicks to stay where he was, but that Hicks followed him; that he hurried up to the car where deceased was standing and ordered him to come along with him, that deceased answered, “To hell with you, I wouldn’t go with you no place,” and struck at him with his left hand. Then followed:

“Q. Never mind that, tell what happened. A. He made a big strike at me with his left hand, as he did that I was holding the gun like this toward the car with my thumb on the safety (indicating), I didn’t know I had my thumb on the trigger but possibly I had because I don’t see how it went off. I threw the gun this way to spar the lick off and as I did this he hit the gun either with his hand or arm, I don’t know which, and as he knocked me sharply to the left the boy from the patch grabbed me from toward the ditch sort of around the waist and threw us over in the weeds, and some kind of weed or something caught around my leg. He had a hold of me there from behind and as he gave me this sharp swing the gun discharged. I felti my thumb slip on the safety and the gun discharged and I saw the boy fall in front of me (indicating). And he suddenly let go of me when the gun popped.”

Defendant further testified that after the shooting he marched the girls and Hicks to his house; that he did not look at deceased, but felt sure he was dead.

The wife of defendant testified she saw the car stop and saw a man get out and go to the melon patch; her son then told her husband, who took his gun and went to' the melon patch, and she saw him bringing the man out; saw him go toward the car and saw another man standing by the car and shortly after heard the shot. The ten year old son of defendant testified substantially as did defendant. Defendant also introduced several witnesses who testified to' his previous good character. The testimony is sharply conflicting only? as to Hicks being in the melon patch at the time he was accosted and as to what took place at the car at the time of the shooting. The court instructed the law of murder, manslaughter in the first and in the second degree, excusable homicide, and also instructed on the law of self-defense, apparent danger, accidental killing, and the right of a private person to resist a trespass. The only instructions excepted to are No. 19, in substance that verbal insults will not justify an assault and battery, and 21, relating to the right of a person to resist a trespass on his property. Defense counsel argue: First, the insufficiency of the evidence; second, error of the court in refusing permission to recall a witness to lay a predicate for impeachment; third, error in instructing on first degree manslaughter; fourth, error in giving instructions Nos. 19 and 21; fifth, misconduct of the county attorney. These assignments will be discussed in the order named.

The contention that the evidence is insufficient to sustain the judgment is to some extent touched upon by the summary of facts above stated. Defendant does not say the testimony does not sustain the judgment, but contends rather it is unbelievable; that evidence which purports to show a man of previous good character would apprehend another in his watermelon patch but would do him no harm, but would then shoot another, who had committed no trespass, under the circumstances detailed, is incredible and obviously false. Further, the testimony that deceased was working' on a cut-out with the motor running was improbable, or that under such circumstances he would make a felonious assault on deceased with Hicks behind him was likewise utterly improbable. The state argues that under the evidence defendant was extremely angry and intended to arrest the entire party; that he had Hicks in custody, but when deceased refused to submit, he fired; that this is borne out by the fact that although) he had shot down deceased, he made no- investigation to ascertain deceased’s condition, but continued his intentions and did arrest the entire party. It is true the acts of defendant were not those of a reasonable individual, but rather of one who has given away to an extreme fit of anger, which, aggravated by the defiant attitude of deceased, caused him to fire the fatal shot. Evidence of such unnecessary homicides is not inherently improbable as shown by many cases decided by this court under a state of facts analogous to those shown here, among which may be cited, Schmitt v. State, 57 Okla. Cr. 102, 47 Pac. (2d) 199; Hare v. State, 58 Okla. Cr. 420, 54 Pac. (2d) 670. The claim of insufficiency is not tenable.

The second assignment argued, i. e., the refusal of the court to permit a witness to be recalled to lay a predicate for impeachment, arose with reference to the testimony of the witness, Elizabeth New. She was in the car and an eyewitness to the homicide. On cross-examination she was asked if she had talked to the Stroud chief of police, Van Sickles, soon after the homicide. She answered in the affirmative, and was asked if she told himthe same story she had told the jury; she answered that she had not told him any of the facts, then stated she had told him that defendant killed Clark. For the defense, Van Sickles was called and stated he talked to the New girl; that she told him of the homicide. Then he was asked what she told him, to which question an objection was sustained, the. court stating that no predicate had been laid for impeaching questions. Counsel then offered to prove by the witness that immediately after the killing the New girl stated that at the time defendant and his son came to the watermelon patch the witness Hicks was in the patch getting watermelons. This was objected to for the reason no' predicate was laid; the objection was sustained. Defendant’s counsel then asked to recall the witness New in order to lay a predicate, which request was denied. Defendant insists this was prejudicial error. It is well settled that a witness may be impeached only on material matters. The question whether or not Hicks at the time defendant approached was in the watermelon patch cannot he said to he entirely immaterial. But since the verdict is for manslaughter, it has no particular significance. If defendant had been convicted of murder, or if Hicks had been shot instead of Clark, it would be more material. In order to find defendant guilty, the jury must have believed the shooting' of Clark was done while defendant was engaged in the commission of a misdemeanor, or was the result of such provocation as reduced it from murder to’ manslaughter. Whether or not Hicks was in the watermelon patch when accosted by defendant would not reduce an intentional killing of Clark to' any lesser degree of homicide than first-degree manslaughter. There is nothing in this point that would warrant this court in interfering, with the judgment.

Under the third assignment, defendant asserts the court was not justified in giving an instruction on first-degree manslaughter; that the evidence does not establish this degree of homicide. The argument is that under the theories presented the crime was either murder or excusable homicide. That there is such a distinction between the facts shown by the evidence in this case from those cases where a contrary rule has been announced by this court in several cases as to constitute an exception. The general rule is that in a prosecution for murder, when the court submits the issue and the jury finds a defendant guilty of first-degree manslaughter, although under the law and the facts the crime is murder, yet if the defendant is convicted of a lesser degree of homicide than that shown by the evidence, no prejudice could have resulted to him since the error is in his favor. Taylor v. State, 44 Okla. Cr. 58, 278 Pac. 1117. The general rule was announced by this court after much deliberation and after a conflicting rule had crept into some of the cases. ' Leseney v. State, 13 Okla. Or. 247, 163 Pac. 965; Lovejoy v. State, 18 Okla. Cr. 335,194 Pac. 1087. See further Irby v. State, 18 Okla. Or. 671, 197 Pac. 526; Smith v. State, 20 Okla. Or. 301, 202 Pac. 519, and other cases. We adhere to- the rule announced in Taylor v. State, supra.

Next defendant complains of instructions 19 and 21. We deem it unnecessary to set out these instructions. No. 19 simply tells the jury that if they find and believe from the evidence that deceased used vile words and verbal insults to defendant, they would not justify the committing of a battery. This evidently is directed to the words shown by the testimony to have been used by deceased to defendant just before the shooting. They hardly fall within the definition of vile and opprobrious epithets, and certainly as a mater of law, such words, unaccompanied by an attempt by deceased to attack defendant, would not justify an assault and battery, much less a shooting. We see nothing materially erroneous in this instruction. Instruction 21 relates to the right of defendant to resist a trespass on his property; defendant insists Hicks was wholly unconnected with the shooting and that the instruction tended to cloud the issue. No doubt the court had in mind the contention or probability of argument, that deceased was an accessory of any trespass by Hicks and in order to prevent a misapprehension of the jury and to enable them to understand the rights of a property owner in resisting a trespass, gave this instruction which follows the law announced in various decisions of this court. Dickinson v. State, 3, Okla. Cr. 151, 104 Pac. 923; Garrison v. State, 19 Okla. Cr. 3, 197 Pac. 517; Jackson v. State, 49 Okla. Cr. 337, 293 Pac. 567; Powell v. State, 53 Okla. Cr. 366, 12 Pac. (2d) 247; Schmitt v. State, 57 Okla. Cr. 102, 47 Pac. (2d) 199.

The final complaint is that the court erred in permitting the state to- ask questions of defendant’s character witnesses concerning reports or rumors of wrongful acts of defendant. Defendant used a large number of character witnesses. The state, on cross-examination, asked various witnesses if they had heard of specific instances of reported misconduct of defendant. That is, if they had heard he had shot at a woman with a shotgun; if they had heard he had attacked some boy with a claw-hammer; if they had heard about him cutting some boy with a knife. Counsel insists this deprived defendant of a fair trial, and that it is contrary to the settled rules. The asking of groundless questions insinuating that an accused has committed other crimes at other places which might tend to prejudice the jury are not to- be permitted. In some instances, such conduct alone has been sufficient to- require a reversal. Underhill, Criminal Evidence, § 82; Wig-more on Evidence, § 197; Id., § 988. This rule, however, is not to be confused with the right of counsel to question a character witness as to- the extent of his knowledge and as going to the weight of his opinion as to what constitutes good character. This court, in Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271, 275, states the rule thus:

“As the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is permissible upon cross-examination of a character witness to show the sources of his information and particular facts may be called to his attention, and he may be asked if he ever heard of them. This is permissible, not for the purpose of establishing the truth of these facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony.” Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797; Pope v. State, 15 Okla. Cr. 162, 175 Pac. 727; Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242; Jones v. State, 17 Okla. Cr. 561, 190 Pac. 887; Johnson v. State, 54 Okla. Cr. 143, 16 Pac. (2d) 263.

In the instant case it cannot be said the questions propounded the character witnesses on cross-examination are a figment of the fertile imagination of the county attorney. They appear to have been propounded in good faith, for several of the witnesses answered they had heard of the incidents inquired about. Character witness McVey stated he had been told of the difficulty in which defendant was alleged to have used a claw-hammer; witness Dodd said he had heard; of the shooting incident in which defendant was reputed to have shot at a woman; witness Bond stated he had heard that defendant had shot at a named woman. The cross-examination does not fall within the inhibition which forbids the asking of groundless and unfounded questions which seek to bring the accused into disrepute before the jury, but is legitimate cross-examination to test the knowledge and value of the opinion of the witnesses. Upon a consideration of the entire case, we are satisfied defendant was fairly tried.

The judgment is affirmed.

DAVENPORT and DOYLE, JJ., concur.


text:
    R. E. KENNEDY v. STATE.
    No. A-9003.
    March 6, 1936.
    (55 Pac. [2d] 792.)

      Harold Freeman, for "plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county of unlawfully transporting intoxicating liquor and was sentenced to- serve a term of 60 days in the county jail and to pay a fine of $150. At the time charged defendant was1 apprehended by officers who had a search warrant for his automobile and upon search they found 66 pints of whisky. No question is raised as to- the validity of the search warrant nor the sufficiency of the evidence to sustain the judgment. Defendant did not take the stand.

The only contention is that defendant did not have a fair trial for the reason the trial judge permitted himself to be called as a witness and testified in the case. During the trial defendant called the court clerk and had her identify the appearance bond purporting to be signed by defendant which was admitted without objection. The witness was asked in substance if defendant signed the bond and stated in substance she did not know but that she filed it. Over the objection of defendant the state then had the judge sworn by the court clerk and he was asked if he had personally seen defendant sign the bond and he answered he did. That wasi the sum and substance of the testimony.

It is now argued that a judge presiding in a trial of a criminal case may not be sworn to testify as a witness over the objection of an accused, citing Rogers v. State, 60 Ark. 76, 29 S. W. 894, 31 L. R. A. 465, 46 Am. St. Rep. 154; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349; Maitland, v. Zanga, 14 Wash. 92, 44 Pac. 117; Crawford v. Hendee, 95 N. J. Law, 372, 112 A. 668; State v. Sandquist, 146 Minn. 322, 178 N. W. 883; State v. DeMaio, 69 N. J. Law, 590, 55 A. 644; Powers et al. v. Cook, 48 Okla. 43, 149 Pac. 1121, L. R. A. 1915F, 766. See, also, 28 R. C. L. 468, § 56; 33 C. J. p. 1011, § 173; Powell v. State, 149 Ark. 311, 232 S. W. 429; Note Ann. Cas. 1913C, 254.

There is a division in the authorities. Some hold that a judge of a court of record before whom a case is tried with a jury cannot testify for one of the parties thereto. This seems to be the rule in the earlier cases. It has been modified somewhat in some of the later cases to the effect that a judge cannot testify on a material point at issue. This is the rule adopted by this court, State v. Lockridge, 6 Okla. Cr. 216, 118 Pac. 152, 45 L. R. A. (N. S.) 525, Ann. Cas. 1913C, 251, though the holding in that case was not necessary to a decision; Johnson v. Wells, 5 Okla. Cr. 599, 115 Pac. 375; Wigmore, Vol. III, page 2529, § 1909, wherein that eminent authority, after reviewing the cases and the arguments pro and con, says:

“The simple expedient of discarding the judicial capacity and not returning to .the Bench during the same trial is with no real solution of the dilemma; because the modern and probably universal practice in this country constitutes the trial Court of but a single judge, or, in the rare instances where two are required (as sometimes in capital cases), renders both essential to the Court’s constitution; nor, in the conditions everywhere prevailing, is another judge available on short notice for substitution. The practical result would usually be, then, either that the judge in the cause could not testify at all, or that the trial would be interrupted by postponement — the latter an inconvenient and highly objectionable alternative, because it might necessitate an entire re-trial.
“Coming, then, to the reasons set forth in the above quotation, it will be seen that one of them at least — the inability of the judge to administer the witness’ oath to himself — is a petty obstacle (if it is one) which should rather be obviated (as it is in many jurisdictions) by a statute empowering, the clerk to administer rather than by the clumsy solution of disqualifying the judge. Furthermore, as to some, of the other reasons — such as the impropriety of the judge passing upon his own claim of privilege and the unseemliness of the judge being impeached for unveracity by the opponent — it may be said that these are the merest possibilities, that they may be trusted to be avoided through the combined good sense and discretion of counsel and judge, and that to establish a universal rule for the sake of rare contingencies is unpractical and unnecessary. The only real and remaining objections to the judges assuming the place of a witness seem to' be, in the first place, that he would be put thereby into a more or less partisan attitude before the jury and would thus as a judge lose something of the essential traits of authority and impartiality; secondly, that his continuing power as judge would .embarrass and limit' the opposing counsel in his cross-examination of the judge-witness and would thus unfairly restrict the opponent’s opportunity to expose the truth; and, thirdly (though this is itself inconsistent with the first reason), that the judge’s official authority would impress his testimony upon the jury with special and unfair weight. In all these objections there is a modicum of truth. Yet is it necessary on that account to lay down a universal prohibition? The force of the objections would be most seen and would rise to an appreciable degree only when the judge became a principal witness, — as in the case put by King Henry IY, where the judge had been an eye-witness of ai murder. In all such instances (which are rare enough) the usefulness of his testimony would be known beforehand, and his own discretion and the parties could be trusted to send the cause before another judge for trial. But ini the ordinary instance the judge’s testimony is desired for merely formal or undisputed matters, such as the proof of execution of a certificate or of the administration of an oath or of a deceased witness’ former testimony. To suppose here a danger that the inconveniences above noted would occur in any appreciable degree is to be unduly apprehensive. Military commanders do not train cannon on a garden-gate; and the law of evidence need not employ the cumbrous weapon of an invariable rule of exclusion to destroy an entire class of useful and unobjectionable evidence in order to avoid embarrassments which can easily be dealt with when they arise. Since the trial judge has no interest to subject himself or counsel or jury to these supposed embarrassments, it may properly be left to his discretion to avoid them, when the danger in his opinion arises, by retiring from the Bench before trial begun or by interrupting and postponing the trial and securing another judge.
“The precedents in this country are by no means harmonious, but some of them at least, as well as a statutory provision reproduced in several codes, seem to lay down the rule as above indicated.”

In the instant case defendant was clearly guilty of the charge. At the time he was apprehended he was engaged in transporting a large quantity of whisky, so the sole question for our determination is, Did the trial judge by permitting himself to be called as a witness and by testifying as he did deprive defendant of a fair trial?

The obtaining a change of judge to preside in a trial should not be put in the power of the parties by subpoenaing a judge as a witness. Where a judge is to be used as a witness either for the state or for the defendant, the proper practice requires that he should be apprised of that fact in ample time before trial and in such case should certify his disqualifications and permit another judge to be selected to preside at the trial. A judge should decline to permit himself to be called as a witness where the matter concerning which he is called may be shown by some other person, but if a judge is a material witness and either party desires in good faith to use him as a witness, such fact and the materiality of his evidence should be disclosed in due time before the case is called for trial.

In the instant case the testimony of the judge was entirely immaterial. It failed to- shed any light on the guilt or innocence of defendant. He should not have been called by the state and should not have permitted himself to be called for the purpose for which he was called.

Upon a consideration of the entire record no- material error is apparent and no reason appears why this court should interfere with the judgment.

The case is affirmed.

DAVENPOBT and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    HENRY SELSOR v. STATE.
    No. A-9039.
    March 6, 1936.
    (55 Pac. [2d] 789.)
    Ed Crossland, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Smih 0. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Henry Selsor, was convicted in the district court of Tulsa county, upon an information in substance charging that in said county, on the 20th day of March, 1935, he with intent to defraud the Tulsa Boiler & Machine Company, a corporation, did then and there unlawfully, fraudulently, designedly, and feloniously forge and counterfeit the name of G. H. Knight, treasurer, and Charles Flint to a check in the amount of $25.80, with the fraudulent and felonious intent to cheat and defraud the aforesaid corporation and the First National Bank & Trust Company and Julius Jacobson out of the said sum.

Upon the trial the jury returned their verdict, finding him guilty of second degree forgery as charged in the information and assessing his punishment at imprisonment in the state penitentiary for¡ a term of five years. A new trial was denied.

From the judgment rendered in pursuance of the verdict on the 12th of August, 1935, he appeals.

The errors assigned are that the court erred in its rulings on the admission of testimony; that the verdict and judgment are contrary toi law and the evidence; that the court erred in overruling the defendant’s motion for a new trial; and that the punishment imposed is excessive.

The state relied for this conviction upon the testimony of six witnesses. Their testimony tends to sustain every essential ingredient of the crime charged. There were no witnesses sworn or testimony offered on behalf of the defendant.

Upon the record before us the case was one for the consideration of the jury. The trial was in all respects fair, and we are unable to find anything in the record to warrant us in interfering with the conviction.

It is evident that the only object of this appeal is to secure a modification of the judgment and punishment imposed in accordance with the verdict of the jury.

By failing to offer any testimony when it was in his power to do so in mitigation, the defendant cannot be heard to complain of the punishment assessed by the jury within the limits of the. law.

It appearing that the jury were in no way influenced by passion or prejudice leaves no ground whatever for the exercise by this court of the power granted by section 3204, St. 1931; therefore this court declines to modify the judgment and sentence herein.

No reversible error is presented by the appeal; the judgment must be affirmed. It is so ordered.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    ELMER COLLINS v. STATE.
    No. A-8935.
    March 6, 1936.
    (55 Pac. [2d] 790.)

      C. E. Corbett, for plaintiff in error.
    Tbe Attorney General and A. Camp Bonds, Co.' Atty., and J. F. Beavers; Asst. Co. Atty., for tbe State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in tbe district court of Muskogee county of an, attempted rape in tbe first degree and was sentenced to serve a term of 3T years in the state penitentiary.

The record is that defendant, a negro, at tbe time charged, attempted to rape a young white woman school teacher whom he accosted on the highway. He robbed her of her purse, then dragged her under a wire fence into the underbrush and made a vicious assault, in which he tore off most of her clothing and threatened her with a knife. It was by the utmost resistance and by her screams that she prevented an accomplishment of the attempted rape. Defendant fled the state and was gone for some time, but was later apprehended in Texas and returned here. There appears no question as to- the sufficiency of the identification of defendant as the person committing the offense and of his guilt. In his oral argument before the court, defendant’s counsel did not ask a reversal, but urged a modification by reduction in punishment.

It is argued the instruction of the court advising the jury the punishment for an attempted .rape is erroneous. Defendant insists the punishment should be assessed under the provisions of section 1869, Okla. Stat. 1981, which fixes the maximum punishment for an assault to commit a felony at imprisonment for five years in the state penitentiary. The state contends that the crime charged is not an assault with intent, but an attempt, and that the punishment is fixed by section 1822, subd. 1, Okla. Stat. 1931. This latter section in part provides:

“Every person; who1 attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no* provision is made by law for the punishment of such attempt, as follows:
“If the offense so attempted be punishable by imprisonment in the penitentiary for four years or; more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted.”

The charge is an attempt to commit a rape in the first degree by the use of force and violence. Rape in the first degree is punishable by death or imprisonment in the state penitentiary for any term not less than fifteen years. Section 2519, Okla. Stat. 1931. Rape in the first degree is looked upon with such abhorrence, particularly is this true where the crime crosses the race or color line, it is classed a capital crime.

No maximum imprisonment is provided, so it follows that one-half the maximum punishment is indefinite. This presents a question of some difficulty. The California Supreme Court, in People v. Gardner, 98 Cal. 127, 32 Pac. 880, 881, under a similar state of facts, beld in syllabus 4:

“Under Pen. Code, §§ 264, 671, rape may be punished by life imprisonment, or by not less than five years; and section 664 provides that an attempt to commit an offense may be punished by imprisonment not exceeding, one half of the longest term of imprisonment prescribed upon a conviction of the offense. Held, that punishment for attempt to rape by imprisonment for five years cannot be objected to on the ground that the term of half a life cannot be calculated, and that the statute therefore prescribes no punishment for attempt to rape.”

Garoutte, J., said:

“It is now insisted that a' judgment of life imprisonment is a longer term of imprisonment than one for any stated number of years, and, the statute providing that the judgment upon the defendant should; be for a term of years not exceeding one half the longest term prescribed upon a conviction for rape, it follows that the judgment should be for a term of years not exceeding one half of the defendants life; and, such a term of years being impossible of calculation, the statute is meaningless, and consequently no penalty for this offense is found in the law. Thisl reasoning is ingenious; but not sound. If the statute only allowed a judgment of imprisonment for a term' of years not less than five upon a conviction of rape, then the judgment in tins case would be strictly within the law, for it would declare a term of imprisonment not exceeding one half the longest term that the court would have the power to impose. Again, if it be conceded that any term, no matter how long, would be a longer term of imprisonment than a judgment of imprisonment for life, then the judgment under investigation comes strictly within the law.”

In People v. Burns, 138 Cal. 159, 69 Pac. 16, 17, 70 Pac. 1087, 60 L. R. A. 270, the same statute was again before the court in a conviction for rape and the opinion is also' by Garoutte, J.; the case was reversed on the theory the punishment was too uncertain; the court distinguished it from the Gardner Case; supra, saying:

“The case of People v. Gardner, supra, is not authority for the prosecution in this case, for in that case a judgment of life imprisonment, in terms, for the crime of rape, was not the only penalty that could have been adjudged against the defendant. Here it is conceded to be to« the contrary.”

In State v. Stone, 40 Mont. 88, 105 Pac. 89, 90, the defendant was convicted, of an attempt to commit the infamous crime against nature, the minimum punishment for which was five years, with no maximum. Defendant was sentenced to a term of 15 years. The contention was made that the statute was void for the reason the statute was too indefinite and uncertain. In disposing of the question the court said:

“We recur, then, to the question whether the sentence imposed upon the defendant can be sustained under the provisions of sections 8895 and 8902, supra. The penalty for the infamous crime against nature cannot be less than 5 years, and may extend during life. For an attempt to commit the crime the penalty cannot be less than 2% years, and may be extended during one-half of life. Now, the period of a lifetime is indefinite and indeterminable. It is impossible therefore for a court to ascertain the extent of one-half of a life-time. Every sentence, however, is indefinite and indeterminable, and therefore may be for life, in the sense that it may be ended by the death of the prisoner before its expiration. While the court could not definitely ascertain the. extent of one-half of a life sentence, it could say, asi it did impliedly in this case, that the longest term for which the defendant should have been sentenced upon a conviction of the infamous crime against nature should be 30 years, and fix the term upon conviction for the attempt at 15 years, or one-half of that time. People v. Gardner, 98 Cal. 127, 32 Pac. 880; People v. Burns, 138 Cal. 159, 69 Pac. 16, 70 Pac. 1087, 60 L. R. A. 270; In re De Camp, 15 Utah., 158, 49 Pac. 823. The provisions of the statute are confusing and not free from difficulty, when it comes to apply them, yet we do not think them entirely abortive.”

See, also, People v. Stouter, 142 Cal. 146, 75 Pac. 780.

Under our statutes the minimum punishment for rape in the first degree is not less than 15 years with no maximum. The statute provides that the punishment for attempt should not exceed one-half the longest term of imprisonment. Section 1822, supra. It is evident that for a conviction for first degree rape the punishment might have been assessed at as much as 74 years in the state penitentiary and the punishment assessed for the attempted rape, of 37 years, does not exceed one-half of what might have been assessed under the statute. It is therefore valid.

Next it is urged that even if the court should uphold the conviction, the punishment assessed is excessive and that this court in the furtherance of justice should modify the judgment by reducing, the sentence. As above stated, the attempted rape in this case was so vicious and the margin of escape of the victim so' narrow, we cannot say that justice requires a reduction of the judgment.

The case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


text:
    JACK SPENCER v. STATE.
    No. A-8990.
    March 13, 1936.
    (55 Pac. [2d] 1049.)

      Carmon C. Harris and H. M. Rowan, for plaintiff in error.
    Mac Q. Williamson, Atty..Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter •called defendant, was convicted in the district court of Oklahoma county of robbery with firearms and his punishment fixed at life imprisonment.

The evidence for the state is that at the time charged, in the east part of Oklahoma City, defendant with a pistol held up and robbed the grocery store of one M. L. Gaspar. He is positively identified by both Gaspar and his wife. Defendant admits he was in the vicinity at the time, but contends he was at a barber shop some five blocks away, and introduced evidence tending to prove alibi. There is testimony of statements made by defendant in the nature of a confession. The testimony is conflicting, but the evidence for the state amply sustains the judgment.

The first contention is that the court erred in permitting a witness, Stewart, whose name was not indorsed on the information nor served on defendant, to testify in rebuttal when he should have been used in chief. The testimony of this witness tends to prove an admission of guilt by defendant. It could have been used in chief, but, in view of the testimony of defendant and his evidence tending to prove an alibi, it was competent in rebuttal. The state cannot withhold the name of a witness whose testimony should be introduced in chief and in the guise of rebuttal avoid the requirement that the name of the wit ness be indorsed on the information or served on the accused. But this requirement does not prevent the use of a witness in rebuttal where he is called in good faith merely because his evidence or some part of it might have been introduced in chief. Tingley v. State, 16 Okla. Cr. 639, 184 Pac. 599. Only one objection is made to the testimony of this witness on the ground his testimony was not proper rebuttal, and this was if the accused had talked to him about hijacking a grocery store. Since defendant denied that he was at the store in question or had any connection with the robbery, this was proper rebuttal.

Next it is argued that a judgment imposing a life sentence for the robbery as shown and where no one received any personal injury or any serious threat of personal injury is excessive. Upon a consideration of the evidence, we are of the opinion the contention is justified; that the punishment assessed under all the circumstances is excessive. The judgment is modified by a reduction of the sentence from life imprisonment to a term of 15 years in the state penitentiary, and, as modified, the case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    CLIFFORD MORTON v. STATE.
    No. A-8999.
    March 13, 1936.
    (55 Pac. [2d] 1048.)

      W. L. Boner, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Bryan county of selling whisky to minors and was sentenced to serve a term of two years in the state penitentiary and to pay a fine of $50.

The only complaint made is that the evidence is not sufficient to sustain the judgment, and that in any event the judgment is excessive. The question raised is entirely one of fact. The principal witnesses for the state are Otha Layman and James Garner, two boys seventeen years of age. Both testified that at the time charged defendant sold them two pints of whisky. Defendant denies that he made this sale, but admitted that he had previously been engaged in the sale of whisky and that he had been twice convicted of a felony, one conviction being for burglary and one for chicken stealing. The evidence is conflicting, but certainly there is sufficient on the part of the state, if believed by the jury, to sustain the judgment, and this is all that the law requires.

The case is affirmed.


text:
    LEE DAVIS v. STATE.
    No. A-8978.
    Dec. 3, 1935.
    Rehearing Denied March 13, 1936.
    (57 Pac. [2d] 634.)

      Mrs. Maud L. Davis, wife of defendant,

      Finis M. Walker and Fred L. Patrick, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Don Lewis and S. M. Cunningham, of counsel), for the State.
   DOYLE, J.

(after stating the facts). This appeal is from a conviction of murder and sentence in pursuance of the verdict of imprisonment for life. Taking up the errors assigned in the order presented in appellant’s brief:

First. It is contended that the evidence is insufficient to justify or support the verdict, in that it fails to establish anything more than a mere suspicion of guilt. Citing Moore v. State, 4 Okla. Cr. 212, 111 Pac. 822.

The state’s contention is that the defendant, Davis, knowing the character and criminal records of Eldon Wilson, Aussie Elliott, and Baymond Moore, alias Dupert Carolan, took them into his house and furnished them lodging, food, and shelter, and thereby harbored them, knowing they were outlaws and fugitives from justice. That he knew they were armed with the most deadly weapons and would shoot, and if necessary kill, in order to avoid arrest. That said defendant and the other three men whom he was harboring saw the car approaching and had some kind of agreement or understanding as to what part each would play upon its arrival if the persons in the car proved to be officers. That the defendant, Davis, when he came out into the yard and told the officers there was only one country boy in the house, was carrying out his part of an understanding or agreement; that would enable the three desperadoes in the house to avoid arrest, or to take advantage of the officers, and if necessary slay them. That said defendant was the pivot around which these other three men were revolving, and that in his acts and conduct and in the words spoken to the officers, that is, the falsehoods told the officers, and the deception used to mislead the officers, he knowingly aided and abetted in the killing of the deceased, Tom Brumley.

On the theory of the state the only issue of fact was whether said defendant, Davis, was present, assisting, aiding, and abetting these outlaws in their attempt to escape, when in order to prevent arrest and to make good his escape the outlaw Moore, alias Carolan, shot and killed T. J. Brumley.

In the case of Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194, 206, it is said:

“It may be stated as a general proposition that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right and shocking to every sense .of justice and humanity. When the accused is present and aiding and abetting another in its commission he may be considered as expressly assenting thereto, so, where he has entered into a conspiracy with others to commit a felony or other crime under such circumstances as will, when tested by expe-riehce, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to1 the aiding of whatever should reasonably or probably be necessary to accomplish the objects of the conspiracy, even to) the taking of life. But further than this the law does not go; for if the accused in such case has not expressly assented to the commission of the crime, and the unlawful enterprise is not of such character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no criminal liability. The mere presence of the accused at the scene of the homicide does not make him a criminal; he may have known that a crime was committed, yet, if he did not participate in it directly or indirectly, or encourage the party doing the killing, his mere presence would not constitute him a principal in the transaction or connect him criminally with the killing.”

Our Penal Code declares that:

“Any person who shall knowingly feed, lodge, clothe, arm, equip in whole or in part, harbor, aid, assist or conceal in any manner any person guilty of any felony, or outlaw, or fugitive from justice, or any person seeking to escape arrest for any felony committed within this state or any other state or territory, shall be punished by imprisonment at hard labor in the penitentiary for a period not exceeding ten years.” Section 2062, St. 1931.

The evidence shows beyond a doubt that Officer Tom Brumley was murdered in the manner charged, at the home of the defendant, Davis, while attempting with other officers to. arrest the aforesaid outlaws and fugitives from justice.

The strongest circumstance against the defendant is that he was harboring these fugitives from justice, and that he made untrue and contradictory statements to the officers well calculated to aid and assist them in avoiding arrest; that he attempted to deceive the officers by telling them first there was only one country boy in the house, then later saying there were only two country boys in the house, and after his second conference in the house with these outlaws, only two of them came out the front door with their hands up, and about that time the third outlaw, going out the back door of the house in attempting to escape and in resisting arrest, fired the shot that killed Officer Brumley.

There are other circumstances in evidence from wiiich a reasonable and logical inference arises that this defendant acted in collusion with the three fugitives from justice in, their effort to make their escape; that he thus wilfully aided, abetted, and- assisted in the commission of tbe crime charged in the information.

Upon a careful consideration of all the testimony, we cannot resist the conclusion that the verdict was fully warranted by the evidence. In such a case, unless there were material errors upon the trial, we have no right, to reverse the judgment.

The main contention that the verdict is not supported by sufficient evidence and is contrary to the evidence is thus disposed of.

It is next contended by counsel for the defendant that the court erred in admitting, over objections improper rebuttal testimony, prejudicial to the defendant.

The witness J. W. Williams testified that he was a farmer; that he sold about six bushels of corn to the defendant and ¡delivered it at his home on the afternoon of February 2d, and the defendant told him he would settle for it next Monday, then told him to hurry and get away from the house; that witness saw the faces of two, maybe three, men looking out through windows on the east side of the house; that the shades were down, and in order to look out the parties pulled the window shades to one side; that the defendant told him the second time to hurry and get on away from the house.

When the defendant was testifying in his own behalf, he denied that these three parties were at his house on the afternoon of the 2d, and denied knowing anything about their criminal records. This testimony was competent for the purpose of showing that the three outlaws were in the defendant’s house on the afternoon of the 2nd of February, 1934; that the defendant knew they were there; and it tended to show that he knew of their criminal records, because he did not want the witness Williams to see or know who was in the house at that time. When the defendant was testifying in his own behalf, he denied that he and Aussie Elliott were out together on the evening of February 2nd, denied that he knew the boys at the Banner Filling Station, denied that he knew the witness Catón who was working, at this filling station, and denied that he and Aussie Elliott stopped at the Banner Filling Station and procured gasoline on the evening of February 2nd.

The witness Catón testified that the Banner Filling Station is on Highway 66 not far from the defendant’s home; that he was employed there the past two years; that the evening before the killing the defendant with another man in a Chevrolet car stopped there for gasoline; that he saw the body of Aussie Elliott the next day and he was the man that was with the defendant; that Elliott gave him a $5 bill to pay for the gasoline, and when he gave him back the change, he handed the defendant a dollar; that witness said to the defendant, “Mr. Davis, you owe us eighteen cents on that little account”; the defendant said, “I believe I paid that”; witness said, “The ticket is still here and now is the time 'to pay it,” and the defendant banded the dollar to him and witness gave him back the change; that about three or four weeks before that time the defendant asked him if he would, handle some of his liquor, and he told him he did not sell liquor.

It has been repeatedly held by this court that a witness may not be impeached on any matter collateral to the matter in issue with a view of eliciting from such witness an admission at variance.between former statements and those testified to on the trial. Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201, 202.

It is equally true, however, that where a matter is relevant to the issue in the cause, and the witness denies having made a statement material thereto, such statement, if contradictory to his testimony given on the trial, may be shown to impeach him. Hartwell v. State, 15 Okla. Cr. 416, 177 Pac. 383.

•A careful examination of the record convinces us that the court committed no error in overruling the defendant’s objections.

Other questions are raised as to the admissibility of certain testimony. We have examined them and find nothing prejudicial to the rights of the defendant.

The instructions, given by the court to which no objection was made or exception taken, fully covered the law of the case.

After a patient examination of the entire record and giving due weight to every consideration urged by counsel for the defendant, we fail to find reversible error. It appears that the defendant had a fair trial, and that the ends of justice were no more than satisfied by the judgment and sentence appealed from, and our conclusion is that the duty of this court) is performed by an affirmance • of the same.

The judgment of conviction is therefore affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.