text:
    WILLIAM BORCHERS v. STATE.
    No. A-9017.
    April 10, 1936.
    (56 Pac. [2d] 922.)

      A. L. Morrison and Ray K. Bannister, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the county court of Canadian county entered in pursuance of a verdict of a jury finding William Borchers guilty on a charge of unlawful possession of approximately eighteen pints of whisky and fixing his punishment at confinement in the county jail for 30 days and a fine of $50.

The only assignment of error presented in the brief is that the conviction was had on evidence obtained by an illegal search of the home of the defendant.

When the case was called for trial and before the jury was impaneled, the defendant filed a motion to suppress the evidence on the ground that the search of his home and seizure was illegal, in that no search warrant was ever served.

In support of his motion the defendant testified substantially as follows: That he lives two miles southeast of El Reno with his wife and four children. On the afternoon of the 26th of April, 1935, returning' from town with his wife, he found officers Farris, Whelan, Witlock, and Pool coming out of his home; that none of his family were at home at the time; that no search warrant was served upon him or upon any member of his family, or any person on the premises; that no search warrant was posted on the door, and no search warrant was left on the premises; that he did not see any warrant on that occasion; that the officers searched his car after his arrival, but did not claim to have a search warrant.

There was no testimony offered on the part of the state.

The court overruled the motion to suppress.

Section 2635 of the Enforcement Act (St. 1931) provides in part as follows:

“And to make return of said warrant within three days, showing all acts and things done thereunder, with a particular statement of all property and things seized, of the person or persons in whose possession the same were found, if any, and if no person be found in the possession of said property and things, his return shall so state. A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

It appearing from the record that the officers making the search of the defendant’s home did not comply with the requirements of the statute, the service of the search warrant was void, and any evidence secured thereunder was inadmissible. Reynolds v. State, 48 Okla. Cr. 131, 289 Pac. 782.

The guaranty of section 30, art. 2 of the Bill of Rights that:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized” should be respected by all peace officers and law-abiding citizens.

in Uhlenhake v. State, 58 Okla. Cr. 248, 52 Pac. (2d) 117, 121, it is said:

“The effect of said section 30 is to put the courts of the state and state officials in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, and the duty of giving to it force and effect is obligatory upon all intrusted with the enforcement of the laws.”

What we have said leads to the conclusion that the court erred in overruling the defendant’s motion to suppress the evidence. The judgment of the lower court is reversed.

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


source: Caselaw Access Project

author: DAVENPQiRT,: J.

license: Public Domain

text:
    CLEO STOCKWELL v. STATE.
    No. A-9047.
    April 10, 1936.
    (56 Pac. [2d] 914.)

      Springer & Hervey, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPQiRT,: J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the larceny of one pair of trousers; was tried, convicted, and sentenced to pay a fine of $25, and to be imprisoned in the county jail for a period of BO days.

The defendant has assigned eighteen errors alleged to have been committed by the trial court. After a careful consideration of the facts stated in the record, the only assignment it is deemed necessary to consider is the 16th assignment, which is:

“The evidence in this case is insufficient to support the judgment of guilty as a matter of law.”

Section 2255, O. S. 1981, divides larceny into two degrees; the first termed “grand larceny,” and the second, “petit larceny.” Section 2256, O. S. 1931, defines “grand larceny” as follows: Where the property taken exceeds $20 in value, or when such property, although not of the value exceeding $20, is taken from the person of another. “Petit larceny” is defined as follows: When property taken is of the value of $20 or less.

We have carefully examined the record and fail to find any evidence in the record showing the value of the old overalls alleged to have been stolen by the defendant. The record shows they had no value. It has long been the established rule of the courts that without proof of the value of the stolen property there can be no conviction for larceny. It is essential to prove the value of the property in order to establish the grade of the offense and the penalty to be imposed. In the absence of any evidence on the subject of the value, the court or the jury could not indulge in presumptions to support the omission. It is not necessary that the goods alleged to have been stolen be proved to be the value charged in the indictment, but it must show that they are of some value. Burrows v. State, 137 Ind. 474, 37 N. E. 271, 45 Am. St. Rep. 210.

The view we take of this record, it is not necessary to consider the other assignments.

There being no proof to show the value of the property alleged to have been stolen, the judgment is reversed.

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


author: DOYLE, J.

text:
    MERLE COFFE v. STATE.
    No. A-8989.
    April 10, 1936.
    (56 Pac. [2d] 1194.)

      Vernon S. Roberts, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case filed in the district court of Ottawa county, December 31, 1934, charged that in said county on or about the 4th day of November, 1934, the defendant, Merle Coffe, did commit the crime of rape. The charging words are:

“Said defendant then and there being, did then and there wilfully, unlawfully, forcibly and feloniously make an assault upon the person of Lucille Barbee, and did ravish and carnally know the said Lucille Barbee, a female person of the age of 19 years and not the wife of said defendant, and did overcome the resistance of the said Lucille Barbee by means of force contrary to,” etc.
Upon the trial the jury returned their verdict finding “the defendant, Merle Coffe, guilty of rape in the first degree as charged in the information, but we are unable to agree upon the punishment.”

Motion for new trial was duly filed, presented, and overruled. March 27, 1935, the court pronounced judgment and sentenced the defendant to imprisonment in the state penitentiary for a. term of 25 years.

The evidence shows that the prosecutrix, age 19 years, was born and reared in Afton, and was living with her parents; that she had known the defendant two or three years and had dates with him several times; that on Saturday night, November 3, 1934, she went to a dance at the home of Lee Ward, in the town of Afton.

She testified she went to the party with a young lady friend. Saw the defendant there and stayed until a little after 12, leaving- there in company with the defendant, walking in the direction of her home. That, after going a few blocks, the defendant stopped, grabbed her in his arms, and tried to kiss her; she said, “It is getting late, my folks will be worried about me”; he said, “Well, you know I can take it away from you”; and she said, “You ought to, you are big enough,” and began trying to jerk loose. She said, “You had better leave me alone.” He said, “Don’t you holler, if you do I will knock you down,” That Amos Wynn, a neighbor boy who had been at the party, came along and she asked him if he would take her home, and he said, “I am afraid it will make Coffe mad.” That she grabbed hold of Amos and tried to hold on to him. The defendant said he was not going to do anything to her, and that he would take her home safe, and told Amos to go on. That she started screaming and crying, and the defendant hit her in the mouth and knocked her glasses off, then he pulled her over on a vacant lot and threw her down and put his hands to her mouth. Then she tried to get up, and finally he said, “Get up; I am going to take you home.” That she picked up her hat and purse aud they started ou. That when they got within half a block of her home she lost one of her slippers. After finding, her slipper, she put it on and he jerked her over next to a signboard, knocked her down with his fist, then got down on her, and struck her four or five blows with his fist. That she succeeded in getting up and he threw her down again, and by force and violence had .sexual intercourse with her. That he helped her up and gathered her things, but he could not find her glasses. That she went home and told her mother that Merle Coffe had raped her.

Dr. C. J. Cunningham testified that he was called by Mr. Barbee to attend his daughter about 4 o’clock in the morning, and his examination disclosed bruises and scratches over the side of the face and on the lips and chin, and a small cut on the back of the head, and that he treated the abrasions, would say that the number was ten; was called ten days later and made a vaginal examination; could not say Avhether or not she had sexual intercourse Avithin the last two weeks,

Amos Wynn testified that on his way home from the dance at the Ward home that night he overtook the defendant and Lucille, and she asked him to let her walk home Avith him; that Merle had promised to treat her like a sister and that was as far as he would go. The defendant said, “Go on, Amos, I will take her home safe,” and repeated this tAvo or three times.

As a witness in his own behalf the defendant testified:

“I was arrested on the 4th day of November, 1934; have been confined in the county jail since that time. My age is 24 years. I had been living Avith my brother at Picher, working in the mines. I left Picher that afternoon and went to Afton to see my folks, and before going home I went to the dance that night. There were 25 or 30 persons there. Someone said, ‘There is plenty of whisky here, it is election time.’ I met Lucille Barbee there. I had dated her steady for two or three months, the last time 4th of July last. The third time I dated her we had intercourse. On three different occasions after that I had sexual intercourse with her. I left the dance with her around 12:30. I was pretty drunk. On the way she said she was figuring on getting married. I said something about having intercourse and she said she wouldn’t. Amos Wynn passed us. I spoke to- him and Lucille spoke to him. We walked slow, stopped several times, and I took her home, then I went home. It was 2:20. Mother and father got up and we talked a while. I did not have sexual intercourse with her that night.”

Mrs. Laura Coffe, mother of the defendant, testified that he came home Sunday morning about 2:30 and acted like he had been drunk. That on the following Tuesday she, with Mrs. Nona Coffe, went to the Barbee home. While there, Mrs. Barbee, in the presence of her daughter Lucille and others, stated that Lucille came in that night and merely said they need not be scared, she just got beat up. That she asked Lucille, “Did Merle injure you any other way besides your face being-scratched?” and she said, “No.”

Mrs. Nona Coffe testified to the same statements.

Jewell Long testified that he lived at Afton practically all his life, and was walking on the street. Lucille and Pauline Nelson walked up. Lucille bantered him to go to the dance, and they went there together. It was about 8:30. The defendant was there and was drinking. When ready to go home Lucille said that Merle was going to take her home, and they left about 20 minutes before he did.

In rebuttal the prosecutrix, recalled, testified that the defendant never had sexual intercourse with her at any other time.

One of the grounds for new trial and assigned as error is that the court erred in making prejudicial remarks to the jury when they returned for other forms of verdicts.

It appears from the record that, after the jury had retired for deliberation and had remained out for some time without reaching a verdict, they were called to the courtroom and the following proceedings were had:

“The county attorney presented the closing argument on behalf of the state to the jury, and thereupon the jury retired to the jury room, under the direction of the court, to deliberate upon their verdict, and said jury being in charge of the sworn bailiff of the court.
“And thereafter on said day, to wit, at 12 o’clock noon, the jury was brought into the courtroom by the bailiff of the court, and the defendant not being present, and the defendant’s attorney of record, Yernon S. Roberts', being in the courtroom, the following was had and done, to wit:
“The Court: Have you gentlemen agreed upon a verdict? Foreman: We have not. Court: What seems to be the trouble? Foreman: If we had the right kind of a verdict we could agree. The Court: Under the instructions of the court and under the view the court takes of the law applicable to this case, this defendant is guilty of rape in the first degree or he is not guilty.
“For rape in the first degree the punishment may be death; may be life imprisonment; the minimum is 15 years in the penitentiary.
“The.law under which this man is being tried provides for those punishments and the section says, in meaning, that if the jury finds a defendant guilty and cannot agree upon the punishment but does agree upon a verdict of guilty, then it becomes the duty of the court to fix the punishment.
“In trying many cases I have purposely refrained in many cases from handing the jury a verdict finding the defendant guilty and stating they are unable to agree upon the punishment for two reasons:
“It would have a tendency to relieve me of responsibility; and all defendants, without exception, and all judges, without exception, so far as I know, prefer and believe that it is a right that when a jury find a defendant guilty that the jury ought to fix the punishment if they can agree.
“The jury may return a verdict saying they find the defendant guilty but are unable to agree upon the punishment.
“I don’t know whether that is what you have in mind or not, but I have submitted to you a verdict finding the defendant guilty and assessing the punishment at death; one fixing the punishment at life imprisonment in the state penitentiary; one fixing the punishment at imprisonment in the state penitentiary for a term of ■-years; and one a verdict of not guilty.
“I am therefore submitting to you a verdict stating that you find the defendant guilty of rape in the first degree, and that you are unable to agree upon the punishment.
“It may be you are trying to find this man guilty of something else. He is guilty of rape in the first degree or nothing, under the law and the instructions.
“I am handing to yon this additional verdict, which omitting the caption reads as follows:
“ ‘We, the jury, impaneled and sworn in the above entitled cause, do upon our oaths find the defendant Merle Coffe guilty of rape in the first degree as charged in the information. And we are unable to agree upon the punishment.’
“You, Gentlemen, may, in company with, the bailiff, go to lnnch and I wish you would get back at one o’clock or sooner, if you can, and resume your deliberations. You will have this additional verdict.
“I don’t want to and wouldn’t if I could, and couldn’t if I would, undertake to unduly persuade you or coerce you. I will say this: I need you and if you can reach a verdict quickly it will be very agreeable to the court. Of course I am unwilling to' admit that twelve intelligent citizens of Ottawa county cannot decide this case. I am not going to admit that. Take this verdict, Mr. Bailiff, and hand it over to the foreman of the jury.
“You gentlemen resume your deliberations, as soon after your lunch hour as you can. Mr. Bailiff, just bring them back directly to1 the jury room when they get their lunch. You gentlemen may retire.
“By Mr. Roberts: Comes now the defendant and objects to the remarks of the court for the reason that same are prejudicial to the rights of this defendant, being made without knowledge of what the jury had in mind; or whether the jury believed that the defendant might be guilty of a lesser offense.
“The Court: Overruled. You may have an exception.”

It is contended by counsel for appellant that these remarks of the court amount to oral instructions and ought not to have been made except in writing under the statute which provides:

“When the arguments are concluded, if the court be of the opinion that the jury might be misled by the arguments of counsel, he may to prevent the same further instruct the jury. All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case.” Section 3057, subd. 6, St. 1931.

Aside from the question as to whether the remarks of the court ought to have been in writing, it is contended that they were of such a nature as to prejudice the jury, and that the court assumed that the jury was agreed as to the guilt of the defendant, hut could not agree on the punishment.

The exception was taken to the remarks of the court as being prejudicial to the rights of the defendant, but no exception was taken to them on the ground of the defendant not being present, and the absence of the defendant was not presented as a ground for a new trial; consequently the question of the absence of the defendant was not presented to the trial court, and therefore is not properly before this court for determination. Kennamer v. State, 59 Okla. Cr. 146, 57 Pac. (2d) 646.

Jurors are easily influenced by the remarks of a trial judge, and the greatest care should be observed that nothing is said that can by any possibility be construed as an expression of the trial judge’s views respecting the merits of a criminal case. Courts cannot be too circumspect in this regard. Pilgrim v. State, 3 Okla. Cr. 49, 55, 104 Pac. 383; Reed v. State, 5 Okla. Cr. 365, 114 Pac. 1114; Harrison v. State, 11 Okla. Cr. 14, 141 Pac. 236; Shepherd v. State, 17 Okla. Cr. 630, 192 Pac. 238; Cosby v. State, 30 Okla. Cr. 294, 236 Pac. 51; Viadock v. State, 30 Okla, Cr. 374, 236 Pac. 56.

Upon the record before us we are of opinion that the remarks of the court were prejudicial to the substantial rights of the defendant.

In view of another trial, we are of opinion that under the evidence in this case the court should have submitted the included offense of assault with- intent to commit rape as defined by section 1869 of the Penal Code (St. 1931).

The other errors relied upon are not such as will likely occur upon a retrial of the case.

The judgment of the district court of Ottawa county is reversed, and the cause remanded for further proceedings in accordance with this opinion.

The warden of the penitentiary will surrender the defendant, Merle Coffe, to the sheriff of Ottawa county to be returned to said county and held in custody until he shall be discharged or as otherwise ordered according to law.

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


author: DAVENPORT, J.

text:
    DOLLIE BRYSON v. STATE.
    No. A-9030.
    April 10, 1936.
    (56 Pac. [2d] 1198.)

      Robert N. Dunn, 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, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, and sentenced to pay a fine of $50 and be incarcerated in the county jail for 30 days. Motion for new trial was filed, considered, overruled, and defendant appeals.

Before the trial began, the defendant, Dollie Bryson, filed her motion to suppress the evidence, setting forth several grounds as a reason for suppressing same; the first assignment being that the evidence was obtained by the state while the officers were searching the home of the defendant, Dollie Bryson, without the authority of a search warrant directed to the said Dollie Bryson; second, that the said evidence was obtained by the state while the officers were searching the home of Dollie Bryson, by virtue of a search warrant directed to Lewis Ogletree, and issued by E. L. Dillard, county judge. Testimony was taken upon the motion to suppress, at the conclusion of which the motion to suppress was overruled, and the defendant excepted.

The land described in the search warrant, in which the name of Lewis Ogletree was included, is described as follows: “The N. W. Quarter of Section No. 11, Township 5 S., Range 8 W” — on which there are located the home of the defendant, and a tenant house at the time the search warrant was issued occupied by Earnest Fountain. The officers admit they,knew the land described belonged to the defendant, and they had known the defendant for some time, yet the warrant to search the land described and the buildings, thereon named only Lewis Ogletree.

The proof shows that Ogletree was an employee of the defendant and lived in the home of the defendant, occupying one of the rooms; that the officers when they went to search did not only search the room of Ogletree, but searched the room occupied by the defendant, which was known to some of the officers, if not all of them, as being the home of the defendant, Dollie Bryson.

Section 2639, O. S. 1931, as as follows:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

The question to be decided in this case is: Is the description in the search warrant directed to Lewis Ogle-tree sufficiently accurate as to leave nothing to the discretion of the officers, to locate the room or place where Lewis Ogletree lived as directed by the warrant? They searched the residence of Dollie Bryson; the officers seeking to justify the search of the home of the defendant, Dollie Bryson, under the search warrant issued describing the tract of land, and directed to Lewis Ogletree. They would have had the same right to- search the home of Earnest Fountain, which is located on the same tract of land as the Dollie Bryson home, described in the search warrant.

In Wiese et al. v. State, 32 Okla. Cr. 203, 240 Pac. 1075, 1076, in the fourth paragraph of the syllabus, the court said:

“Affidavit for search warrant, describing the place to be searched as a certain section of land, and without naming tbe owner, is insufficient to furnish the particular description of the place to be searched, where it appeared that the land so designated was owned and occupied by several persons, so that it was in fact several places.”

In Shanafelt v. State, 38 Okla. Cr. 345, 261 Pac. 380, this court in the syllabus said:

“The affidavit for a search warrant and the search based thereon must so particularly describe the place to be searched that the searching officer has no discretion but may determine from the warrant the particular place to be searched.”

As shown by the record in this case, no officer unfamiliar with the lands and buildings thereon could tell which one of the houses was occupied by Lewis Ogletree, the defendant, Dollie Bryson, or Earnest Fountain.

In Myer v. State, 34 Okla. Cr. 421, 246 Pac. 1105, this court in the second paragraph of the syllabus said:

“Where there is no joint interest apparent, a showing of probable cause against one tenant confers no right to search the home of another tenant in the same building.”

It is clearly shown by the record in this case that-the search of the defendant’s home without a. search warrant specifically designating her home was an unlawful search and seizure, and the evidence secured upon the unlawful search and seizure was inadmissible against her. The motion of the defendant, Dollie Bryson, to suppress the evidence should have been sustained.

There being no1 testimony other than the testimony secured by the unlawful search and seizure, the judgment of the trial court is reversed.

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


text:
    BEN KILLINGSWORTH v. STATE.
    No. A-9014.
    April 17, 1936.
    (56 Pac. [2d]) 1200.)
    Bishop & Bishop and Billingsley & Kennerly, 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, hereinafter referred to as the defendant, was by information charged with 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 four years. Motion for a new trial was filed, considered, overruled, and the defendant reserved an exception.

Hex Summerville in substance stated:

“I am an undertaker by profession. In the month of December, 1932, I was working for the Chadwick Funeral Home, in Seminole, Okla. I am a licensed embalmer. I prepared the body of the deceased, J. P. Morrison, for burial. In embalming the body I discovered a knife wound in the lower middle section of the abdomen, a little to the right, about two inches in length running up and down the body; the wound went through the outer tissues and muscles into the bowels. This was a fatal wound.”

C. W. Shepherd, testifying for the state, stated:

“I live at Seminole, Okla.; am 60 years of age. I knew the defendant, Killingsworth, by sight, but did not know the deceased, J. P. Morrison. I saw the altercation on December 20, 1932, which took place in front of the First State Bank of Seminole. When I came up these men were having a heated argument, something was said about a debt the deceased was supposed to owe the defendant; they called each other damn liars, and other bad names, and finally struck each other a time or two. I saw the defendant reach down to the pavement and pick up his glasses, and hit the deceased in the stomach. About that time Henry Lewis, the policeman, came up and stopped the fight, and started to the police station with the parties. About the time they reached the barbershop the deceased fell on the sidewalk, and the barber came out and removed his clothing and on examination found a cut in the middle section in the vicinity of the abdomen, a little bit to the right.”

Jess Freeman testified:

“I had known the defendant about four years. I lived on his place for a year. The defendant and I was engaged in a conversation at the corner of the First State Bank in Seminole at the time the deceased came up and butted in. The difficulty occurred about as related by Bex Sum-merville. Just before the deceased fell on the sidewalk the defendant dropped a bloody knife in my pocket.”

Virgil McAnally testified in substance:

“At the time of the altercation I did not know either one of the parties engaged in it. I heard the two gentlemen have a few words, and heard them mention an account of $5. The defendant called the deceased a no good s — ■— of — b-several times. I saw them run together, and saw the defendant hit the deceased as he came up from picking up his glasses.”

A number ■ of other witnesses testified in substance the same as did the witness Virgil McAnally.

Henry Lewis, the policeman, in Seminole, stated at the time of this trouble between the defendant and deceased, on the 20th day of December, 1932:

“I was a third of the way across the street between the First State Bank and First National Bank when my attention was attracted to this trouble, and I heard them getting louder and louder. I turned and went back and parted them as quickly as I could. It seems to me that Killingsworth hit the first lick; I saw no weapons. I started to jail with them, one on each side, and Morrison fell just across the alley in front of the tin barbershop, and I placed the defendant in jail.”

The defendant, testifying in his own behalf, stated:

“I have lived in Seminole for eight years. I am a carpenter. I have known the deceased three or four months prior to this trouble.
“The deceased lived in a house belonging to a Mr. Malone, of Ozark, Ark., and I was collecting the rent on the property. I stood good for the gas and water bill, and, when the 1st of December came, he would not pay the gas bill and the water bill, which was $4.25. A man by the name of Parker was also living in one of the Malone houses. On the 15th of December I met Parker and bad a conversation with him, and he told me Morrison was mad about the gas bill and said if I did not keep my bill out of his business he was going to kill me.
“Mr. Freeman and I met at the front of the First State Bank, on the corner near the sidewalk. Mr. Morrison came up to where we were; he was mad. He talked like he did not like the way things were going. We talked about the gas bill and rent, and he finally struck me a lick on the side of the head, the force of the lick knocked my hat and glasses off; somebody picked up my hat and glasses for me. We went to quarreling, and kindly started together, and he jerked and hit me right hard on my head. I saw something dark in his hand, I don’t know what it was, it was some kind of a weight. He was striking over all the time, I could not knock his licks off. I struck him and hit him in the face with my fist; he then struck me in my face with the weight. I would have fallen down but fell against some one near me or a post. He rushed me, came on up; my hat and glasses were gone, I could just see a bulk of him, and I put my hand over my head (that way) as he came up; we came together again. I guess I cut him; I was afraid he was going to beat me to death with the weight, or whatever he had. I got the knife, I don’t know whether I ever opened it or not; I do not know whether I cut him or not, I just got the knife out. When Lewis arrested me the knife was still in my hand; it was shut. As I went down the street I passed somebody, I don’t know who it was, I gave tie knife to him. Lewis was along, by the side of me. We were going toward the police station. I did not know I had cut the deceased at the time they took me to jail. This was the 20th day of December, 1932.”

On cross-examination the defendant stated the deceased owed him f5 rent, due on the Malone house that he had been looking after:

“We had our argument over the house rent. He had some controversy with Dave Parker, who lived in one of the Malone houses, over the gas bill. I was standing talking to J. S. Freeman, whom I bad known for some time, when deceased came up. I do not remember what deceased said to start with, we went to quarreling and angry words were said. I don’t know whether I called him a liar first or he called me a liar — I don’t know whether I called him a g-d-s-- of — b-, or not; I was mad — about halfway angered because he was calling me a liar. He struck me first, I fell back and thro wed my hand up, and held them up, and somebody separated us, and I never hit him any more. I hit him with the knife just at the last, after he knocked me down. The knife you hand me looks like my knife. I don’t know where I struck him, I was so close. He hit me three times and I had my hand over my head. I hit him twice. I got the knife because he rushed me again and knocked my glasses and hat off and I thought he was going to beat me to death with the weight he had. I don’t know who got my glasses the first time. I know Con Long, the assistant county attorney; he asked me a number of questions, and I said ‘No’ to pretty nearly everything he asked me. I don’t know whether or not I told the county attorney I did not cut the deceased. I do not think I told Mr. Long I hit him with a knife.”

Several pages are taken up with cross-examination of the defendant as to the statements he made to the assistant county attorney, Con Long. Con Long also1 testified as to what conversation was had with the defendant in the county attorney’s office.

Tom Dodson, testifying on behalf of the defendant, stated:

“1 live five miles east of Konawa. I have lived in Seminole county since 1905. I remember the incident of the fight between the deceased and the defendant, but do not remember the date; it occurred in front of the First State Bank in Seminole. Judge Nichols and I were standing near the bank. The first thing that drew my attention Mr. Morrison picked up Mr. Killingwortk’s glasses and handed them to him. Killingsworth knocked him against a post. Up to that time I had not heard a word. As Morrison recovered his balance, he commenced hitting the defendant as fast as he could. I guess he hit him as many as ten licks. Morrison run back to the light pole that was near them and was throwing up his hands; he was doing it quick. The policeman ran in between them and separated them. I did not see any weapon in the hands of the defendant or Mr. Morrison; they did not have anything. I do not know what caused the fight.”

Henry Wilkerson, Fred Plummer, George Black, and J. D. Gilliland in substance testified to the same facts as did Tom Dodson, and to the acquaintance of the respective parties engaged in the difficulty.

J. D. Mills, in rebuttal, stated:

“I saw the parties when they started to fight. I saw them strike at one another. The deceased struck at the defendant first with his fist. The officer came and separated them. I did not see anything in the hands of the deceased during the difficulty.”

Kenneth Lewis, a rebuttal witness, stated:

“I saw the difficulty near where I was standing. I did not see the deceased knock the defendant down. I could see the deceased’s hands; he did not have anything in his hands when he fell. I was about five feet from him.”

The defendant has assigned several errors alleged to have been committed by the trial court, and urges that the same are sufficient to entitle him to a reversal. The first error presented is that the court erred in overruling the defendant’s demurrer to the information. An examination of the information shows that it stated facts sufficient to advise the defendant of the charge he was required to meet in clear and concise language, and the court did not err in overruling his demurrer to the information.

The defendant’s fourth, fifth, sixth, and seventh assignments of error will be considered together, as they all relate to the question as to whether or not there was sufficient evidence under the law to' sustain a conviction.

The defendant, in presenting his argument, insists that his demurrer to the state’s evidence at the close of the state’s case should have been sustained, for the reason that the state failed to establish the corpus delicti, and that the cause of the death was not proven.

An examination of the testimony contained in the record clearly shows that the deceased and the defendant met on the street in Seminole and there became engaged in a fight; they were separated by an officer; several bystanders testified that the defendant struck the deceased one or more times, and that they were separated by an officer; the officer started toward the jail with the parties, and, when they were near the barbershop across the street from where the fight took place, the deceased fell, and upon an examination it was shown that he had received a cut which resulted in his death. The testimony further shows that while they were going across the street the defendant dropped into the pocket of J. S. Freeman a bloody pocketknife. The defendant admits he cut the deceased with his knife, and the undertaker testified it was a fatal wound, that it went through the-wall of the abdomen into the bowels.

The testimony upon the question of the corpus delicti is sufficient to show, not only the death of the deceased, but the means used by the defendant to bring about his death. No authorities are cited by the defendant to sustain his contention that the state failed to establish by competent proof the corpus delicti.

It is further urged by the defendant that the court erred in permitting Con Long to testify in rebuttal, over the objection of the defendant, and that the court erred in permitting tbe introduction of tbe dying declaration, over tbe objection of tbe defendant. Long’s testimony related to tbe dying declaration of tbe deceased, and tbe record discloses that tbe state laid tbe proper predicate to introduce the dying declaration, and the court did not err in admitting it.

No authorities are cited by tbe defendant to sustain bis contention that it was error for tbe court to admit tbe testimony of Con Long and tbe dying declaration of tbe. deceased.

It is next urged by tbe defendant that tbe court erred in permitting, J. S. Freeman to testify, who at tbe time be was called to testify in tbe trial received bis mail at Salinas, route 2, box 7-0, state of California, on the ground that tbe name of this witness bad not been served upon tbe defendant, showing- bis post office to be in California, at any time before tbe jury was impaneled and sworn to try said case.

. Tbe record discloses that J. S. Freeman attended tbe preliminary and testified for tbe state. After tbe preliminary, tbe case was filed in tbe superior court of Seminole county, and then transferred to tbe district court of Seminole county, and on tbe 12th day of March, 1934, a list of witnesses that tbe state would use in the trial of tbe case, in which list was included tbe name of J. S. Freeman, was served on tbe defendant; after that time, and before tbe case was called for trial, tbe witness J. S. Freeman moved to tbe state of California.

This court has repeatedly held that, where a list of tbe witnesses was served on tbe defendant, and tbe defendant was convicted and a new trial granted, it was unnecessary for tbe state to again serve a list of tbe witnesses on defendant before tbe second trial. In other words, this court bolds that, after tbe list of witnesses is once served upon the defendant more than two days before the case is called for trial, if the case is not tried at the term of court to which it is assigned, it is not necessary when the case is called at a later term for the state to serve the list of witnesses once served on defendant —to serve him again with a list of the same witnesses. Patterson v. State, 53 Okla. Cr. 131, 12 Pac. (2d) 702; Yancey et al. v. State, 41 Okla. Cr. 197, 271 Pac. 170.

The name of J. S. Freeman as a witness for the state had been once served on defendant a sufficient length of time prior to the date the case went to1 trial, and it is not necessary to serve the name of the witness again, even though the witness may have changed his post office address in the meantime. The defendant had notice that J. S. Freeman would be a witness against him, by reason of the fact that, when a list of the witnesses was served upon him, on the 12th day of March, 1934, J. S. Freeman was named as one of the witnesses. The court did not err in permitting J. S. Freeman to testify.

The testimony conclusively shows that it was a fight between the defendant and the deceased voluntarily entered into by both parties, and that the defendant abandoned fighting with his fists and used his knife on the deceased, and inflicted a mortal wound, causing the death of the deceased. There is no reason or justification offered by the defendant sufficient to amount tO' self-defense, or that it was necessary for him to use the knife on the deceased in order to protect himself either from receiving great bodily harm or his life being taken. All of the testimony tends to show the defendant acted willfully in stabbing, the deceased, and that he sought to cover it up by dropping the knife he had used on the deceased in the pocket of J. S. Freeman, who was his friend.

It is unfortunate that men become involved in difficulties and lose tbeir temper and in baste take tbe life of tbeir fellowman, and, when it is shown that the life was taken without any justification, it follows that the defendant must pay the penalty.

The jury took a very liberal view of the facts in this case, and returned its verdict of guilty of manslaughter in the first degree, fixing the punishment of the defendant at four years.

After a careful reading and study of the record, we fail to find any error in the record warranting a reversal. The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. The evidence is sufficient to sustain the judgment. There being no errors in the record warranting a reversal, the judgment is affirmed.

ED WAKES, P. J., and DOYLE, J., concur.


author: EDWARDS, P. J.

text:
    BUDDY KNOPP v. STATE.
    No. A-9010.
    April 17, 1936.
    (56 Pac. [2d] 1193.)

      Harrell & Kerr and J. Wm. Crawford, 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 connty court of Pontotoc county of contaminating a stream by placing, allowing, and causing to be run into its waters, oil, cement cuttings, slush, and waste from an oil well, and was sentenced to pay a fine of $200.

The information is based on section 4782, Okla. Stat. 1931, which is:

“No person shall deposit, place, throw, or permit to be deposited, placed or thrown, any lime, dynamite, poison, drug, sawdust, crude oil or other deleterious substance, in any of the streams, lakes or ponds of this state, and any person violating the provisions of this section shall be punished by a fine of not less than $100 nor more than $500, or by imprisonment in the county jail not exceeding, one year.”

The first contention is that there is a fatal variance between the information and the proof, in that the information alleges the well to be located “ * * * in the northwest of southeast of Section 30-2-7 and due or almost due south of A. J. Harden house * * The proof is that the well is in the southwest quarter of the southeast, etc.; but further it is shown that the well is approximately the same distance and direction from the Harden house as alleged. When this incorrect description was discovered, the state admitted the error and asked and was granted leave to amend the information accordingly. No showing by affidavit for a postponement was made. There is evidence that the slush pits of this well were permitted to overflow and run into the stream, and that it became murky and muddy from such contamination; that sediment settled on the stones in the creek; that numerous fish could be seen in the creek before this, and none after. This was ample proof of pollution of the stream and the judgment is fully sustained by the evidence. Ordinarily it is sufficient to allege an offense was committed in the county without pointing out the particular place in the county. The purpose of particular description of the place where the offense was committed is to apprise the defendant of what he may expect to meet and to enable him to prepare his defense. Defendant was not prejudiced in any wise by this error of description, but made the same defense as he otherwise would have made. The amendment was one of form only; the variance is not fatal.

Defendant further contends the evidence is insufficient to sustain the charge. Upon this point it is argued the purpose of the statute is to protect the streams of the state from such pollution as would prevent the habitation or propagation of fish, and unless that is alleged and proven, neither the information nor the evidence is sufficient. There is some language in Neptune v. State, 20 Okla. Cr. 54, 200 Pac. 1008, which lends support to this contention; but in the later case of Link v. State, 42 Okla. Cr. 361, 276 Pac. 240, this court held that the purpose of the statute is not exclusively to protect fish. We adhere to this sound rule; the application of the statute is not restricted to cases where the pollution of the stream is to that degree that it prevents the habitation or the propagation of fish.

Some other matters are argued in the briefs, but none are of sufficient importance to require discussion.

The case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


text:
    PHIL KENNAMER v. STATE.
    No. A-8937.
    March 14, 1936.
    Rehearing Denied April 17, 1936.
    (57 Pac. [2d] 646.)

      C. B. Stuart, A. Flint Moss, C. A. Coakley, and Mc-Collum & McCollum, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., Holly Anderson, Co. Atty., and W. F. Gilmer, Jr., and. Tom L. Wallace, Asst. Co. Attys., (J. Berry King, of counsel), for the State.
   DOYLE, J.

(after stating the facts). Appellant, Phil Kennamer, was informed against and ;tried of having murdered John Gorrell, in Tulsa county. The jury brought in a verdict of manslaughter in the first degree, but were unable to agree upon the punishment. A new trial was denied. Thereupon the court sentenced appellant to imprisonment in the state penitentiary for a term of 25 years.

Upon a petition alleging numerous assignments of error, counsel for appellant have brought the record to this court for review, upon which they aslc that the judgment be reversed.

Considering the assignments in the order in which they appear in the record, the fifth and sixth assignments of error are based upon the action of the court in permitting the cross-examination of the witness Franklin E. Kennamer upon the subject of an interview published in the Tulsa Tribune.

Judge Kennamer, father of the defendant, testified at length as to the conduct, actions, and declarations of his son Phil from the time of his birth up to the night of the tragedy. He stated that he had sent him to the New Mexico Military School, at Roswell, in 1930; that he ran away from there the following, spring; that in 1931 he sent him to the Southeastern Normal School, at Durant; the next year his mother being in poor health went to San Angelo, Tex., taking him with her; that he disappeared from San Angelo; later he was located at New Orleans, and from there he went to Miami, Fla.; that he made two trips to New York, and he sent him to Los Angeles, Cal.; that when he returned to Tulsa he entered high school, later quit high school, attended Cascia Hall three or four months; that he had a very emotional disposition and at times he was very unreasonable in his conversations and actions; that he had told him seriously that he was well equipped in knowledge of military tactics and wanted to join a revolution in some foreign country. On some occasions when he was despondent he talked of joining the French Foreign Legion, saying it would be a good way to banish himself from decent society; that he secured various positions for his son, when he started out to make a living for himself, and he would work a few weeks and quit; that Thanksgiving evening, between 7 and 7:30 he took Phil in his car to the Crawford Drug Store, about three blocks from his home and' across the street from St. Johns Hospital, gave him 50 cents, and told him to get some cigars and bring them out to the car. When he came back he said, “Phil, you had better get in the car now and gO' back home with me, this is a bad night, I would like for you not to be out,” and he promised him he would come home early. That he came home that night between 12:30 and 1 o’clock.

He further testified as follows:

“By Mr. Moss: Q. Judge, please, sir, did Phil ever discuss with you the subject of what he should do in the event that he ascertained the existence of a kidnapping plot or kidnapping plan, or kidnappers engaged in plying their trade? A. This last summer he discussed very seriously with me that subject. Q. Will you tell the court and jury about that, please, sir? A. He asked me one night after supper, I was in the front room reading, and he came in, and he said, ‘Dad,’ he says, ‘If I knew of a bunch of blackmailers, kidnappers and extortionists, don’t you think it would be a fine thing if I would catch them?’ And I turned around to him, I was really astounded at the statement. I said, ‘Phil, you couldn’t get that information or have any knowledge of any such thing a.s kidnappers and extortioners and blackmailers except from a bunch of gangsters; that is the only kind of people that engage in that kind of business.’ And I says, ‘That would never do on earth for you to' undertake any such thing of that kind because you are liable to get killed and get all of the family killed.’ I said, ‘Furthermore, if you ever hear of any such thing as that, you come and report to me, and I will turn it over to the postal authorities and the department of justice agents that are employed by the national government to' run down that kind of people and that kind of business.’ Well, he said he thought it would be a good thing to' catch them. I says, ‘Sure, it would be a good thing, and they ought to' be caught, all right, but you are not the one to do the catching.’ That is about the substance of the conversation.”

He further testified:

“Q. Now, then, keeping in mind, please, Judge, all of these things that you have known about Phil through the years, which you have heretofore detailed, his conduct and demeanor during the fall of 1934, keeping in mind, too, please, sir, his condition on the night when this killing took place, and acting upon the assumption that it did occur sometime between 11:30 and 12:15 or 12:30, tell the jury whether or not in your judgment on that night, as you knew your son Phil, he was rational or irrational? A. I have no doubt at all that he was irresponsible and irrational.
“Q. In your judgment did he that night understand and appreciate the consequences of his own acts, or know the difference between right and wrong? A. I do not think so.”

Cross-examination by assistant county attorney, Gilmer:

“Q. Judge, let me ask you this: Did you on the 24th day of September, 1933, say to a correspondent of the Tulsa Tribune, referring in particular to the Machine Gun Kelly trial, this or this in substance: ‘The government has had enough of this kidnapping nonsense, and it intends to quash it now, and what is more, the government can do it. Criminals of course are just as individual as are law-abiding citizens. There are fat criminals and lean criminals; strong, criminals and weak crminals; smart criminals and stupid criminals; but in my observation extending over a number of years, I have come to the conclusion that most of them, the habitual type especially, have one trait in common, namely a strange quirk of mind which gives them an anti-social tendency; it is not strong enough to be classed as insanity, but it is akin to it.’ Did you make that statement? A. No, I never made any such statement.
“Mr. Moss: I object.
“A. I want to answer that. If the Tulsa Tribune has got any interest in this case, I will answer it now, and I think they have. The latter part of the statement, that is not my language at all, I don’t speak that language. I just said that the government of the United States was able to cope with the kidnapping situation, yes, sir.
“Well, Judge, do you agree or do’ you disagree with the sentiment expressed in that?
“Witness: Let me answer that.
“Mr. Stuart: Your Honor, if he is going to lay the basis for impeachment, he has got to name the time, place and man.
“The Court: If this is for the purpose of impeachment, you will have to lay the foundation by showing the time and place and person to whom the statement was made.
“Mr. Gilmer: I have shown the time and place, Your Honor, on September 21, 1933, and in your chambers.
“By Mr. Stuart: Name the man.
“Q. To Mr. Jenkin Jones, the correspondent of the Tulsa Tribune. A. Not the statement you have read. I made a statement to him.
“A. I can tell tbe substance of tbe statement I made to him, I believe it was following tbe conviction of somebody charged with kidnapping. He was going around town, seeing wbat different people thought about tbe conviction and wbat they thought of kidnapping, and I said to him the government of the United States in my judgment was able to cope with the situation, and I still think so. I said furthermore criminals of course are just as individual as law abiding citizens. I did not use the words ffat criminals and lean criminals/ but I said there were different classes of criminals. I said to him that there were criminals of organized bands and criminals that were individual criminals; criminals of petit crimes and criminals of high crime, and I still think that is correct. This statement is about like the usual garbled newspaper story.
“Q. With particular reference, Judge, to that part of it about criminal insanity, do you recall whether or not you made that part of the statement, that particular portion of it? A. I don’t remember that I ever made any statement to him about any insanity of criminals. Oh, I may have stated to him, yes, that confirmed criminals were of a peculiar type, in other words I tried to convey: And this word ‘quirk’ is, I know that is not my language, that part of it, but the idea was that a confirmed criminal has a peculiar mind. In other words, he becomes a diseased criminal. Q. I see, then the part there ‘but that is not insanity, but is akin to it,’ do you recall that particular portion of it, Judge? A. I don’t recall very much about it, except as I have stated to you.”

After the defendant rested, Jenkin L. Jones was called by the state in rebuttal and testified:

“I am a newspaper reporter on the Tulsa Tribune, I had occasion to talk with and interview Judge Kennamer in his Chambers in the Federal building, in Tulsa, on the occasion of the Machine Gun Kelly trial in Oklahoma City. This article is not an accurate, definite quotation of Judge Kennamer’s language. I used some words in there that possibly the Judge never used. That is what the Judge told me in substance as near as I can recall.”

Counsel for appellant in their brief say:

“That this irrelevant and incompetent interview with Judge Kennamer was forced into this case, contrary, we think, to every known rule of evidence, and could not have been done except for the purpose of prejudicing the minds of the jurors against the testimony of Judge Ken-namer. And that the trial court committed manifest error in permitting Mr. Jenkin Jones to testify with reference to this interview.”

No authorities were cited upon this last proposition.

We do not agree with counsel’s contention.

As to what is the proper practice on cross-examination of witnesses, there are two well-recognized rules, known as the English or orthodox rule, and the so-called American rule. In some cases the orthodox rule obtains in all civil cases, and in respect to- the cross-examination of ■ witnesses for the prosecution in criminal cases, while the American rule governs the cross-examination of witnesses for the defense. According to the orthodox rule, the opposing party is not confined in his cross-examination to matters upon which the witness is examined in chief, but may extend the cross-examination to every issue in the case. According to the American rule, a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in the direct examination.

In some jurisdictions where the American rule is followed, it is held that the trial court may, in the exercise of sound discretion, relax the rule and allow the cross-examination to extend to matters pertinent to' the issue, but not within the scope of the direct examination.

This court in Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736, held that:

“On cross-examination of a witness, as a general rule, the party cross-examining, should be confined to the matters concerning which the witness has been examined in chief, but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they may relate to matters independent of the questions, testified to in chief.”

The extent, manner, and course of the cross-examination of a witness, even though it extends to matters not inquired about in his examination in chief, is very largely subject to the control of the court in the exercise of a sound discretion, and unless it affimatively appears that this discretion was abused, the rulings of the court will not be reviewed on appeal. Hopkins v. State, supra.

In the case of Creek v. State, 16 Okla. Cr. 492, 184 Pac. 917, it was held by this court that:

“The cross-examination of a witness is not to be confined to the particular questions asked, nor the precise subjects called to his attention, on direct examination. The correct rule is to allow the cross-examination to extend to any matter not foreign to the subject-matter of the examination in chief, which tends to limit, explain, or modify the same.”

Regardless of the rule as to the scope of cross-examination on material matters, it is always permissible on cross-examination to lay a foundation for impeaching a witness by proving prior contradictory statements. Not only may a witness’ inconsistent statements be proven, but his inconsistent acts and conduct may be shown also.

It is said that contradictory statements of a witness, to be admissible for tbe purpose of impeachment, must be material to the issue, and must also ordinarily be a statement of facts and not a mere opinion of the witness, though it would seem that this would not be true of an opinion contradictory of another opinion, where both are based on the same set of facts.

It is also said that if there is an inconsistency between the belief of a witness as indicated by his declarations prior to the trial and his belief as indicated by his examination in chief, the prior declarations may be shown by way of impeachment. 28 K. C. L., pars. 219, 220.

The seventh assignment of error is based upon the action of the court in permitting Mr. King, special prosecutor, to ask Dr. Menninger on his cross-examination the following question: “Q. If you were a composite jury, if you had the power that these twelve men are going to have, to dispose of this defendant, now from your standpoint, what would you do with him?” The record shows that Dr.-Menninger qualified as an expert in the field of psychiatry. It appears that he had graduated at Harvard and other universities in this country and abroad, was the author of what is admitted to be an outstanding book upon this question, “The Human Mind,” and was the director of the clinic at the Menninger Sanitarium at Topeka, Kan. The whole course of Dr. Menninger’s testimony has tended to support the contention of counsel that the defendant was insane and should have confinement and treatment to bring about, as counsel expressed it, “a restoration to sanity upon his part.” The witness answered : “I would recommend that he be confined in such a way that he could be guarded as much as possible against escape, until he is adjudged cured by an impartial appointed group of psychiatrists, that is, he should have confinement and treatment.”

Our Penal Code (section 1797, St. 1931) provides:

“All persons are capable of committing crimes, except those belonging, to the following classes: * * * Fourth. Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them- they were incapable of knowing its wrongfulness.”

In the case of Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 1029, 52 L. R. A. (N.S.) 248, it is said that:

“Under this provision the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has the mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act.” Smith v. State, 12 Okla. Cr. 307, 115 Pac. 699; Roe v. State, 17 Okla. Cr. 587, 191 Pac. 1048.

In the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 420, 44 L. R. A. (N.S.) 119, it is said:

“It is immaterial what standard scientists or medical experts may fix to- determine, or by what rules they determine, that a person is in a state of insanity; the accused under this provision of the law is a lunatic, or insane, or of unsound mind, or temporarily or partially deprived of reason, to such an extent as will excuse him from criminal responsibility, only when he is incapable of knowing the wrongfulness of the act committed and charged, and incapable to understand the nature and consequences of such act, and this is a question of fact for the jury to determine under all the evidence in the case. * * *
“Every defendant is presumed in law to be sane and capable of knowing right from wrong, and able to choose between them. This presumption, however, upon a trial for murder, is overcome whenever evidence is adduced sufficient to raise a reasonable doubt of the defendant’s sanity at the time of the commission of the homicide. The law thereupon imposes upon the state the burden of establishing the sanity of the defendant the same as any other material fact necessary to warrant a conviction; that is, beyond a reasonable doubt.”

Where one is being tried for murder, and his defense is insanity, lunacy, or unsoundness of mind at the time of committing the act, the defendant, in the first instance, is presumed to be sane and of sound mind, and the burden is upon him to introduce sufficient evidence to raise a reasonable doubt as to his sanity. When he has done this, the state, before a conviction can be had, is required to prove his sanity beyond a reasonable doubt.

In the course of the opinion in the Adair Case, supra, it is said:

“Modern research has done much to elucidate what was formerly very obscure touching the true pathology of insanity, although no invariable or infallible test of the existence of insanity has ever been found. Says Mr. Bishop:
“ ‘Many attempts have been made to discover, what has been assumed to exist, a form of words, termed a test of insanity, which, put into the hands of jurors, can be used by them as a sort of legal yardstick, to measure the evidence and determine whether or not the prisoner had a sufficient length of mental alienation to escape responsibility for his act. But the test has never been found, not because those who have searched for it have not been able and diligent, but because it does not exist.’ Bish. New Crim. Law (8th Ed.) § 381.
“ ‘The symptoms and causes of insanity are so variable, and its pathology so complex, that no two' cases may be just alike. The fact of its existence is never established by any single diagnostic symptom, but by the whole body of symptoms, no particular one of which is present in every case.’ Ray’s Med. Jur. Ins. par. 22.
“Persons suffering from this unhappy malady are here placed under the care and custody of the state by laws requiring their confinement in state asylums and hospitals for treatment. The establishing of asylums and hospitals for the insane, and the enactment of laws requiring the compulsory confinement of persons accused and acquitted of crime on the ground of insanity, has in a large measure tended to relax the rigid rules which once governed this defense.”

See section 8106, St. 1931.

We deem it sufficient to say that adhering to the rule heretofore stated, we do not think the question was improper and prejudicial.

After a careful examination of the record and the exceptions taken to the rulings of the court on the admission and rejection of testimony, we are satisfied that, within well-settled rules sustained and upheld by the decisions of this court, no material error was committed by the court in any of its rulings.

• The next assignment of error is :

“Unethical, unfair and prejudicial conduct of the attorneys for the state in presenting, as a witness Mrs. O. L. Harman, whose testimony and conduct before the jury was highly prejudicial, and whose testimony the state’s attorney knew before they introduced her was prejudiced.”

It appears from the record that Mrs. O. L. Harman, the fifth witness called by the state, testified in part as follows:

“Q. Do you know the defendant, Phil Kennamer? A. Honorable judge, I am afraid to testify in this case; my life has been threatened, and my family—
“Q. Just wait a minute.
“Mr. Moss: I want her to tell it all.
“Mr. Anderson: If she wants to tell something to the judge—
“Mr. Moss: That is all right, let’s let the jury and all hear it; we don’t want to have any secrets in this lawsuit.
“The Court: Go ahead.
“A. I am afraid to testify in this case and I want to he excused from it. My family has been threatened time and time again in the last 24 hours, they have been threatened with death, and that they would get me if I go up and testify; they have had that threat put up to them time and'—
“Mr. Moss: That isn’t the reason she is afraid to testify; I know this woman.
“The Court: Mrs. Harman, you have been subpoenaed here and you must answer the questions now as they are asked.
“The Witness: I am sorry I will have to refuse. My children means more to me than anything on earth, and I will have to take whatever the penalty is. But when my little girl says to me, ‘Mother, don’t testify in this case.’ They have called and told them, they have told my children they would kill them and kill me.
“Mr. Moss: I now move the court to strike from the consideration of the jury all statements made by this witness and to declare this a mistrial because of the prejudice resulting from these bombastic statements made by this witness.
“Mr. Anderson: If the court please, I ask this witness not to talk, and Mr. Moss insisted that she do.
“The court excuses the jury.
“The Court: I want to make this record now. Mr. Moss, if the court will admonish the jury to disregard not only the statement that she has made here, bnt the county attorney will withdraw from the consideration of the jury the statement with reference to what her testimony would be, is there any objection then to proceed with the trial?”

A statement was drawn up withdrawing that part of the opening statement made by Mr. Wallace in reference to Mrs. Harman’s testimony; Mr. Anderson, the county attorney, made this statement:

“Now if the court please, the scene just created in this court room a little while ago had undoubtedly left some influence, some coloring upon the minds of the jury in this case. For that reason I want to join the defense counsel in requesting that this be declared a mistrial, and I furthermore want to reiterate that this witness be held for further action of this court.
“Mr. Stuart: Now, your Honor, let’s see about this. We made a motion to have a mistrial take place here. It is the duty of the court of course to try and dissipate and destroy whatever influence was carried by this scene from this stand. When we went out these gentlemen came to me, Mr. Johnson did, and asked me if he made a statement, if we would withdraw our motion to declare a mistrial, leading us to believe that if we did that, it would be perfectly satisfactory to the state.
“Mr. Anderson: I still insist on a mistrial, I confess the motion.
“Mr. Moss: I withdraw the motion so that we have nothing, to confess.
“Mr. Stuart: Your Honor will have power to tell this jury to disregard everything that occurred. This is not the first time that these untoward things have occurred in courts of justice. You should tell the jury to disregard it all, and now you are going to tell the jury to withdraw this statement.

The Court:' You gentlemen come up here, I want to confer with you.

“Following this conference:
“The Court: Gentlemen of the Jury, I am going to ask you this question: Is there a man on this jury who would be influenced either for the state or for the defendant by what has occurred with reference to the testimony of this lady, who was put on the stand, Is there a man who will be influenced in any way, or let it influence your verdict in this case? If so, hold up your right hand.
“The Court: You gentlemen tell me then on your oaths that you will not be influenced by what has happened here in the court room? Do you all do that?
“The Court: Is there a man on the jury who is prejudiced against either side in this laAvsuit by reason of what has happened with reference to Mrs. Harman?
“The jurors make no answer.
“The Court: What do you all say about that, you men know?
“All jurors answer: I am not.
“The Court: You would not be. In view of the answers of the jury I am going to proceed with the trial of this laAvsuit, but I am going to admonish the jury now that they must not permit this incident to influence you in the least in the trial of this lawsuit. Call your next witness for the state.”

Thus it appears that the defendant in the lower court expressly Avaived the right he otherwise would have had to claim that he should be granted a mistrial by reason of the misconduct of this witness. The state offered the defendant a mistrial; the defendant refused to accept it.

The irregularity now complained of was not presented as a ground for a new trial in either the first or subsequent motion for a new trial.

In the case of White v. State, 23 Okla. Cr. 198, 214 Pac. 202, 205, this court held that:

“Where a constitutional right is for the sole benefit of the accused, in the nature of a privilege, that right may be waived by express consent or by implication, from conduct indicative of consent; or by failure to claim or assert the right in seasonable time.”

In Daniels v. State, 55 Okla. Cr. 298, 29 Pac. (2d) 997, this court held:

“A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, either by express agreement or conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.”

It is so well settled as to be elementary, that the doctrine of waiver and estoppel applies to a defendant in a criminal case, and he cannot be permitted to take one position in the court below and assume an entirely different position in the appellate court. Bishop’s New Criminal Procedure, pars. 117, 118, 119.

We have often held that only those questions can be considered on appeal, unless jurisdictional or of a fundamental character, ivhich were raised in the trial court on exceptions taken, and unless incorporated in the motion for a new trial, and thereby submitted to the trial court, the same will not be considered on appeal. Dooling v. State, 3 Okla. Cr. 491, 106 Pac. 982; Mitchell v. State, 7 Okla. Cr. 563, 124 Pac. 1112; Cardwell v. State, 20 Okla. Cr. 177, 201 Pac. 817; Signs v. State, 35 Okla. Cr. 340. 250 Pac. 938.

It appearing that this assignment does not set forth any jurisdictional or fundamental error, it was waived by failure to present it to the trial court in the motions for new trial.

The next assignment is that the court erred in giving instruction No. 13.

It appears that at the close of the testimony the defendant’s counsel presented a body of instructions and asked the court to give them to the jury, which request was refused. It also appears that the defendant’s counsel took an exception to each instruction given by the court.

No assignment is urged here as to the giving or refusal of instructions except on account of the giving of instruction number 13.

The criticism directed against this instruction is that it is in effect a charge upon the weight of the evidence.

This instruction reads as follows:

“No. 13. You are further instructed that even if John Gorrell had planned and threatened to kidnap Virginia Wilcox for the purpose of extorting money from her father, and was about to carry such plan into execution, nevertheless the defendant had no right to kill him to prevent the plan being carried out. Therefore, if you believe beyond a reasonable doubt that the defendant killed John Gorrell for the sole purpose of preventing him from carrying out said plan to kidnap Virginia Wilcox in order to extort money from her father, and the same was done with a premeditated design to effect the death of said John Gorrell, then and under those circumstances you should convict him of murder, unless you believe from the evidence, or entertain a reasonable doubt thereof, that the defendant is justifiable on the ground of self-defense, or that the defendant was insane at the time he fired the fatal shots.”

We have uniformly held that the instructions given by the court must be construed as a whole. The instructions fully, fairly, and correctly state the law of the case, and the instructions on the question of insanity, when considered altogether, state the law fully and very liberally for the defendant. We think this assignment is manifestly without merit.

■One of the grounds of the motion for a new trial, and upon which error is assigned, is that assistant county attorney, W. F. Gilmer, during the closing argument, made use of inflammatory language while referring to the defendant, which was- entirely unwarranted by the evidence, and made other remarks that were improper and prejudicial.

It appears from the record, however, that no objection was made at the time, nor was the attention of the trial court in any manner called to the alleged abuse of privilege.

The record shows that the opening arguments were made by Mr. Wallace, for the state, and Mr. Moss for the defendant, followed by Mr. King for the state and Mr. McCollum for the defendant, then Mr. Rowe, for the state.

The closing arguments were made by Judge Stuart for the defendant and Mr. Gilmer for the state, which is the only argument appearing in the record. The following excerpts of Mr. Gilmer’s closing argument appear in the briefs:

“Judge Stuart says, 'Let’s tear off the veil.’ All right, judge, you won’t have to wait, because I am going to tear it off and I am going to tear it into shreds so nobody can put it back on again, if there is any veil there.
“Here is what we are up against, and you gentlemen of the jury, and it is borne out by the record in this case. We are fighting the strong influence and deliberate influence of the federal court of our district. We are fighting that and they are using it and I wouldn’t mention it if they hadn’t done it first. All right, we are fighting that.
“Then we have got more than that to contend with. We have got the unlimited wealth in the northern part of the state of Oklahoma to fight, that is what we are up against, and you gentlemen have got to believe that we are sincere, and that we are fighting to the very best of our humble ability. We have got to believe that, we have shown it.”

And again he said:

“Now, here is a thought that occurred to me during the trial of this case, and I think possibly you gentlemen might have noticed that. I left that out a while ago when I was telling you the proposition we were up against about getting somewhere in the conviction for this murder.
“You have noticed every day, I presume, that even after his honor comes in and sits down on the bench, and everybody is seated, then in walks some spectators, all dressed up in expensive clothing; I don’t know who they are or from whence they come, but it takes money to get yourself a reserved seat in the front row in the trial of this case.
“And let me tell you this. If it didn’t just happen that you twelve men were just called in here as jurors, as a coincidence, and if it didn’t happen that I just came here on the prosecution side of this case and have got me a chair that they can’t take away from me, do you think that us boys could have got in here on a front seat? You know good and well we couldn’t. We would have been lucky to get in here at all, much less walk in after the judge sits down, and take a seat that has been reserved.
“I don’t know how they do it, but they didn’t do it without money, I tell you that.
“You have got a picture of one industrious boy and then you have got a picture of a pampered wastrel, that it what you have got. And it is a clear enough picture that anybody in the world can see it. Killer, kidnapper Kennamer, there he sits, that is what he is and you know it and I know it, and I think Flint Moss and C. B. Stuart know it.”

And again:

“Now, I am going to- close. There has been something said about what to do with the defendant. I am going to tell you what I think ought to be done, and I am going to give you my reason for it, and you can take it for what it is worth.
“I tell you what I think of the punishment in this case. They all say that he ought to be confined; nearly everybody in the case said he ought to be sent to- some institution. All right. Now Dr. Griffin says, ‘I have got no place in my institution for him; he should go to a penal institution.’ That is a penitentiary. That is what they all say.
“Now', let me tell you this, I am sincere in it, and I mean no disrespect to anyone, but as sure as you send that boy to the penitentiary, as sure as you do, the natural reaction on the part of his father — so help me, my own father would do the same thing, and I would honor him for it, but on the day he is sent down there, he is going to start trying to get him out, and I don’t blame him for doing it, my father would do the same thing, but he is going to try to get him out the day you put him in.
“So on behalf of the state of Oklahoma, I am going to ask you to inflict the extreme penalty and send this boy to the electric chair, with the same calm, cool, deliberate action that on Thanksgiving' night, 1934, he sent the immortal soul of John Gorrell hurtling into eternal oblivion. Send him down there and rub him out.”

There have been innumerable decisions in different jurisdictions as to when improper remarks by prosecuting attorneys in their arguments to the jury require a reversal and a new trial. It is impossible upon such a subject to formulate a general rule infallibly applicable in all cases. Each case is tested by itself in a measure.

This court, in Nance v. State, 41 Okla. Cr. 379, 273 Pac. 369, 372, said:

“The settled rule is that the prosecuting attorney has the right and privilege in his argument to the jury to refer to the evidence, and state his deductions therefrom, and urge upon the jury the truth or falsity of any testimony given in the case, and the remarks of the prosecuting attorney in his argument will he considered and construed in reference to the evidence. In order to constitute reversible error, the impropriety indulged in must have been such as may have improperly influenced the verdict.”

In Allen v. State, 13 Okla. Cr. 395, 164 Pac. 1002, L. R. A. 1917F, 210, it is said:

“In our opinion, this argument could have been cured by its withdrawal from the consideration of the jury by the trial court, and counsel for the appellant should have requested its withdrawal in order that the court might have cured the error, if any. This was not done. Counsel at the time only saw fit to object and take an exception without any ruling by the trial court upon the impropriety of certain of these remarks. Others the trial court of its own motion, as heretofore indicated, saw fit to withdraw and admonished the jury not to consider. It is not every species of improper argument that justifies this court in reversing a judgment of conviction. * * *
“We hold, therefore, that where the guilt of the appellant is clearly established, and there is no good reason to believe that upon a second trial an intelligent and honest jury could or would with reason and propriety arrive at any other verdict than that of guilt, a new trial will not be granted except for fundamental error.”

This court in Brown v. State, 52 Okla. Cr. 307, 4 Pac. (2d) 129, 130, held that:

“The right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide. Counsel for both the state and the defendant have a right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it. It is only when argument by counsel for the state is grossly improper and unwarranted upon some point which may have affected defendant’s rights that a reversal can be based on improper argument.”

It is earnestly insisted that “the court erred in not controlling the above argument even though no objection was made in the court below, bearing in mind that the court below did not stop the argument; did not reprimand the attorney or advise the jury not to consider his improper remarks.” Citing and quoting from opinions in the following cases: Holcomb v. State, 16 Okla. Cr. 1, 166 Pac. 755; Berger v. United States, 295 U. S. 78, 55 S. Ct. 629, 79 L. Ed. 1314; Akin v. State, 86 Fla. 564, 98 So., 609; Read v. United States (C. C. A.), 42 F. (2d) 636.

This court in Ussaery v. State, 22 Okla. Cr. 397, 212 Pac. 137, held that:

“When the entire argument on both sides is not before the court, and the county attorney contends that his argument is in reply to argument advanced by defendant’s counsel, and the trial judge overrules the objection to such argument, this court will not pass on the alleged error, unless the argument complained of constitutes a violation of some constitutional or statutory right of the defendant. Under such circumstance the presumption will be indulged on appeal that the trial judge ruled that such argument was permissible as reply argument, as the burden is upon the appellant to affirmatively show error in the ruling of the trial court.”

In Wilson v. State, 24 Okla. Cr. 332, 217 Pac. 885, it is held that:

“Ordinarily error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.”

In order for this court to review errors assigned, error must affirmatively appear from the record. It is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The settled rule, often announced by this court, is that the plaintiff in error must affirmatively show prejudicial error; otherwise, the judgment of the lower court will be affirmed. Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620; Keeter v. State, 15 Okla. Cr. 139, 175 Pac. 263; Proctor v. State, 22 Okla. Cr. 445, 211 Pac. 1057; Bird v. State, 40 Okla. Cr. 80, 267 Pac. 281.

In the recent case of Cummings v. State, 57 Okla. Cr. 428, 48 Pac. (2d) 879, it is held:

“To preserve the question of alleged misconduct of the county attorney in his argument to the jury, the attention of the court should be called to the argument at the time by proper objection and a ruling had thereon and an exception to the adverse ruling reserved and the same assigned as error in the motion for new trial and the petition in error. When this is not done, the question is not presented to this court for review.”

This court in Payne v. State, 21 Okla. Cr. 416, 209 Pac. 334, held that:

“Where the record is incomplete touching upon alleged disparaging remarks made in the closing argument, this court will presume that the trial court ruled correctly.”

In most instances reversals have been ordered for improper remarks where the prosecuting attorney asserted and argued facts not in evidence bearing upon the guilt of the defendant, and in few for intemperate abuse of the defendant. Thurmond v. State, 57 Okla. Cr. 388, 48 Pac. (2d) 845.

The sole object of all argument is the elucidation of the truth, greatly aided in matters of fact as well as in matters of law by full and fair forensic discussion. Argument may violate ethics and not violate law. It may be improper, but not illegal. Improper remarks by the prosecuting attorney in the argument do not require a reversal, where they appear to be strictly in reply to allusions of counsel for the defendant.

Even if it were to be conceded that the language of Mr. Gilmer was somewhat outside of the pale of legitimate argument, it does not affirmatively appear that counsel abused his privilege, or that it was the duty of the trial court to interfere.

We are satisfied that the contention of counsel for appellant is untenable for another reason. In this connection the trial court gave instruction No. 17, which reads as follows:

“You will now listen to the argument of counsel, and you are instructed that the argument constitutes a material and legitimate part of the trial, and you should carefully hear and consider any suggestions made by counsel when it tends to aid or assist you in analyzing the testimony of the witnesses and applying the law as given by the court, taking care however that such argument be not conflicting with the testimony of the witnesses, nor the instructions herein given you. You should entirely disregard any statement of counsel not based on the evidence, or which is not a fair deduction therefrom, and you should also disregard any question that may have been asked to which the court sustained an objection.”

Finally, it is urgently insisted that the punishment imposed is excessive.

Counsel in their brief say:

“Assignment of error number 15 suggests that the sentence imposed by the court is excessive, and, under the evidence, amounts to cruel and unusual punishment.”

The record shows that the supplemental motion for new trial filed March 1, 1935, concludes as follows:

“This excessive punishment, we believe, and, therefore allege the facts to be, Avas brought about by the trial court’s being temporarily swept off his feet by the clamor of the public press; that, during the trial of this cause, there were approximately forty newspaper reporters and agents of neAVSgathering agencies furnished special seats and accommodations in and about the front portion of the courtroom; by reason of their presence, the atmosphere was charged Avith their mania for making this a nationwide trial — a big event. The presence of these reporters and news-gathering agents was everywhere during the trial of the cause and during periods of recess. Late editions of the paper were present, not only in the courthouse, but on the floor of the courthouse Avhere this trial was being held. Even newsboys were selling these papers in the corridors of the building and on the floor of the building where' the trial Avas being had. These papers, in their news comments as well as editorials, Avere demanding the conviction and punishment of this boy. For these reasons, we allege the facts to be that the trial court was unconsciously influenced by this clamor and bedlam, this spirit of a Roman holiday.
“Premises considered, this defendant asks that said judgment and sentence be vacated and set aside and that he be given a new trial, or, if a new trial be denied, that said sentence be reduced to the minimum of four years, so that this mentally sick boy can be recovered, perhaps, within time to save, if possible, what remains of his mentality.”

Where the evidence is so conclusive and convincing, of the guilt of the defendant of the degree of the crime of which the jury found him guilty, before this court may modify the judgment and reduce the punishment it must clearly appear that the court abused its judicial discretion in assessing the punishment.

In the light of the facts of this case we are of opinion that the court did not err in overruling the supplemental motion for a new trial.

The defendant was ably represented in the trial court, and his rights fully protected in every respect, throughout the trial and in this court. However, it is our conclusion after reading this voluminous record, covering over nine hundred pages, with great care, and having weighed with all due consideration every objection urged by counsel for appellant to the trial which was accorded him, that no error was committed to his prejudice; and upon the whole case we are satisfied that the defendant, beyond all reasonable doubt, had a fair and impartial trial before an unbiased jury, free from any undue influence of prejudice or passion; and this is all to which he was entitled.

It follows that the judgment of the trial court should be affirmed, and it is so ordered.

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