text:
    ODIE WILLIAMS v. STATE.
    No. A-3018.
    Opinion Filed Nov. 1, 1919.
    Rehearing Denied May 20, 1920.
    (190 Pac. 892.)
    1. CONTINUANCE — Discretion of Trial Court. Applications for a continuance on the ground of the absence of material witnesses are addressed to the discretion of the trial court; and, unless there appears to be a manifest abuse of such discretion, the judgment of conviction will not be reversed because a continuance was denied.
    2. SAME — Denial Where no Probability of Different Result. For reasons showing no abuse of discretion in overruling the application for a continuance in this case, see body of opinion.
    3. RAPE — Proof of Defendant’s Age a Matter of Defense — Statute. Section 2415, Rev. Laws 1910, providing, “Nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of fourteen years, with her consent, unless such person was over the age of 18 years at the time of such act,” construed, and held, that .proof that the defendánt was over the age of 18 years at the time of the commission of the alleged act is not indispensable to a conviction; the age of the defendant being a matter of defense, and not a material element of .the crime.
    4. APPEAL AND ERROR — Presumption of Regularity of Proceedings Below — Time for Judgment. On appeal, all presumptions favor the regularity of the proceedings in the trial court. Where judgment was pronounced against the defendant less than two days after the rendition of the verdict, without objection on his part, the presumption will be entertained in this court that the trial court did not intend to remain in session for two full days after the rendition of the verdict, and that tlie judgment was pronounced at as remote a time as could reasonably be allowed: the record being silent as to the length of time tlie court remained in session after the rendition of the verdict.

      Appeal from District Court, Tillman County; Frank Matheios, Judge.

    Odie Williams was convicted of the crime of rape in the second degree, and sentenced to serve a term of four years in the state reformatory, and he appeals.
    Affirmed.

      Mounts & Davis, for plaintiff in error.

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

A statement of the facts is not necessary in this case. It is sufficient to say that after an examination of the transcript of the testimony of the witnesses the court finds that there is ample evidence to support the judgment of conviction.

It is the first contention that the trial court erred in overruling defendant’s motion for continuance, based upon the absence of three witnesses, who were alleged to be residents of Tillman county, young men who it is averred In the application would testify, if present, that they had each had sexual intercohrse with the prosecuting witness after she had reached the age of 16 years and prior to the commission of the act of sexual intercourse upon which this conviction is based. As this is a conviction for statutory rape in the second degree upon a female between the ages of 16 and 18 years, of previous chaste and virtuous character, the evidence of prior sexual intercourse by the prosecuting witness with other male persons than the defendant after she had attained the age of 16 years, and prior to the commission of the alleged act upon which the conviction in this case is based’ was competent evidence in behalf of the defendant.

This court has repeatedly held that applications for a continuance, based upon the absence of a material witness, is a matter addressed to the discretion of the trial court, and unless there appears to be a manifest abuse of such discretion, the judgment of conviction will not be reversed on this ground alone. Reed v. State, 14 Okla. Cr. 651, 174 Pac. 800.

There was no abuse of discretion in this case. . The defendant had notice for some months prior to the trial that he was being prosecuted for this alleged offense. The evidence shows that at least two of the alleged absent, witnesses lived in the vicinity of the defendant in Tillman county. No effort was made to procure the attendance of these two witnesses until a day or two before the case was called for trial, when the defendant caused a subpoena for them to be issued and placed in the hands of the sheriff. At that time, the witnesses were not found, but the sheriff left a copy of the subpcena at their usual place of residence. The third witness, it appears, had not been seen in Tillman county for -some time, apparently left there shortly after the defendant was arrested. There is no showing'of any probability of ever procuring the attendance of this third witness, or of taking his deposition for use on a subsequent trial of this case. The application does not show that the defendant, or anybody else, knew his whereabouts at the time the application was made. On the hearing of the motion for a new trial, the state produced the other two alleged absent witnesses, who swore positively that they had never had intercourse with the prosecuting witness at any time.

It is apparent, therefore, that as to two of these witnesses the defendant would not be able to prove the facts set out in his application for a continuance should another trial be granted him. As to the third, no probability of obtaining his attendance at the trial or of securing his deposition is shown, even if it be admitted that he would testify to the facts set forth in the application.

Unless there is a reasonable probability that upon a subsequent trial of the cause a different result would likely occur by reason of the evidence to be obtained from such absent witnesses, the judgment of conviction should not be reversed. Clearly in this case it appears, not only that proper diligence was not used to obtain the attendance of these witnesses at the trial, but also that there is no likelihood that upon a subsequent trial a different result would ensue.

For the. reasons stated, we find no merit in this contention.

It is next contended that the verdict is not supported by the evidence, in that there is no competent proof that the defendant was a male person over the age of 18 years when the offense was committed.

This assignment of error js wholly without merit. It was held by this court, in the case of Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668, that the provision in section 2415, Revised Laws 1910, “nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of fourteen years, with her consent, unless such person was over the age of eighteen years at the time of such act,” was a matter of defense to the crime of statutory rape, and that it was' not necessary to negative such defense in the indictment or information charging the crime.

It follows from the holding in that case that such provision is not a material element of the crime of rape upon a female over the age of 14 years with her consent, and need not .be alleged in the information nor proved upon the trial. In this case, no defense was interposed on the ground that the defendant was under the age of 18 years at the time of the alleged commission of the offense.

Lastly, it is contended that the court erred in pronouncing judgment on the 30th day of November, 1916, upon a verdict rendered on the 29th day of November, 1916. Section 5942, Revised Laws 1910, provides:

“After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment.” ,

Section 5943, Id., is as follows:

“The time appointed must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed.”

In the cases of Howard v. State, 2 Okla. Cr. 201, 101 Pac. 132, and McCord v. State; 2 Okla. Cr. 209, 101 Pac. 135, this court held:

“Defendant is not entitled * * * to two days after the rendition of a verdict of guilty against him before pronouncing sentence upon him, unless it appears affirmatively from the record that the court expected to and did remain in session that long after the rendition of .such verdict. In the absence of such showing in the record, it will be presumed by the appellate court that the court below acted in conformity with the law, and, if two days had not expired after the rendition of the Verdict and before sentence, the time was as remote as could reasonably be allowed, and the court complied with said statute as nearly as the time remaining of the session permitted.”

In Kerkendall v. State, 5 Okla. Cr. 570, 115 Pac. 612, the third paragraph of the syllabus is as follows:

“A defendant may waive the time allowed by law after his conviction before judgment can be' pronounced against him.”

In Dalton v. State, 6 Okla. Cr. 368, 118 Pac. 1101, in construing the foregoing statutes, this court held: -

“Where it is not shown by the record that the court appointed a time for pronouncing judgment, or that for this reason objection was made by defendant before judgment was rendered, it will be presumed that the judgment was pronounced at a time appointed by the court in conformity with the requirements of the statutes.”

The record in this case is silent as to the date of the adjournment of court for that term. Sentence 'was pronounced against defendant on the 30th day of November, 1916, without any objection on his part that the court had not allowed him the two days’ time after the rendition of verdict. It is apparent from the record in this case that this assignment of error is an afterthought, to which no objection was made or exception taken in the court below.

All -presumptions favor the regularity of the proceedings in a trial court. Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620; Thornsberry v. State, 8 Okla. Cr. 88, 126 Pac. 590; Hess v. State, 9 Okla. Cr. 516, 132 Pac. 505; Stark v. State, 10 Okla. Cr. 177, 135 Pac. 441.

This court will not indulge the presumption that the trial court deliberately violated the provisions of the foregoing statutes, where the record is silent upon the subject, and where the defendant made no objection to the proceedings in the lower court.

The conclusion is reached that the judgment of the district court of Tillman county, imposing a sentence üpon the defendant of four years’ imprisonment in the state reformatory at Granite, Olda., should be affirmed; and it is so ordered.

DOYDE, P. J„ and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    DAVID ALMERIGI v. STATE.
    No. A-2951.
    Opinion Filed April 16, 1920.
    Rehearing Denied May 29, 1920.
    (188 Pac. 1094.)
    (Syllabus.)
    1. HOMICIDE — “Unwritten Law” as Defense. The so-called unwritten law, the right to avenge wrongs done female members ‘ of one’s family by killing the wrongdoer, is not a recognized rule of action in Oklahoma.
    2. EVIDENCE — Nonexpert Opinions — Sanity of Defendant. Persons who, are not experts on insanity, but who have had opportunity to converse with and observe the actions of one whose sanity is at issue, may legally testify as to whether such conversations and actions indicated sanity or insanity; the weight of such evidence being for the jury.
    8. EVIDENCE — Flight and Concealment of Defendant. Flight irom the scene of a crime and acts 'done by a fugitive to hide his identity are circumstances tending to show guilt, and proof of them is admissible in evidence.

      4. HOMICIDE — Defensive Evidence — Illicit Relations Between Deceased and Defendant’s Wife. Proof of illicit relations between a deceased and the wife of a defendant, whom he is charged with killing on account of the relationship, is entitled to go to the jury in mitigation of the punishment, and when insanity is the defense 'based upon these wrongful acts, such proof is also entitled to go to the jury in support thereof when the facts were known to the defendant and it is made reasonably to appear that his acts and -conduct were influenced thereby.
    5. HOMICIDE — Evidence—Uncommunicated Threats by Deceased. Unless there is evidence tending to show self-defense, uncom-munieated threats made by the deceased against tie defendant are not admissible in evidence.

      Appeal from District Court, Coal County; J. H. Linebaugh, Judge.

    David Almerigi was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      A. T. West, J. G. Ralls, and Pruiett, Sniggs $ Patterson, fpr plaintiff in error.

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

The plaintiff in error, David Almer-igi, hereinafter' called the defendant, was informed against for the murder of Ben Jones, convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary at McAle'ster for a term of four years. To reverse the judgment rendered on the verdict he prosecutes this appeal.

It is not contended in the defendant’s .brief that the evidence is insufficient to support the verdict of the jury and the judgment rendered thereon; therefore it is sufficient for a proper review of the errors insisted upon by the defendant to note that there is evidence tending to show that the defendant resided with his family, consisting of a wife and several young children, at Coalgate, Coal county, Okla., for several years prior to and at the time the homicide herein charged was committed, and that the deceased also resided in the same town. The defendant and his wife had known the deceased for some three years prior to the killing. The defendant and his wife had upon joint account engaged in the violation of the prohibitory liquor laws of the state,at the home and store, of the defendant, in which store the defendant had kept a gun. The deceased and the defendant had an altercation in the store shortly before the homicide, and the defendant told the deceased to stay away from his place and let his family alone, to which deceased replied that he would come whenever he got ready, and he pulled back his coat, showed his gun, and asked the defendant to come outside. About a month before the homicide was committed the wife of the defendant left her home and children, except her young baby, and went to Lehigh with the deceased, where they remained two days and nights; then she returned to her home. Without objection she testified that she informed the defendant where and with whom she had been and what had taken place between them and that the deceased used to come to see her every time he got a chance. Shortly after the defendant’s wife informed him of her escape to Lehigh the defendant left his home and remained away some three or four weeks. He returned the night of the homicide, and upon looking into the window saw his wife and the deceased standing up in the kitchen of defendant’s home hugging and kissing. Almost immediately after the display of intimacy and affection the deceased left, going out of the back door of the kitchen. Immediately two shots were heard, and early the following morning the body of the deceased was found about 175 yards from the house, his death having been caused by gunshot wounds. His buggy was found in front of the home of the defendant, and blood was trailed from the body into the yard of the house of the defendant. The morning the body of the deceased was found the sheriff of Coal county made a search for the defendant, including a seach of his residence, and did not find him. Afterwards the defendant was found and arrested in St. Louis, Mo.,' and first stated that the deceased had killed himself,- and afterwards voluntarily confessed that he (defendant) killed the deceased just as he (deceased) came out of the door of-the kitchen. There was also evidence introduced by the state against the objection and exception of the defendant that after the homicide the defendant cut off the mustache which he had worn for several years.

Against the objection of the defendant upon the ground that a proper predicate had not been shown for the introduction thereof, the testimony of Walter Will Lewis, given by him at a former trial of the case, was admitted. The witness Lewis was not in court, and prior to offering the testimony the state introduced evidence that a subpoena duly issued for him, and that the officer in whose hands the same had been placed for service had made diligent search in Coal county for him, and had been unable to find him, and did not know his whereabouts.

The defendant also objected to the introduction of the evidence of two St. Louis officers, who were connected with the arrest of the defendant in said city, that the conversations and actions of the defendant when so under arrest were those of a sane man, upon the ground that these witnesses were not competent to express an opinion in regard thereto, and excepted to the introduction of the evidence.

The defendant offered to prove by Paul Harris that two days before the homicide the deceased came to a shop in which the witness was employed to buy some meat for the wife of the defendant, and was advised by the witness that he (deceased) had better stay away from the house of the defendant; that he might get into trouble; thereupon the deceased exhibited a six-shooter and said that it would take care of Dave; that he would go to the place whenever he got ready. The court sustained an objection to this offered evidence, and the defendant excepted.

The defendant also offered to prove that the deceased and the wife of the defendant had slept together in Lehigh two nights and indulged in sexual intercourse. The court sustained an objection to this evidence, and the defendant excepted.

There was also evidence on the part of the defendant tending to show that shortly before and at the time of the homicide the defendant was insane, and evidence to the contrary was introduced by the state.

The defendant did not testify in his own behalf.

The defendant requested the court to give the jury the following instructions, which the court refused to do, and the defendant reserved exceptions:

(a) “Yiou are instructed that a man has a right to protect himself and members of his family against the onslaught of any other person, and to make such resistance sufficient to prevent such acts although it may go to the extent of taking human life.”

(b) “Gentlemen of the jury, you are instructed that the defendant, David Almerigi, had a right to be at his own home at the time Ben Jones was killed, and had a right to be armed.”

The court, among other instructions, gave the jury the following instruction, to which the defendant excepted:

“You are instructed that in this case the state has offered testimony tending to show that the defendant made certain statements after his arrest and while he was in custody charged with the offense of which he is being tried, and which .statements are relied on in part to establish the defendant’s guilt of the offense charged against him, and the court instructs you that a confession by one charged with an offense should be carefully scrutinized and received with great caution, and when deliberately and voluntarily made may be considered as evidence for or against the person making them the same as any other evidence.”

The defendant earnestly insists that the court committed reversible error in admitting the testimony of the witness Lewis given at a former trial of this case. With this contention we cannot agree. A proper predicate was laid for the introduction of this testimony, and it was legally admitted. Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701.

It is also contended that the court committed reversible error in admitting the evidence of the officers connected with the arrest of the defendant in St. Louis as to his conversations and actions being that of a sane man. This contention, we think, not well founded. It was not a condition precedent that they .should have been shown to be experts on insanity. The evidence of nonexpert witnesses who testify concerning the defendant's sanity, and whose opportunity of observing him has been shown, is properly admitted. The weight of their testimony is always for the jury. Fish v. Poorman, 85 Kan. 237, 116 Pac. 898; State v. Truskett, 85 Kan. 804, 118 Pac. 1047.

The defendant also complains that the court committed reversible error in admitting evidence that after the homicide the defendant had shaved off his mustache which he had worn for years, and this 'complaint, we think, not well founded.

When a defendant flees from the scene of the crime with which he is charged, any act that tends to hide his identity is an incriminating circumstance which may properly go to the jury.

The offered evidence of the witness employed in the butcher shop of statements made by the deceased when Buying meat for the defendant’s wife, we think, were properly excluded. The theory of the defendant that such statements were in the nature of threats against the defendant we do not think well taken, but, if the theory of the defendant be admitted to be correct, certainly the same was not admissible, because there is not an element of self-defense shown by the evidence in this case.

Again, it is urged that the court committed reversible error, in denying défendant the right to introduce proof tending to show that the deceased and defendant’s wife had slept together for two or three nights and had been criminally intimate for some time. This proof was offered by-counsel for no ‘specific purpose. It was undoubtedly entitled to be admitted in support of.the plea of insanity and would also have been entitled to go to the jury in mitigation of punishment. But it would not be admissible in any state of the case under the record now being examined in support of a defense of self-defense, for there is no element of self-defense disclosed by proof offered or admitted on behalf of either side.

The general doctrine that the unwritten law, so called —that is, the right to avenge a wrong done a female member of one’s family by killing the wrongdoer — is not a recognized rule of action in Oklahoma, means that the law of this state does not recognize .such act as being one upon which self-defense or legal justification can be based, but it does not mean that proof of these facts, when properly offered upon a plea of insanity or when offered in mitigation of punishment, are to be excluded. It is for the jury, under all the facts, including these, to say whether or not the crime is manslaughter or murder; and in cases where insanity is pleaded on this ground these facts are entitled to be considered in connection with other proof offered on that question. In the instant case, however, all these facts were before the jury, and in view of the fact that no tender was made for any specific purpose, and of the further fact that the jury were in possession of details as to the acts desired to be introduced by the defendant, we are impelled to the conclusion that no injury resulted to him on this ruling of the trial court. It is clear that without this excluded proof the jury had before them undenied evidence that deceased and the wife of the defendant had maintained improper-relations for a long time prior to the homicide, and that the defendant had learned of thése unlawful relations; that on the night of the homicide and immediately before it occurred the defendant saw deceased and his wife in the kitchen of defendant’s home hugging and kissing and engaging in other acts of intimacy. There can be no doubt from these and other facts that the jury were fully advised from the evidence before them that the deceased and the wife of defendant had maintained adulterous relations, and that this condition was known to the defendant prior to the homicide.

There is no evidence in this case that the defendant acted in self-defense in killing the deceased, nor that any onslaught was being committed upon any member of the defendant’s family at the time the homicide was committed; hence requested instruction No. A was properly refused. Ikelbarger v. State, 8 Okla. Cr. 316, 127 Pac. 707. Requested instruction marked B correctly states an abstract principle of law, but is not applicable to any issue involved in this case, and was therefore properly refused.

The .instruction given the jury and of which the defendant complains correctly states the law. The evidence as to the defense of insanity interposed by the defendant being in direct conflict raised a question of fact exclusively within the province of the jury to determine, and the court having carefully and correctly instructed the jury in regard thereto, and the jury having in their finding of guilty necessarily decided against the insanity plea of the defendant, this court is without authority to interfere with the verdict rendered. We think the jury has been lenient with him.

Upon a careful review of the whole case we have been unable to find any substantial error in the trial, and the judgment is accordingly affirmed.

UOYLE, P. J., and MATSON, J., concur.


text:
    HARRY MOORE v. STATE.
    No. A-2780.
    Opinion Filed May 5, 1919.
    Rehearing Denied May 29, 1920.
    (189 Pac. 1089.)
    (Syllabus.)
    1. RAPE — Assault with Intent — Age of Prosecutrix — Previous Chaste Character. Where an information charges an assault to •rape a female under the age of 18 years of previous chaste and' virtuous chraeter, and avers that the said assault was made with force and violence, the defendant, upon legal, proof, may be properly convicted, regardless of the age of the female assaulted, and whether or not she was of previous • chaste and virtuous character.
    2. TRIAL — Instructions—Refusal of Requests. Instructions requested and refused that direct an acquittal upon a finding of facts which do not constitute a legal defense to the offense cnarged are properly refused.
    3. APPEAL AND ERROR — Review—Error Favorable to Appellant. Instructions given which instruct the jury to acquit the defendant, should they find from the evidence certain. facts, which said facts do not constitute a legal defense to the offense charged, are more favorable to a defendant than he is entitled to, and cannot be urged by him as reversible error.
    4. CONTINUANCE — Absent Witnesses — Refusal. Where the facts averred in a motion for a continuance that an absent witness would, if present, testify to, if true, would not be a legal defense to the offense charged, it is not error to overrule such motion.
    5. RAPE — Assault with Intent — Sufficiency of Evidence. The entire record in this case carefully considered, and the evidence found to fully sustain the verdict rendered, and the trial' of the case free from reversible error.

      Appeal from District Court,'Garvin County; F. B. Swank, Judge.

      Harry Moore was convicted of an assault with intent to rape, and he appeals.
    Affirmed.

      Thompson, Patterson & Farmer, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and C. W. King, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Harry Moore, hereinafter referred to as defendant, was informed against for the offense of assault with intent to rape, convicted and sentenced to imprisonment in the state penitentiary for a term of five years and adjudged to pay the costs of this prosecution. To reverse the judgment rendered he prosecutes this appeal.

The information in this case was not demurred to. It charges that the assault was upon a female under the age of 18 years and of previous chaste and virtuous character, and also charges the assault was made with force and violence by the defendant upon the person of the said female, with the intent to have sexual intercourse with her, thus charging but one offense, an assault to rape, and avers that at the same time the offense was committed by two distinct chains of facts.

The defendant filed a motion for a new trial on account of the absence of Frank Jones, a witness summoned by defendant, and by whom the defendant averred that Jie expected to prove facts showing that Evie Tate, the prosecuting witness, prior to the time of the alleged offense with which the defendant is charged, was guilty of immodest and indecent exposure of her nude person in the presence of a male, and that she was not of previous virtuous character. The defendant did not aver in. said motion that the witness Frank Jones was not absent.by procurement or consent of the defendant.

The nature of the acts of the defendant, a married man, as shown by the record in this case, to forcibly have sexual intercourse with, the prosecuting witness in an automobile and in the presence of another young woman and a degenerate male, are so revolting, and the language used by the defendant to the said prosecuting witness when assaulting her is so vile, that a recital of the facts is precluded by a proper regard for decency, and we will only say that the evidence establishes the guilt of the defendant as charged beyond a reasonable doubt, and that there is no evidence that the previous character of the prosecuting witness was other than that of a chaste and virtuous female.

' The defendant requested the court to give the jury the following instructions, which the court refused to do, and the defendant excepted:

“Gentlemen of the Jury: To be of previous chaste and virtuous character within the meaning of this charge is that the prosecuting witness must have never had intercourse with any male person, that is, she must be a virgin, and in this case, unlers you find from the evidence adduced beyond a reasonable doubt that the prosecuting witness, Evie Tate, has never had sexual intercourse with a male person, you will acquit the defendant of this offense of assault to rape, as charged in the information.”

The court among other instructions gave the jury instructions respectively numbered 3, 7, 10, and 12, and to the giving of each of said instructions the defendant excepted.

The defendant insists that the court committed reversible error in overruling the motion for a continuance. The motion is defective bn its face in failing to state therein :

“That the said absent witness is not absent by the procurement or consent of the defendant.”
“An affidavit for a continuance should state that the witness is not absent by the procurement or consent of 'the defendant.” Musgrave v. State, 3 Okla. Cr. 423, 106 Pac. 545.

It was averred in the motion for the continuance that the facts of want of virtue and chastity on the part of the said Evie Tate and the immoral acts of the said prosecuting witness to which the absent witness would testify were known to Will Smith,, who was examined as a witness for the defendant, bujfc was not asked a question by the' defendant, as to his knowledge of the previous character-or immodest acts of the said Evie Tate. On the other hand, •the evidence of the said Will Smith exonerates her of the immoral acts and unchaste character which it is averred in said motion the said Will Smith had knowledge of.

At best, the testimony of Frank Jones would be only cumulative, and his absence not a legal ground for continuance.

“As a general rule, a continuance will not be granted to secure cumulative evidence.” Rose v. State, & Okla. Cr. 294, 127 Pac. 873.

The entire testimony which it is averred in the motion for a continuance that the said Frank Jones would give was ■alone to show that the said Evie Tate was not of previous chaste and virtuous; character, which testimony, if true, would not, under the uncontradicted evidence in this case that the assault charged was made with force and violence, be a defense to the crime of assault to rape.

“Any female may be the subject of an attempt to rape, <or an assault with intent to rape, whether she has reached the age of puberty or not, and whether she is of chaste or unchaste character.” 33 Cyc. p. 1420d.

“When an application for a continuance is made by a person on trial and overruled by the court, all the * * * evidence adduced at the trial will be considered by this court in determining whether or not the exercise of discretion by such court.was abused in denying the application.” Harrison v. State, 10 Okla. Cr. 210, 135 Pac. 948.

Bearing in mind all the facts and circumstances disclosed by the evidence in the instant case and that the testimony of the absent witness would not have been a defense to the crime charged, and would have been merely cumulative, we are of the opinion that the court did not abuse its discretion or err in overruling the motion for a continuance. •

The requested instruction of the defendant was properly refused for the reason it directed the acquittal of the defendant “if the prosecuting witness was not of previous chaste and virtuous character,” which is not the law where, as in the instant case, the assault was made with force and violence and with the announced intention to her “to have sexual intercourse with her or die.”

Instruction No. 3, given to the jury, correctly defines rape as defined by section 2414, Revised Laws 1910, and was free from error.

Instructions 7, 10, and 12, given the jury, do not properly instruct the jury in the law of this case, and were more favorable to the defendant than he was entitled to, as each instructs the acquittal of the defendant if the jury did not believe beyond a reasonable doubt “that the prosecuting witness was under the age of 18 years, and of previous chaste and virtuous character,” while under the uncontra-dieted evidence in this case the defendant could be legally found guilty as charged in the information regardless of what the age or previous character of the prosecuting witness as to chastity and virtue was, and the giving of such instructions were not such errors as the defendant can legally complain of.

“The defendant cannot be heard to complain because error was * * * to his advantage. The law never considers a question of error except in behalf of those who are injured thereby.” Hunter v. State, 6 Okla. Cr. 446, 119 Pac. 445.

The defendant further earnestly complains that the attorney employed in the prosecution was guilty of improper conduct when addressing the jury in saying, “This defendant is the most, noted outlaw in this country, a debaucher and jackal of society,” because said denunciation of the defendant was not supported by the evidence, and was prejudicial to the defendant. Upon objection of the defendant the court instructed the jury to determine the case according to the evidence and to disregard unwarranted statements of the cause. We think, under the disclosures contained in the record, that the said denunciation of the defendant was not sufficiently prejudicial to warrant a reversal.

The defendant also urges that the punishment awarded is excessive. This contention is without merit. The un-contradicted evidence amply supports the finding of the jury. .

The defendant did not offer any evidence in support of his plea of not guilty. The record shows that he had a fair trial, free from fundamental error, and the uncon-tradicted evidence establishes the fact that he violently assaulted the prosecuting witness with the announced intention of having sexual intercourse with her.

“Where the evidence in a case is clear as to the guilt of an appellant, and there is no reason to believe that upon a second trial an intelligent and honest jury could arrive at any other verdict than that of guilt of the accused, the judgment of the lower court will not be set aside for anything less than fundamental errors.” Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264; Suitor v. State, 6 Okla. Cr. 305, 118 Pac. 412; Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003.

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

DOYÍLE, P. J., and MATSON, J., concur.


text:
    Q. D. DENHAM v. STATE.
    No. A-2925
    Opinion Filed Aug. 26, 1919.
    Rehearing Denied May 29, 1920.
    (192 Pac. 241.)
    (Syllabus.)
    1. APPEAL AND ERROR — Discretion of Lower Court — Overruling Challenge for Cause. When the defendant has exhausted his peremptory challenges of jurors, the overruling of a challenge of a juror for cause is not a reversible error, unless it be made to appear that in so ruling the court abused its discretion.
    JURY — Number of Peremptory Challenges — Compliance With Statute. The number of peremptory challenges allowed a defendant being fixed by statute, a trial court is without authority to increase the number of such peremptory challenges. 2.

      3. SEDUCTION — Consent by Promise of Marriage and Fears. Sexual intercourse with an .unmarried female within the age of consent, to which her consent is secured by a xu’omise of marriage, constitutes seduction, although her consent was also secured by arousing her fears.
    4. SEDUCTION — Voluntary Intercourse not Rape. Where sexual intercourse is voluntarily had by an unmarried female within the age of consent, a prosecution for rape cannot be maintained.
    5. SEDUCTION — Evidence—Sufficiency. The record in this case carefully examined, and the evidence found sufficient to sustain the conviction, and the trial free from fundamental error.

      Appeal from, District Court, Garvin County; F. B. Swank, Judge.

    Q. D. Denham was convicted of seduction, his motion for a new trial was overruled, and he appeals.
    Affirmed.

      Thompson, Patterson & Farmer, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and C. W. King, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Q. D. Den-ham, hereinafter called defendant, was prosecuted by indictment for the seduction of Lela Henson, an unmarried female of previous chaste character, convicted, and sentenced to imprisonment in the penitentiary at McAlester for 21/2 years. To reverse the .judgment rendered he prosecutes this appeal.

The defendant having exhausted his peremptory challenges and there .being only eleven jurors selected, the county clerk drew from the box containing the names of the jurors for the week the name of F. C. Haley, who, upon being duly sworn, was subjected to a most extensive and crucial examination on his voir dire. The material facts developed by said examination were that the said Haley was a friend of the father and family of the prosecuting witness in this case; that five years prior to the time of his examination they lived near each other; that their families were intimate; that they were members of the same church and often attended church together; that he was not related to the said father of the said prosecuting witness or his family; that he had no reason to believe that the relations of the father of the prosecuting witness and his family, were then different from those existing when they resided near each other; that he preferred not to sit on the trial on account of his relation with said family; that he had never heard of the defendant until this case was filed; that he had' heard of the case, but that he did not know anything about the merits of it; that he had formed no opinion as to the guilt of the defendant; that he thought he could and would give the defendant a fair trial; that he would be governed by the evidence and the law as instructed by the court; that if the evidence showed that the prosecuting witness had had intercourse with the defendant, and if instructed by the court that such evidence entitled the 'defendant to have a verdict of not guilty returned, he would follow such instructions and vote to acquit the defendant; that if selected as a juror he would be governed by the evidence and the law as instructed by the court.

The defendant challenged the said F. C. Haley for cause, the court overruled said challenge, and the defendant excepted. Thereupon defendant moved the court to permit him to extend his peremptory challenges to the juror F. C. Haley; the court having overruled his challenge of said juror for cause. The court overruled the motion and the defendant excepted.

The undenied evidence is that the defendant was a school teacher and taught school in the neighborhood in which Lela Henson, the prosecuting witness, lived with her father’s family; that they became acquainted; that at that time she was about 18 years old; that he paid her court and visited her often; that the full .hospitality of the home of her father was enjoyed by him, he often going to said home on Saturday evening and remaining until the following Sunday evening; that he professed great attachment for her; that they corresponded continuously; that he wrote her many letters, 39 of which were in evidence. The tone of said letters are uniform, and two of them read as follows, viz.:

“Wed. p. m.
“Dearest One: ‘Grape nuts,’ I have been farming and you should have seen me. I am certainly a typical sight and just simply think its fun. I plowed for Mr. Dodds this afternoon after school until night. I want a long talk with you right away when I can see you. Real soon I hope. These old days are long, believe me. We have supper every night about nine and breakfast about 5:30. You know it is working on my constitution.
“Did you go to town to-day? Who went with you? 1 have been wondering all day if you did. Wish I knew.
“I got a card from Maysville to-day inquiring about my eye. Will let you see it some time. Had a letter from Mother, wanted to know if I was going to .start on Saturday after my school on Friday. What must I tell her? Yes or no ? Don’t want to leave you at all $nd at this moment don’t feel like I can. ’Cause I know you love me, and will always. Won’t you dear? You know I worship you, and some other people know too. I have heard Mr. and Mrs. D- talking Sunday evening after you left, and they said I certainly stayed with you & was good to you, and I will be always too. Somehow I dread to make my trip this summer and the more I study about it, the more dread that I have. Sweetheart I know that I love you and dread' to leave you as much as I can, and don’t seem like I can leave you, and some other dread somewhere and I don’t know it.
“Listen, one thing I want to talk to you about is, that us going back there to live and I am anxious to see you so I can do further about it.
“With love.”
“4:00 p. m.
“Dearest: I come in from school and laid down reading the paper, went to sleep and dreamed that I was trying to get you to tell me something and you would not do it, and when I awoke I got mad and got up and went to work to keep from studying about it, I wish I could see you. Could just love you to death, ‘cause you are simply a ‘deah’ anyway.
“I have something to tell you soon. Oh, my, I never would get tired talking to you, cause I love you so mucli. It has been a month, seemingly, since I have seen you. Sure enough it doesn’t seem that only yesterday I was with you. Sure does seem longer than that.
“I am so jealous, is one thing that makes time seem so long when I am away from you. Sweetheart be a true lover to me, cause I do worship you, and hope your actions will prove the same.
“I will write you some more to-morrow as I generally do. With all love that human can give, I give to you. 1 must go to supper. Ever and ever, ever and ever
“Yours, Derwood.”
“My dearie: After reading your letter, I am so blue I know not what to do. Seemingly sometimes life is nothing but troubles and misfortunes, but there is one thing that is dearer than all, even if we do have troubles and that something is new to me. The love that I have known for such short time and so much pleasure there is with it, and yet some one (I suppose that has been in the lone channel) is trying to separate us when they have no realization what we do mean to each other. Lela, I am simply proud of you and love you better than ever, and hope that these people will not impress you in any way to make you cease to love me, because I have come to realize lately that life would be one pleasant dream with the one I love dearer than life and with the one that is willing to share all with me. Pleasures, sorrows, misfortunes and all, and I think you are the noblest person I know, and with you I shall be true.
“Sweetheart, it is funny to me why they take such pains to separate us, when they know that my life, and I truly hope yours too, would be at the stake for misery to pluck its fierce fangs thru and wreck and ruin forever. Why they want to separate us is the question to me. 1 surely hate to pesturate any one, but Lela, I love you and like you. I will stand by you thru all and all. O. if I just could see you and talk with you, maybe you could drive away this cloud of blues and fears. I believe that you arc everything that is good and noble, Lela, I do, and you can judge whether you think best of us being together like we have been or not. And sweetheart, you are so noble and good, I must see you before long. Am awfully busy this week filling out reports & etc.
“I hope we can be together soon ’cause I will be blue now until we do. Where we can have a face to face talk, but write what you have to tell me.
“In a way I just simply feel as though I was an outcast, not yours, but some one that is near and dear to you. I feel like nobody, for the first time in my life, but your life that is in me, is still living and shall live as long as you" are true and noble as you have .been since our courtship. "You judge the way you think best, and surely'you won’t judge wrong.
“With, all my love and strength, I am yours to life’s end. Derwood.”

That defendant addressed the prosecuting witness and they became engaged to be married,- and the defendant in her presence sought and obtained the consent of her father and mother to their marriage; that on Sunday, May 10, 1915, while 'the defendant was visiting at the home of the prosecuting witness, she and the defendant walked out and went to the home of her brother, which was about 200 steps from her father’s home; that the doors of the said home were open and they went in for the defendant to get some water, at which time no one was in the house other than themselves, and the defendant asked her to sit down on a couch in the front room and she did so; that he sat down with her and he put his hand under her dress, to which she objected and got up, and he pulled her down on the couch and told her it was all right as they were to be married, that all persons who were engaged did it, and he intended to do it too, and stated that he could show, her some passages in the Bible which said that there was no harm in it; that she was crying and moved up to the end of the couch, and that she consented under his promise of marriage, though she was frightened, and he pulled her down on the couch and had sexual intercourse with her, the particulars of which we deem unnecessary to recite; that she became impregnated by him; that she advised him of her condition, and that he requested her to go to Oklahoma City and be relieved, which she declined to do; and thereafter her father and mother having become advised of her condition, they and herself .saw the defendant in Maysville, and her father demanded of the defendant that he marry her as he had promised, which he made excuses not to do, and got away from them under the pretext of having to attend a school meeting and the promise to see them again and give them a definite answer, hired a car, and left at once for Chickasha, and upon phone request was arrested and brought back; that as a result of the sexual intercourse with the defendant she had given birth to the child which she exhibited in court; and that the said defendant was the father of her child.

The evidence was in conflict as to whether or not the prosecuting witness was of chaste character prior to her first act of sexual intercourse with the defendant; she testifying that she had never had sexual intercourse with any man other than the defendant prior to or since said act of ¡sexual intercourse which she had with the defendant in the home of her brother.

Texas Willis, a witness for the defendant, testified that in 1910 or 1911, when he was going to school, one night when prosecuting witness was going home from a picture show he met her near the express office; that he would' not say whether she was by herself or not; and that they went over in the north part of town and on the sidewalk north of the depot he had sexual intercourse with the prosecuting witness; that he would not say for sure whether there were electric lights where it happened,. and after it happened he took her home; that she was a little girl at the time; that he had done it to her several times, but could not remember when or where, or anything like that; that he did not remember when he did it to her upon the occasion when he met her coming from the picture show, whether that was the first occasion oí’ not; that he could not think of anybody he had told about it; that he had not the least idea how the defendant found it out; that he lived in Pauls Valley until 1914, and now lived in Texas; that he had not been promised or paid by any one to come here and testify; and that the prosecuting witness had sexual intercourse with him without previous engagement, and without consideration to her; and that he called at her house in 1910 or 1911.

Perry Rice testified that in 1911 he was 18 years old; that he formerly lived in Pauls Valley and now resided in Enid; that he was not sure whether or not the prosecuting witness was going to school then; that in the fall of 1911 he had sexual intercourse with her; that he was never a sweetheart of hers; that the relations between them began in the spring of 1911; that he did not know whether at that time she wore short dresses or not; that he did not know her father or mother; that he did not know whether or not she was attending school at the time; that he had intercourse with her the first time he asked her in the fore part of the evening; that with Pearl Cromer, Fletcher Johnson, Texas Willis, Ralph Dorchester, Lela Henson, and her sister and the Wetzall girl he went to Kerr’s race track, and they were all in the alfalfa field together; that he and the prosecuting witness went off to themselves; that he did not know whether he requested her or not for anything; that he did not know whether he said a word or not; that he did not remember whether she lay down voluntarily or not; that he could not remember details; that he had sexual intercourse with her in the alfalfa field; that it did not cost him anything; that he satisfied himself just one time; that he had also had intercourse with her some time that spring on the “Lindsay Y”; that he went up to the Christian Church and looked in the window and saw her, and that after-wards they got together and had sexual intercourse; that he did not remember telling of having intercourse with her to any .one until he told it at the last terra of court; that he was out rabbit hunting with her and another couple down on the river bank; that he did not know what he said to her, or if ¡she answered; that he then had sexual intercourse with her on the river bank; that he did not know whether or not it was under a tree; that it was not in the weeds; that he did not think he had intercourse with her except the three times named; and that before he was .subpoenaed he did not know what he was subpoenaed for.

Guy Carter, a witness for the defendant, testified that he was 23 years old; that he had resided in Pauls Valley 16 years; that he knew Lela Henson, the prosecuting witness, in 1911, and that during that time he had seen Lela Henson and Bill Perry together; that he saw them one night at a skating rink when Bill Perry accompanied her home; that they went down Grant Avenue on the east side of the town, rather out to the far end of the road; that they went out into an alfalfa patch which had a barbed wire fence around it; that they went through the fence; that the wire was loose and they went under it; that there was a few weeds growing along the inside of the fence; that they never went far; that they stayed there about 15 minutes, got up, and went back to Mr. Henson’s; that he went in front of them and saw them go to the house; that it was about 9:30 or 10:00 o’clock at night; that it was not so light; that it was kind of cloudy.

Several witnesses were introduced by the defendant who each testified that they knew the defendant; that his general character and reputation before this prosecution was good, and that of a law-abiding citizen, which was not combated by the state.

The defendant did not testify in his own behalf.

In rebuttal, Mrs. Pearl Sropson, nee Cromer, testified that she was a daughter of Rev. D. F. Cromer; that she knew the prosecuting witness, Perry Rice, Fletcher Johnson, Texas Willis, and Rialph Dorchester; that she never, in company with these four boys and Miss Lela Henson and her sister and a Wetzall girl, made a trip during the year of 1911, or at any other time, to Kerr’s Park; and that she was never at any time out with them.

Miss Lela Henson, the prosecuting witness, testified, in rebuttal, that ¡she knew Texas Willis; that she did not along in 1911, or at any other time, go from a picture show on her way home and meet Texas Willis near the express office and go with him to the northern part .of town; that Texas Willis never at any time or place had had sexual intercourse with her; that he never came to see her ; that he brought her from church one night, and then he accompanied her from church once or twice, and she left him because he attempted to insult her; that he afterwards called her up on the phone, and upon her declining to go with him said to her, “Damn you, go to Hell;” that on account thereof her brother and Texas Willis had a fight that night; that ¡she knew Perry Rice and had known him since he had been in Pauls Valley; that they never went to school together; that in 1911 she was 15 years old; that she never in company with Pearl Cromer, her sister, and the Wetzall girl, Fletcher Johnson, Ralph Dorchester, Perry Rice, and Texas Willis, during 1911, or at any other time, went down to Kerr’s race track; that she was never down there with Perry Rice; that she was never at the Y with him; that she never went rabbit hunting on the river with Perry Rice, her sister, and others; that Perry Rice never had had intercourse with her; that she knew Texas Willis; that she had never, when going home from down town, met and gone out to an alfalfa patch and sat down in the nighttime with Perry Rice; that Perry Rice had never at any time met her in the Christian church and gone with her anywhere; that she was never at the Christian 'Church; that she attended the Baptist Church.

The defendant requested the court to give the jury the following instructions, which the court refused to do, and the defendant excepted:

“No. 3. If you find from the evidence that the prosecuting witness submitted to the sexual embraces of the defendant through fear or bodily harm, occasioned by threats of defendant, he would not he guilty of the offense charged herein, and you will acquit him.”

The defendant timely moved for a new trial, which the court overruled, and the defendant excepted.

The defendant earnestly insists that the court committed reversible error in overruling his challenge for cause to the juror F. C. Haley, who served upon the jury, he having- exhausted his peremptory challenges, and in refusing to permit him to extend his peremptory challenges to said juror.

While we do not approve the manner in which this juror was examined and re-examined, and the repeated and elaborate explanations of the law by the court, we are unable, after a careful consideration of the entire examination of said juror and the explanations of the law by the court, to see that the court, in overruling said challenge of said juror for cause, abused its discretion, and in so doing invaded any constitutional or statutory right of the defendant.

The statute fixes the number of peremptory challenges to which the defendant was entitled, and the court was without authority to increase the number thereof: and therefore the contention of the defendant that the court committed reversible error “in refusing to permit him to extend his peremptory challenges to said juror” is without the slightest merit. The court can interpret but cannot enact laws. Legislating is alone within the province of another branch of the government. If the court could legally extend the number of peremptory challenges as requested by defendant, it could do so to an unlimited extent, and thereby repeal the law,as to the number of challenges allowed a defendant. The statement of such proposition shows that the contention of the defendant that the court erred in refusing to extend the number of peremptory challenges fixed by law is not worthy of the slightest consideration.

That Haley was a fair and impartial juror, we think, is conclusively shown by the punishment awarded in-this case; a punishment much less than we think should have been inflicted under the evidence in this case.

The defendant also complains that the court committed reversible error in refusing to give his requested instruction Nto. 3. The court instructed the jury in its general instructions that in order to convict the defendant they must find beyond a reasonable doubt that defendant accomplished such illicit connection at said time under promise of marriage; therefore said instruction necessarily instructed the jury that any other actuating cause than a promise of marriage would not be sufficient to sustain a conviction; and therefore ,said requested instruction was covered by said general instructions, and the refusal to give said requested instruction was not error.

The defendant further complains that the evidence is insufficient to support the verdict for the reasons that the evidence shows that if the defendant is guilty of any 'offense he is guilty of rape, and the evidence of Texas Willis and Perry Rice ¡show that the prosecuting witness was not of previous chaste character and for that reason was not subject to seduction, and that the seduction was not accomplished under a promise of marriage. These bonten-tions, we think, are entirely untenable.

When the entire evidence is carefully read, and especially the very affectionate letters written by the defendant to the prosecuting witness, it cannot be questioned that the defendant won her affections and confidence, and when arranging to debauch her impressed her with the good faith as to his intention to marry her, and that her affection for the defendant and his promise of marriage was the actuating cause that prompted her to consent to submit her person to the gratification of his lust. There is no question that she consented to sexual intercourse with the defendant, and consequently there could be no element of rape in said act. While she also says that she was frightened when he sought her undoing, taking her evidence as a whole, and which is not contradicted, it must be concluded that she consented to his sexual embraces on account of his promise to marry her; while on God’s holy day, in the home of her brother, -and while enjoying the hospitality and confidence of her family, to accomplish the great wrong perpetrated upon her, he impressed her that by reason of the fact that they were engaged to be married it was not wrong for them to have .sexual intercourse, saying to her that all engaged persons did it, and he was going to do it too, and that such an act he could show her by 'Scripture was not wrong.

The first act of criminal intercourse by consent constitutes the crime, and therefore it is unnecessary to consider subsequent acts of illicit intercourse had by the defendant and the prosecuting witness.

In People v. Wallace, 109 Cal. 611, 42 Pac. 159, it is said:

“It is not essential, however, * * * that the evidence should disclose any express, or direct reference by the seducer to such promise as a means to accomplish his purpose; nor, on the other hand, that the consent of the female should be expressly rested by her upon such consideration. It is sufficient if the circumstances be such as to warrant the jury in the deduction that the act of sexual intercourse would not have been accomplished without, or in the absence of, such promise.”

In the instant case the record discloses a state of facts fully justifying the jury in inferring that, even though the prosecuting witness may have been to some extent influenced by fear of the defendant, the- real actuating cause that induced her to submit to his lust was her affection for him and his promise of marriage. It is true that on cross-examination she used some' expressions tending to show a want of consent; that she submitted through fear; and from this defendant seeks to draw the inference that her submission was brought about by violence, and that therefore he could only, under the evidence, be guilty of rape; but the only fair and reasonable deduction that can be drawn from her entire testimony is that she yielded her virtue to the defendant, moved thereto by her affection for him, and especially on account of his promise of marriage. Jones v. State, 90 Ga. 616, 16 S. E. 380. We decline to follow the authorities cited by the defendant which are in conflict with the views above expressed.

It is further insisted that the evidence of Texas Willis and Perry Rice each shows that at the time the prosecuting witness first had sexual intercourse she was not of previous chaste and virtuous character, as four years previous to the act of the defendant in having intercourse with the prosecuting witness these two boys each had sexual intercourse with her when she was a young school girl; and that therefore this shows that the evidence is insufficient to support the verdict. We think, for reasons hereinafter given, that this contention is without merit.

That the jury are the exclusive judges of all questions of fact, and as to what evidence they will believe, and what reject as unworthy of belief, and that where there is evidence, notwithstanding the evidence is in conflict, to support the verdict, this court is powerless to disturb such verdict, has been so often held by this court as to render the citation of authority in support thereof entirely unnecessary.

The prosecuting witness having testified that she never had. had at any time sexual intercourse with any man other than the defendant, if the jury believed this, as they evidently did from their verdict, this justified them in finding, which is necessarily included in their verdict of conviction, that the prosecuting witness was of previous chaste and virtuous character.

The defendant did not testify at the trial and did not offer any real defense, and did not present any exculpatory evidence worthy of credence. The evidence fully establishes his guilt, and the judgment will not be disturbed.

We adopt and approve, as entirely applicable to this case, the conclusion stated by Presiding Judge Doyle in Butts v. State, 12 Okla. Cr. 391, 157 Pac. 704, which reads:

“A careful examination of the record fails to disclose any material errors in the rulings upon the evidence or the instructions of the court. In our opinion the evidence amply supports the verdict. A case seldom appears in criminal annals showing more depravity in the defendant or a greater outrage to common decency and public morals. It is to be hoped that the effect of this conviction in this case will be to protect other girls, whose untutored wills might be overcome by a seducer’s wiles.”

The court did not err in overruling the motion for a new trial.

The judgment of the trial court is affirmed.

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


text:
    WM. CRISP v. STATE.
    No. A-3282.
    Opinion Filed April 28, 1920.
    Rehearing Denied June 5, 1920.
    (189 Pac. 1087.)
    (Syllabus.)
    (
    1. JUDGMENT AND SENTENCE — Assessment of Punishment— When Duty of Court. Where the jury finds the defendant guilty and is unable to agree upon the punishment, and so says in its verdict, it is the duty of the trial court to assess and declare the punishment and render judgment accordingly.
    2. HOMICIDE — Conviction of Manslaughter — Sufficiency of Evidence. a judgment of conviction ‘will not be reversed by this court in the absence of errors of law when there is proof tending reasonably to support the judgment rendered. '

      Appeal from District Court, Okmulgee County; Ernest B. Hughes, Judge.

      William Crisp was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      E. M. Carter, G. W. P. Brown, and R. Emmett Stewart, for plaintiff in error.

      S. P. Freezing, Atty. ‘Gen., for* the State.
   ARMSTRONG, J.

The plaintiff in error, William Crisp, -hereinafter called defendant, was informed against for the murder of Wilkie Gains, convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary at McAlester for a term of ten years. To reverse the judgment rendered, he prosecutes this appeal.

The evidence shows that the deceased came to his death from gunshot wounds inflicted upon him by the defendant; that on the morning of the homicide, and shortly before, the deceased and the defendant were at dipping vats neai Bartlett, and engaged in a dispute in regard to the defendant putting in a certain pasture about 50 or 60 head of cattle which the defendant was having dipped; that the dipping of the cattle was completed, and the defendant, driving the cattle, left the vats and was going in the direction of the pasture, which was about one-half mile distant; that the deceased also left the dipping vats and proceeded in the same direction as that taken by defendant; that the deceased arrived at the gate of the pasture in advance of the defendant.

The evidence was in conflict as to what occurred immediately preceding and at the time of the homicide, there being evidence on the part of the state that the defendant went to the gate of the pasture, where the deceased was standing, having in his hand a pistol; that thereafter deceased drew his pistol, and the defendant fired one shot and deceased tried to shoot defendant, but his pistol would not fire, and defendant fired three more shots, and after the fourth shot was fired the deceased fell to the ground, and defendant picked up the pistol of deceased and left; that no attempt to pull his gun was made by deceased until the defendant advanced upon him with his gun already drawn.

There was also evidence that after the homicide the defendant surrendered to an officer and delivered to him two pistols, one of which was out of order.

The evidence on the part of the defendant tends to show that after the defendant left the dipping vats with his cattle on the day of the homicide, and arrived near the gate of the pasture in question, and where the deceased was standing, the deceased drew his pistol and told defendant “that he had given him sass enough and he would shoot his head off,” and shot his pistol right at the defendant, and the defendant, having gotten out his pistol, tried to shoot deceased; that deceased and defendant, facing each other, kept backing, and defendant, thinking that deceased was going to shoot him (defendant), in self-defense shot the deceased.

The defendant on his cross-examination denied that he had ever told the deceased that “he (defendant) would turn them in if he had to turn them in over the dead body of the deceased, or anything like it.”

The state, in rebuttal, introduced the wife of the deceased, who testified that after the deceased was shot she accompanied him to Henryetta; that he said he was going to die. Thereupon she was asked “if deceased said anything about dipping. Did he say anything to you, make any statement to you, of the things the defendant had said to him?” The defendant objected, because such evidence was not in rebuttal, but part of the case in chief. 'The court overruled the objection, and the defendant excepted. Thereupon ,the wife of deceased testified that the deceased on the day he was shot and about 2 o’clock in the afternoon told her “that the defendant told him (deceased) that he was going to drive those cattle into chat pasture if he had to drive them over his (deceased’s) dead body.”

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

“No. 17. Gentlemen of the jury, you are instructed that the law of this state is that, where a person armed with a deadly weapon voluntarily enters into or attempts to enter into a mutual combat with another for the purpose and with the intent of slaying his' adversary, or if such person has reason to believe that such combat will or may result in death or serious bodily injury to one or the other of the persons so engaged therein, then the right of self-defense will not arise in favor of such person so voluntarily and unnecessarily entering such mutual eom- „ bat, no matter what extremity he may be reduced to during such combat, unless before the fatal shot is fired he, in good faith, withdraws” or attempts to withdraw from the conflict, and either by word or act made the fact known to the deceased, and later thereafter continued to proceed to give the defendant reasonable cause to believe that he was in danger of being killed or receiving great bodily injury at the hands of the deceased; and in this case, gentlemen of the jury, if you find and believe from the evidence beyond a reasonable doubt that the defendant William Crisp, on or about the time and at the place alleged in the information, armed himself with a deadly weapon, to wit, a pistol, and then and there proceeded to the place wheye he was, and then and there made an assault upon the deceased, in the manner and form and by the means alleged in the information, and thereupon shot and killed the deceased, then such killing would be murder or manslaughter according to the intent of the defendant at the time. If at the time of such assault, if any such is shown by the evidence, the defendant had the intent to kill the deceased, or do him great bodily harm, or had reason to believe such assault would probably result in the death or serious injury to himself or to the deceased, then such killing would be murder.
“On the other hand, if when the defendant so made the assault upon the deceased, if you believe from the evidence beyond a reasonable doubt.that he did so make such assault, without any intention of killing deceased or inflicting serious bodily injury upon him, and in a conflict between the defendant and the deceased the defendant killed the deceased, then this offense would only be manslaughter in the first degree; and in this connection you are told that the line of demarcation between murder and manslaughter is in the character of the intention with which the defendant provoked or attempted to provoke the fatal difficulty, and this intention i(s to be gathered from all the facts and circumstances in evidence in the case.”

The jury returned the following verdict:

“We, the jury drawn, impaneled, and sworn in the above-entitled cause, do, upon our oaths, find the defendant, William Crisp, guilty of manslaughter in the first degree, but we are unable to agree upon the punishment.”

The defendant timely made a motion for a new trial, which the court overruled, and the defendant excepted.

The defendant complains that the court committed reversible error in permitting the state to introduce in rebuttal, upon the ground that the same was evidence in chief, the dying declaration of the deceased made to his wife “that the defendant, told him (deceased) that he was going to drive those cattle into that pasture if he had to drive them over hi,s (deceased’s) dead body.” This complaint is without merit. The defendant on his cross-examination denied making such statement as evidenced by the dying declaration, and hence such declaration of the deceased to his wife was striptly rebuttal evidence, and its admission as such was free from error.

The defendant insists that instruction No. 17 given the jury was prejudicial error. When this instruction is, as it must be, considered in connection with all other paragraphs of the instructions given, we think it correctly announces the law.

The defendant further complains that the verdict of the jury is not sufficiently supported by the evidence. With this complaint we do not agree. It is true that the evidence is in sharp conflict, but this conflict presents a question of fact exclusively within the province of the jury to determine, and this court, as held in an unbroken line of its decisions, is powerless to disturb such verdict, where, as in the instant case, there was evidence fully supporting the finding of the jury.

The defendant finally insists that the court committed reversible error in rendering judgment on the verdict, as the verdict returned was without authority of law, and the court not empowered to fix defendant’s punishment. This contention is wholly without merit.

Section 5933, Revised Laws 1910, provides:

“In all cases of a verdict of conviction for any oifense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the lim-tations fixed by law, and the court shall render a judgment according to such verdict except as hereinafter provided.”

•Section 5934, Revised Laws 1910, provides:

“Where the jury finds a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

In construing these sections, this court, in Blair v. State, 4 Okla. Cr. 859, 111 Pac. 1003, said:

“The jury having failed to agree upon the punishment to be inflicted, or at least not having declared the same in their verdict, it thereupon became the duty of the court under the statute to ‘assess and declare the punishment and render judgment accordingly,’ and the court committed no error in so doing.”

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

Affirmed.

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


author: DOYLE, P. J.

text:
    CHAS. PATTERSON v. STATE.
    No. A-3408.
    Opinion Filed June 5, 1920.
    (190 Pac. 271.)
    (Syllabus.)
    INTOXICATING LIQUORS — Insufficiency of Evidence — Maintaining Public Nuisance. In a prosecution for maintaining a public nuisance, evidence held insufficient to sustain a conviction.

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

    ■Charles Patterson was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed, and cause remanded.

      S. H. Harris, J. I. Hovjard, and A:M. Beets, for'plaintiff in error.

      S. P.. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen-., for the State.
   DOYLE, P. J.

The plaintiff in error prosecutes this appeal from a judgment of the county court of Oklahoma county, sentencing him to be confined in the county jail for six months and to pay a fine of $100 for maintaining a public nuisance.

The. information in substance charges: That on the 1st day of January, 1917, thence continuously up to and including the 3rd day of April, 1917, in Oklahoma county, the defendant did then and there willfully and unlawfully keep and maintain a place at the corner of Reno and Pennsylvania avenues, Oklahoma City, wherein spirituous, vinous, and malt liquors, to wit, beer and whisky, were by said defendant possessed and kept with the intent to sell, barter, give away, and otherwise furnish the same, and at which place during, said period of time, at the procurement and solicitation of the said defendant, numerous and divers persons in large numbers did resort and congregate there for the purpose of drinking said beer and whisky, all thereof to the common nuisance of the public.

The principal contention on the part of. the defendant is that the evidence is insufficient to sustain the verdict of conviction.

The testimony on the part of the state was as follows:

E. J. Helm, the first witness for the state, testified that he was a deputy sheriff, and knew the defendant and the place where he lived on the southwest corner of Reno and Pennsylvania; that with deputy sheriffs Farris and Nash he raided the place on the 2d day of February, 1918; that a fellow named Duchardt drove up with three sacks of beer in a wagon; that they found several sacks of beer, in a trench, about a barrel, found something like four bottles of whisky in a woodpile, found a case in a little house where some fellow slept, and found a part of a quart of whisky there, also found a barrel buried lengthwise in the ground with a square hole in the top, covered with straw, and some beer was in the barrel. Was acquainted with the general reputation of the place as being a place where intoxicating liquor was kept for the purpose of selling the same, and where persons resorted for the purpose of drinking liquor, and it was bad; that he had never heard the neighbors say anything about reputation of the place; that he had never made a raid on Patterson’s pláce prior to the date testified to, but did make a raid one time after and did not find anything.

C. B. Farris testified: That he went with Officers I-Ielm and Nash to the defendant’s place, and “we found a little beer and whisky, that to make a long story short we dug up about a barrel of beer. The defendant at the time was building a barn and came over and said the beer in the wagon belonged to his mother.” Asked if he knew the general reputation of the place as to being a place where liquor was kept and stored for the purpose of sale and where people congregated and resorted to drink the same, he answered:

“We heal’d it had that reputation — that is the reason we went out there — and it would be bad, because we found whisky and beer there.”

That the sacks in which the beer was, looked like they had been buried for some time. This was the only raid he ever made on the defendant’s place.

W. M. Nash, deputy sheriff, testified: That he went with Officers Helm and Farris to the defendant’s place about the 3d day of April. That they found a farm hand with a wagon and team, and found three or four sacks of beer in the wagon. The defendant came up- and said the fellow was going to drive with the beer over to his mother’s. They found three or four sacks of beer in a ditch, and found three quarts of whisky in a woodpile, and in the little house they found a case unbroken, “but don’t know what was in it; it was marked intoxicating liquor. We went in the house and didn’t find a thing; did not know the general reputation of the place.”

On behalf of the defendant, Mrs. Dora Finley testified that she was hi,s sister, and the beer in the wagon belonged to their mother, who was living temporarily at 608 Fifth street; and she went with Frank Duchardt to the station to get it the day her brother was arrested, and produced the shipment receipt for the beer, which she received at the freight office; that she was at the defendant’s place nearly every week, and would often stay there overnight; never saw persons congregated there, and never saw any one drinking around there; that old man Carpenter lived there in the little house, and he had spells of heart trouble, and he had whisky there, and would drink it whenever he could get it.

H. C. Carpenter testified that he was 68 years old; engaged in the real estate business; but lived at the defendant’s place, and occupied the little house out in the yard; that he had the beer and whisky out there that the officers found, and had a case containing four quarts of wine in the little house; that he put the barrel in the ground and that he kept beer and ice in it; that he buried the sacks of beer, and would bring it in and put a dozen or a half dozen bottles in the barrel; that defendant did not order or own any part of the whisky, beer, or wine, or have anything to do with it. Had known Mrs. Patterson for 20 years, and that he hid this beer and whisky because she was very much opposed to the use of beer and whisky, and if she knew he had it she would not have let him keep it about the place; never saw persons congregating around there, and never knew of the defendant having, selling, giving away or otherwise furnishing liquor of any kind to any person.

Mrs. Belle Patterson, the defendant’s wife, testified that they lived on her mother’s place, a 10-acre tract, near the corner of Heno and Pennsylvania; that she never saw people coming to the place for the purpose of drinking beer and whisky, and never saw her husband sell beer or whisky, or have any beer or whisky there; that Mr. Carpenter occupied the little house south of their home; that she did not know for sure that Carpenter had any whisky there until it was found by the officers; that she had known Mr. Carpenter for a long time; never saw him drinking, but heard that he did; that she was very much opposed to liquor in all forms, and never used it herself; that she did know about some beer out in the barn for Mr. Patterson’s mother, but would not permit it in the house; that her husband was not a drinking man, and she never saw him under the influence of liquor.

James Trippett testified that he lived in the first house south of the defendant more than a year; that he was home every night and never saw anybody at the defendant’s place drinking intoxicating liquors; that he never heard of the place having a reputation of being a place where intoxicating liquors were sold.

Joe Winto testified that he lived within 250 feet of the defendant’s place, and worked at the city pumping station -, went to work at 11:30; came home at 11:30, changing every two weeks; that he never saw persons congregating around Patterson’s house at night; never heard of Patterson’s place having a bad reputation; never heard any discussion among the neighbors, although he had been living there for 3 years; never saw any indications around Patterson’s place that they were selling whisky and beer there; not related to Patterson and had no interest in the. case.

The defendant, Patterson, as a witness in his own behalf, testified that he had been living there two years with his wife and two children; that he was a farmer and contractor, farming about 35 acres in addition to his place; that Mr. Carpenter during the time mentioned lived in the little house about 60 feet from his residence, both within the same inclosure; saw the officers stop Duchardt, the hired man; that the beer in the wagon was his mother’s; that Duchardt was moving her that day; that he told the officers at the time where the beer was going; that the beer found by the officers belonged to Carpenter; that he had nothing to do with putting the barrel in the ground, or keeping beer ::n it; did not know about the whisky Carpenter claimed Being in the woodpile; that he had no whisky or beer about the place, and never solicited any person to come there and drink intoxicating liquor; and no people even, came there to drink intoxicating liquor at any time.

In rebuttal the record of the Wells Fargo Express Company was introduced, showing that in the month of February there was one shipment of four quarts of liquor to Henry Carpenter, but no shipments of beer, and showing that no shipments of intoxicating liquor were received by the defendant.

At the close of the evidence the defendant moved the court to instruct the jury to return a verdict of not guilty, for the reason that the evidence was not sufficient to sustain a conviction, which the court overruled and allowed exception.

This convictiop was obtained under that part of section 13, c. 70, Laws 1910-11, which reads:

“All places where any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; * * * is manufactured, sold, bartered, given away or otherwise furnished in violation of any provision of this .act; and all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances, * * * and the owner or keeper thereof shall, upon conviction, be adjudged giulcy of maintaining a public nuisance, and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months.”

The charge of the court required the jury to find from the evidence beyond a reasonable doubt that the defendant maintained a public nuisance at the place named from January 1, 1917, continuously to and including the 3d day of April, 1917, where intoxicating liquor was kept and possessed by said defendant during said period of time with the intention of selling, bartering, and giving away the same in violation of law, and at which place during the said period of time, at the procurement and solicitation of said defendant, numerous and divers persons congregated for the purpose of drinking said liquor.

Where there is evidence to support the verdict this court will not pass upon its weight or sufficiency in order to determine whether or not the defendant was guilty as charged. However, there must be evidence tending to support the essential allegations of the information. In this case there is no direct evidence tending to show possession of intoxicating liquor. The facts relied upon by the state to show the possession are circumstantial. The defendant denied possession, and another person claimed ownership and possession of the liquors seized by -the officers.

Assuming that the evidence on the part of the state showed possession by the defendant of the liquors seized, there was no evidence tending to- show that the defendant intended to sell or dispose of the same as charged in the information, and the evidence wholly fails to show that persons had congregated and resorted to the defendant’s place for the purpose of drinking such liquor. In the brief for the state it is said;

“The evidence, attempting to show that persons congregated and resorted on the defendant’s premises for the purpose- of drinking such liquors, wholly fails. The evidence as to the general reputation of the premises is without force.”

Because the evidence is insufficient to sustain the conviction, the judgment of the lower court is reversed, and the cause remanded.

ARMSTRONG and MATSON, JJ., concur.