text:
    SMITH WHITENACK v. STATE.
    No. A-6952.
    Opinion Filed Jan. 17, 1930.
    Rehearing Denied March 8, 1930.
    (285 Pac. 990.)
    Meacham & Meacham, Sylvester Grim, Darnell & La Eue, and Ben F. Williams, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Ouster county on a charge of manslaughter and his punishment fixed at fifteen years in the state penitentiary. Defendant was charged with the murder of one Harrison Hicks, which was alleged to have occurred on the 29th day of July, 1927. This killing occurred in Barton’s Store in the town of Butler. The defendant and deceased apparently had been friends for almost twenty years. Their friendship appears to have been broken by the defendant requesting the deceased not to sell whisky to one of Harding’s negro laborers and the difficulty was renewed during the month of February, 1927, by defendant’s request to the deceased not to sell any more whisky to defendant’s son. There is some evidence in the record indicating that the defendant and deceased were each engaged in the unlawful sale of intoxicating liquor, and that, prior to the killing, the defendant had accused the deceased of stealing some 200 to 400 gallons of liquor from him. The evidence of the state tends to show that at about noon on the day of thé killing the defendant went into the Barton Store, that the deceased was in the store, and that, shortly after defendant entered the store, the killing occurred. There were five wounds in the body of the deceased. The testimony of the witnesses was that four shots were fired. The evidence of the physician who made the post mortem of the body was that one bullet had gone in at the back of deceased and came out the front, and that one of the bullets had cut the arm of the deceased, but was not in the body, and that the remaining bullets were in the body of deceased when the examination was made. After the killing and before the body was removed from Barton’s Store, a coroner’s jury was called, and the sheriff and county attorney made a search of the store to find all possible evidence concerning the killing.

Defendant attempted to show that, when he went into the Barton Store, Hicks immediately fired a shot at him and shot at him at least twice, and that he shot Hicks in his own self-defense. The questions of fact involved in the case were entirely for the jury. After hearing all the evidence in the case and the law as given by the court, the jury found the defendant guilty of manslaughter and assessed his punishment at 15 years in the state penitentiary. There being a direct conflict in the evidence, and the jury having found the issues in favor of the state and against the defendant, and there being competent evidence in the record supporting the verdict of the jury, the case comes to this court with the issues of fact all settled. Summers v. State, 7 Okla. Cr. 10, 120 Pac. 1031; Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791; Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737; Loudermilk v. State, 33 Okla. Cr. 146, 242 Pac. 1060; Burrows v. State, 43 Okla. Cr. 256, 277 Pac. 685.

The defendant complains of improper cross-examination of the defendant by the county attorney. The evidence discloses that there had been some trouble between the defendant and deceased and at least by inference that this trouble arose over whisky matters. The evidence 'tends to show that the place of business of the defendant had been searched for liquor and that defendant had been charged in couft with a violation of the liquor laws. It would be ridiculous to say that a man’s acts which were in any way connected with the commission of the crime could not be inquired into and that he could wrap a mantle of protection around his previous acts and leave the jury to guess at the motive and the interests of the defendant.

In Berry et al. v. State, 44 Okla. Cr. 150, 279 Pac. 982, 983, this court said:

“When the defendant presents himself as a witness, and voluntarily takes the witness stand in his own behalf, he waives all privileges to which he is entitled by remaining silent, and subjects himself to the same rules of cross-examination and impeachment as any other witness.”

See Groves v. State, 29 Okla. Cr. 128, 233 Pac. 243; Felice v. State, 18 Okla. Cr. 313, 194 Pac. 251; McClendon v. State, 19 Okla. Cr. 382, 200 Pac. 464; Stephens v. State, 24 Okla. Cr. 351, 217 Pac. 1063.

The defendant having offered himself as a witness and other evidence of the state having developed the fact that the difficulty probably arose over the handling of liquor between the defendant and deceased, it was proper on cross-examination of the defendant to inquire into these matters for the purpose of affecting the credibility of the witness and to show his malice or unfriendly attitude toward the deceased and for the purpose of establishing motive for the commission of the crime.

In the case of Tallon v. State, 22 Okla. Cr. 90, 210 Pac. 309, 311, this court said:

“For the purpose of discrediting a witness, a wide range of cross-examination is permitted as a matter of right in regard to his motives, interest, or animus as connected with the crime or parties thereto. The motives, interest, or animus of a witness are not collateral matters, and these may be shown and considered by the jury in estimating the credibility of a witness, and as to such matters he may be contradicted. ” * * The extent to which a cross-examination into the motives, interest, and animus of a witness may go must necessarily be left largely to the discretion of the trial judge.”

The defendant next complains of misconduct of the county attorney. It appears at pages 859, 860, of the case-made that the following proceedings were had:

“Counsel for Defendant (Mr*. Williams) : Counsel for the state has just stated in his argument to the jury, that the defendant was languishing in jail and had been denied bond, to which statement counsel for the defendant objects as an improper argument and prejudicial to the rights of the defendant.
“And, we move the court to instruct the jury not to consider that part of the counsel’s argument and the part of the counsel’s argument where he argues to the jury that the defendant was denied bail by the Criminal Court of Appeals, as improper.
“By the Court: Counsel did not say that,-—any statement of the attorney that he was denied bail by the court would not be proper.”

In the case of Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, paragraph 6 of the syllabus, this court said:

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

The rule above stated has been followed by this court in numerous cases. The argument of the county attorney not having been taken down and there being a dispute as to what was said in the argument, this court is bound by the finding of the trial court.

Defendant next complains of the giving of certain instructions by the trial court. Taken altogether, the instructions fairly state the law as applicable to the evidence in the case, and are as favorable to- the defendant as the facts in the case warrant. The defendant also complains of instructions requested by him and refused by the court. The charge given by the court being sufficient, it was not error for the court to refuse to give the requested instructions. Fisher v. State, 18 Okla. Cr., 541, 196 Pac. 724; Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166; Wheat v. State, 38 Okla. Cr. 119, 259 Pac. 279; Richerson v. State, 43 Okla. Cr. 293, 278 Pac. 356.

Defendant complains of other errors but they are not of sufficient merit to require a reversal of the case. The evidence in the case was sufficient to warrant the jury in finding the defendant guilty of murder. If there was error or prejudice in the case, it must have redounded to the benefit of defendant. The jury only found him guilty of manslaughter and fixed his punishment at fifteen years in the penitentiary when under all the evidence in the case a verdict of murder could have been sustained by this court.

For the reasons stated, the cause is affirmed.

On Petition for Behearing.

Since the filing of the opinion affirming this case, defendant has filed a petition for rehearing in which it is earnestly contended that the cross-examination of defendant as to his connection with the liquor business is prejudicial error. The state in the first instance had sought to show as a motive for the homicide that a state of ill will existed between defendant and deceased because of transactions between them connected with the handling of intoxicating liquor and because of a belief by defendant that deceased had stolen from him a large quantity of intoxicating liquor, and there was testimony of two witnesses that a short time prior to the homicide defendant had stated to them on several occasions that deceased or deceased with another person had stolen a large quantity of whisky from him, and that, unless it was returned he would kill deceased.

Defendant on the stand denied any connection with the deceased in regard to the handling of intoxicating liquor, and denied that any whisky had been stolen from him. The state, for the purpose of showing motive, interest, and animus of defendant, had the right to go into this question on cross-examination of defendant, and evidence on this line was not improper. However, the cross-examination of the state went into matters not properly pertinent to this question and the asking of questions by counsel for the state concerning raids on the place of business of defendant, the purchase by him of large quantities of sugar, and sales of whisky not connected with the above transaction, but claimed to have existed between him and deceased, was improper and the defendant’s objection should have been sustained. But, since the evidence in the case shows the defendant to be guilty beyond a reasonable doubt, the asking of such questions was not such an error as will require a reversal of this case.

The petition for rehearing is denied, and the mandate ordered issued.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOHN IGO v. STATE.
    No. A-6883.
    Opinion Filed March 8, 1930.
    (287 Pac. 811.)
    Lewis Hunter, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Comanche county on a charge of having unlawful possession of a still without having first registered the same with a proper United States officer and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The Attorney General has filed a motion to dismiss on the ground that the appeal was not filed with this court in time for the court to acquire jurisdiction. Judgment in the case at bar was rendered on the 26th day of September, 1927, the plaintiff in error was given 120 days in which to lodge his appeal in this court, and the appeal was filed on the 24th day of January, 1928. The appeal being perfected on the 120th day, the Attorney General’s motion is without merit.

No briefs have been filed on behalf of plaintiff in error and no appearance was made for oral argument. Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights. The evidence being sufficient to support the verdict, the cause is affirmed.


author: DAVENPORT, J.

text:
    L. E. STURNS v. STATE.
    No. A-7118.
    Opinion Filed March 8, 1930.
    (287 Pac. 805.)

      Allen & Grigsby, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged with unlawfully and willfully manufacturing, fermenting and possessing a compound mixture, mash, wort, and wash, fit for distillation and the manufacture of alcoholic liquor, to wit, whisky, the sale, barter, giving away, and otherwise furnishing of which is prohibited by the laws of the state of Oklahoma. He was tried, convicted, and sentenced to pay a fine of $100, and to be imprisoned in the county jail for a period of sixty days. Motion for new trial was considered and overruled, and the case appealed to this court.

The defendant demurred to the information filed against him, which demurrer was overruled, and defendant duly excepted. The defendant then moved to suppress, the evidence of the state, on the ground that the same was procured under and by the use of an illegal search warrant, and for the further reason that the purported copy of the search warrant served on the defendant was not a copy within the meaning of the statute in such cases made and provided, and attached the purported copy of the search warrant that was served upon him to his motion to suppress the evidence. Evidence was taken upon the motion to suppress, at the conclusion of which the court overruled the motion and directed the case to proceed to trial.

The state then called Y. H. Saunders, who testified he was deputy sheriff and jailor of Cleveland county. He testified that on. the 15th day of February, 1926, he made an affidavit for a search warrant to search the premises of the defendant, which testimony was objected to, and his objections overruled by the court, and the defendant duly excepted. The state then, over the objection of the defendant, offered the search warrant that the sheriff claimed to have operated under when he searched the defendant’s premises.

On cross-examination the witness Saunders was asked if he served any one on the premises, claimed to have been searched by him, with a copy of the search warrant, at the time he started to make the search, and answered he did. Witness was then handed Defendant’s Exhibit No. 1, and asked to state if that was a copy of the original, and stated it was. He was then asked the following:

“Q. Is that the copy you served? A. Outside of the judge’s name.
“Q. Is that the copy you served? A. Yes, it is.
“Q. Does that copy have the judge’s name on it? A. It does not, but the original did.”

This is, in substance, the testimony upon the question of the service of the search warrant on the defendánt when the officer went to his home to search.

The question to be determined by this court is: Did the officers comply with the law in serving the search warrant, or was the service void by reason of the fact that the copy required by the statute to be served on the party in possession, if any one was found in possession, or to be posted at the place searched if no owner was in possession, did not comply with the statute. That part of section 7009, C. O. S. 1921, relating to the services of the search warrant, is as follows:

“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 * * * or room wherein the same are found.”

It will be observed that the statute requires that a copy of the search warrant shall be served upon the person or persons found in possession of the liquors. The statute is clear and unambiguous, and when the word copy is used it means that when the warrant is served, a complete copy of the original warrant must be served upon the parties found in possession of the liquors, or if no one is found in possession of the building, a copy must be posted on the building. As shown by the officer who claims to have had the search warrant, the paper he served upon the defendant did not have the name of the county judge attached to it. This being true, the paper he served upon the defendant was a blank and meaningless, as the warrant could not be valid unless it had been signed by the officer who issued the same, and it amounted to nothing more than a blank which any one might properly pass out to an individual found in possession of the building the officers desired to search.

The statute is mandatory and requires the officer to serve a copy of the search warrant upon the person or persons found in possession of the building, if any are in possession where the liquors are found.

Section 30, art. 2, of the Constitution, is as follows:

“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.”

In Key v. State, 43 Okla. Cr. 450, 279 Pac. 931, this court said:

“To authorize the search of the premises or person of the defendant, the search warrant must be in writing, in the name of the state, signed by a magistrate, and directed to a peace officer commanding him to search for personal property and bring it before the magistrate.”

In Murby v. U. S., 293 F. 849, the United States Circuit Court of Appeals for the First Circuit held:

“A direction in a search warrant to an officer to £do and report concerning the same as the law directs’ was sufficient to require service of a copy of the warrant and receipt for property taken, as reouired by Espionage Act, tit. 11. § 12 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §10496141 [18 TJSCA § 622]), but the return should affirmatively ‘report’ that the officer served a copy of the warrant and a receipt for property taken.
“If Espionage Act. tit. 11, § 12 (Comp. St. 1918’, Comp. St. Ann. Sudp. 1919, § 10496V1 [18 USCA § 622]), r& quming service of copy of search warrant and receipt for articles taken, is not complied with, evidence obtained is inadmissible.”

In Lindsay v. Board of County Commissioners, 56 Kan. 630, 44 Pac. 603, the syllabus reads as follows:

“A paper purporting to be a summons, and which is not signed by the clerk of the district court, is invalid; and a motion made by the defendant, who specially appears, to set aside the service of a copy of the paper made upon him, should be allowed.”

In Estes v. State, 35 Okla. Cr. 335, 250 Pac. 809, in the body of the opinion, the court said:

“Affidavit of complaint, upon which a liquor search warrant issues is required to be filed and remain on file in the office of the officer who issues such warrant, and the officer is required to make return of such warrant, within three days, showing all acts and things done thereunder. A copy of said warrant shall be served upon the person or persons found in possession * * * and, if no person be found in possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same is found. * * * The record shows beyond a doubt that no search warrant was served, as required by law, and the search of the defendant’s home was without authority of law. It has been repeatedly decided by this court that evidence in liquor prosecutions, obtained by an unlawful search and seizure and contrary to section 30 of the Bill of Risrhts. is inadmissilde against the defendant as being, in violation of section 21 of the Bill of Bights, uiving one accused of crime immunity from becoming a witness against himself.”

The record discloses in this case that no service of the search warrant was made on the defendant, nor even a purported copy of the warrant. The motion of the defendant to suppress the evidence and his objection to the introduction of the same on the ground no copy of the search warrant was served upon him was well taken, and the court erred in not sustaining the same.

There are many other errors urged by the defendant in this case, but, the view we take of this record, it is not necessary to consider them. For the reasons herein stated, the case is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: EDWARDS, P. J.

text:
    FANNIE WALTON ROBERTSON et al. v. STATE.
    No. A-6968.
    Opinion Filed March 15, 1930.
    (288 Pac. 352.)
    Lane & Hyde, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendants, were convicted in the district court of Cleveland county, and Fannie Walton Robertson was sentenced to serve a term of thirty days in the state penitentiary and R. C. Robertson was adjudged to pay a fine of $100.

The only question of any importance presented is the sufficiency of the information under which defendants were tried. It alleges, in substance, that on the date named the defendants Fannie Walton Robertson and John Walton were legally married to each other and were husband and wife, and that on a date named they were by judgment of the district court of Cleveland county divorced, that thereafter on a date named the defendant Fannie Walton Robertson and R. C. Robertson were married in the state of Texas, and since said marriage they lived and cohabited as man and wife in Cleveland county, such marriage and cohabitation being within the period less than six months from said decree of divorce. A demurrer to the information was interposed and overruled.

Bigamy is defined by section 1862, Comp. Stat. 1921, as follows:

“Any person who having been married to another who remains living, marries any other person except in the cases specified in the next section is guilty of bigamy.”

Section 510, Comp. Stat. 1921, in substance, provides that, in case of divorce, the marrying of either party to any other person within six months is bigamy. The provisions of the latter section were avoided by persons diyoreed in this state going into some other state within the six months and there marrying and returning to this state and living together as husband and wife. This contingency was not covered by the provisions of our law prior to the enactment of chapter 119, Session Laws 1925. Wilson v. State, 16 Okla. Cr. 471, 184 Pac. 603. In that case it was held in substance that, since the statute was directed solely against remarriage and not cohabitation, the jurisdiction was in the county where the second marriage took place, and where a marriage by a divorced person took place without the state during the period of inhibition and who subsequently returned and cohabited with the person married in this state, the subsequent cohabitation not being of the gist of the offense as defined by the statute, there was no jurisdiction to prosecute in this state. This decision, no doubt, led to enactment of chapter 119, Session Laws 1925, which enlarges the defini* tion of bigamy in section 1862, Comp. Stat. 1921, and by which act it was among other things provided:

“* * * And it shall be unlawful for any person who has a living husband or wife to marry another person in any other state within six (6) months from the date of decree of divorcement granted in this state and cohabit with such second husband or wife in this state during said period. * * * Any person marrying or otherwise violating the provisions of this section shall be deemed guilty of bigamy.”

The demurrer in this case challenges the information for the reason that it does not allege that at the time of the alleged bigamous marriage the defendant, Fannie Walton Robertson, the divorced wife of John Walton, had a living husband. Under the provisions of the statute it is a part of the definition of bigamy that there shall be “a living husband or wife.” 3 R. C. L. p. 805 §§ 16 and 17. In 7 C. J. p. 1168', § 34B, it is said:

“It must be stated positively that the first wife or husband was alive at the date of the second marriage * * *”—citing numerous authorities, among them: Niece v. Ter., 9 Okla. 535 60 Pac. 300: Dunlin v. State, 126 Tenn. 415, 150 S. W. 86, 41 L. R. A. (N.S.) 1061, Ann. Cas. 1913E, 264. See, also, Quinn v. State, 43 Okla. Cr. 349, 278 Pac. 409.

For the reasons assigned, the information failed to state an offense.

The case is reversed and remanded.

DAVENPORT and CHAPPELL. JJ.. concur.


text:
    FRANK LEMMONS v. STATE.
    No. A-7090.
    Opinion Filed March 15, 1930.
    (288 Pac. 351.)
    A. T. Earley, Caleb Choate, and J. T. Michael, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county on a charge of robbery with firearms, and his punishment fixed at confinement in the state penitentiary for a term of twenty years.

The appeal was lodged in this court on July 2, 1928. Subsequent to the filing of the appeal in this court, and within the time provided by the seventh subdivision of section 2754, and by section 2755, Comp. Stat. 1921, the defendant filed his application for a new trial in the district court, which application was granted, and said case is now pending in that court. The appeal in this case has become moot, and is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JUSTIN McCARTY v. STATE.
    No. A-7146.
    Opinion Filed March 15, 1930.
    (287 Pac. 1053.)

      Wallace G. Hughes and A. S. Dickson, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

■ The plaintiff in error, hereinafter for convenience referred to as the defendant, was tried and convicted of driving an automobile upon the public highway while under the influence of intoxicating liquor and was sentenced to pay a fine of $450; from which judgment and sentence the defendant has appealed to this court.

The defendant and the state entered into a stipulation whereby defendant waived all question as to the sufficiency of the evidence to support the verdict of the jury rendered, and the state waived all objection and exceptions to the case-made by reason of the elimination from the case-made of the testimony.

When the case was called for trial the defendant filed a demurrer to the information on the ground: First, the information did not charge the defendant with the commission of any crime under the laws of the state of Oklahoma. Second, that said pretended information was vague and indefinite as to what crime, if any, this defendant was alleged to have committed. Which demurrer was overruled, and defendant excepted. An examination of the information shows that part of the information we deem necessary to refer to is as follows:

“That Justin McCarty did. in Texas county, in the state of Oklahoma, on or about the 14th day of January, in the year of our Lord one thousand, nine hundred and twenty-eight, and anterior to the presentment hereof, commit the crime of operating, propelling and driving a motor vehicle upon the public highways while under the influence of intoxicating liquor, in the manner and form as follows, to wit:”

The remainder of the information describes where the automobile was driven by the defendant, but omits the language, “while under the influence of intoxicating liquor.” After the testimony was taken the state asked permission to amend the information by inserting the words, “and being then and there drunk and under the influence of intoxicating liquor,” after the words, “then and there being,” and before the words, “did then and them wilfully,” etc. The defendant objected to this, which objection was overruled, and the court permitted the amendment.

It is urged by the defendant that the original information filed in this case was a nullity, that the charging part of the information did not charge the defendant with any offense, and the defendant urges that the court went too far in this case by permitting the state to amend the information after the testimony had been taken, and urges that the plain provisions of the law should have been respected by the court, that when the court found the information insufficient the jury should have been discharged and the case passed for trial to such time as the statutes could be complied with.

Section 2512 Comp. St. 1921, provides:

“An information may be amended in matter of substance or form * * * before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

Under the provisions of this section of the statute the information may be amended in matter of substance or form any time before plea without leave of the court, and it may be amended after plea on order of the court, where the same can be done without injury or material prejudice to the rights of the defendant. It is further specially provided in said section that no amendment shall cause any delay of the trial unless for good cause shown by affidavit. It nowhere appears in the record that the defendant filed an affidavit showing good cause for delay of the trial, nor does the record disclose that he ever asked to have the case passed, alleging that he was surprised and not prepared to meet the amended information. The only question urged by the defendant is that the amendment was an amendment in substance, and, for that reason, without any showing on his part, the court should have granted a continuance or delayed the trial until some fu.ture date. No contention is made by the defendant that the amendment permitted to the information charged a different offense than that alleged in the original information.

It is contended by the Attorney General that the information was sufficient before it was amended to apprise the defendant of the charge against him, and what he was expected to meet in the trial.

Section 2564 Comp. St. 1921, provides:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected,, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
■ “An information is sufficient, if it pleads every element essential to charge the crime pleaded, in plain, concise, and intelligible language, and apprises the defendant in an intelligible way of precisely what he must be prepared to meet.” Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954.

If the defendant desired to have the case continued on the ground that the amendment made by order of the court to the information was an amendment in substance, he should have asked the court for time to prepare the application for continuance or delay until such a time as he could prepare to meet the amended information, and should have supported the application by an affidavit; failing to do so he waived any right he might have under the statute. The amendment as made did not change the charge against the defendant, and, in the absence of a showing to the contrary, we hold that the rights of the defendant were not prejudiced by the amendment. Hill v. State, 46 Okla. Cr. 56, 287 Pac. 1080, and Hammons v. State, 47 Okla. Cr. ......, 287 Pac. 1076.

It is next urged by the defendant that information No. 5, given by the court, was erroneous, in that it assumed that the section line described in the information was a public highway. Defendant says that this instruction was put in issue by a plea of not guilty and was a question for the jury to determine, and that the instructions of the court wholly failed to inform the jury what constitutes a public highway.

Section 9988, Comp. St. 1921, is as follows:

“All section lines in the state are hereby declared public highways. The public highways shall not be less than thirty-three nor more than sixty-six feet in width, according to the dedication, reservation or condemnation thereof.”

The information in this case charges that the defendant drove his car along the public highway running east and west between section 30 and 31, township 2 north of 13 east, E. C. M., in said county and state. This contention of the defendant is without merit, as that statute defines what it takes to constitute a public highway; therefore the objection of the defendant to instruction No. 5 is without merit.

It is next urged by the defendant that the supplemental motion for a new trial should have been sustained, on the ground of the misconduct of some of the jurors. The conduct of the jurors in this case was unwarranted, and their action was evidently brought about without any intention on the part of any of the jurors to violate the court’s instruction. However, under the stipulation in this case that the testimony is sufficient to sustain the verdict, the conduct of the jurors as to going to the place where the damaged car was is not a proper question for this court to consider; the only question being raised in this case is the question as to whether or not the court erred in permitting the state to amend the information after the testimony had been taken, and in overruling the defendant’s demurrer to the original information, and the failure of the court to instruct the jury as to what constitutes a public highway.

We hold that the court did not err in overruling the defendant’s demurrer to the original information, nor did the court err in permitting the information to be amended by inserting the words, “and being then and there drunk and under the influence of intoxicating liquor.” The motion for a new trial and in arrest of judgment were properly overruled. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law.

Finding no errors in the record, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    DAVE PENDLEY et al. v. STATE.
    No. A-7079.
    Opinion Filed Feb. 15, 1930.
    Rehearing Denied March 15, 1930.
    (285 Pac. 989.)
    Roy White, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Dave Pendley and Bill Pendley, hereinafter called defendants, were tried and convicted in the district court of McIntosh county of the crime of assault with a dangerous weapon without justifiable or excusable cause, and sentenced to serve a term of two years each in the state penitentiary.

The evidence of the state is that Dave Archibald and his wife Cynthia and one Bertha Martin had been to the town of Hanna on Sunday afternoon; that defendant Bill Pendley attempted to make a date with Bertha Martin and also attempted to arrange for a date for his brother with Cynthia Archibald.; that Bertha Martin agreed to meet Dave Pendley between sundown and dark up the Fort Smith and Western Railroad from Hanna; that Archibald, his wife, and the Martin woman, started to walk up the Fort Smith and Western Railroad to their home about two miles from Hanna; that defendants followed them in a car, stopped them and tried to induce the Martin woman to go with them. Failing in this the defendants followed farther up the railroad track and stopped them again, this time one of the defendants displaying a gun and the other a knife; that they forced the Martin woman to go with defendant, Bill Pendley, and that the defendant, Dave Pendley remained behind armed with a revolver and apparently attempting to coerce Mrs. Archibald to accompany him. That the defendant, Bill Pendley, took the Martin woman out to the side of the road some distance away where she knocked him down, escaped from him, and ran on home. About dark Archibald succeeded in getting hold of the gun in the hands of defendant, Dave Pendley. In the scuffle the gun was discharged wounding Archibald. He (Archibald) finally got possession of the gun and knocked defendant, Dave Pendley, down with it. Archibald and his wife immediately went back to Hanna and procured the arrest of both the defendants. Defendants admitted following Archibald, his wife, and the Martin woman, but claimed the attack was made on them by Archibald who was jealous of his wife. Archibald and his wife are both Indians.

The only question presented in the appeal is that of the sufficiency of the evidence to support the verdict of the jury. There is a sharp conflict in the evidence. If the jury believed the testimony of Archibald and his wife, there is ample evidence to support the verdict of the jury. If the jury believed the evidence of the defendants and their witnesses, then the verdict would have been not' guilty. It is not for this court to weigh the evidence nor pass upon the credibility of the witnesses. The trial judge permitted these verdicts to stand and pronounced judgment in accordance therewith. The trial judge also heard the witnesses testify, had a chance to observe their demeanor on the witness stand, and was in a better position than this court to determine .the sufficiency of the evidence to support the verdict of the jury. This court has so often held that it will not disturb the verdict of a jury where there is any competent evidence in the record to support such verdict, that it seems hardly necessary to cite authorities. This court has also held that where the evidence is conflicting, the jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses, and this court will not disturb a verdict where the evidence is conflicting and where there is competent evidence to support the verdict. Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The defendants appear to have had a fair trial and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent.


text:
    EDWIN SUGGS v. STATE.
    No. A-7081.
    Opinion Filed Feb. 15, 1930.
    Rehearing Denied March 15, 1930.
    (285 Pac. 985.)

      Sigler & Jackson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of larceny of live stock and his punishment fixed at imprisonment in the state penitentiary for two years. It is from this conviction that he appeals. The defendant was jointly charged with Walter Smith and Charles Henderson with having stolen three cows and two heifers from one Jack Roberts, on or about the 20th day of September, 1927.

The evidence of the state was that Roberts lived a short distance west of the town of Berwyn in Carter county and that the defendant was engaged in the meat market business in the town of Berwyn; that Roberts had several head of cattle which he kept on his place west of Berwyn, and that these cattle were last seen by him on the 19th day of September, 1927; that on the 20th day of September, 1927, the defendant shipped these particular cattle by automobile truck to Oklahoma City; that two drivers for the J. L. Wilson Truck Company of Ardmore were called to the home of Charles Henderson about 2 o’clock on the morning of September 20th, to take some cattle to Oklahoma City; that they loaded these cattle on the trucks at the Henderson place about 4 o’clock in the morning and delivered them to the Oklahoma Livestock Commission at the stock yards in Oklahoma City, upon the express orders of the defendant who was present on the Henderson farm and helped to load the cattle, and who had the proceeds of the sale of the cattle sent to him through a bank in Ardmore, Okla. The hides of these cattle were afterwards identified by Roberts as being off the cattle that were stolen from him on September 19, 1927.

The defendant admitted that he was present and helped load the cattle and that he received the proceeds from the sale of these particular cattle, but claims that these cattle had been purchased by him, from Roberts, in July, 1927, and had been kept on the Henderson place until September 20th, when they were shipped to Oklahoma City; and that defendant did not steal any cattle or assist any others in stealing any cattle from Roberts, in September, 1927. The defendant admitted everything that the state proved against him except that these were the cattle taken in September, 1927. The issue of fact before the jury was whether the cattle had been stolen by the defendant and his codefendants or whether the cattle had been purchased by defendant from Roberts. The jury found this issue in favor of the state, and, there being sufficient evidence in the record to support the verdict of the jury, the cause must be affirmed unless the errors complained of by the defendant have deprived him of his constitutional or statutory rights.

Defendant contends that the trial court erred in admitting certain alleged incompetent, irrelevant and immaterial testimony over the objections of the defendant. The whole controversy under this assignment relates to the sufficiency of the identification of these cattle by the prosecuting witness, Jack Roberts. There was no controversy but that Roberts had stolen from him certain cattle on September 19, 1927. The controverted issue of fact in the case is whether or not the cattle Suggs sold Wilson and Company on September 20, 1927, were the cattle stolen from Roberts or whether they were cattle Suggs had bought from Roberts in July, 1927. The prosecuting witness had testified that the hides he found in Wilson and Company’s hide cellar in Oklahoma City were the hides that came off of the cattle stolen from him on September 19th, and were the cattle which had been sold by defendant to Wilson and Company and the witness identified the hides then in court as being the same hides. On cross-examination the witness testified that the only way he could tell they were his hides was by the brand. On redirect examination the county attorney asked the witness if he had not testified in the preliminary hearing and if he had not at that time identified the same hides as being the ones taken from the cattle stolen from him. Defendant objected to the questions but was overruled by the court and the witness answered that he had so testified. For some reason the witness on cross-examination contradicted some of the things he had said on direct examination and the county attorney appears to have been attempting to strengthen his case by cross-examining his witness, apparently upon the theory that he was a hostile witness. While some of the questions asked were improper, the evidence elicited thereby was not of such a nature as to require a reversal of this case. White v. State, 34 Okla. Cr. 424, 246 Pac. 1114; Foreman v. State, 38 Okla. Cr. 50, 259 Pac. 176; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Pruitt v. State, 43 Okla. Cr. 420, 279 Pac. 707.

This conviction does not rest entirely upon the testimony of the prosecuting witness Roberts but the circumstances independent of his testimony outside of the proof of the larceny of cattle are amply sufficient to sustain this conviction.

Finally it is contended that a new trial should be granted because of the alleged misconduct of a juror named Pace. It is contended by defendant that his counsel were misled by the answers of the juror Pace on his voir dire examination. The voir dire examination of some of the jurors was taken by the stenographer but none as to the juror, Pace. The question was first called to the attention of the trial court on the motion for new trial. J. L. Hodge, one of defense attorneys, testified that he asked the juror, Pace, if he was acquainted with Mr. Smith, EdAvin Suggs and Charles Henderson and that the juror ansAvered that he did not know Smith. The witness Hodge was corroborated by Guy H. Sigler and Edwin Suggs. The juror Pace was then called and testified in substance that he thought the question was asked if he knew Smith; that he answered that he did not knoAv him and believed at the time he made the answer that he did not; that on the morning of the day the motion for new trial was being heard, when he took a look at Smith he remembered him as a man he had known living on a farm near him some twelve years before; that he had no feelings toward Smith.

The defendant contends from the fact that the juror testified on his voir dire that he did not know Smith, that the rights of the defendant were prejudiced thereby even though Smith was not on trial at that time. This court has gone a long way in sustaining the right of the defendant to a fair and impartial jury, but we know of no case in this court where the rule has been stretched to the point contended for by defendant. The question of qualification of the jurors is a mixed one of law and fact. Agent v. State, 18 Okla. Cr. 282, 194 Pac. 233.

The granting of a new trial is within the sound discretion of the trial court, and this court will not reverse a case unless it clearly appears from the record that the trial court abused such discretion. The evidence, taken on the motion for new trial to disqualify the juror, fails to support the contention of the defendant that the juror was disqualified or that the defendant was injured by the answers of the juror on his voir dire examination. As a general rule a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause which existed before the juror was sworn, but which was unknown to accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the case. Stouse v. State, 6 Okla. Cr. 416, 119 Pac. 271; Bell v. State, 20 Okla. Cr. 289, 202 Pac. 325; Morris v. State, 43 Okla. Cr. 335, 278 Pac. 401.

The defendant was given a fair trial, and the evidence sustains the verdict of the jury.

For the reasons stated, the cause is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent.


text:
    LUTHER KIKER v. STATE.
    No. A-7000.
    Opinion Filed Jan. 31, 1930.
    Rehearing Denied March 15, 1930.
    (285 Pac. 987.)

      Joe S. Eaton and G. L. Bynum, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county of the crime of assault with a dangerous weapon on an information charging a crime of assault with intent to kill, and his punishment fixed at imprisonment in the penitentiary for a term of one year and one day.

The evidence of the state establishes the following facts: That the defendant, Luther Kiker, shot and wounded one Phillip (Jack) Black. Both the defendant and Black were coal miners, and had been working together for several years in the same mines. Defendant had lived in the same house with Black for two and one-half years prior to the shooting. There was ill feeling between Black and defendant because of the fact that defendant had broken up Black’s home and caused a separation between Black and his wife. The shooting occurred on the main street of the city of Henryetta at about 6 o’clock in the evening. The parties met on the north side of the street. Some words passed between them after which the shooting occurred. The defendant claimed that he shot Black in his own necessary self-defense; that Black had his hands in Ms pockets, and advanced towards him at the time he shot, called him a “son-of-a-biteh,” and threatened to kill him. Black denied that he called the defendant a “son-of-a-bitch,” but stated he called him “a dirty low-down snake,” and that he took several steps beyond the defendant; that the defendant said something to him, and that he turned about with his side to the defendant when the defendant pulled his pistol and shot him twice.

Counsel for the defendant rely on three general propositions for a reversal of this judgment: First, the alleged insufficiency of the evidence to sustain a conviction. It is a sufficient answer to this objection to say that the testimony of the prosecuting witness, supplemented by the other witnesses who testified on behalf of the state, is sufficient to support this conviction. It was for the jury to determine whether to believe the prosecuting witness and the other witnesses for the state or to believe the testimony of the defendant and the witnesses who testified for him. The theory of the defendant was that he shot in his own self-defense, that the prosecuting witness had made threats against him, and had his hands in his pockets, and acted as if he was about to shoot the defendant when the defendant fired the shots into the body of the prosecuting witness. The trial court fully covered the theory of the defendant in the instructions to the jury. In the case at bar, the prosecuting witness denies making any threats against the defendant to kill him, and specifically denies making any assault upon the defendant, and specifically denies that he gave the defendant any reason to believe by his conduct that he intended to assault the defendant. These questions were questions of fact for the jury to determine, and, having determined them adversely to the contentions of the defendant and there being evidence in the record to support the theory upon which this conviction is based, it was not error for the trial court to overrule the defendant’s motion for new trial on the ground of insufficient evidence. Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115.

The defendant for his second ground of error alleges that the court admitted incompetent, immaterial, and irrelevant evidence. Under this assignment of error defendant sets out certain excerpts from the record of the trial which he insists disclose the fact that the trial court admitted, over the objection and exceptions of the defendant, incompetent, immaterial, and irrelevant testimony. It appears from the excerpts set out by defendant in his brief that the final ruling of the trial court was in every respect favorable to the defendant and that no exceptions were reserved to the court’s ruling, but that the court instructed the jury that the evidence sought to be elicited was not competent, sustained the objection, and ruled favorably to the defendant’s contention.

It appears from the record that the defendant’s counsel, on cross-examination of the prosecuting witness, brought out the following evidence:

“Q. Why did you speak to him? A. Why did I speak to him?
“Q. Yes. A. Because I knew beyond the shadow of a doubt, while posing, as my friend, he had done me the most serious injury for one.man to do another, by breaking up my home.”

It thus clearly appears that among the first things the defendant got before the jury when the prosecuting witness was on the witness stand was the fact that the prosecuting witness believed that defendant had broken up his home. We are unable to see wherein the defendant was injured by any of the excerpts complained of bearing on the same subject which he claims was incompetent, but which finally was excluded by the trial court. Manning v. State, 7 Okla. Cr. 368, 123 Pac. 1029; Foreman v. State, 38 Okla. Cr. 50, 259 Pac. 176; White v. State, 34 Okla. Cr. 424, 246 Pac. 1114.

The third assignment of error urged by defendant is alleged misconduct on the part of the county attorney in the examination and cross-examination of certain witnesses. The improper questions complained of go principally to questions asked the defendant and his witnesses concerning the fact that the trouble between the prosecuting witness and the defendant arose over the misconduct of the defendant with the prosecuting witness’ wife and the fact that defendant had married the prosecuting witness’ wife since the shooting. The defendant had already put his character in question, and had already brought out the fact on cross-examination from the prosecuting; witness that the trouble arose over the misconduct of the defendant with the prosecuting witness’ wife. It is always competent on cross-examination to prove by a witness any fact which tends to show bias, prejudice, friendship, or enmity or of the relationship of the witness to' one of the parties to the case, for the purpose of affecting the credibility of the witness. Orr v. State, 21 Okla. Cr. 189, 205 Pac. 941; Hennessee v. State, 29 Okla. Cr. 72, 232 Pac. 856.

It is also competent to show that the defendant was guilty of a crime connected with, or leading up to the offense for which he is on trial for the purpose of showing intent, motive, or guilty knowledge. Appleby v. State, 11 Okla. Cr. 284, 146 Pac. 228; Hall v. State, 37 Okla. Cr. 4, 255 Pac. 716.

The record discloses that the cross-examination of the county attorney was directed toward matters already brought out by defendant, and, while some of the questions were incompetent and some of the evidence sought to be brought out not material to the case, there was not such misconduct of the county attorney that it would require a reversal of the case. Since in every case where the evidence was incompetent the objections of the defendant were sustained, and, whenever requested by the defendant the court instructed the jury not to consider such im: proper questions or incompetent evidence, the rights of the defendant were not prejudiced thereby.

The jury fixed the defendant’s punishment at one year and one day in the penitentiary, when under the evidence in the case they would have been justified in assessing the highest punishment permitted under the law for the crime of which the defendant was found guilty. The defendant had a fair trial, and the evidence is sufficient to support the verdict of the jury.

For the reasons stated, the cause is affirmed.

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


text:
    WALTER BRUCE v. STATE.
    No. A-7155.
    Opinion Filed March 15, 1930.
    (287 Pac. 1113.)
    Ray & Thomas, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the district court of Comanche county on a charge of grand larceny, and was sentenced to serve a term of six months in the state penitentiary at Granite, Okla.

The judgment was rendered in February, 1928, and the appeal was lodged in this court in August, 1928. No briefs in support of the appeal have been filed and no oral argument was made. The appeal is by transcript. An examination of the record discloses no material error.

The case is affirmed.


text:
    Ex parte ED GLASS.
    No. A-7163.
    Opinion Filed March 15, 1930.
    (287 Pac. 802.)
    Moman Pruiett, for petitioner.
    The Attorney General, for the State.
   CHAPPELL, J.

Ed Glass, hereinafter called the petitioner, filed his petition in this court for a writ of habeas corpus alleging that he was illegally restrained of his liberty by the sheriff of Creek county, Okla.

Since the filing of the petition, the defendant has been convicted of murder and sentenced to life imprisonment in the state penitentiary, and his appeal from such conviction is now pending in this court. For the reasons stated, the cause has become moot, and the petition is dismissed.

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


text:
    Ex parte LLOYD HOLLINGSWORTH.
    No. A-7662.
    Opinion Filed March 15, 1930.
    (287 Pac. 840.)
    Corn & Corn, B. Harrison Wohl, and I. H. Lookabaugh, for petitioner.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. ■Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus; the petitioner alleges that he is illegally restrained of his liberty in the jail of Dewey county by the sheriff. That such restraint is by virtue of a judgment and sentence of the district court of said county in a prosecution on a charge of murder wherein petitioner was convicted of manslaughter in the first degree and was sentenced to serve a term of eighteen years in the state penitentiary. That the court was without jurisdiction to render judgment in said case, for the reason that after the impaneling, of the jury for the trial of petitioner, and after the state had introduced its testimony, one Of the twelve jurors impaneled was excused and eleven jurors returned the verdict against petitioner. That petitioner could not waive his constitutional right and be tried by less than twelve jurors.

There is no controversy as to the facts. It was agreed in open court that petitioner was regularly informed against, that a jury was duly impaneled, and the state introduced its testimony; then, on account of the sudden serious illness in the family of one of the jurors, it was stipulated and agreed in open court by the county attorney and the defendant and his counsel that the juror should be excused and the trial should proceed with eleven jurors, which later returned a verdict finding defendant guilty and assessing his punishment at eighteen years in the penitentiary, and judgment was rendered by the court accordingly. It is but fair to say that the counsel who represented defendant at the trial and joined in the stipulation has not presented the question, but other counsel were employed and have raised the point, as stated.

Article 2, § 19, state Constitution, provides in part:

“The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of. twelve men; * *. * in criminal cases less than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. * * * ”

Article 2, § 20, state Constitution, in part provides:

• “In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed. * * *”

This provision in the Bill of Rights confers a privilege and' right on the defendant. It does not force him to have a jury trial.

Article 7, § 20, state Constitution, provides:

“In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury.”

Petitioner contends that the discharge of the juror and the trial with less than twelve jurors is not an irregularity but a defect affecting the jurisdiction of the court which may be inquired into and relief awarded on habeas corpus. The state contends that the defendant could waive the constitutional provision for a trial by twelve jurors, and that the verdict and judgment is valid, but say, if the court should hold otherwise, it is at most no more than an error not affecting the jurisdiction and which cannot be raised by habeas corpus.

There is a conflict in the decisions on the question of the right of a defendant in a criminal case to consent to a trial by a jury of less than twelve. Some of the states affirm the right to waive while others deny it. Some affirm the right in misdemeanor cases, but deny it in felony cases. 16 R. C. L. page 222, § 38; 35 C. J. page 198, § 105f. In this state it was undoubtedly the intention of the framers of the Constitution, as expressed in article 7, § 20, to permit the state and the defendant, where both agreed, to waive altogether the right to a trial by jury in criminal cases.

Under the usual rule a right, or privilege conferred ■by a statute or the Constitution may be waived. Harrold v. Territory, 18 Okla. 395, 89 Pac. 202, 10 L. R. A. (N. S.) 604, 11 Ann. Cas. 818; Stack v. State, 4 Okla. Cr. 1, 109 Pac. 126; Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003; State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091; Davis v. State, 35 Okla. Cr. 156, 249 Pac. 164; Radney v. State, 36 Okla. Cr. 240, 253 Pac. 914; Ex parte King, 42 Okla. Cr. 46, 274 Pac. 682, and authorities therein cited.

It appears to us that good sense and sound reason leads to the conclusion that, if an accused on trial may waive a jury altogether, or may waive other statutory and. constitutional rights, he may waive the right to have a jury of twelve pass upon the question of his guilt or innocence and agree and stipulate that one of the jurors may be dispensed with. He had the right when the circumstance arose which called for the excuse of the juror to require a full panel of twelve. This would have required the discharge of the jury as then constituted and the impaneling of a new jury. The state also might have required the full panel. There may have been circumstances in the trial at the time which led defendant to desire to meet the case made by the state rather than to have a new jury impaneled and permit the state to again offer its evidence. He might consider it to be greatly to his benefit to waive the full panel. Should he be denied that privilege? Does the due administration of the law restrain his liberty or right to choose the course believed •by him to be for his interest? We think not. We are aware, of course, that it may be argued that, if one juror may be dispensed with, so may any number be dispensed with. But in this connection it may be pointed out that the right to dispense with one or more jurors does not rest with the accused alone, but consent must also be given by the state and the court. We cannot anticipate that the state and the court would consent to a reduction of the panel to an unreasonable extent. In re Staff, 63 Wis. 285, 23 N. W. 587, 53 Am. Rep. 285; State v. Kaufman, 51 Iowa, 578, 2 N. W. 275, 33 Am. Rep. 148; Com. v. Dailey et al., 12 Cush. (Mass.) 80; Cowden v. State, 5 Okla. Cr. 71, 113 Pac. 202; Ex parte King, supra.

For the reasons assigned, we are of the opinion that the verdict and judgment are not void.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    Ex parte JESS L. MAYNARD.
    No. A-7750.
    Opinion Filed March 15, 1930.
    (287 Pac. 1117.)
    W. B. Wall, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus to be let to bail, presented upon the petition and a transcript of the testimony taken in the preliminary. The Attorney General of the state concedes that petitioner is entitled to bail, and the county attorney has filed a written stipulation agreeing that the amount of bail may be $5,000. The petitioner is admitted to bail, and the same is fixed in the sum of $5,000; sureties to be approved by the court clerk of Sequoyah county.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JAMES ODEM v. STATE.
    No. A-7279.
    Opinion Filed March 29, 1930.
    (287 Pac. 1118.)

      J. W. Osmond, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of having unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

Judgment was rendered in December, 1928, and the appeal was lodged in this court in February, 1929. No briefs in support of the appeal have been filed. An examination of the record discloses no material error. .

The case is affirmed.


author: PFR CURIAM.

text:
    BILL BYERS v. STATE.
    No. A-7158.
    Opinion Filed March 15, 1930.
    (287 Pac. 1075.)
    Dan W. Weldon, for plaintiff in error.
    The Attorney General, for the State.
   PFR CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having unlawful possession of three half-pints of whisky, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of thirty days.

The evidence of the state was that two deputy sheriffs searched the pool hall of the defendant under a search warrant and found three one-half pints of whisky. The state introduced no other proof to show the intent of the defendant. The possession of three one-half pints of whisky by the defendant was not sufficient evidence to make a prima facie case. The proof must either show possession in excess of one quart or there must be other competent testimony showing the intent of the defendant to violate the Prohibitory Liquor Law (Comp. St. 1921, §§ 6982-7039, as amended) through such possession.

The evidence being insufficient to support the verdict of the jury, the cause is reversed.


author: DAVENPOBT, J.

text:
    W. A. KUHN v. STATE.
    No. A-7143.
    Opinion Filed March 15, 1930.
    (287 Pac. 1086.)
    John L. Morris and J. A. Shirley, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter referred to as the defendant, was with O. L. Whittenburg jointly charged by information with the crime of burglary in the second degree, was tried separately and convicted,, and his punishment fixed at imprisonment in the state penitentiary for a period of two years, and the case appealed to this court.

The case-made, with petition in error attached, was filed in this court August 15,1928. No‘ brief has been filed on behalf of the defendant. The case was regularly assigned for hearing and no one appeared to argue the case, and the same was submitted on record.

Under the rules of this court, where an appeal is not supported by brief and no counsel appears for the plaintiff in error, it is assumed that the appeal is without merit.

The record has been carefully examined, and we find the information sufficiently charges the crime of burglary in the second degree; that the evidence is sufficient to support the charge. The instructions of the court were fair to the defendant. There are no errors in the record of sufficient merit to justify the court in reversing this case.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    GRADY PUCKETT v. STATE.
    No. A-7065.
    Opinion Filed March 15, 1930.
    (287 Pac. 1075.)

      . I. C. Sprague, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the district court of McCurtain county on a charge of uttering a forged instrument, and was sentenced to serve a term of three years in the state penitentiary.

The case was tried in December, 1927, and the appeal was lodged in this court in June, 1928. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record and find that the evidence reasonably sustains the verdict and judgment, and. no jurisdictional nor fundamental error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    VIRGIL MORTON v. STATE.
    No. A-7142.
    Opinion Filed March 15, 1930.
    (287 Pac. 1087.)

      John T. Morris and J. A. Shirley, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of burglary in the second degree, and his punishment fixed at a term of three years in the state penitentiary, from which judgment the defendant has appealed to this court.

Virgil Cochran, an accomplice, with Virgil Morton and Clifford Morton, defendants, testified they went to the store of Mr. Allen, at Wade, at night, broke the window lights, and he and the defendant entered the store and carried out certain goods from the store, and the defendant Clifford Morton watched on the outside. This burglary was alleged to have taken place on the night of October 4, 1927. Cleo Robinson, a brother-in-law of the defendant, testified that he bought a pair of overalls from the defendant, and the proof shows they were the same brand of overalls taken from the Allen store. W. E. Dodson, testified as a finger print expert that he photographed the finger prints on the glass that was broken out of the window and then photographed the defendant’s finger prints, and that in his opinion they corresponded. R. R. Voyles, the undersheriff, testified he received a telephone call from some one at Oklaunion, Tex., who told him his name was Virgil Morton; that the party told him he knew who had broken into the store. C. L. Shoemaker testified that when the defendant was arrested he had on a pair of overalls of the description of those stolen from the Allen store.

The defendant testified and denied any knowledge of the robbery, and states that his brother Clifford Morton gave him the two pairs of overalls; that he had one pair and had sold the other to his brother-in-law Cleo Robinson. Clifford Morton testified for the defendant, and stated that he and Virgil Cochran were the only ones that had anything to do with the robbery of the Allen store; that his brother Virgil Morton had nothing whatever to do with it, and did not know the store was going to be robbed.

The defendant has assigned as errors, first, that the court erred in overruling his motion for a new trial; second, that there is no corroboration of the accomplice Virgil Cochran; third, that the court erred in permitting the. testimony of Bill Dodson as an expert in finger prints. These assignments will be considered together, as the only question argued by the defendant in his brief is the question of the corroboration of the accomplice’s testimony.

It is urged by the defendant that he is not guilty of the offense charged, and that Virgil Cochran, according to his own testimony is an accomplice, and that there is no testimony in the record substantially corroborating the testimony of the accomplice Cochran, and that the court erred in permitting the jury to pass upon the guilt or innocence of the defendant, citing, in support of his contention, Flynn v. State, 10 Okla. Cr. 41, 133 Pac. 1133, and Wever v. State, 22 Okla. Cr. 414, 211 Pac. 1062.

Section 2701, C. O. S. 1921, is as follows:

“A conviction cannot be had npon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

In Hollingshead v. State, 21 Okla. Cr. 306, 207 Pac. 104, 105, in the fourth paragraph of the syllabus, the court said:

“The testimony of an accomplice, to sustain a conviction, need not be corroborated in every particular in detail. The rule is that the testimony of an accomplice must be corroborated by such other evidence of material parts of his testimony as will tend to connect the defendant with the commission of the offense.”

In Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507, 508, in the fourth paragraph of the syllabus, the court said:

“Conviction can be reversed as not supported by evidence only if no substantial evidence tends to show guilt, or evidence is so insufficient that jury must have acted from pártiality, passion, or prejudice.”

In Patterson v. State, 42 Okla. Cr. 255, 275 Pac. 387, in the first paragraph of the syllabus, the court said:

“Corroboration of an accomplice’s testimony does not mean separate and complete proof of a crime but only that there should be some evidence of material facts in addition to the testimony of the accomplice tending to counect defendant with the commission of the crime charged.”

We hold that in the record in this case there is ample corroboration of the testimony of the accomplice Virgil Cochran..

The judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    ED COLE v. STATE.
    No. A-7127.
    Opinion Filed March 15, 1930.
    (287 Pac. 782.)

      Wilkinson & Hudson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county of the crime of manslaughter in the first degree and sentenced to serve a term of eight years’ imprisonment in the state penitentiary. It is from this judgment and conviction that he appeals.

The evidence of the state shows that Cliff Ward, the deceased, together with Joe Kinnikin and Jess Franks, had gone to the home of defendant on the Sunday evening of the homicide for the purpose of driving some hogs belonging to defendant, from his home to the town of Hartshorne; that Kinnikin and his partner, John Shaw, had arranged to buy these hogs from defendant on the Friday previous; that these parties arrived at defendant’s home about sundown on Sunday evening; that defendant and Joe McMurtrey had been drinking heavily, and when these parties arrived at defendant’s house, defendant was asleep on the porch; that later the parties all had supper at defendant’s house; and that defendant passed the whisky and all the parties took a drink or two. After supper, desiring more liquor, the parties went to Haileyville, and there defendant and McMurtrey bought some more whisky. That they stayed at Haileyville for several hours and drank some beer and whisky and started home in defendant’s automobile with two or three bottles of whisky. On the way home they stopped several times to take a drink. When the car reached a point three or four miles distant from defendant’s home, the defendant thought he saw a man hiding behind some trees or bushes, and remarked, “That is one of those damn Balea” (Bales being the name of the man the defendant had killed and for which killing he was then on bail.) Defendant then pulled out his pistol and threatened to shoot at this object which he thought was a man, when Kinnikin took the gun away from defendant. Defendant remarked that that was a damn good gun and asked Kinnikin to shoot it, which Kinnikin did, four or five times. The defendant then gave Kinnikin some more shells and he reloaded the gun.

Before the parties reached defendant’s house, an accident occurred in which the automobile ran into a ditch along the side of the road and threw the defendant into the windshield of the car and . scratched him up considerably. This accident seemed to anger the defendant, and some cross words were passed by defendant to Kinnikin. The car was then pushed up into the road, when it was discovered that the steering apparatus was bent or broken and that the car could not be guided. The parties then started to defendant’s house, which was about three-fourths of a mile from where this accident occurred. They walked together about one-half this distance, and then stopped again by the side of the road presumably to take a drink, and defendant started on towards his house. Defendant was very drunk and had to be supported in order to navigate. The deceased proceeded to take the defendant home from the point where they last stopped, the other parties remaining there.

When deceased and defendant had time to get about to defendant’s house, several shots were heard, apparently from a Winchester or other large gun. Kinnikin ran up toward defendant’s house and called for Ward. He received no answer until he got a little beyond defendant’s house, when Ward yelled to him, “Here I am.” By this time Franks had also reached the place and they both helped deceased down the road. After these parties started back down the road, the defendant took several shots at them with his Winchester, but none of them hit the parties. Deceased was weak and bleeding profusely from a wound in his leg which had severed an artery. While Kinnikin and Franks were carrying deceased down the road, he told them that as soon as they got to the house defendant went into the house, got his Winchester, and came out immediately and shot at him without any provocation whatever; that he started to run away, and defendant continued to shoot at him; and that he shot him in the back of the leg while he was running away. Deceased bled to death from this wound within twenty or thirty minutes.

The defense interposed was self-defense, the defendant claiming that Ward had shot two shots at him from a pistol before he took any shots at him with the Winchester. Deceased was shot twice, once in each leg, the bullets entering the side of one leg and the rear of the other.

The court instructed fully on the law of self-defense, and not an exception was taken to any instruction given by the court. The instructions given are a model set and fully cover the law of the case.

It is first contended that the trial court erred in overruling the defendant’s motion for a continuance. Under this proposition counsel for defendant have grouped the first, second, and third assignments of error contained in their petition in error. When the case was called for trial defendant was not present, and his counsel presented to the court a certificate of a physician to the effect-that the defendant and his wife were both sick and unable to attend the trial and asking that the cause be continued on that account. The court appointed two physicians to go and examine the defendant and his wife and report back to the court, which they did. Being sworn, both physicians testified that they had made a physical examination of the defendant and his wife, and that they were both physically able to attend court, and that they would not suffér any serious results from attendance on court at that time. After hearing this testimony and considering the certificate, the court overruled the application for continuance on this ground. Defendant and his wife were both present and testified at the trial. This court has held that the granting of a continuance on account of the illness of the defendant is in the sound discretion of the trial court, and the cause will not be reversed unless there appears to have been an abuse of this discretion. Harrison v. State, 29 Okla. Cr. 394, 234 Pac. 221; Nix v. State, 20 Okla. Cr. 373, 202 Pac. 1042, 26 A. L. R. 1053.

After the denial of the continuance on the ground of the alleged sickness of the defendant and his wife, counsel interposed an application for a continuance on account of the absence of certain witnesses, among whom was one Hattie Webb, who did not appear at the trial and who was alleged to be a material witness for the defendant. This motion was overruled, and excepted to by the defendant. An examination of the record discloses that no diligence was shown to procure the attendance of this witness. The preliminary examination was held on the 14th day of October, 1927. The information was filed in the district court on the 18th day of October, 1927. Defendant was arraigned on the 16th day of January, 1928, and a list of witnesses to be used by the state served on him. The defendant therefore had from October 14, 1927, to February 1, 1928, to keep in touch with his witnesses and arrange to have them present at his trial.

The application for continuance does not show any likelihood that the defendant could have the witness present at the next term of court, and that of itself would be sufficient reason for denying the continuance and relieving the action of the court of being an abuse of discretion. Collins v. State, 15 Okla. Cr. 96, 175 Pac. 124.

The evidence of the witness Hattie Webb would have been cumulative of the testimony of the other witnesses who were present and testified in the trial of the case. It is not error to refuse to grant a continuance where the evidence of the absent witness is only cumulative. Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308; Petty v. State, 11 Okla. Cr. 646, 150 Pac. 91.

After the second application for a continuance was denied and the jury called to the box for the trial of the case, the defendant dictated into the record a motion to postpone the case on account of a certain news article purporting to recite the facts of the case which had appeared in one of the McAlester newspapers on the night before. There was nothing in the motion to establish that any prospective juror had read the article or had been in any manner biased or prejudiced against the defendant because of such article. In passing, on this motion the court said; “In examining the jury, if any of them- read this article and if they were influenced by it in any respect we will excuse them from the jury, probably it wasn’t read by them, I don’t know. Motion overruled, exceptions saved by the defendant to the ruling of the court.”

The reason assigned in this motion constitutes no statutory ground for a continuance. There is nothing in the record to show that the defendant was prevented from procuring a fair and impartial jury by reason of the fact that the McAlester paper published this article on the day before the trial commenced.

There is no merit in any of the grounds urged for a reversal of this judgment by reason of the action of the court in denying a continuance or postponement of the trial on any of the grounds presented.

It is next contended that the county attorney erred in stating in his opening statement of the case that the defendant had killed a man by the name of Bales and was under bond for said killing at the time of this killing. The county attorney in his opening statement was detailing what the evidence would be of the facts leading up to the killing, and said in substance that prior to the killing the defendant had drawn a revolver, and having it in his hand was threatening to shoot at what he thought was a man near a tree or some bushes, and said that he was a bad man and had already killed one man, and that Kinnikin took the gun away from defendant at that time. Further on in the statement, the county attorney said that when the defendant surrendered to the deputy sheriff he told him that Kinnikin had taken his gun away from him and told him, “You think you are a bad man,” and talked to him about his former trouble in killing Jim Bales. The statement made by the defendant prior to the killing and at the beginning of the trouble was part of the res gestae, and as such was clearly admissible. The defendant took the witness stand and testified to practically that same state of facts in explanation of his trouble with the deceased and his associates.

The court on its own motion instructed the jury that the defendant was presumed to be innocent of the crime of killing Bales if he did kill him, and that the jury was not to consider that evidence for any purpose as tending to establish the guilt of defendant of the crime in the case at bar. The statement being part of the res gestae, and the defendant having testified substantially to the same state of facts, and the court having fully protected the defendant in the instructions, the assignment presents no ground of error requiring a reversal of this case.

It is next contended that the trial court erred in permitting the witnesses Joe Kinnikin and Jess Franks to testify as to statements made by the deceased, Cliff Ward, during the shooting and at a time when the defendant was not present, without showing that the same were the dying declarations of the deceased.

The evidence shows that deceased was shot through the leg and an artery severed just before Kinnikin and Franks got to him, but had crawled through a wire fence quite a distance from the premises of the defendant and out into the public road. There was a streak of blood for over one hundred feet back from where the deceased was found on the defendant’s premises. When Kinnikin got to the deceased, he was unable to walk and stated that he could not go. Then Kinnikin and Franks got hold of him and propped him up and carried and dragged him several hundred feet to the spot where he died. It was during this trip from where they first found him to the place where he died that he made the statement, “I just helped him up to the house and he just got his gun and started to shooting me.” It appears from the record that during the time that Kinnikin and Franks were carrying the deceased, and during the time that he was making this statement, the defendant was continuing to shoot at the deceased, Kinnikin, and Franks. This evidence was clearly admissible as part of the res gestae. Morehead v. State, 12 Okla. Cr. 63, 151 Pac. 1183, Ann. Cas. 1918C, 416; Harper v. State, 20 Okla. Cr. 48, 200 Pac. 879; Looper v. State, 42 Okla. Cr. 341, 276 Pac. 593.

It is next contended that the court erred in permitting the witness Frank Higgenbothen, who was called by the state to impeach the witness Kelly for the defendant, to go into details and tell that the witness Kelly claimed to have been robbed and caused the arrest of another man for robbery, and then afterwards admitted that he had lied about being robbed and had only told such a story for the purpose of protecting himself in a transaction in which he had gambled away certain money that belonged to the witness Higgenbothen. The state only asked the witness Higgenbothen as to the general reputation of the witness Kelly for truth and veracity, and Higgenbothen testified that he was acquainted with such reputation and that the same was bad. Thereupon counsel for defendant asked the witness if he had not had some trouble with Kelly over a business deal, to which the witness replied that he had. On redirect examination the state asked the witness to explain this trouble that he had had, and the court permitted him to say that the witness Kelly had embezzled some money belonging to Higgenbothen and reported that he had been robbed and afterwards admitted that he had lied and that he had done this to cover up his embezzlement. Since counsel for defendant opened up the question of trouble between the witness and Kelly, it was clearly competent for the state to inquire into the cause of this trouble that the jury might have all the facts.

The defendant next contends that the trial court erred in permitting the sheriff to testify to the purported statement made by the defendant immediately after the arrest and in also permitting the county attorney to read the unsigned statement and in permitting the county attorney to introduce the unsigned statement in evidence. The record does not support this assignment of error. The court permitted the sheriff to refresh his recollection from this purported statement after he had testified that he wasi present when said statement was made and that the statement from which he was then refreshing his recollection was the correct statement of what the defendant had said at that time. The sheriff then testified under oath as to what the defendant had stated to him and the county attorney on the evening after the shooting, but the statement itself was not read to the jury or offered in evidence by the state.

The defendant next contends that the court erred in refusing to give requested instructions numbered 4 and 5. These instructions were properly refused, because there is no evidence in the record to support the theory upon which said instructions were based. Where the instructions given fully cover the law of the case and are as favorable to the defense as the evidence Avould Avarrant, it is not error to ■refuse to give requested instructions, although such requested instructions may embody a correct statement of the law. Preston v. State, 10 Okla. Cr. 514, 139 Pac. 528; Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621; Welch v. State, 16 Okla. Cr. 513, 185 Pac. 119; White v. State, 42 Okla. Cr. 50, 275 Pac. 1067.

After having fully considered all the alleged errors relied upon for a reversal of this judgment, we are of the opinion that none of such errors are of the character that require a reversal of a case. The defendant appears to have had a fair trial; the evidence sustains the verdict of the jury. For the reasons stated the cause is affirmed.

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


text:
    ARCHIE F. WHITE v. STATE.
    No. A-7161.
    Opinion Filed March 15, 1930.
    (287 Pac. 774.)
    Tom W. Cheatwood, for plaintiff in error.
    J. Berry King, Attv. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cleveland county on a charge of grand larceny and sentenced to serve a term of six months’ imprisonment in the state penitentiary. He appeals from this conviction.

This case presents hut one question, the sufficiency of the evidence to support the verdict of the jury. The prosecuting witness testified as follows:

“Q. I will ask you to state whether or not you had any money on or about your person at that time? A. Yes, sir.
“Q. How much money? A. Well, sir, I don’t know just the amount, hut I had a ten, five, two ones and some silver that I had taken off the yard there and a Mexican dollar.
“Approximately how much money did you have? A. Somewheres about twenty or twenty-two, something like that.
“Q. Over twenty dollars? A. Yes, sir.
“Q. Now give us something definite about how much money you had on your person, if you know? A. Well I know just about how much.
“Q. State how much that was. A. Well, with that Mexican, made about twenty-two dollars.”

Cross-examination:

“Q. Now you say you don’t know how much money you lost at the time this money was taken? A. Not right to the dot. I know right at it.
“Q. Well how much no w ivas taken and tell what kind of money it ivas. A. Well I had a five, a ten, two ones in greenbacks.
“Q. Two ones? A. Yes, sir; and then I had some amount of silver.
“Q. You don’t know how much silver you had outside of that? A. Well counting that Mexican dollar, with that I had about twenty-two dollars.
“Q. State whether or not you lost any money that morning? A. Yes, sir.
“Q. Money disappeared? A. Yes, sir.
“Q. Did you give any one consent to take it? A. No, sir.
“Q. Did anyone take it with your knowledge or consent? A. No, sir.
“Q. Do you know who took that money? A. Yes, sir.
“Q. Who? A. Mr. Charley White.”

. This evidence of the prosecuting witness that defendant took more than $20 from him was sufficient, if believed by the jury, to sustain a conviction for grand larceny.

Defendant in his brief says:

“In this case we do not insist that this case should be reversed at all hazards, but do insist that the same be either reversed if our claimed error of the trial court so warrants, and if not, that the same be at least modified and affirmed, thereby meting out punishment commensurate with the crime really committed.”

The jury evidently took into consideration the dispute as to the amount of money taken and ¿ave the defendant the benefit of the doubt, since they only fixed his punishment at six months in the penitentiary when they might have given him five years. A careful examination of the record reveals no error sufficient to require a reversal of the case.

The cause is therefore affirmed.

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


text:
    SUM HUFFMAN v. STATE.
    No. A-7145.
    Opinion Filed March 15, 1930.
    (287 Pac. 1090.)
    R. C. Roland, for plaintiff in error.

      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Marshall county of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for a term of seven years.

The record discloses that at the time charged defendant shot and killed Louis Wells. The deceased had been calling on a daughter of defendant to which defendant objected, although there had been no hostilities and there was some evidence that defendant in a measure had ceased his objections. At the time of the homicide, deceased and another young man went to the home of defendant and was invited in by a son. They went in where the daughter was and showed her some pictures they had taken some time before and were engaged in a conversation.

The evidence of the state is, when the young men came on the porch, that defendant spoke to them and then went into the house. Defendant came in with a shotgun in his hand, and without saying anything shot the deceased in the head, killing him instantly. Deceased at the time was sitting in a chair, rolling a cigarette. Defendant then struck the other young man with the gun.

The defendant testified:

“* * * Q. Did you have any objections to this young man writing to your daughter? A. I did not know he was writing until he advanced them letters. * * *
“Q. After you found out he was writing to her, did you have any objection to that correspondence continuing? A. Yes, sir; I told him to stay away and he gave me those letters after I told him.
“Q. Tell us what you got sore at Mr. Wells about. A. He told me he was coming there or die.
“Q. That was the reason you got angry? A. Yes, sir, I had been catching him two or three weeks—he did not say anything out of the way.
“Q. You said you had caught him and had not said anything out of the way? A. No, I was with them.
“Q. Number of. times when your daughter would go anywhere you and your wife would go also? A. Yes.
“Q. Mr. Huffman, at the time you fired that shot you knew what you were doing? You recognized Mr. Wells sitting in the chair? A. Yes, sir, it was self-defense.
“Q. You knew you had that gun in your hand? A. Yes.
“Q. You knew that gun was loaded? A. .Yes.
“Q. You recall and knew that you shot at Mr. Wells? A. Yes, sir.
“Q. And you were in your right mind at that time? A. I suppose I was.
“Q. Did you knoAv AArhere you hit Mr. Wells? A. In the side of the head kinda.
“Q. Is that Avhere you aimed at, his head? A. Yes, I shot at his head—He was laying in the chair. * * *
“Q. You said that Wells told you he Avas coming to see your daughter if it cost his life—that the reason you shot him? A. I shot him because he kept trespassing on me.
“Q. And you shot him because he did not stay away from your home? A. Yes. * * *
“Q. Mr. Huffman, why did you want to kill Mr. Tigue (meaning Mr. Wells)? A. Because I forbid them and they stayed together all the time.
“Q. And that is the reason you killed him? A. Yes. * #

The evidence makes out a case of murder. It discloses that defendant shot and killed the deceased for no reason other than that he was calling on his daughter against his wishes.

Defendant argues that the court committed prejudicial error, in that at the time the defendant was arraigned the information was not read to him, and that the plea of not guilty was entered for him by his attorney instead of by the defendant in person. This contention is wholly untenable. The record discloses that defendant announced ready for trial, and even if the manner of taking the plea was irregular, it was waived by such announcement. Ray v. State, 40 Okla. Cr. 413, 269 Pac. 509.

Some other matters are set out in the brief, but none of them have any merit.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ,, concur.