text:
    WILLIAM NELSON v. STATE.
    No. A-2667.
    Opinion Filed November 12, 1917.
    (162 Pac. 460.)
    1. APPEAL AND ERROR — Question of Fact. It is the province of the jury to determine questions of fact and decide between conflicting inferences, and the duty of this court to interfere arises only when it can see that the verdict is contrary to the evidence or appears to have been influenced by passion or prejudice.
    2. SAME — Harmless Error — Instruction. Instruction as to the statutory rule of prima facie evidence examined, and held to be erroneous. .
    3. TRIAL — Argument. During the closing argument private counsel for the state commented on matters outside the record and outside the proof calculated to prejudice the defendant. Held, that the court erred in overruling objections and in refusing to instruct the jury not to consider the same.

      Appeal from, County Court, Beaver County; John Spohn, Judge.

    William Nelson was convicted of a violation of the prohibitory law, and he appeals.
    Reversed.

      Loofbourrow & Rizley, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted, and in pursuance of the verdict, sentenced to be confined in the county jail for 30 days and to pay a fine of $50. The information charged that William Nelson did knowingly, willfully, and unlawfully convey and transfer certain intoxicating liquors, to wit, about 20 pints of whisky, from a point unknown to another point in Beaver county, i. e., the fairgrounds, adjoining the town of Beaver on the south.

The evidence for the state was substantially as follows: Sheriff Jones testified that about 10 o’clock p. m., he saw defendant Nelson, John Frederick, Shell Little, and a man named Watkins, also called “Rock Island Slim,” in a Ford car at the fairgrounds; that he stopped the car and found between the back and front seats a box containing whisky, and he arrested Nelson, Little, and Watkins; that Deputy Sheriffs Shockley and Murray were with him; that Watkins and Frederick were in the back seat. He produced the box with seven or eight pints of whisky, and said several other pints were broken; that he did not know how long the whisky had been in the car, or whose whisky it was; that defendant Nelson owned the car and was driving it at the time; that Nelson was not in the car when he first saw it.

To the same effect is the testimony of Deputy Sheriffs Shockley and Murray.

John Frederick testified: That he first saw defendant Nelson at the fairgrounds, and he asked him when he was going back to town. Nelson said, “Right away.” That he got into the car and saw the box of liquor, and put his feet on the box. That Nelson got out, and was gone ten or 20 minutes and came back with Shell Little. That Watkins was standing1 near the car, and Nelson said, “Get in and ride to town.” When they started Sheriff Jones stopped the car and searched it.

For the defense Sanford Taylor testified that he lived two and one-half miles north of Floris; that he, Watkins, and Clinkenbeard started from his place about 1 o’clock p. m., in Nelson’s Ford car, and came to Forgan, arriving there about 4 o’clock, and from there Mrs. Lansden rode with them to Beaver; that the box of liquor was not in the car at any time during the trip; that he, with Mrs. Lans-den, stopped at the White House Hotel for supper, and after supper Nelson took them to the fairgrounds; that the box of liquor was not in the car when they went to the fairgrounds.

Earl Clinkenbeard testified that he was in the threshing business, and came with the party from Taylor’s place to Forgan, and from Forgan to Beaver, where they all left the car, and later Mrs. Lansden and Taylor went to the fairgrounds in Nelson’s car; that it was then dark; that witness later walked out to the fairgrounds.

Mrs. C. Lansden testified that, with her sister, she conducts a bakery business at Forgan; that she was in the back seat, and, after eating supper at the White House Hotel at Beaver, Mr. Nelson took her and Mr. Taylor to the fairgrounds iñ his car; that there was no such package as the liquor box in the car.

Shell Little testified: That hé lived near Beaver, and went from town in Nelson’s car, with his brother and Floyd Layden. It was after dark. On the way a fellow stopped and asked where they were going, and Nelson said, “To the fair; get in;” and this fellow picked up a box and put it in the back end of the car, and got in and rode with them. That he walked around with Nelson at the fair, and when they returned to the car Watkins and John Frederick were in it. That John Frederick was the man who put the box in the car.

Floyd Layden testified that he rode with Shell and Jack Little and some other fellow out to the fairgrounds in Nelson’s car, and on the way out a fellow stopped them and put a box in the car and rode to the fairgrounds on .the running board; that it was John Frederick that put the package in the car.

Vic Hall testified: That he was a farmer living three miles from Beaver; had lived there eight years; knew defendant Nelson; rode with him from the White House Hotel to the fairgrounds with Shell and Jack Little and another .fellow in the car. On the way a fellow stopped the car and put a box “similar to the one here” in the car. Nobody asked him anything about it.

William Nelson, as a witness in his own behalf, testified that he had lived in the vicinity of Floris about 11 years, and that year had 200 acres of row crop, and with his partner had 350 acres of wheat; that on the day in question he drove, with Taylor, Watkins, and Clinken-beard, to Forgan, and from there Mrs. Lansden rode with them to Beaver; all got out at the White House Hotel, and he went up town; went back to the hotel and took Taylor and Mrs. Lansden to the fairgrounds, and then came back for supper to the White House Hotel; then Shell Little, Floyd and Jack Layden, and another man got in the car to go to the fairgrounds; on the way a party stopped them and wanted to ride; that he did not pay any attention to the man, and did not know that he had put anything in the car, and did not know that the man was going to put the box in the car, and knew nothing about the contents of the box until after he was arrested.

Of the various errors assigned, we deem it only necessary to consider two or three.

First, it is contended that the evidence is insufficient to support the verdict. After a careful consideration of the evidence in the case, we are not prepared to say that the jury were not warranted in finding the verdict returned by them. The credibility of the witnesses and the weight to be given to their testimony was a question solely for the jury’s determination,' and, to' reverse a judgment <on the ground that the verdict is contrary to law and to the •evidence, this court must find as a matter of law that the •evidence’ is insufficient to warrant a conviction.

Objection was made and exception taken and allowed to the giving of instruction No. 8, which reads as follows:

“You are further instructed that ‘the keeping in excess of one quart of any spirituous, vinous, fermented, or malt liquors, or any imitation thereof, or substitute therefor, in any liquors or compounds of any kind or description whatever, whether medicated or not, which contains as much as one-half'of one per centum of alcohol meas-used by volume and which is capable of being used as a beverage, except preparations' compounded by any licensed pharmacist, the sale of which would not subject him to the payment- of the special1 tax required by the law's of the United States, or in any manner permitting any other person to have or keep any such liquors in or about his place of business, or any place of amusement or recreation, or any public resort, or any clubroom, shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors.’ ”

As a general rule, instructions as to the statutory rule of prima facie proof are only applicable where the charge is unlawful possession with intent to violate provisions of the prohibitory law. The giving of this instruction constitutes error, because the court failed to define the term, “prima facie evidence.” See Wilson v. State, 11 Okla. Cr. 510, 148 Pac. 823. As a general rule, it is the duty of the court to define all technical terms of the law used by it in such a way as to give a correct idea of the meaning1 of those words to persons unlearned in the law.

One of the grounds of the motion for a new trial and upon which error is assigned is:

“The court erred in overruling objections of the defendant and in not instructing the jury not to consider the statements of counsel for the state in his closing argument, wherein he stated: ‘Now counsel for the defendant argue that John Frederick was the owner of this whisky and placed it in Bill Nelson’s car; that proposition is preposterous, because part of this jury knows that only yesterday John Frederick was acquitted by a jury in this court of the identical charge with which Bill Nelson is now being tried.’ ”

It appears from the record that at the time this statement was made counsel for the defendant objected for the reason that the same is highly prejudicial to the rights of this defendant, and asked the court to direct the jury not to consider said statements and argument. Which objection was by the court overruled and exception allowed. These statements were not warranted by the evidence, and were plainly calculated to prejudice the defendant. The fact that a jury had failed to convict the state’s witness John Frederick of the identical charge was not in evidence, and for this reason it was the duty of the court to sustain the objection made and direct the jury not to consider such improper remarks.

We do not deem it necessary to discuss other questions raised. For the reasons stated, the judgment is reversed.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    WILL FISHER v. STATE.
    No. A-2851.
    Opinion Filed November 19, 1917.
    (168 Pac. 666.)
    ABATEMENT OF PROSECUTION — Death of Accused. Ia a criminal prosecution, the purpose of the proceeding ‘being to punish the defendant in person, the action must- necessarily abate upon hi* death; and, where it is made to appear to the court that a plaintiff in error has died, pending the determination of his appeal, the cause will be abated.

      Appeal from District Court, Choctaw County; C. E. Dudley, Judge.

    Will Fisher was convicted of murder, and he appeals.
    Prosecution abated.

      Cunningham & Hunter, Richardson & Warren, and P. J. Hurley, for plaintiff in error.

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

The plaintiff in error, Will Fisher, and George Jones were jointly informed against for the murder of one Silian Fisher, alleged to have been committed in Choctaw county on or about the 8th day of November, 1915. Upon his separate trial the jury returned a verdict, finding Will Fisher guilty of murder and fixing his punishment at death. In pursuance of the verdict he was sentenced to suffer death by electrocution. From the judgment and sentence an appeal was taken to this court.

It appears from the record that Morris Fisher and Silian Fisher, his wife, parents of Will Fisher, full-blood Choctaw Indians, were murdered at their home in Choctaw county on the date alleged in the information. Insanity was the defense.

Since the appeal was taken and after the final submission of the cause, the plaintiff in error departed this life, as shown by the affidavits of Dr. C. C. Shaw, prison physician, and Stan Mason, of the hospital ward, who depose and say that they • personally knew the plaintiff in error, Will Fisher, who was imprisoned in the penitentiary upon a judgment of conviction for murder, and that he died within the walls of the penitentiary at 10:45 a. m., October 7, 1917, and that they viewed his dead body. These affidavits are attached to and made a part of the suggestion of the death of the plaintiff in error made by the Attorney General, and filed in this court on October 23, 1917.

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore adjudged, and ordered that all proceedings in this prosecution be abated by reason of the death of the plaintiff in error, Will Fisher, and the district court of Choctaw county is directed to enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ., concur.


text:
    STEVE TALKINGTON v. STATE.
    No. A-3107.
    Opinion Filed November 20, 1917.
    (168 Pac. 667.)
    ABATEMENT OF PROSECUTION — Death of Defendant. In a criminal prosecution, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon - his death; and where it is made to appear to the court that a plaintiff in error has died, pending the determination of his appeal, the cause will be abated.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

    Steve Talkington was convicted of feloniously maintaining a place for the sale of intoxicating liquors, and he appeals.
    Prosecution abated.

      James H. Mathers and William Pfeiffer, for plaintiff in error.

      S. P. Freeling,.Atty. Gen., R. McMillan, Asst. Atty. Gen., and A. J. Hardy, Co. Atty., for the State.
   DOYLE, P. J.

Plaintiff in error, Steve Talkington, was convicted in the district court of Carter county upon an information charging that he did. feloniously keep and maintain a place for the sale of intoxicating liquors in the town of Wirt, Carter county, March 1, 1917, and in accordance with the verdict of the jury, he was sentenced to be imprisoned in the state penitentiary at McAlester for the term of two years and to pay a fine of $500, from which judgment he appealed by filing in this court on August 8, 1917, a petitiion in error with case-made.

On October 24, 1917, the Attorney General filed a motion that the proceeding abate by reason of the death of the plaintiff in error, Steve Talkington. Attached to said motion was the affidavit of the sheriff of Carter county as follows:

“I, Buck Garrett, being first sworn, depose and say that I am sheriff of Carter county, Oklahoma, and have been for several years, and that I knew Steve Talkington well during his lifetime, and I know the Sunday that he was shot and killed by Bud Ballew in the town of Wirt, Carter county. I saw Steve Talkington after he was shot, and-1 know that he is now dead. ■ .
“Buck Garrett,
“Sheriff of Carter Co., Oída.”

Also the affidavit of Dr. W. Hardy, as follows:

“I, Dr. W. Hardy, being first sworn, depose and say that I knew Steve Talkington, during his lifetime, and I waited on him during his last illness, and I know him to be dead. I was with him at the time he died coming from Wirt, Carter county, to Ardmore, Oklahoma. The cause of his death was gunshot wounds and he died from said wounds. W. Hardy, M. D.”

. Which .affidavits were duly subscribed and sworn to on the 22d day of September, 1917. In a criminal action the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore adjudged and ordered that all proceedings in this prosecution be abated by reason of the death of plaintiff in error, Steve Talkington.

The district court of Carter county is directed to enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    JOHN E. WINN v. STATE.
    No. A-2415.
    Opinion Filed November 24, 1917.
    (168 Pac. 829.)
    INTOXICATING LIQUORS — Keeping Place — Evidence. In a prosecution for keeping a place with the felonious intention of selling intoxicating liquors, the evidence examined, and held insufficient to sustain the verdict and judgment of conviction.

      Appeal from, District Court, Harper County; W. C. Crow, Judge.

    John E. Winn was convicted of a violation of the prohibitory law, and he appeals.
    Reversed.

      Charles Swindall and C. W. Hofmeister, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information filed in the district court of Harper county, charging that John Elbert Winn “did keep a place, to wit, a certain sod house on the southeast part of the town of Laverne, with the intention of selling, bartering, giVing away, and otherwise furnishing spirituous, vinous, fermented, and malt liquors and imitations thereof and substitutes therefor,” the plaintiff' in error was tried and convicted, and his punishment fixed at imprisonment in the penitentiary for one year. From the judgment, following the verdict, the defendant appeals.

The evidence shows that there was a picnic on July 4th, near the town of Laverne, in Harper county, and on July 5th a deputy sheriff, in executing a search warrant, seized a barrel that was on a dray in front of a sod house, situated between the town and the picnic grove. Carl Rhodes, deputy sheriff, testified that on July 5th, in the forenoon, he saw a drayman drive from town to the sod house, where he tried the door, which was locked, and then he drove to the grove and talked to a man there, and then went to the defendant, who returned with him from the grove to the sod house, where they carried out a barrel partly filled with bottled beer and placed it on the dray, and witness seized the barrel. Four bottles of beer were produced as part of those which were in the barrel.

Several witnesses for the state testified that they were at the sod .house on the 4th of July and purchased beer; that two or three persons were standing around the tub, and were passing around the bottles. One witness identified the defendant as one of the persons selling the beer. The others testified that there was a beer-drinking party there, and the defendant seemed to be “milling around there the same as the rest of the bunch.” For the defense several witnesses testified that the sod house was in charge of Mr. Flournoy, who represented the Kiel townsite company, and that E. Y. Howard had possession of it on the 4th and 5th of July, and that the defendant worked all day on the 4th of July at a stand in the picnic grove.

As a witness in his own behalf the defendant testified that he lived on his homestead in Woods county, but worked off and on for two years in and near Laverne as a carpenter, well digger, and maker of cement sidewalks; that on the 4th and 5th days of July he worked at a stand in the picnic grove for N. C. Winn, selling candy, cigars, and notions; that he then lived with N. C. Winn, and E. V. Howard lived next door in Laverne; that on the morning of July 5th Howard came to the stand where defendant was working and said he had a barrel of vivatone in the sod house that the officers were after, and asked defendant to get a dray and take it away; that he got Mr. Bailey’s dray,. and Howard gave him the key, and he went with the drayman to the sod house; that they carried out the barrel and put it on the dray; that Deputy Sheriff Rhodes appeared, and said he would take charge of the barrel; that he went back and worked the rest of the day at the stand; that no intoxicating liquor was ever shipped to him, and that he did not sell any of the beer when he visited the sod house on the 4th day of July; that he was only there a few minutes, and drank a bottle of what he thought was vivatone; that- he had never sold any beer or whisky or intoxicating liquors of any kind.

/ The railroad and express agent at Láveme testified that the records of his office from the 1st of March did not show any shipments or deliveries of intoxicating liquors to John Elbert Winn; that before the picnic several barrels labeled “Vivatone” were received, part of which were for E. V.- Howard. It also appeared that E. V. Howard left Láveme at the time as • a fugitive. Three or four of the defendant’s neighbors from Woods county qualified as character witnesses, and testified that his general reputation there as a law-abiding citizen was good. Three or four residents of Láveme qualified as character witnesses, and testified that defendant’s general reputation as to being a law-abiding citizen was good.

We are of opinion that the evidence is insufficient to sustain the verdict and judgment, in that the evidence does not tend to prove a felonious keeping of a place for the sale of intoxicating liquors. In the case of U. S. v. Smith, 27 Fed. Cas. 1155, it is held:

“Neither a single act of play at a gaming table, called a sweat cloth, at the races, nor even a single day’s use of it on the ráce field, is a keeping of a common gaming table, within the penitentiary act for the District of Columbia.”

In the opinion it is said:

“Admitting the verb ‘keep,’ as used in the law, or rather the participle of that verb, namely, ‘keeping,’ can be strained to the sense contended for; that it may imply a momentary, or a few minutes,' or an .hour’s, keeping a sweat cloth (though the testimony, as far as I recollect it, only proved upon the traverser one single instance of his playing at such table), yet surely it does not become the court, nor is it consistent with the established principle of construction, nor the avowed humanity of the law, to be astute in searching for a meaning of the word to suit the occasion, against the undoubted sense in which the word is used in common parlance.”

And see State v. Irvin, 117 Iowa, 469, 91 N. W. 760; People v. Rice, 103 Mich. 350, 61 N. W. 540.

A careful examination of the record impresses' us with the belief that under the proof the county court was the proper tribunal in which to prosecute the transaction complained of.

For the reasons stated, the judgment of conviction is reversed.


author: ARMSTRONG, J.

text:
    J. E. BELL v. STATE.
    No. A-2503.
    Opinion Filed November 27, 1917.
    (168 Pac. 827.)
    1. EVIDENCE! — Opinion'' Evidence — Insanity. ■ As a general rule nonexpert witnesses should not be permitted to give their opinions as to the sanity or insanity of a person whose mental capacity is made an issue in a criminal trial. They may, however, after testifying to facts upon which they base conclusions, testify ■to the impressions made upon them, and state whether the acts and declarations testified to led them to believe that the person in'question was rational or irrational;' that is, whether he was sane or insane.
    2. SAME; — Exclusion of Evidence — RebuttaL A defendant at the trial cannot be heard to complain of the introduction of testimony im rebuttal of the same character 'introduced by him in chief upon any material issue. It is the duty of the trial court, however, to exclude all testimony .except that which is recognized by the law as competent and material.
    3. APPEAL AND ERROR — Conclusiveness of Verdict — Sanity, (a) A judgment of conviction will not be reversed on appeal, upon the ground that the same is contrary to the evidence, when there is competent and material evidence in the record sufficient to support the conclusion of the jury in reaching ithe verdict upon which the judgment is based.
    (b) The fact that proof is offered showing that the defendant at the trial had near relatives, including his father, confined in an asylum, due to given causes, none of which causes are shown to have affected him, and that certain nonexpert witnesses testified that they, believed from the conduct of the defendant that he was insane, barely raises the issue of insanity; and when numerous witnesses who have observed the conduct and acts of the defendant upon many occasions prior to or at the time of the homicide, and immediately subsequent thereto, contradict the testimony offered on that issue by him, it cannot be said that the verdict is contrary to the evidence. The question is properly one for the determination of the jury, and their finding thereon will not be disturbed on appeal.
    4. APPEAL AND ERROR — Harmless Error — Instructions. Technical errors in instructions given by the court at the .trial will not work a reversal, when it is apparent that a fair and impartial trial was accorded, and no prejudice resulted to him.

      Appeal from District Court, Jackson County; Frank Mathews, Judge..

    J. E. Bell was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      Dabney & Thorpe, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., C. E. Hall, Co. Atty., and W. T. McConnell, for the State.
   ARMSTRONG, J.

The plaintiff in error, J. Eh Bell, was tried at the January, 1915, term of the district court of Jackson county on a charge of murder, and convicted of manslaughter in the first degree. His punishment was fixed by the jury at imprisonment in the state penitentiary for 20 years.

The information charges the plaintiff in error, Bell, with the murder of T. F. Blackstone on August 5, 1914. The homicide was not denied by the accused. The proof upon behalf of the state establishes conclusively that Blackstone was murdered at the time and in the manner and form as charged. It appears that the deceased was in a store in the town of Hess on the night of August 5, 1914; that the accused entered the store, and a controversy ensued; that the owner of the store called for assistance to put both men out of the place; that Blackstone went out with a man named' Blue. Later the defendant went out, and walked across the street, and turned around and made some remark, and began shooting. Some of the bullets struck deceased. One of them struck witness Blue, but did not wound him seriously. The deceased expired within a short time. The accused apologized to Blue for shooting him, saying that he did not intend to hurt him, and remarked that, he was a “blowed-up sucker,” or something to that effect, and also said that he would kill any man who would charge him with stealing meat. The deceased in the controversy in the store had denied charging the accused .with stealing meat. No effort to justify the homicide upon the ground of self-defense was made.

The accused relies solely upon the contention that he was insane at the time, and therefore not amenable to the criminal laws of the state-. Four assignments of error are argued in the brief of plaintiff in error as ground for reversal of the judgment. - All of these grow out of objections to the admission of evidence, or instructions of the court concerning the insanity issue.

The first is based upon the contention that the court erred in permitting the state to introduce in rebuttal the testimony of certain nonexpert witnesses bearing upon the sanity 'of the accused. Counsel rely upon the doctrine laid down in Queenan v. Territory, 11 Okla. 261, 71 Pac. 718, 61 L. R. A. 324, and quote the following from the opinion in that case:

“We think the true and sound rule is that nonexpert condition, may state whether such acts, conduct, and appearance of the accused, as to his physical * * * condition, may state whether such acts, conduct, and appearance impressed them as rational or irrational. But they cannot be permitted to give their opinion as to the general soundness or unsoundness of the mind of the accused or as to his mentál capacity. And this is the rule laid down by the Court of Appeals of New York, in a number of well-considered cases. In People v. Strait (148 N. Y. 566) 42 N. E. 1045, the court in discussing the question .said: ‘The rule is that persons not experts, after testifying to facts and incidents in relation to a person tending to show soundness or unsoundness of mind, may testify to the impression produced upon them thereby, and as to whether the acts and declarations testified to impressed them as rational or irrational; but they cannot be permitted to give an opinion as to the general soundness or unsoundness of mind of the person or as to his mental capacity.’ ”

The state admits in its answer brief the correctness of the doctrine laid down in the Queenan Case, but insists that this rule does not apply to the facts in this record, and contend, further, that the plaintiff in error at the trial opened up the issue in question by incompetent testimony of like nature from nonexpert witnesses by offering their opinions as to the sanity or insanity of the accused, and by going even further, and asking tliem to state whether or not their observation of the accused indicated that he was natural or unnatural, normal or abnormal, etc. An examination of the record leads to the conclusion that the issue was opened up by the accused, and, further, that the offer of any lay witnesses by the state in rebuttal comes within the rule announced in Queenan v. Territory, supra. It appears from the record that the state was satisfied to accept the gauntlet laid down by the accused upon the proposition of insanity, and was willing to meet the testimony offered with testimony of like character. We are of opinion, however, that the examination should have been by the trial court required to conform strictly to the law on both "sides; but, after having permitted the accused to offer the opinion of nonexpert witnesses, the state was entitled to the same right in rebuttal.

Counsel next contend that the verdict is contrary to the evidence, and that it is not sustained- by sufficient evidence. This assignment is without merit. It is argued that, because the proof showed that the father of the accused was insane and confined in an asylum in Illinois on account of the fact that he had suffered from a blow on the head and from venereal disease, and the further fact that an aunt, who was a half-sister to his' father, had been confined in a similar institution on the ground that she had become insane on account of menstrual trouble, and further evidence indicating that the grandfather and two brothers of the grandfather had been weak-minded, supported by the testimony of the nonexpert witnesses that in their opinion the accused was insane, the incapacity of the accused to commit thé crime charged was conclusively established. Having examined all of the facts and circumstances introduced in evidence, there is considerable doubt in our mind as to whether or not the accused met the burden of introducing sufficient evidence to raise a reasonable doubt as to his sanity at the time the homicide was committed. It is clearly established that he was angry at the deceased, and had been quarreling with him immediately prior to the homicide; that he was addicted to the.use of morphine and had a violent temper; that he also drank whisky to excess. The fact that one’s ancestors have been afflicted with insanity is only a circumstance admitted for the consideration of the jury, and does not conclusively establish any issue involved; nor does the testimony of nonexpert witnesses of the character offered. The testimony of the latter was offset completely by the proof of the state in rebuttal. The position of counsel would be incorrect, even though the proof had disclosed the fact that the accused himself had been formerly adjudged insane and confined to an asylum. Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206. The issue of insanity is one of fact, and the only presumption attendant upon this crime was that the accused was sane until evidence of his insanity sufficient to raise a reasonable doubt on that point was introduced. Under all of the facts and circumstances disclosed, the question in this case for the jury to determine was whether or not the accused was sane or insane at the time of the homicide. A review of the testimony upon this proposition fails to disclose that the verdict of the jury was contrary to the evidence admitted. In our judgment, the jury was more lenient with the accused than the facts and the law warranted.

The remaining errors argued in the brief are based upon the contention that the court erred in giving certain instructions and refusing certain others. A careful examination of the instructions discloses the fact that they contain no prejudicial error. Taken as a whole, they are. entirely favorable to the accused. The propositions covered by the requested instructions, in so far as they are. applicable to the issues, were covered in the general charge. The greatest objection we can see to the charge it contained in the fact that the court endeavored to be too explicit, and covered more ground than was necessary to properly submit the issue to the jury. There is no fundamental error in the instructions prejudicial to the substantial rights of the accused.

The verdict of the jury having been more favorable to the accused than the facts warrant, the judgment will not be reversed, even though slight technical errors existed in the instructions. A careful examination of the record discloses no substantial error prejudicial to the rights of the plaintiff in error.

The judgment of the trial court is therefore affirmed.

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


author: MATSÓN, J.

text:
    ANNIE OSBORNE v. STATE.
    No. A-2772.
    Opinion Filed December 28, 1917.
    (169 Pac. 270.)
    APPEAL AND ERROR — Briefs—Affirmance. Where no appearance is made by counsel representing plaintiff in error, and no briefs are filed, and there is no error apparent on the face of the record, the judgment of conviction will be affirmed.

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

    Annie Osborne was convicted of manslaughter in the first degree, and sentenced to four years’ imprisonment in the penitentiary, and she appeals.
    Judgment affirmed.

      James H. Gamert, Baxter Taylor, R. M. Rainey, and W. E. Utterback, for plaintiff in error.

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

Annie Osborne, the plaintiff in error, was convicted in the district court of Atoka county of the crime of manslaughter in the first degree, and sentenced to serve four years’ imprisonment in the state penitentiary. She was charged with the murder of one America Lynch. The parties were all negroes, and the evidence discloses that the deceased had for some years been intimate with the husband of the plaintiff in error, and the killing arose out of this unlawful relationship. No appearance was made at the time this case was assigned for oral argument, nor have counsel filed any brief in behalf of the plaintiff in error. The court has examined carefully the pleadings, instructions, judgment, and sentence and the evidence in the case, and no error has been. discovered of such a nature as to authorize a reversal of this judgment under rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x).

The judgment is therefore affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: MATSON, J.

text:
    W. T. BOYD et al. v. STATE.
    No. A-2727.
    Opinion Filed July 21, 1917.
    Rehearing Denied January 5, 1918.
    (169 Pac. 499.)
    INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evi-dencie. Evidence examined, and held sufficient to sustain a judgment of conviction for unlawful possession of intoxicating liquors with intent to sell the same.

      Appeal from County Court, CarfieM County; E. L. Swigert, Judge.

    W. T. Boyd and Guy Smith were convicted of the unlawful possession of intoxicating liguor, and they appeal.
    Judgment affirmed.

      H. J. Sturgis and James W. Steen, for plaintiffs in error.

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

There is but one ground upon which this court is asked to reverse this judgment, viz., the insufficiency of the evidence to sustain a conviction.

The evidence discloses that in the month of July, 1915, these plaintiffs in error leased from a man by the name of Prouty a one-story building in North Enid, Okla., Garfield county, located close to what is known as the Chisholm Trail. They took out a lease bn these premises for a period of four months. There was no other residence or business house Ipcated within a block of the building they leased. Connected with the main building was a sort of a shack or outbuilding which was at that time surrounded by tall grass and weeds. Plaintiffs took possession of this building under the lease along about the 22d day of July, 1915, and were in possession thereof up until the 12th day of August, 1915, at which time the undersheriff and a deputy sheriff of that county made a raid on the premises, and in one of the rooms of the building connected with a storeroom in which a small amount of groceries and tobacco was kept they discovered four or five persons sitting and drinking something out of tin cups. This was at 10:30 or 11 o’clock at night. They proceeded from the house when the parties who were in there drinking dispersed, got into automobiles and drove off in the direction of the city of Enid. The officers examined the tin cups and found that they contained beer. They made a search of the premises, and in the shack adjoining the main building they found nine quart bottles of Pabst beer in a candy bucket filled with ice and water. Further searching they also found in the weeds close to the shack four and one-half pints of whisky. Neither of the defendants was seen on the premises at that time by the officers, but one of the witnesses for the state, who was a short distance away at the time the raid was made, saw somebody run away from the building dressed in his shirt sleeves, and without any hat. The identity of this fugitive, was not disclosed. Several witnesses testified that these defendants had been' in and around those premises for two or three weeks prior to the time this raid was made; that for at least two weeks prior to the time this raid was made the premises had the reputation of being a place where intoxicating liquors were kept for illegal sale; that persons in automobiles were frequently seen to drive up to this place, and stop and get out and go into the building, and remain for various periods of time. ' The defendant Boyd admits that he leased the property from Prouty on or about the 22d day of July, 1915, and that he had possession of it and control of the premises up until about 11 o’clock on the morning of the day that this raid was made at night. He denies that his codefendant, Smith, had any connection with the premises except as his employee merely. Prouty testifies that he leased the premises to the defendants jointly, and another witness testifies that he was at the place of business a day or two before the raid was made for the purpose of installing a telephone, and that Smith was present and told the witness that he would have to consult his partner about putting the telephone in. This was a very short time before the finding of the liquor. In support of their contention that they had abandoned these 'premises and turned them over to another person, the defendants produced a purported bill of sale to one Guy Phillips, dated the 12th day of August, 1915. The evidence discloses that Phillips, if he ever took possession of the premises at all under this alleged sale, only remained there a day or two, when the defendants were compelled to and did reenter the building under their lease from Prouty. A.t the time of the trial, however, it appeared that Phillips was dead. Smith also testified that neither he nor his code-fendant was upon those premises later than 11 o’clock of the morning of the 12th of August. However, one witness for the state in rebuttal testified that he saw Smith standing in the door of the building late in the evening of the day the raid was made. Nobody appears upon the witness stand who ever saw Phillips in possession of these premises.

This is not the first time that a bill of sale has been’ presented for consideration by juries of this state in connection with the defense of this class of crime. It has long been a favored defense, not only of those charged with the larceny of live stock, but also of those charged with maintaining liquor nuisances, or with the unlawful possession of intoxicating liquor. The good faith' of this defense under the facts and circumstances of this case was a question for the jury. The entire defense of both of these defendants was based thereon. All the facts and circumstances and inferences logically to be drawn therefrom, on the part of the state’s evidence, showed that these plaintiffs in error at the time of this raid.were in ' possession and control of the premises where this liquor was found, and had been in continuous control thereof for'some three weeks prior thereto. The jury had a right so to infer, and its verdict in this case will not be disturbed by this court where such an inference was' reasonably deducible from the evidence.

It appears from the records of this court that these defendants have been consistent and persistent violators of the prohibitory liquor laws of this state. They undertook this unlawful business at their own peril, and must suffer the consequences.

The judgment is affirmed.

DOY1LE, P. J., and ARMSTRONG, J., concur.


text:
    FRED SPENCER v. STATE.
    No. A-2478.
    Opinion Filed June 16, 1917.
    Rehearing Denied January 5, 1918.
    (169 Pac. 270.)
    1. ADULTERY — Open and Notorious Adultery — Sufficiency of Information. An information for ojien and notorious adultery •which charges the offense on a single day is sufficient. It is not necessary to allege such offense with a continuendo.
    2. SAME — Marriage—Proof. Proof of admissions and declarations of the defendant are competent to prove marriage in a prosecution for adultery.
    3. SAME — Sufficiency of Evidence. Evidence examined, and held sufficient to sustain a conviction for living in open and notorious adultery.
    4. ' SAME — Instructions. For instruction held to be a sufficient definition of open and notorious adultery and not confusing or misleading, see body of opinion.
    5. SAME — Elements of Offense. Requested instructions based upon the theory of the defense that the fact that defendant and the woman with whom he was liying were not husband and wife, and that defendant was married to another woman, must have been known to the community generally during all the time the parties were living in an adulterous relation before a conviction of open and notorious adultery could, be had, held, properly refused. It is sufficient if the adulterous relationship became generally known among the neighbors and acquaintances of the parties before it ceased and prior to the commencement of the prosecution. After that proof of a single day’s continuance of the unlawful relationship is sufficient to sustain a conviction.

      Appeal from District Court, Kiowa County; James R. Tolbert, Judge.

    Fred Spencer was convicted of living in open and notorious adultery, and he appeals.
    Judgment affirmed,

      Hays & Hughes, for plaintiff in error-

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

It is first contended that the court erred in overruling the demurrer to the information. The charging part of the information is as follows:

. “That on the-day of October, A. D. 1914, at and within said county and within the jurisdiction of said court, one Fred Spencer, then and there being, did then and there unlawfully and feloniously live in open and notorious adultery and have sexual intercourse with one Mary Doe, whose real name to your informant is unknown, he the said Fred Spencer then and there, being a married man and the husband of one Bessie Spencer, and not the husband of said Mary Doe, contrary,” etc.

The ground relied upon by counsel for the plaintiff in error is that living in an open and notorious state of adultery being a continuing offense, it is not necessary to allege the crime with a continuendo. We cannot agree with this contention. In the case of Kitchens v. State, 10 Okla. Cr. 603, 140 Pac. 619, this court said:

“If the parties for a single day lived together in open and notorious adultery, the offense was complete.”

Also in the case of Lyman v. People, 98 Ill. App. 386, affirmed 198 Ill. 544, 64 N. E. 974, it was held:

“An indictment for adultery which charges the offense on a single day is sufficient where the proof showed that the adulterous relation' continued for a -period of four weeks or longer.”

It is also contended that the evidence is insufficient to prove that the plaintiff in error was married to some other woman than the one with whom he cohabitated at the time of the commission of this offense. The only proof of his marriage is by admissions and declarations upon his part, together with the fact that during the time the proof shows that he was living with one Mary Doe, or Ella Spencer, he admitted that he brought a divorce-proceeding in Oklahoma City, OMa., against another woman, who was at that time residing in Chicago, Ill. The notice of publication for service of summons in this divorce proceeding was also seen by several of the witnesses who testified. The first wife also appeared before the commencement of this prosecution, and in the presence of the defendant accused him of being her lawful husband, which, fact he did not specifically deny. Also it appears that defendant had a property settlement with the Chicago woman at the time she was in Hobart. The case was not defended upon the theory that the plaintiff in error was not married to some other woman at the time of this alleged unlawful cohabitation. We have carefully examined the evidence along this line, and it is our opinion that the proof is sufficient-in view of the fact that there was no denial that the marital relation existed between the defendant and Bessie Spencer. Proof of admissions and declarations of the defendant is competent to establish such relationship. Owens v. State, 94 Ala. 97, 10 South. 669; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; State v. Sanders, 30 Iowa, 582; State v. Libby, 44 Me. 469, 69 Am. Dec. 115; Commonwealth v. Holt, 121 Mass. 61; State v. McDonald, 25 Mo. 176; Boger v. State, 19 Tex. App. 91.

It is also contended that the demurrer to the state’s evidence should have been sustained. While demurrers to evidence in criminal cases are not recognized by our Code, we will treat this demurrer as a motion on the part of the defendant’s counsel addressed to the trial court to direct a verdict of “not guilty.” The basis of this assignment is that there was no evidence to show that Fred Spencer and Ella Spencer, or Mary Doe, were living in open and notorious adultery. The proof shows beyond question that for a period of time covering some 18 months or more Fred Spencer and a woman who was known as Ella Spencer lived together alone and maintained a residence connected with a photograph gallery, which they operated and maintained in the city of Hobart. This residence was located on Main street in said city, in the business district thereof. When the defendant first came to Hobart he announced to some of his neighbors that his wife would soon follow him, and in a short time the said Ella Spencer appeared upon the scene. She was introduced by the defendant as his wife, and as Mrs. Spencer, and assisted him in caring for his photograph gallery, did the marketing, opened a bank account in the name of Ella Spencer, paid bills connected with the photograph business, assisted in maintaining a garden, did the washing and ironing, and in general occupied the intimate relation that a wife does to a husband. She was received by the public generally as the wife of the defendant, and was so known and accepted. This is the uncontradicted proof on the part of both the state and the defendant. It is the theory of the defense in this case, however, that, during all this time these parties were living together in secret in an adulterous relationship, they were received as husband and wife, and nobody knew different; that therefore, although the relationship was adulterous and the living together open, there was no notoriety connected with the offense, and therefore there can be no conviction. Counsel rely upon the case of People v. Salmon, 148 Cal. 303, 83 Pac. 42, 2 L. R. A. (N. S.) 1186, 113 Am. St. Rep. 268, cited by this court in the case of Copeland v. State, 10 Okla. Cr. 1, 133 Pac. 258, where the question of what constitutes notoriety was not involved.

Whatever may be said respecting the Salmon Case, it will be appropriate in this opinion to note that after the Supreme Court of California had given the construction to the words “open and notorious” that was given in that case the Legislature of California in 1911 saw fit to strike the words “open and notorious” from their statute. Were it absolutely necessary to do so in this opinion, upon mature reflection this court could not conscientiously follow all the arguments of the Supreme Court of California in the Salmon Case. That case opens the doors for parties to hie themselves to strange communities and live openly in adultery with one another- and by means of concealing their true relationship impose themselves upon the public generally and be received in decent society to the humiliation and disgrace of the law-abiding people, whereas if their true relationship were known the public could protect itself against such conduct.

It is not the policy of the law to encourage a culpable defense to an act which is itself criminal. The adulterous relationship was criminal. The living together was open and well known to the community generally. The Salmon Case is based upon the assumption that after such relationship becomes known there is no public scandal and disgrace occasioned by reason of the previous living- together of the parties in open adultery. In other words, the notoriety will only attach should the parties continue that relationship. It is our opinion that when such a relationship has been made to appear the public scandal and disgrace is just as great and the notoriety is just as prevalent as if it had been known during the entire time. The notoriety' of such a continuous living together and the thought that good people had been deceived into receiving such parties into their homes and treating them with the respect and consideration due to lawfully married people are humiliating in the extreme. The Legislature never intended to condone such conduct as that merely because the guilty parties are able for a time to conceal their true relations. To so- hold, in our opinion, is a fraud upon society, and tends to destroy rather than to preserve and promote the institution of marriage. To confess their illicit relation would expel them from all decent society, and very few people are so infatuated as to forego the advantages of social intercourse and respectability if they can obtain them by the assumption of virtue.

This subject has heretofore been commented upon by this court in the case of Kitchens v. State, 10 Okla. Cr. 603, 140 Pac. 619, a later case than the Copeland Case, in which the court said:

“The law seeks not alone to prevent illicit cohabitation and to prohibit the public scandal and disgrace incident thereto, but also to preserve and promote the institution of marriage, upon which the best interests, and indeed the existence, of society depend.”

There was not only an open living together by these parties, but after it became known by many in the community that the said Fred Spencer and the said Ella Spencer were not married to each other they continued to maintain the same relationship, and even after the county attorney had notified this defendant that their relationship was unlawful and defendant agreed to leave the community in 48 hours (which he did), they after-wards returned, and in the very face of society and in defiance of the laws of this state again assumed this unlawful relation. This all occurred after it had become known that the said Fred Spencer had sought a divorce from another woman. Thereafter when the wife appeared upon the scene from Chicago and was seen upon the public thoroughfares of the city of Hobart, and went to the place-of business of this defendant, and it was published in the daily paper in the city of Hobart that she had appeared upon the scene, it is apparent that the relations between Fred Spencer and Ella Spencer did not then cease.

This prosecution was instituted in October, 1914, and the trial was had in the latter part of December, 1914, and some of the witnesses testify that the said Ella Spencer did not leave Hobart finally until about three weeks before the trial. In view of all these facts and circumstances it is our opinion that were this court inclined to follow the doctrine of People v. Salmon, supra, there is yet sufficient evidence to sustain this conviction on the theory that there was a continuance of the adulterous relation openly after that relation became generally known in the community in which these parties were residing before this prosecution was instituted. As was said in Kitchens v. State, supra: “If the parties for. a single day lived in open and notorious adultery, the offense was complete.” Surely after the happening of all the events herein enumerated there was an apparent intention on the part of the defendant to continue his adulterous relation with Ella Spencer. We hold, therefore, that the court did not err in refusing to instruct the jury to acquit the defendant.

The trial court gave the following instruction over the objection and exception of the defendant:

“The particular statute upon which the information is based is: ‘Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery.’ The jury will observe that under the law ordinary adultery is simply the unlawful intercourse of a married person with one of the opposite sex other than his wife or her husband. The defendant, however, in this case is charged with the crime of unlawfully, voluntarily, and feloniously living in open and notorious adultery with a woman not his wife, and under the law the burden of proof is upon the state to not only prove the defendant committed the crime of adultery with the person named as Mary Doe, but also that he lived with her in open and notorious adultery, to warrant a conviction. If adultery is not open and notorious, it is not a' crime punishable by law, unless the prosecution is commenced and carried on by the wife or husband of one of the offending parties. Simply having occasional illicit intercourse without a public or notorious living together is not sufficient to constitute the offense of living in a state of open and notorious adultery. The parties must reside together in open and notorious adultery, as charged against the defendant, publicly in the face of society as if the conjugal relation existed between them, and their illicit intercourse must be habitual to constitute the crime charged against the defendant.”

It is contended that the said instruction is confusing as to the law applicable to the case, and does not contain a correct definition of what is meant by “living together in open and notorious adultery.” It will be noted that the court distinguished what he termed “ordinary adultery” from the crime charged in the information. This, it is claimed, tended to confuse the jury, in that they were led to believe that the defendant was being prosecuted for “extraordinary adultery.”' If such had been the case, we cannot see wherein the jury could have been misled by the instruction as a whole. The same distinction was made by this court in Heacock v. State, 4 Okla. Cr. 606, 112 Pac. 949, wherein at the bottom of' page 609 the term ' “ordinary adultery” is used to distinguish between the offense which only the husband or wife of the offending party may prosecute and that which is open and notorious and an offense against society itself.

The definition given of open and notorious adultery follows the language of this court in the cases of Copeland v. State, 10 Okla. Cr. 1, 133 Pac. 258, and Kitchens v State, 10 Okla. Cr. 603, 140 Pac. 619. The conclusion is reached that the foregoing instruction was not confusing or misleading, and that the definition given of living in open and notorious adultery was correct and sufficient under our statute.

It is also contended that the trial court erred in refusing to give certain instructions requested by the defendant. These instructions were based upon the theory of the defendant that the fact that Fred Spencer and Ella Spencer were not husband and wife must have been known to the community generally during all the time they were living together in the relation of husband and wife before a conviction of open and notorious adultery could be had. We do not understand that to be the law of this state. It is sufficient if the adulterous relationship became generally known among the neighbors and acquaintances of the parties before it ceased and prior to the comeinncement of the prosecution. After that, proof of a single day’s continuance of the unlawful relationship is sufficient to sustain a conviction. It is our opinion, therefore, that the instructions refused did not correctly state the law as applicable to the proof in this case, and the refusal to give the same in this case was not erroneous. The instructions given by the trial court were sufficient to cover the law of the case as applicable to the facts.

The judgment of the trial court is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


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    DAVE HARJOE v. STATE.
    No. A-2797.
    Opinion Filed January 7, 1918.
    (169 Pac. 659.)
    APPEAL AND ERROR — Jurisdiction—Dismissal. Where an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of the trial court, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.

      Appeal from District Court, Hughes County; Tom D. McKeown, Assigned Judge.

    Dave Harjoe was convicted of forgery, and he appeals.
    Appeal dismissed.

      J. L. Skinner, for plaintiff in error.

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

The plaintiff in error, Dave Harjoe, was convicted in the district court of Hughes county upon an indictment charging that he did unlawfully and feloniously forge and counterfeit a certain instrument purporting to be an “order for the removal of restrictions to the allotment of Nellie Harjoe, nee Ellis, a full-blood Creek,” by signing the name thereto of “Lewis C. Laylin, Asst. Sec. of the Interior.” The jury failed to fix the punishment. An appeal was attempted to be taken by filing in this court on July 26, 1916, a petition in error with case-made. The petition recites that:

“On the 20th day of 'March, 1916, judgment and sentence was rendered and in force in a certain cause pending in the district court of Hughes county, Okla., wherein the State of Oklahoma prosecuted the plaintiff in error, adjudging the plaintiff in error guilty of forgery and sentencing him to the state penitentiary for a period of seven years.”

The Attorney General has filed a motion to dismiso because:

“There is no judgment or copy of judgment as rendered below in the record upon which the alleged appeal could be taken.”

An examination of the record discloses that the case-made contains no copy of the judgment referred to in the petition in error, and does not contain the journal entry of the judgment and sentence appealed from.

When an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of conviction, such record or case-made presents no question to this court for its determination, and the appeal will be dismissed for want of jurisdiction. Loyd v. State, 12 Okla. Cr. 82, 151 Pac. 1190; Fowler v. State, 11 Okla. Cr. 157, 143 Pac. 658; Dansby v. State, 7 Okla. Cr. 496, 124 Pac. 328; Allen v. State, 6 Okla. Cr. 665, 118 Pac. 1102; Bradford v. State, 3 Okla. Cr. 386, 106 Pac. 535; McLellan v. State, 2 Okla. Cr. 633, 103 Pac. 876.

Inasmuch as the case-made does not contain a copy •of the judgment appealed from, we are .of the opinion that this court is without jurisdiction to consider the appeal. We may remark, however, that in this case the •overruling of a demurrer to the indictment is the only question raised. We think the indictment is sufficient. 'For this reason, it would be a waste of eflort to seek to amend-the record in this case.

For the reasons stated, the cause is dismissed.

ARMSTRONG and MAT'SON, JJ., concur.


text:
    W. M. HENRY v. STATE.
    No. A-2563.
    Opinion Filed January 12, 1918.
    (169 Pac. 658.)
    IEVIDENCE — Corpus Delicti — Conviction. In a criminal case a conviction cannot be bad on tbe extrajudicial confessions of tbe defendant, without evidence aliunde of tbe corpus delicti, but direct and positive proof of that fact is not indispensable.

      Appeal from, County Court, McIntosh County; John W. Robertson, Judge.

    W. M. Henry was convicted of giving away teachers’ ■examination questions, and he appeals.
    Reversed and remanded.

      Turner & Turner and- S. M. Rutherford, for plaintiff in error.
    S'. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for State.
   MATSON, J.

This prosecution is based on section 12 of article 14 of chapter 219, Session Laws 1913, which, provides as follows:

“Should any person offer to sell, barter or give away what purports to be copies of questions to be given at a future examination, he shall be guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars nor more than three hundred dollars and shall be confined in the county jail for not less than thirty days nor more than six months and be forever barred from teaching in any of the public schools of this state.”

The defendant was convicted in the county court of McIntosh county of having sold, bartered, and given away certain examination questions to be given in a future examination for teachers’ license to be held in said county to one A. Foster, then and there an applicant for a teacher’s license at said examination. His punishment was fixed at a fine of $100 and 30 days’ imprisonment.

Among the alleged errors assigned for grounds for reversal is that there is no sufficient proof of the corpus delicti. It is claimed that the proof of the corpus delicti is based solely upon the extrajudicial confession of the defendant.

In Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100, this court held:

“In a criminal case a conviction cannot be had on the extrajudicial confession of the defendant, without' evidence aliunde of the corpus delicti, but direct and positive proof of that fact is not indispensable.”

To prove this offense the state relied wholly upon the testimony of Charles H. Wilson, the superintendent of schools of McIntosh county, who was then in charge of the examination. A. Foster, to whom it was alleged the •defendant illegally furnished the questions to be given, was not produced as a witness by the state.

The testimony of the county superintendent touching proof of the corpus delicti related solely to an extrajudicial confession alleged to have been made by the defendant to him at the time certain questions which were to be given in arithmetic on the succeeding day of the examination were found in possession of Foster. There was some slight circumstantial evidence which rendered the conduct of the defendant very suspicious, but these circumstances did not in fact connect him with the actual delivery of said questions to Foster, nor was there any ■evidence which placed the defendant and Foster together at any time - on the day it was alleged these questions were furnished. It seems that Foster was the only person by whom the state could have established these facts, and he was not produced. It does not appear why the ■said Foster was not called by the state as a witness, as ■should have been done. After a careful examination of the record, it is the' opinion of the court that the proof •of the corpus delicti in this case does not meet the requirements of law as established in Shires v. State, supra, and for this reason the judgment is reversed,, and the cause remanded for further proceedings.

Other alleged errors are assigned, among which it is contended that the information upon which this prosecution is based is insufficient. We have examined the information as amended; in our opinion, it is clearly sufficient to meet all the requirements - necessary where a statutory offense, such as this, is pleaded.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    BERT McLAUGHLIN v. STATE.
    No. A-2636.
    Opinion Filed January 15, 1918.
    (169 Pac. 657.)
    CRIMINAL LAW — Failure of Defendant to Testify — Instruction—Statute. Section 5881, Rev. Laws 1910, contains an inhibition to the effect that the failure of a defendant to take the stand in his own behalf shall not be mentioned on the trial. The trial court is not excepted from this inhibition, and when an instruction is given, over his objection and exception, calling the attention of the jury to the fact that he failed to testify in his own behalf, a judgment of conviction cannot be sustained.
    Matson, J., dissenting.

      Error from County Court, Tulsa County; J. W. Woodford, Judge.

    Bert McLaughliln was convicted of violating the prohibition law, and he appeals.
    Reversed.

      Luther James and McAdams & Haskell, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Bert McLaughlin, was convicted at the December, 19.15, term of the county court of Tulsa county, on a charge of having unlawful possession of intoxicating liquors with intent to sell the same. His punishment was fixed at a fine of $500 and imprisonment in the county jail for 90 days. From this judgment he has duly prosecuted an appeal to this court.

The only assignment of error which was urged in the argument and in the brief is based upon the following instruction of the court, to wit:

“You are instructed that as a matter of law the defendant is not compelled to take the stand in his own behalf, and that fact is. not • to be taken as evidence of guilt, as he has a right to rely upon the law which presumes him to be innocent until he is proven guilty, and the state is required to prove the allegations of the information without any obligation upon the part of the defendant to take the stand.”

This instruction was given over the objection and exception of the plaintiff in error. The complaint against this instruction is based upon the provisions of section 5881, Rev. Laws 1910, which is as follows:

“In the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented- upon by counsel, it shall be ground for a new trial.”

We have many times been called upon to discuss the principle here involved. Among the early cases is that of Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57l Among other 'things in that opinion, it is said:

“It is improper for the court or any other person to refer or in any manner call attention, in the presence of the jury, to the fact that the defendant has failed to testify in his own behalf. * * *”

See Brown v. State, 3 Okla. Cr. 442, 106 Pac. 808; Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791.

In the latter opinion, written by Presiding Judge Fur-man, it is said:

“It matters not what we think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is'our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or spirit.”

See, also, Weinberger v. State, 8 Okla. Cr. 441, 128 Pac. 160; Teer v. State, 10 Okla. Cr. 651, 135 Pac. 1198.

In Times v. Commonwealth, a Kentucky case reported in 77 S. W. 363, discussing this proposition, the Court of Appeals said:

“In No. 4 the jury were instructed ‘that they shall not comment upon the failure of the defendant to testify; neither shall they draw any presumption of his guilt by his failure to testify.’ The jury’s mind was thus directed to the fact that the appellant had not testified in his own behalf, and no comment by the commonwealth’s attorney could have been more injurious to his interest than was done by this instruction. The court, by the instruction in question, did appellant the very injury which it is the object of the law to prevent. Appellant was entitled to absolute silence on his failure to testify in his own behalf.”

This statute set forth supra- unquestionably guarantees to a defendant the right of absolute silence on his failure to testify in his own behalf. We are unable to see wherein comment of counsel could be more injurious than the comment of- the court.

The identical proposition presented in this case was determined by this court in an opinion by Brett, J., in the ease of Holmes v. State, 13 Okla. Cr. 113, 162 Pac. 446, in which it is said:

“Section 5881, Rev. Laws 1910, contains two inhibitions. The first is that the failure of the defendant to take the stand in his own behalf shall ‘not be mentioned on the trial’; the second, that this fact shall not be commented on by the counsel for the state. Held: First, that if counsel comments on the failure of the defendant to take the stand in his own behalf it is mandatory that a new trial be granted; and second, that the court is not excepted from the inhibition to the effect that the failure of the defendant to take the stand in his own behalf shall ‘not be mentioned on the trial,’ and that it is error for the court to refer to such fact in his instructions or otherewise.”

It follows therefore that the judgment in the case at ' bar must be reversed, upon the ground that the instruction complained of was prejudicial.

Reversed.

DOYLE, P. J., concurs. MATSON, J., dissents.


text:
    ISOM WILLIAMS v. STATE.
    No. A-2527.
    Opinion Filed January 17, 1918.
    (169 Pac. 655.)
    1. EVIDENCE — Other Offenses — Course of Conduct. In a prosecution for incest committed with the defendant’s daughter, evidence of previous acts of intercourse upon which the prosecution was barred by limitation is admissible as showing a habitual course of conduct.
    2. PARTIES TO OFFENSES — “Accomplice”—Corroboration. In such a prosecution, where ip appears that the daughter was over the age of consent, and that she knowingly, voluntarily, and with the same intent which actuated the defendant united with him in the commission of the offense, she is an “accomplice,” and her uncorroborated testimony is insufficient to sustain a conviction.
    3. EVIDENCE — Accomplice Testimony — Sufficiency of Corroborar tion. In this case the evidence examined, and held, that the testimony of the accomplice was sufficiently corroborated by other evidence to justify the verdict.

      Appeal from District Court, Choctaw County; C. E. Dudley, Judge.'

    Isom Williams was convicted of incest, and he appeals.
    Affirmed.

      George Richardson, J. H. Warren, and John Cocke, for plaintiff in error.

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

The plaintiff in error was convicted in the district court of Choctaw county under an indictment charging that in said county, on the 14th day of December, 1912, Isom Williams did commit the crime of incest by having sexual intercourse with his daughter, Fannie Williams; his punishment being assessed at four years’ imprisonment in the penitentiary.. From the judgment rendered in pursuance of the verdict he appeals.

The only question worthy of notice which the record presents is the sufficiency of the evidence to support the verdict. It is contended by counsel for plaintiff in error that the testimony of the prosecuting witness is not sufficiently corroborated to sustain the conviction.

The evidence shows that the defendant is a full-blood Choctaw Indian, and that his wife, the mother of prosecuting witness, was a white woman.

The prosecuting witness testified that the defendant, Isom Williams, was her father; that her age was 29 years; that her mother died in 1902, and her father did not marry again; that he had sexual intercourse with her as alleged, and was the father of her two children; that her first child was bom in.December, 1912, and her second child was born in September, 1914; that her father’s illicit intercourse with her occurred so often that, she could not state the number of times; that she married Gus Barr, a white man, in October, 1914.

Alma Williams testified that she was the daughter of the defendant and a half-sister of the prosecuting witness; that she lived with her father and sister Fannie until August, 1913; that her father would come to the room where she and her sister Fannie slept, and would ■ wake Fannie, and she would go to his room with him and stay, sometimes half an hour, and sometimes not so long.

Mrs. M. C. Collins testified that she was present at the home of the defendant, Isom Williams, when Fannie Williams’ baby was bom; that the defendant was there and she asked Fannie who' its father was, and she said, “It is Papa’s, and what is more, he has been making me do that, why, ever since I was 16 years old.”

By consent of the parties the children of the prosecuting witness were brought into court and exhibited to the jury.

The defendant as a witness in his own behalf testified that he was a full-blood Choctaw Indian. He denied ever having had improper relatibns of any kind at any time with his daughter Fannie, and said that she always told him that Gus Barr was the father of her children.

Several character witnesses testified that they knew the general reputation of Isom Williams in the community in which he had lived as to being a moral, upright man and law-abiding citizen, and that it was good.

A part of the defense was that the prosecuting witness and her husband and her half-sister and half-brother conspired to prosecute the defendant for the purpose of sending him to the penitentiary and securing his property.

We are of the opinion that the testimony of the prosecuting witness was ■ sufficiently corroborated by the other evidence in the case to warrant the verdict of the jury, and, the jury being the exclusive judges of the weight of the evidence and the credibility of the witnesses, we would not feel justified in setting aside their verdict.

The court instructed the jury that upon the evidence the prosecuting witness was an “accomplice,” and that under the law no person could be convicted upon the testimony of an accomplice, unless there was other evidence in the case tending to connect the defendant with the commission of the crime charged against him, “and that the corroborating evidence, if there be such, is insufficient if it merely shows that some one had unlawful sexual intercourse with the prosecuting witness.” The instruction objected to fully and fairly submitted the law applicable to accomplice testimony. This was the only instruction to which an exception was taken. It appears that the case was fairly submitted to the jury in a, clear, concise, and fully adequate charge.

Upon a. careful consideration of the whole case, we are unable to say that the court below committed any error which would justify a reversal of the judgment. It is therefore affirmed.

MATSON, J., concurs. ARMSTRONG, J., not participating.


text:
    W. MUN REDDELL v. STATE.
    No. A-2638.
    Opinion Filed January 26, 1918.
    (170 Pac. 273.)
    1. OFFICERS — Warrants Against Public Funds — Anti-Nepotism Statute — “Such Ineligible Person.” A person related within the third degree by affinity to a member of the school district board, for whom a warrant was drawn by said board for the payment out of the public funds of such school district of compensation earned by said person for doing odd jobs of draying for said school district, is not “such ineligible person,” to whom it shall be unlawful for such board to draw a warrant against said public funds, as provided in section 2236, Rev. Laws 1910.

      %. SAME. “Such ineligible person,” mentioned in section 2236, supra, refers back-to a person appointed as provided in section 2235.
    3. SAME — “Appointment”—“Employment.” The word “appointment” is ordinarily used in connection with the designation of a person 'to an office or other similar but subordinate employment, and the term “employment” is often used to distinguish an office-from a position of a subordinate degree, such as a clerkship or servant, in continuous service of the employee. Said terms are used in this connection in the foregoing statutes.
    4. SAME — Sufficiency of Evidence. Evidence examined, and held not sufficient to sustain a conviction for illegally drawing a public school district warrant in violation of section 2236, supra.

      Appeal from County Court, Okmulgee County; Mark L. Bozarth, Judge.

    W. Mun Reddell was convicted of unlawfully issuing public school district warrants, and he appeals.
    Judgment reversed; cáse dismissed.

      M. M. Alexander, for plaintiff in errori
    iS'. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

The plaintiff in error was convicted in the county court of Okmulgee county of unlawfully issuing, as a member of the school district board of school district No. 2 in that county, a warrant against said district to his son-in-law, J. W. Rayburn, for $24, in payment for labor performed by said Rayburn for said school district under an employment theretofore given him by said school district board. There is no dispute as to the facts. The defendant took the witness stand in his own behalf, and admitted that the said J. W. Rayburn was his son-in-law, and that he as a member of said board drew a warrant against said school district in favor of the said Rayburn for the sum of $24, as alleged in the information and for the purpose as heretofore set forth.

This is a prosecution under the anti-nepotism statute of the Legislature of 1907 and 1908, and is the first time this court has been called upon to construe same. The prosecution was based upon section 2236, Rev. Laws 1910, which provides as follows:

“It shall be unlawful for any executive, legislative, ministerial or judicial officer mentioned in the preceding section, to draw or authorize the drawing of any war-, rant or authority for the payment out of any public fund, of the salary, wages, pay or compensation of any such ineligible person, and it shall be unlawful for any executive, legislative, ministerial or judicial officer to pay out of any public funds in his custody or under his control the salary, wages, pay or compensation of any such ineligible person.”

Counsel for plaintiff in error contends, that the facts of this case do not cover the crime defined by said statute. In order to give a proper construction to the aforesaid section, it is necessary to consider same- in connection with the section immediately preceding it, section 2235, which provides:

“It shall be unlawful for any executive, legislative, ministerial or judicial officer to appoint or vote for the appointment of any person related to him by affinity or consanguinity within the third degree, to any clerkship, office, position, employment or duty in any- department of the state, district, county, city or municipal government of which such executive, legislative, ministerial or judicial officer is a member, when the salary, wages, pay or compensation of such appointee is to be paid out of the public funds or fees of such office.”

This court is required, in construing the general statutes of the state, to give them a liberal construction, such as will promote the objects for which they were enacted and in furtherance of justice; but, as has been repeatedly held by this court, it is for the Legislature to declare what shall constitute a crime — the duty of the courts is to determine whether a particular act done or omitted is within the intention of the statute. State v. Lawrence, 9. Okla. Cr. 16, 130 Pac. 508.

The question naturally arises: What was the intent and purpose of the foregoing statutes? It is within the knowledge of the members of this court that, prior to the adoption of anti-nepotism statutes in this country, a practice had arisen wherein it was the custom of elected officials to appoint their relatives to subordinate positions and employments in their department of state and municipal government. It was this practice that led undoubtedly to the adoption of such statutes, and this is the practice we think it' was clearly intended to abolish.

The question then is: What is meant by the expression in section 2236, supra, “any such ineligible person”? Does that mean just any person related-by affinity or consanguinity within the third degree to the officer or board or commission, where such officer or board appoints said person to any office or employment within his department of government; or is the term broad enough to include a person related within such prohibited degree although he is only employed to perform a particular piece of work, to do a particular job as it were, for the department of the state, district, county, etc., of which the employer is a member \ In our opinion to give this statute the broad construction last referred to would read into its terms something not intended to be covered by the Legislature. If the Legislature intended to cover an act such as this for which plaintiff in error was convicted, it certainly would have used a broader term in section 2235 than that used, to wit, “to appoint- or vote for the appointment,” and again, “such appointee.” Section 2235 clearly indicates it was the intention of the Legislature to prevent the filling of subordinate offices, positions, employments, or duties of trust which are of a continuous nature, either provided by law or necessarily required to carry out the duties imposed by law on any such department. When the term “such ineligible person” was incorporated in section 2236, the Legislature, as we view the statute, necessarily referred back to that person unlawfully “appointed” under the provisions of section 2235. In other words, the Legislature intended to prevent the filling of offices and -subordinate employments by relatives of the person making the appointment within the third degree. , That was the practice that had grown to be disrepucable prior, to the enactment of the statute.

We are not unmindful of the fact that the word “employment” is a term of broad significance, and when used in respect to a servant or a hired hand is equivalent to the word “hiring”; but we cannot conscientiously give it that broad meaning under the terms of this statute. This statute requires an appointment to be made, and the word “appointment” is ordinarily used in connection with the designation of a person to an office or some similar but subordinate employment, and the term “employment” has often been used to distinguish an office from a position of a subordinate degree, such as a clerkship or servant, in continuous service of the employee. This is the connection in which we think it was used in this statute. Clearly under the facts of this case there was no “appointment to any clerkship, office, position, employment or duty of trust” appertaining or relating to the school district against which this warrant was issued, and employment such as here proven is not the kind of. employment contemplated or covered by the statute, and which it was intended by the Legislature to prohibit. An' appointment such as janitor for the school building would have come within the terms of the statute, a teacher of the school likewise, and other employments of that nature, where á party is designated or appointed to perform some service which is clearly connected with the duties of said school district board, and is of a continuous nature or for a fixed term./ The evidence here shows that this son-in-law of the plaintiff in error whs employed to do this particular work as the occasion arose therefor. These were odd jobs, not usually arising from the ordinary duties of the school district board, for which a person would be employed by appointment.

We recognize that there could arise a pernicious practice, wherein persons related to officers or boards could be constantly employed to perform temporary services, to the exclusion of persons not so related; but, if the Legislature intended to cover such a practice by the enactment, or desired so to do, the language of the act should, and undoubtedly would, have been made more definite and clear. Such the Legislature may easily remedy by broadening the wording of the statute. This court cannot read such a meaning into this statute as it now stands.

For the reasons above given, the judgment of conviction is reversed, with directions to the trial court to dismiss the prosecution.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    S. T. JAMES v. STATE.
    No. A-2678.
    Opinion Filed January 26, 1918.
    (169 Pac. 1127.)
    1. HOMICIDE — Instruction—Manslaughter in. First Degree — Evidence. On a trial for murder, where the evidence, however slight, would warrant the jury in returning a verdict for manslaughter in the first degree, it is the duty of the trial court to instruct the jury on the law of manslaughter in the first degree.
    2. SAME — Question for Jury. In a prosecution for murder, evidence considered, and held to justify the submission to the jury of the question whether the defendant was guilty of manslaughter in the first degree.
    ' Appeal from District Court, Wagoner County; R. P. de Graffenried, Judge.

    S. T. James was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      E. A. Summers, C. A. Summers, E. P. Rhea, and J. S. Dickey, Jr. (G. W. P. Browne, of counsel), for plaintiff in error.

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

The plaintiff in error, hereinafter called the defendant, was tried in the court below upon an information charging that in Wagonér county, on or about the 26th day of May, 1915, S. T. James, the defendant, did kill and murder one Lee Roberts, by shooting him with a pistol. The jury returned a verdict of manslaughter in the first degree, but failed to fix the punishment. By the judgment of the court he was sentenced to imprisonment in the penitentiary for the term of 12 years, and he has appealed from the judgment.

Counsel for the defendant contend that the evidence did not warrant a conviction for manslaughter in the first degree, and that this degree of homicide should not have been submitted to the jury for consideration.

The evidence shows that the deceased and the defendant were negroes; that Lee Roberts lived with his parents in the town of Tullahassee, and the defendant lived on a farm about two miles distant; that about daylight on the morning of the tragedy the defendant appeared at the home of the deceased and shot him three or four times; that death was instantaneous. The mother of the deceased testified that about dawn that morning the defendant entered their home and instantly fired several shots at her son, who was sitting on a chair putting on his shoes; that he was holding up his hands when the fatal shot was fired; that she said to the defendant, “What did you kill my baby for?” and he answered, “He insulted my wife.” The father, sister, and brother-in-law of the deceased testified that there was no weapon in. the room at the time. Dr. Minor testified that he heard the shots and reached the place of the homicide within 20 minutes; that the body was lying on the floor; that one shot hit the elbow, one the shoulder, and the fatal shot was in the breast.

The defense sought to be made was that the killing was justifiable in self-defense. The defendant testified that he was born in Alabama about 50 years ago, and had lived in Oklahoma about four years; that he was a preacher and farmer, and for a short time was in the mercantile business at Tullahassee; that on the Saturday preceding the homicide the deceased asked him if he was going to Coweta, and he told deceased he was going there to preach the ne'xt day, and on the Wednesday morning following, about 3 o’clock, his wife told him that the deceased came to their room on Sunday morning and drew a revolver, and by force had intercourse with her; that he called his son into the room, and all three had a conversation as to what was best to do, and his son suggested that he would go and talk the matter over with Lee Roberts and have him leave the country, and he said, “No,” that she was not his mother and he would go himself; that they hitched up a buggy,, and when he started to get in his son said, “This man carries a pistol,” and, “You had better go prepared”; that he got his pistol and drove to Tullahassee to see Lee Roberts and let him know that he must leave the country; that he called at the door and Lee Roberts told him to come in, and he went in and told Roberts he called to see him about his assault upon defendant’s wife; that- Roberts got up and grabbed a pistol from the table, and he shot Roberts through the arm, and kept on shooting him until he fell; that he shot him because he knew his own life was in great danger. It appears that the defendant’s wife was a young woman about 25 years of age.

The defendant’s son, Turner Roberts, testified that he was 21 years old; that Lee Roberts was often about his father’s place of business in Tullahassee; that he heard him ask his father’s wife an, unfair question, and heard him say that, “If she meant to tell her husband he would always be prepared, and if he beat him shooting it was all right”; that the pistol his father carried with him that morning was a 38 Colts automatic. R. L. Gran-ger testified that he was agent at Tullahassee for the Missouri, Kansas & Texas Railroad, and that about 30 minutes after the shooting he was in the room where Lee Roberts’ body was lying on the floor, and he thought he saw a pistol there on the table.

Several witnesses testified that they knew the general reputation of the defendant for peace and quiet, and that it was good. In rebuttal numerous witnesses testified that they were present in the room shortly after the killing occurred, and did not see any pistol there. Lucius Leathers testified that he was city marshal of Tullahassee, and the morning of thé killing he heard the defendant remark that Lee Roberts had insulted his wife, and that she had told him all about it the night before, and ■ he just went and killed him. Jack McCullough testified that he was deputy sheriff, and had known the defendant two or three years, and that on Monday morning before the killing he met him in the town of Porter and talked with him, and the defendant said that Lee Roberts came to his house in his absence and made an immoral talk to his wife and he had about made up his mind to kill him; that he told him the Bible says, “Thou shall not kill,” and he said, “What God has joined together let no man put. asunder,” and that the law would give him the right to protect his family; that Wednesday morning he got word by telephone of the killing, and started after the defendant, and met him driving 'along the road with his wife in the buggy. The defendant told him why he shot Lee Roberts, but did not say anything about Roberts having a' pistol.

The court in the instructions given to the jury submitted the issue of murder, of manslaughter in the first degree, and the law of justifiable homicide in self-defense It does not appear from the record that any objection was made or exception reserved to any of the instructions given. Taking the evidence relied upon by the defendant to be true, we think that it was legally insufficient to show justification. Upon his own testimony the defendant was at least guilty of manslaughter in the first degree. This being so, the instructions, considered as a whole, were more favorable to the defendant than the law required. In a prosecution for murder the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests, and if the evidence tends to prove different degrees, the law on each degree which the evidence tends to prove should be submitted to the jury. It is true that the evidence tending to show that the crime committed was manslaughter in the first degree is very weak and unsatisfactory; however, the court was right in its submission of manslaughter in the first degree. In numerous cases this' court has held that where the instructions in a homicide case submitting the lesser degrees of homicide are not objected to or exceptions saved thereto, the defendant is bound by them.

After a careful examination we find no prejudicial -error in the record, and we are of the opinion that the ■defendant had a fair and impartial trial. The judgment ■of conviction is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.