text:
    ART TUCKER v. STATE.
    No. A-2292.
    Opinion Filed September 22, 1917.
    (167 Pac. 637.)
    1. INDICTMENT AND INFORMATION — Habitual Criminals — Sufficiency. An information, in order to charge a crime under the Habitual Criminal Act, should contain allegations of fact setting forth that the offense charged is a second (or subsequent) violation of the law and that the person charged has been convicted in a court of competent jurisdiction. In this respect, the information must be definite and certain. An allegation that the person charged has been convicted of violating some prohibition law of the state is too general.
    2. CONSTITUTIONAL LAW — Criminal Law — Ex Post Facto Laws —Validity. The act of the Legislature, declaring those who have been convicted more than once of violating the prohibitory liquor statute of this state habitual criminals, is not in conflict with section 10, article 1, of the Constitution of the United States nor with section 15, article 2, of the Constitution of the State of Oklahoma, nor with section 7, article 2, of the Constitution of the State of Oklahoma.
    3. CRIMINAL LAW — Habitual Criminals — Statutes. The act of the Legislature adding to the habitual criminal statute offenses against prohibitory liquor law enforcement acts, is not intended ■ to and does not apply to cases wherein full and complete pardons have been granted by the chief executive of the state as provided in the Constitution for all prior convictions.
    4. SAME — Punishment—Place. All offenders, convicted under the provision of the act of the Legislature adding the violation of the prohibitory liquor law to the habitual criminal statute, should be punished by a fine of not less than $50 and imprisonment in the county jail for not less than 30 days, or by a fine not exceeding $1,000 and imprisonment in the state penitentiary not exceeding five years. Any punishment involving imprisonment for less than one year should be in the county jail. The statute fixes a fine as a part of the punishment in any event.
    5. SAME — Jurisdiction—Courts. District and superior courts have exclusive jurisdiction to try offenders charged under the habitual criminal statute.

      Appeal from District Court, Grady County; Frank M. Bailey, Judge.

    Art Tucker was convicted of violating the prohibitory liquor law, and appeals.
    Reversed.

      A. L. Herr, Barefoot & Carmichael, and McAdams & Haskell, for plaintiff in error.

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

The plaintiff in error, Art Tucker, was convicted in the district court of Grady county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same and his punishment fixed at imprisonment in the state penitentiary for a term of five years. The charging part of the information upon which the conviction is based is as follows:

“That on or about said day and date and in said county and state the said Art Tucker and John Tucker, then and there being, did then and there willfully, unlawfully, and feloniously have and keep in their possession certain intoxicating liquors, to wit, about one hundred and sixty-eight gallons of whisky, with the unlawful and felonious intent upon the part of them, the said Art Tucker and John Tucker, to sell, barter, give away, or otherwise furnish said intoxicating liquors to others, in violation of the prohibition law of the State of Oklahoma; that the said Art Tucker, having heretofore, to wit, on the 4th day of May, 1911, been convicted of a violation of the prohibition law of the State of Oklahoma, in cause No. 514, in the county court of Grady county, State of Oklahoma, said county court being a court having jurisdiction of said offense, and convicted- on the 14th day of December, 1911, for a violation of the prohibition law of the State of Oklahoma, in the superior court of Grady county, Oklahoma, in causes Nos. 100, 99, 97, and 96, said superior court being a court having jurisdiction of such offense.”

The first proposition to be considered is based upon the contention that the information does not state facts sufficient to charge the plaintiff in error with a felony. A demurrer was interposed to the information in due time. Among other grounds set forth, the court’s attention was called to the fact that the information failed to state facts sufficient to constitute an offense against the laws of the State of Oklahoma; that it is indefinite, uncertain, and insufficient as- to the allegation of former conviction; that the information upon its face failed to show facts sufficient to give the court jurisdiction of the crime it is attempted' to charge.

As a general rule, in prosecutions under an habitual criminal statute, that is, one imposing a greater punishment for the second or subsequent offenses than for the first, the fact that the offense charged is a second or subsequent violation must be 'directly averred in the indictment, information, or complaint, in order to justify a conviction as for a second or subsequent offense. See Paetz v. State, 129 Wis. 174, 107 N. W. 1090, 9 Ann. Cas. 767. It will be noted that the information in the case under consideration, after the charging part, contains the following averment:

“That the said Art Tucker having heretofore, to wit, on the 4th day of May, 1911, been convicted of a violation of the prohibitory law of the State of Oklahoma, in cause No. 514, in the county court of Grady county, State of Oklahoma, said county court having jurisdiction'of said offense, and convicted on the 14th day of December, 1911, for.a violation of the prohibition law of the State of Oklahoma, in the superior court of Grady county, Oklahoma, in causes Nos. 100, 99, 97, 96, said superior court being a court having jurisdiction of such offense.”

It is contended by counsel that this allegation, in a legal sense, is meaningless; that all penal laws of the state are in effect prohibition laws, and in legal parlance it is generally so understood. The information does not allege that Tucker had been convicted of violating the prohibitory liquor laws of the • State of Oklahoma. In our judgment, it should have alleged that the party charged had in some particular violated some provision of the enforcement acts of the prohibitory liquor law, and that he had been convicted therefor in a court having jurisdiction of the subject-matter and of the person of the accused. In West Virginia v. Davis, 68 W. Va. 142, 69 S. E. 639, 32 L. R. A. (N. S.) 501, Ann. Cas. 1912A, 996, it is said:

“The matter of a former conviction is an essential part of the indictment. It must be alleged and proven by the record, if not admitted by the defendant’s plea, in order to warrant a judgment for a second conviction. The court could not take judicial notice of a former conviction, as was apparently done in this case, even though such former conviction may have been had in the same court, and on a previous day of the term at which the present trial was had.” See authorities cited.

It is essential to the validity of an information charging one with being an habitual criminal under the provisions of the statute involved that it contain an allegation that the accused has been convicted of violating some provision of the prohibitory liquor laws of the state prior to the commission of the offense charged. The information in question, having failed to properly so charge, is therefore defective. The demurrer should have been sustained-

The next proposition is based upon the contention that the act under which this prosecution is brought is in conflict with section 10, art. 1, of the Constitution of the United States, and section 15, art. 2, of the Constitution of the state. In this connection it. is also argued that the act is repugnant to section 7, art. 2, of the state Constitution, under the construction placed upon the latter provision by the Supreme Court in Ex parte Cain, 20 Okla. 125, 93 Pac. 974; Id., 1 Okla. Cr. 7, 93 Pac. 974. On the first proposition counsel cite and quote at length from Calder v. Bull, 3 Dall, 386, 1 L. Ed. 648; also Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506, and Garnsey v. State, 4 Okla. Cr. 547, 112 Pac. 24, 38 L. R. A. (N. S.) 600.

Discussing the proposition of what laws are •ex post facto within the purview of the provision of the Constitution of the United States herein involved, the Supreme Court of the United States in Calder v. Bull, supra, said:

“First. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. Second. Every law that aggravates a crime, or makes it greater than it was, when committed. Third. Every law that changes the punishment and inflicts a greater' punishment, than the law annexed to the crime, when committed. Fourth. Every law that alters the legal rules of evidence, and receives less, or different, testimony than the law required at the time of the commission of the offense, in order to convict the offender.”

Scrutinizing with great care the act of the Legislature in question, we find that it conflicts with no principle announced in this opinion. In fact, it is sustained and supported by the doctrine laid down therein. In Kring v. Missouri, supra, the doctrine in Calder v. Bull, supra, was reaffirmed, and, discussing further the proposition involved in the Kring Case, it is said:

“In the case before us, the Constitution of Missouri so changes the rule of evidence that what was conclusive evidence of innocence of the higher grade of murder when the crime was committed, namely, a judicial conviction for a lower grade of homicide, is not received as evidence at all, or, if received, is given no weight in behalf of the offender. It also changes the punishment; for, whereas, the law as it stood when the homicide was committed was that, when convicted of murder in the second degree, he could never be tried or punished by death for-murder in the first degree, the new law enacts that he may be so punished, notwithstanding the former conviction. But it is not to be supposed that the opinion in that case (Calder v. Bull) undertook to' define, by way of exclusion, all the cases to which the constitutional provision would be applicable. Accordingly, in a subsequent case tried before Mr. Justice Washington, he said, in his charge to the jury, that an ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage.’ U. S. v. Hall, 2 Wash. C. C. 366 [Fed. Cas. No. 15,285].”

The latter case was carried to the Supreme Court of the United States,-and the judgment affirmed, in 6 Cranch, 171, 3 L. Ed. 189.

The statute under consideration does not conflict with the doctrine in the Kring Case, which, as has been seen, reaffirmed the doctrine in Calder v. Bull, and elaborated thereupon. The statute before us adds to the Habitual Criminal Act convictions for violating provisions of the Enforcement Acts, so that the net result of the entire matter is that those who persist in violating the prohibitory liquor law after having been once convicted are deemed habitual criminals and punished accordingly. The fact that these offenses, when repeatedly committed, are deemed sufficient by the Legislature to constitute one an habitual criminal, in no way infringes upon any constitutional guaranty or vested right of any one. The law questioned in this case does not infringe upon the guaranties contained in section 10, art. 1, of the Constitution of the United States, nor any other provision of the same, nor does this law conflict with any doctrine laid down by the Supreme Court of the United States in construing the same. In Garnsey v. State, 4 Okla. Cr. 547, 112 Pac. 24, 38 L. R. A. (N. S.) 600, relied upon 'by counsel, it is said:

“The constitutional guaranty is a substantial right given by the law in force at' the time the crime charged is alleged to have been committed, and any law which operates as a denial of this right alters the situation of the accused to his disadvantage, and is therefore ex post facto .as to such crime. Adopting the language of Judge Denio, in Hartung v. People, 22 N. Y. 95: ‘No one can be criminally punished in this country, except according to law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time.’ A formal accusation is essential to every trial for crime. And, where the law requires „a particular form of accusation, that form of accusation Is essential. Without it the court acquires no jurisdiction “to .proceed. In the language of the Supreme Court of Massachusetts: ‘Though it is desirable that all offenders against- our penal laws should be punished, yet it is better that one should occasionally escape than that the fundamental principles of the criminal law should be violated.’ (Com. v. McDonough, 13 Allen, 581.)”

There is nothing in the Garnsey -opinion which supports the contention of counsel that the act under consideration violates the provisions of the Constitution of Oklahoma, supra. It does not undertake to change the status of the accused after the commission -of the -offense which Tenders him an habitual criminal, to wit, the second sale of intoxicating liquor. There is no reasonable construction which can be placed upon the same that would render it so. One who has been convicted of violating the law prior to the passage of the act is not tried for the prior offense, but is tried under the provision of the new law •for being an habitual criminal, which the act declares is any person who has theretofore been convicted and punished for the same crime. Laws of this character are not •of recent origin, nor are they unknown to the jurisprudence of this country. Statutes of similar - import have been uniformly upheld by the courts wherever enacted. As said by the Supreme Court of the United States in Moore v. State of Missouri, 159 U. S. 673, 16 Sup. Ct. 179, 40 L. Ed. 301:

“Similar provisions have been contained in state statutes for many years, and they have been uniformly sustained by the courts.”

In some states the fact that one has violated the criminal law in another jurisdiction and has been punished therefor can be and is made the foundation for prosecuting such violator as an habitual criminal in another jurisdiction, as was the case in McDonald v. Commonwealth of Massachusetts, 180 U. S. 311, 21 Sup. Ct. 389, 45 L. Ed. 542. In the latter case the court said:

“It is within the discretion of the Legislature of the state to treat former imprisonment in another state, as having the like effect as imprisonment in Massachusetts, to show that the man is an habitual criminal. The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only.”

It is argued that the statute in question is in conflict with section 7, art. 2, of the Constitution, under the construction placed upon the same in Ex parte Cain, supra. In the Cain Case the Supreme Court was considering the constitutional provision in the absence of the aid of any statute. That opinion was not intended to, and does not, place any restriction upon the Legislature in connection with the punishment of persons charged with violating the prohibitory liquor laws, except that the punishment must include both fine and confinement in the minimum amount named in the constitutional provision. Besides, the proposition here under consideration is not required to stand upon the foundation that the person charged com- ■ mitted a misdemeanor by making a single sale of intoxicating liquor. He is charged with a felony on account of his being an habitual criminal by reason of the fact that he has continually committed misdemeanors by having violated the provisions of the prohibitory liquor law more than once and having been convicted of such charge at least once prior to the filing of the information charging him with violation of the law under consideration. The crime Is established under the statute when the proof shows, first, a sale (or other violation of the liquor law) ; and, second, that the offender had, prior to the act complained of, been convicted for a violation of the same law.

Counsel argue that in the case of Nowakowski v. State, 6 Okla. Cr. 123, 116 Pac. 351, a doctrine is laid down which vitiates the statute under consideration, for the reason that the punishment named is a fine of not less than $50 and 30 days in the county jail nor more than $1,000 and five years in the penitentiary, and argue that under this statute the offender should be confined one hour, one day, one week, etc., in the state penitentiary as complete punishment, and that therefore the confinement of 30 days in prison provided for by the Constitution should be evaded. This court is of opinion that the punishment of all offenders wherein the confinement is less than one year should be in the county jail, and where the confinement is more than one year it should be in the state penitentiary, and that no court is authorized to impose a confinement of less than thirty days in the county jail in any event, nor less than one year in the penitentiary in case a penitentiary sentence is imposed, in so far as imprisonment is concerned, and that the act of the Legislature in question did not intend otherwise.

It is argued, also, that the statute in question is unconstitutional for the reason that a person could be punished as an habitual criminal, although he had been pardoned of the prior offense by the Governor. This contention is also without foundation. One who has been convicted of crime in this state, and has received a full and complete pardon by the Governor thereof, could not be prosecuted as an habitual criminal for another violation of the law. As was said by this court in Re Crump, 10 Okla. Cr. 133, 135 Pac. 428, 45 L. R. A. (N. S.) 1036:

“A pardon is an act of grace and mercy, bestowed by the state through its chief executive upon offenders against its laws after conviction, and a full, unconditional pardon reaches, both the punishment prescribed for the offense and the guilt of the offender; it obliterates in legal contemplation the offense itself, and hence its effect is to make the offender a new man.” ;

And again:

“The doctrine of the authorities is that in contemplation of law, it so far blots out the offense that afterwards-it cannot be imputed to him (the convict) to prevent the assertion of his legal rights. It gives him a new credit, and capacity, and rehabilitates him to that extent in his former position, and hence its effect is to make the offender a new man.”

The statute in question is not intended to, and does, not, apply in a case wherein a full and complete pardon has been granted. This, of course, does not arise in the instant case, but would be a matter of defense. When in the course of a trial this issue is raised, and it becomes conclusively established that the accused has been pardoned of all prior offenses against the penal law involved in the charge, he would be entitled to a discharge by the trial court. No right of this class of offenders is taken away or interfered with. The law complained of is a valid, existing penal provision, and not in conflict with any original act of constitutional guaranty.

The next proposition is based upon a complaint against the judgment imposed. The. judgment of the court imposes only imprisonment in the state penitentiary for a term of five years as a punishment. The section of the statute fixing the punishment for the crime charged (Sess. Laws 1913, c. 26, sec. 2) is as follows:

“For the second * * * conviction for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty dollars, nor more than two thousand dollars, and by imprisonment of not less than thirty days in the county jail, nor more than five years in the state penitentiary. * '* *”

The verdict of the jury is as follows:

“We, the jury, drawn, impaneled, and sworn in the above-entitled, cause, do upon our oaths find, the defendan-ant, Art Tucker, guilty as charged in the information herein, and fix his punishment at imprisonment in the state prison for a term of five years.”

•The judgment of the court conforms to .this verdict. In the motion for a. new trial one of the grounds set up is as follows:

“That the court erred in receiving the verdict of the jury, said verdict being absolutely void, for the reason that the jury failed to assess a fine as a part of penalty in said cause.”

In the case under consideration the. state plainly fixes as a part of the punishment a fine. The court should have refused to receive the verdict of the jury until the jury had returned to the jury room and fixed a fine as a part of the punishment.

It is contended that the district courts of this state have no jurisdiction to try offenders against the provisions of the statute providing for second or subsequent convictions of the prohibitory liquor laws, because it was. held in Ex parte Cain, supra, that the constitutional provision providing for state-wide prohibition fixed a penalty which made the offense a misdemeanor. It is the opinion of this court that the provision' of the Constitution providing a minimum punishment for violations of .the prohibitory liquor laws was not intended as a limitation upon the power of-^the Legislature to provide a maximum punishment which might take these offenses out of the category of misdemeanors and into that of felonies, and where the Legislature has provided a maximum' punishment for an offense which is or may be imprisonment in the penitentiary under our statutes, such an offense is a felony, and the district courts have jurisdiction to try the same. This is true, although the accused may be convicted of the included misdemeanor. Suitor v. State, 6 Okla. Cr. 305, 118 Pac. 412.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

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


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    WILLIAM J. TUDOR v. STATE.
    No. A-2751.
    Opinion Filed July 30, 1917.
    Rehearing Denied September 25, 1917.
    (167 Pac. 341.)
    1. EVIDENCE — Other Offenses. Upon the trial of a person charged with larceny of domestic animals, it is competent for the state to prove all the facts and circumstances in connection with the theft and which are calculated to shed light upon the truth of the matter in controversy, even though such facts may disclose the commission > of other crimes. This rule does not permit the indiscriminate proof of other crimes, but is confined to the proof of such facts as may be pertinent to the issue, or are directly connected therewith.
    2. TRIAL — Failure to Reduce Testimony to Writing — Prejudicial Error — Reversal (a) Under section 1786, Rev. Laws 1910, it is the duty of the trial court to require the court reporter to record raid transcribe all of the proceedings had in the trial of a criminal case when requested so to do by any party in interest or his attorney, and the failure of the court so to do is made prejudicial error without regard to the merits of the matter in controversy.
    (b) When a record discloses the fact that the court failed to comply with this mandatory provision of the statute, a reversal will follow as a matter of course in this court, unless the whole record discloses facts sufficient to enable the court to determine the merits of the proposition counsel were endeavoring to save.
    3. NEW TRIAL — Contents of Motion. It is the duty of counsel to state specifically the grounds upon which he expects to base error in the motion for a new trial in order that the trial court may have an opportunity to correct any fatal mistake that may have been made during the trial.
    4. APPEAL AND ERROR — Review—Assignment of Errors. An assignment of error based upon: the action of the court in overruling the challenge for cause to any juror cannot avail on appeal unless the record affirmatively shows that the defendant had exhausted his peremptory challenges, and that by reason of the action of the court his rights were prejudiced.
    5. TRIAL — Instructions—Sentence. It is the duty of .a trial court, when requested so to do by counsel for defendant, to instruct the jury to fix the punishment and define to them the correct penalty prescribed by law for the offense charged. In the absence of any such request, however, the court is authorized to • pronounce judgment on the general verdict of guilty.
    6. APPEAL AND ERROR — Fundamental Error. When a careful consideration of all the facts and circumstances disclosed by the record lead unerringly to the conclusion that an honest jury could reach no other conclusion than that of guilt, this court will not reverse the judgment of conviction in the absence of fundamental error.

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

    William J. Tudor was convicted of larceny of domestic animals, and appeals.
    Affirmed.

      W. G. Hughes and Charles L. Moore, for plaintiff in error.

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

William J. Tudor was convicted in the district court of Texas county on a charge of larceny of domestic animals, and his punishment fixed at ten years’ imprisonment in the state penitentiary. He appeals to this court for a reversal of the judgment.

The information charges the larceny of two mules in Texas county, Okla., on the 22d day of February, 1914, the property of J. M. Kimbriel..

The proof discloses the fact that Kimbriel lived in Texahoma; that on the night of February 2'lst a team of mules owned by him was brought to town and placed in his bárn; that on the morning of the 22d of February they were gone. A search was made, but no trace of the animals could be found. Complaint was made to the sheriff of Texas county, who in turn notified a number of officers in adjoining counties, giving a description of the team. A few days thereafter the sheriff notified Kimbriel that a team answering the description of his had, been located in Beaver county, and asked him to go and identify them. He went in company with the sheriff and found the team to be his. A deputy sheriff in Beaver county and another citizen had arrested Tudor the night before. After getting him in an automobile and starting to Beaver City, the county seat, Tudor assaulted the officer and escaped, but was recaptured the next day. The sheriff of Texas county and Kimbriel went to the place where the mules were located; and there found a wagon containing a number of other articles which the proof disclosed had been stolen about the same time the mules disappeared. After the recapture of Tudor he was taken to Texas county and confined in the county jail, and admitted to Deputy Sheriff Lyle and County Attorney Anderson that he had stolen the team, and said he was going to plead guilty to the charge. At the trial he interposed a defense of alibi and introduced a number of witnesses to establish the fact that he was in Guymon upon the night of the theft and was there all night.

The jury, after hearing all of the testimony, found him guilty, and the court assessed his punishment at ten years’ imprisonment in the state penitentiary.

Among the numerous assignments of error set up we will endeavor to discuss those of consequence.

It is first contended that the court erred in admitting testimony disclosing the theft of other property in addition to the mules. The testimony complained of was given by the officers who made the arrest and other witnesses who were interested. At the time the plaintiff in error was traveling through the country in a wagon in which were certain stolen articles which were recovered and afterwards returned to their owners. There was no error in admitting this testimony. It was a part of the res gestae. He-had stolen the team of mules, the other property, and was escaping from the country with them. All of the facts and circumstances in connection with the transaction, including all the stolen property in his possession at the time of the arrest, his escape from the officers, and his admission of guilt, were properly allowed to go to the jury. Some few details in connection with the other thefts probably should have been excluded, but there is no prejudicial error in the ruling of the court sufficient to warrant a reversal of the judgment on that ground. The general rule that a defendant on trial cannot be shown to have committed other crimes is not applicable when the facts are a part of the res gestae or have material bearing upon the issues under consideration. See Green v. State, 8 Okla. Cr. 595, 129 Pac. 683; Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43; Tempy v. State, 9 Okla. Cr. 446, 132 Pac. 383.

The next assignment of error is based upon the proposition that the court erred in refusing to require the court reporter to record the voir dire examination of the jurors. The record discloses the following in this connection:

“Mr. Hughes (after a number of- the jurors had been examined by the state and passed by the court) : I thought the examination was being taken by the reporter and asked that it be done.
“The Court: Go ahead;'it is not done anywhere else, and it is not necessary to do it here.
“Mr. Hughes: We except to the remarks of the court and request that this examination be taken.”

.The action of the court in this connection was error. The only question is whether or not this judgment should be reversed upon this ground. Ordinarily the failure of the court to require the reporter to take down all of the proceedings had at the trial, when so requested, is reversible error, regardless of the merits of the particular matter in controversy.

Section 1786, Rev. Laws 1910, is as follows:

“It shall be the duty of the court reporter to take down in shorthand, and to correctly transcribe, when required, all the proceedings upon the trial of any cause, as well as all statements of counsel, the witnesses or the court, made during the trial of any cause or with reference to any cause pending for trial, when required by a party or attorney interested therein, and all other matters that might properly be a part of a case-made for appeal or proceeding in error. An attorney in any case pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer,- or when his presence is required by such attorney, shall be taken and transcribed. A refusal of the court to permit, or, when requested, to require any statement to be taken down, * * * upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof.”

This section is a plain and unequivocal mandate'of the lawmaking power, and it is the duty of the trial courts to observe the same in order that the public may not be charged with unnecessary expense of second trials, and, further, that fairness and impartiality may be observed in all proceedings had in the trial of a criminal case. The trial court evidently overlooked the, mandatory provisions of the statute and the opinions of this court construing it.

In Lamm et al. v. State, 4 Okla. Cr. 641, 111 Pac. 1002, it is said:

“Section 1, art. 7, of the Session Laws of Oklahoma, 1905, p. 326, gives to either party to a trial the right to demand of the court that the court stenographer shall take down in shorthand any statement made by any party to such trial which might properly be a part of the case-made for appealing or proceeding in error; and if the court refuses to comply with such demand, the matter may be preserved in the record by affidavits or by any other competent evidence, and such refusal upon the part of the trial court will be ground for reversal, without regard to the merits thereof.
“Any party to a cause has the right to demand that the court stenographer shall be required to take down any matter which may transpire at the trial, when such matter, if objected to, is such that it may properly be made a part of a case-made for appeal or proceeding in error.”

In Walker v. State, 6 Okla. Cr. 370, 118 Pac. 1005, it is said:

“If the attorney for a defendant requests the trial court to direct the court stenographer to 'take down and transcribe any statement of attorneys, or,other proceedings occurring in the presence of the court which constitute a part of the trial, for the purpose of incorporating such statement in the case-made, and the court refuses to comply with this request, this may be shown by affidavits or other ’ competent evidence; and such refusal, when so shown, will be held to be prejudicial error, without regard to the merits of the question, because it involves the right of a defendant to prepare and present a fair statement of what occurred in the trial court for review upon appeal.”

All of the opinions involving this question written by this court since those cited, supra, adhere strictly to this doctrine.

The record before us, however, discloses the fact that only three jurors were objected to. The examination of these jurors was taken by the reporter and included in the record. This being true, it.is impossible to conceive that prejudice resulted from the action of the court.'.

In the motion for new trial no specific assignment of error is based upon the action of the court in this connection, nor is any specific assignment in the petition in error based upon this proposition. Counsel endeavor to avail themselves of this question under the general assignment that there were irregularities in the proceedings of the court in the trial of this cause which prevented the plaintiff in error from having a fair and impartial trial. This allegation in the motion for a new trial afid'Ia the petition in error probably would be sufficient to preserve the question for review if the record indicated- that-any injury resulted by reason of -this action. Counsel should have called the attention specifically to this proposition in the motion for a new trial instead of relying on generalities.

The trial court evidently reconsidered his first statement -that the reporter would not, be required to take the voir dire examination and required him to take it, because the record discloses that certain portions of this examination were taken and all of the examination of which there is any complaint made was taken.

After considering the whole record, we conclude that this judgment should not be reversed upon this ground. The trial courts, however, are warned against the practice complained of. The law entitles a defendant to have every utterance during the trial recorded- and transcribed if he so desires, and no trial judge has the authority to deny him this privilege. The fact that the record , before us is. sufficiently- complete to enable us to determine the merits of this matter is the only ground upon which the judgment can stand.

The next assignment is based upon the action of the court in overruling challenges for cause to Jurors Isham, Davidson, and Arnold.

This assignment is not tenable, for the reason that the record fails to show that th,e defendant had exhausted his peremptory challenges. Before he would be entitled to complain of any person sitting as a juror in the trial of his case he is first required to show that he has exhausted his peremptory challenges, and, 'by reason of the court failing and refusing to sustain challenges for cause, has been denied the right of trial by a fair and impartial jury as the law provides. All of the jurors complained of, except probably one, were qualified under, the doctrine declared by this court in many cases, the last being Horn v. State, decided at the May term of the court, 13 Okla. Cr. 354, 164 Pac. 683.

The next assignment to be discussed is based upon the proposition, that the court erred in failing to instruct the jury that the punishment fixed by the law for the crime charged was not less than two years nor more than ten years in the state penitentiary.

■ The record fails to disclose the fact that counsel requested any such instruction. The jury returned a general verdict of guilty, and the court fixed the punishment.

This court has uniformly held to the doctrine that the failure -or refusal of a trial court to instruct the jury to fix the punishment and advising them clearly what the punishment provided by law is in any criminal case, when so requested,. is rfeversible: error.

Section 5938, Rev. Laws 1910, provides:

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

In addition to this, section 5934, Rev. Laws 1910, provides:

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

These statutes have been construed by this court in numerous opinions, among which are Chandler v. State, 3 Okla. Cr. 263, 105 Pac. 375, 107 Pac. 735; Blair v. State, 4 Okla. Cr. 366, 111 Pac. 1003. The identical question, however, has not been before the court heretofore.

While we think it is a better practice that the court, in his instructions to the jury, tell them what the punishment provided by law is for the crime on trial, yet it is not necessarily fatal to the judgment for the court to fail to do so when no request is made therefor. In the instant case the court properly pronounced the judgment and'sentence, and after a careful review of all the facts and circumstances disclosed by the record we feel that the judgment, although the maximum, is no more than should have been imposed. .

The trial courts are not to confuse the doctrine here announced with that promulgated in Oelke v. State, 10 Okla. Cr. 49, 133 Pac. 1140. In the Oelke Case the defendant specifically requested the court to instruct the jury that in the event they found a verdict of guilty they should assess and declare the punishment. The jury returned a verdict of guilty, but failed to fix the punishment, and we held that the court should have required the jury to render a formal verdict showing that they were unable to agree upon the punishment. The record in the Oelke Case properly discloses the fact that counsel objected to the reception of the verdict in the form in which it was rendered by the jury, after having requested the court to submit the question of punishment to the jury. The rule in the Oelke Case is correct, but it is not applicable to the record before us.

It is next urged that the judgment should be reverseu because the trial court considered, for the purpose of enabling him to arrive at a just punishment, the fact that the plaintiff in error had been convicted of crime, and sentenced to serve a term in the penitentiary in the State of New Mexico. This assignment is without merit.

Upon a careful consideration of the entire record in this case, we feel that it would be a miscarriage of justice to reverse this judgment, and that while the irregularities complained of may contain some merit, they were not prejudicial to the substantial rights of the accused. It is absolutely clear that no honest and intelligent jury, under the facts, would render a different verdict upon a retrial of the cause.

The judgment is affirmed.

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


author: MATSON, J.

text:
    STATE v. MAUDE WINDELL.
    No. A-2752.
    Opinion Filed September 29, 1917.
    (167 Pac. 640.)
    1. INTOXICATING LIQUORS — Sufficiency of Information. For information held sufficient to charge an offense for second violation of prohibitory liguor laws, see body of opinion.
    2. CRIMINAL LAW — Second Offense — Jurisdiction of District Court. Following Tucker v. State, ante, p. 54, 167 Pac. .637, held, district courts have jurisdiction to try offenders charged with the violation of the habitual criminal statute.

      Appeal from District Court, Craig County; Geo. C. Crump, Assigned Judge.

    Maude- Windell, alias Maude Couch, was prosecuted on an information for a second violation of the liquor law, and from a judgment of the district court, sustaining a demurrer to the information, the state appeals.
    Reversed and remanded, with instructions to overrule the demurrer.

      Willard H. Voyles, Co. Atty., S. P. Freeling; Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal by the state from a judgment of the district court of Craig county, sustaining a demurrer of the defendant to the information. The charging part of the information is as follows:

''That the said Maude Windell, under the name of Maude Couch, was informed against by information in the county court of Craig county, Oklahoma, duly filed on the 7th day of December, 1914, by Willard H. Voyles, county attorney for the county of Craig, in the State of Oklahoma, for the crime of selling, bartering, giving away and otherwise furnishing to Walter Woodal spirituous and intoxicating liquor, to wit, one quart of whisky, and that on the 16th' day of April, 1915, following, the said Maud*1 Windell, under the name of Maude Couch, personally appeared in open court in said county court, and upon her plea of not guilty to said information was duly tried and convicted by a jury regularly impaneled and sworn to' try said cause, and that in pursuance to said verdict of the jury the said Maude Winded, under the name of Maude Couch, was by the county court aforesaid on the 21st day of April, 1915, sentenced to serve- a term of thirty (80) days in the county jail of Craig county, Oklahoma, and to pay a fine of seventy-five ($75) dollars and costs, and that the said Maude Winded, under the name of Maude Couch, was • duly committed to the county jail of said county and served said sentence, imprisonment, and fine, and that thereafter, to wit, bn March 27, 1916, the said Maude Winded, alias Maude Couch, did in Craig county, Oklahoma, commit the crime of violating the prohibition of said state again and for the second time in manner and form as follows, to wit: That the said Maude Winded, alias Maude Couch, having been duly convicted as aforesaid, did then and there on the said 27th day of March, 1916, knowingly, willfully, unlawfully, and feloniously have in her possession certain intoxicating liquors, to wit, twenty-eight (28) quarts of whisky and eleven (11) quarts of beer, for the purpose and with the intent to unlawfully and feloniously barter, sell, give away, and otherwise furnish the same to persons to the affiant unknown, in violation of the prohibition laws of the State of Oklahoma.”

The grounds stated in the demurrer are as follows:

(1) “That said information does not state facts sufficient to constitute a public offense.”

(2) “That the. court has no jurisdiction over the offense charged in the information.”

No appearance is made for the defendant. We are therefore at a loss to know the reasons given by the trial court in sustaining the demurrer to this information. We have carefully examined the same, and it is the opinion of this court that it sufficiently alleges and sets out in proper form all the material facts necessary to allege and prove to sustain a second conviction of violating the prohibitory liquor laws of the state. It is not necessary that the entire record of the former trial and conviction be set out in the information; it is only necessary that the facts required shall be alleged with sufficient clearness to enable the court to determine whether or not the statute applies. 12 Cyc. pp. 950, 951.

We presume, however, that the demurrer to this information was sustained by the trial court upon the ground that the district court had no jurisdiction to try this offense. This court has already passed upon the question' of the jurisdiction of district courts in cases of this kind in the recent decision in the case of Art Tucker v. State, ante, p. 54, 167 Pac. 637, in which it is held that district courts have original jurisdiction of such cases.

We conclude, therefore, that it was error for the district court to sustain the demurrer to the foregoing information on either ground stated therein, and the judgment of Said court sustaining the demurrer is set aside, and the cause is remanded to the district court of Craig county, with instructions to overrule said demurrer, and for' further proceedings in accordance with law.

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


author: DOYLE, P. J.

text:
    JAMES P. FITZSIMMONS v. STATE.
    No. A-2659.
    Opinion Filed July 18, 1917.
    Rehearing Denied October 2, 1917.
    (166 Pac. 453.)
    1. EVIDENCE — Testimony on Preliminary Examination.' In a prosecution for murder, where the testimony of a witness was given at the preliminary examination, and his testimony was taken by the reporter, in the presence of the defendant and his counsel, who cross-examined him, and such testimony is transcribed and filed with the court clerk, held, that if the witness is not-present at the final trial, and the state shows that su'ch witness cannot with due diligence be found within the jurisdiction of the court, the testimony of the witness may be read to the jury; and held, further, that it is immaterial that the ■ names of the witnesses used by the state to prove that defendant had’ been confronted by'the witness, and that the witness was then beyond the jurisdiction of the court, were not indorsed upon the information.

      2. APPEAL AND ERROR — Trial—Instructions—Requests. Where a party desires the court to give any particular instruction, or desires that the one that is given be made more specific or comprehensive, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request a conviction will not be reversed, unless this court is of .the opinion, in the light of the entire record, including the instructions given, that the defendant may have been prejudiced by the instruction complained of.
    3. SAME — New Trial — Instructions. Where a verdict is clearly sustained by the evidence, a new trial will not be granted for slight inaccuracies in the instructions.

      Appeal from District Court, Payne County; A. H. Huston, Judge.

    James P. Fitzsimmons was convicted of manslaughter in the first degree, and appeals.
    ^Affirmed.

      John P. Hicham and Vaught & Brewer, for plaintiff m error.

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

Plaintiff in error, herein referred to as the defendant, was convicted of manslaughter in the first degree on an information filed in the district court of Payne county on the 19th day of April, 1915, charging him with the murder of Jack Corrigan, in said county on the 23d day of March, 1915. In accordance with the verdict of the jury rendered October 15,- 1915, he was sentenced to serve a term of five years’ imprisonment in the state penitentiary. To reverse the judgment the defendant appealed, by filing in this court on February 28, 1916, a petition in ■ error with case-made.

In order *to better understand the errors assigned, the following brief statement of the facts disclosed by the testimony is made; also extracts from the testimony of the witnesses and of the defendant as a witness in his own behalf:

It appears from the evidence that the killing occurred at a road house known as the'Line House, situated on the road between Cushing and Drumright. The record shows that the testimony of J. W. Barrett and J. R. Long, as given upon the defendant’s preliminary examination, was relied upon by the state to show the circumstances of the killing. The testimony of J. W. Barrett, as read from the transcript by the reporter who took the same, was in substance as follows: That ■ on the date alleged in ' the information he left Drumright, where he lived at that time, with J. R. Long, and Went to the Line House, just across the line in Payne county, about two miles west of Drumright; that they arrived there about 4 o’clock; that he knows the defendant, Fitzsimmons, and >saw him when he came into the road house; that at that time Jack Cor-rigan, the deceased, was standing with, his back to the bar and with his elbows on the bar; that when the defendant came in he had a pistol in his hand, and he walked up to the deceased and shot him; that he never saw Jack Cor-rigan before; that there were six or seven people in the room when the shot was fired; that J.,R. Long and J. P. King and a woman called Billie Reed were present at the time; that the deceased sank to the floor, and J. R. Long called for a glass of water and a pillow; that- the defendant then made the remark, “If any of his friends wanted any of it, they could get it”; that he later saw the body of the deceased at the undertaker’s, and noticed that the bullet entered below the collar bone and passed out near the small of the back; that it was between 4 and 5 o’clock when the shooting occurred; that he left the room and saw the defendant coming out with Billie Reed, and he then went back in; then Billie Reed came back and threw herself on the body. His cross-examination by Mr. Hick-am, counsel for the defendant, was in part as follows:

“Q. Where were you standing in this room at the time the defendant came in? A. I was standing at the north end of the bar; the door comes in from the north. Q. Does the building extend north and south? A. Yes sir. Q. This counter runs what direction? A. North and south. Q. This is in what side of the house? A. North. Q. How many windows in this building? A. One north and one west. Q. Where is the window as to this counter? A. The window is near the end of the counter, where the man was shot. There may be more, but this one window is there, because the bullet went through the blind of the window and broke the top sash out of the window. Q. Where were you standing? A. Right at the door. Q. Where was Corrigan standing? A; He was standing at the opposite end of the counter. Q. Did you know Corrigan before this time? A. No, sir. Q. What was the first thing said when the defendant «jame in? A. I didn’t hear anything said before the shooting. Q. When the defendant came-in, where were you as to the defendant? A. I was standing right at the end of the bar, and stood there until after the shooting. Q. Where was the defendant standing? A. He walked down the counter within four feet of the man that was shot.”

The testimony of J. R. Long is substantially as fol-fows: That he had lived at.Drumright about 18 months; was a rig builder; took the witness Barrett and his child to the Line House that afternoon in his automobile; was in the room when the defendant came in and shot Jack Corrigan, who was commonly' called “Happy Jack.” The defendant came in with Billie Reed, and was- holding her by the arm, and she was crying when they entered the door. “Happy Jack” was standing at the bar; the defendant pushed the girl aside and shot him.. The man that was shot said nothing. “He just sank down,” and witness caught him in his arms and called for water and for something to put under his head. Immediately after shooting Corrigan the defendant said, “If you fellows are friends of this man, and want any of it, you can get it,” and then said to. the' deceased, “Get up and fight, you son of a bitch, like a man!” The deceased did not have anything in his hands1 at the time he was shot. His cross-examination by Mr. Hickam was in part as follows:

“Q. Were you ever convicted of any crime? A. I never was. Q. You came to this Line House at what time? A. About 4 o’clock. Q. How long were you in this house? A. All together about ten minutes. Q. What part of this building is the counter in? A. Northwests Q. When the defendant came at the north door where did he go? A. Walked right through. Q. Did he say anything? A. Not that I heard. Q. What did the deceased say? A. Didn’t say anything that I heard. Q. How far were you standing from the deceased? A. Right beside him. Q. How far'from the defendant. A. Five or six feet.”

Roy McClerken, as a witness for the defendant, testified that he knew Jack Corrigan, known as “Happy Jack,” for more than a‘year; that on.the day he was shot he went with Oscar Hendricks from Drumright to the Line House; that they arrived there a little after 4 o’clock, and found “Happy Jack” there, and they had a few drinks together. He further testified as follows:

“Q. Did you see this defendant that afternoon? A. We were out there about an hour. I and this boy went out there in a livery car, went out there to get a drink, and this livery man went back to Drumright, and during this time we concluded to go to Cushing. I guess we had been there maybe half or three-quarters of an hour, I would not say how long, and Mr. Fitzsimmons drove up, and I hallooed at him. I knew him. I used to ride with him, and I asked him if he had a load in town. He stopped and said, ‘No, he had room for another one or two;’ and I said, ‘If you wait a few minutes I will go with you; I have another boy with me.’ So he got out and came in, and this fellow with him, named Chris Glacken. When they came in, this ‘Happy Jack’ spoke up and said, ‘There is that G-damn son of a bitch that would not sign my bond.’ That Fitzsimmons walked in and walked past us. We were standing at the bar, and this guy turned around and looked at him and made this remark. • ‘Happy Jack’ made this remark. Jack he picked up something, I don’t know what it was, looked like a piece of iron or chisel, and started towards Fitz-simmons, and Fitzsimmons said, ‘Stop, Happy; better stop.’ Said that about three times. Happy, when he got over close to him, pulled this iron. Q. Did Fitz-simmons move? A. He backed off, clean as far as — well he couldn’t get out, he was against the wall; Happy pulled this iron back and hit up on Fitzsimmons, and Fitzsim-mons shot him. Q. What did the defendant say, if anything, after the shooting took place? A. I never heard him make any remark. Q. What did the defendant do after the shooting; where did he go? A. He came to Cushing. Q. What did he say, if anything about going to Cushing? A. He just spoke and said, ‘I guess I will go in and give up.’ Q. Tell the jury what he - did. A. Got in the car and drove towards town; met the deputy sheriff out there. I think there were two more fellows in the car. The deputy got in front with Fitzsimmons and we came in town.”

His cross-examination was in part as follows:

“Q. You say you have known Jim Fitzsimmons for how long? A. About two years, I guess. Q. Strong personal friend of his? A. Yes, sir. Q. You were not present at the preliminary hearing of this case? A. No, sir. Q. Did you know Billie Keed? A. No, sir; I don’t know her. Q. Did you see a girl brought in there that day by Fitzsimmons? A. I seen some girl in the back end of the car as they drove up there. I never seen- her in the house.”

The testimony of Arthur -Hendricks was in substance the same as that of the witness McClerken.

Chris L. Glacken testified: That on the day of the killing he left Cushing about noón and rode with the defendant to Drumright in his automobile; that he saw the boy they called “Happy Jack” at Drumright that afternoon and had a talk with him, and “Happy Jack” said:

“Say, Chris, you must want to get killed; if you run around with Fitzsimmons you are liable to get in bad —liable to get killed; that son of a bitch refused to go on my bond, and I am going to get him.”

That between 4 and 5 o’clock he started back to Cushing with the defendant and there was a girl in the back end of.the car; that between Drumright and the Line House he asked the defendant what the trouble between him and “Happy Jack” was, and told him of the threat that “Happy Jack” had made against him; that when they reached the Line House Roy McClerken came out and asked if there was room for two passengers to go to Cushing, and they stopped and went into the building. He further testified as follows:

“Q. Now, go on in your own way and tell the jury what took place? . A. Well, we went in the place, there was four or five people standing at the bar. • Happy Jack was standing I should judge five or six feet from the door, but turned around to the bar with his back to the bar. McClerken walked in first. I followed him and Fitzsimmons behind him. First thing I know, ‘Happy Jack’ said, ‘There is that dirty son of a bitch that would not go on my bond; I guess I will take him on.’ He comes towards Fitzsimmons, and Fitzsimmons' backed up and said, ‘Happy, I do not want no trouble with you; I am your friend; I have been your friend; I don’t want no trouble with you.’ He kept coming, and Fitzsimmons backed up until he went into the east wall; he fired a shot at him, and he fell on his left side. Q. Did ‘Happy Jack’ have anything in his hand? A. He had an iron in his hand; yes, sir, when he started he did. Q. Do you know where he got that iron ? A. I could not swear where he got it.”

As a witness in his own behalf the defendant testified that he had known Jack Corrigan for about a year and a half; that at one time Corrigan sent for him to come to the county jail, and he went there, and Corrigan asked him to sign his bond, and he told him he could not qualify on his bond; that he had signed too many bonds, and they would not take him on any more; that the next time he saw him was at Drumright on the day of the killing; and that afternoon he started from Drumright to Cush-ing with two passengers, Chris Glacken and a lady. He further testified as follows:

“Q. What, if anything, did Glacken tell you? A. He told me to look out, that he would kill me. Q. Whom did you see first when you got to the Line House,? A. Roy McClerken hallooed to me; he asked me if I could take a couple of passengers. I told him, ‘Yes,’ I had plenty of room; he said, ‘Wait a minute, and we’ll go with you.’ Q. Then what did you do? A. I got out and went in. Q. Now you tell the jury what took place after you went in there. A. I walked in the door; the bar comes right out to the door, and there were two or three standing up along the bar. It is only a short bar; it runs to the window on the west side of the house. When I walked in I walked east of them, over towards where this Roy McClerken was; this Jack turned around and said, ‘There is that son of a bitch now; he would not go on my bond.’ I says ‘Jack, let’s don’t have any trouble; I never done anything to you,’ and he reached back, I don’t know where, and got something off this bar, or out of the window; he picked up something and made for me. I backed straight back; I was going towards the east wall; he kept coming forward; I told him to stop; he raised up this, whatever it was in his hand, something looked like a big rock or piece of iron; I pulled my pistol and shot hiim. Q. Where did you go'after the'shooting? A. I got in my car and started to Cushing. Q. Who was with you? A. Roy McClerken, Chris Glacken, and Hendricks.”

On cross-examination he testified:

“Q. Were you on any bond at that time for Chris Glacken? A. Yes, sir. Q. Were you on a bond for Roy McClerken? A. Not at that time. Q. I will ask you if you didn’t state a few minutes ago he came running at you with something you could not tell what it was, in his hand? A. I could not tell exactly what it was, it was something he picked up. Q. Do you know Billie Reed? A. I know her when I see her. Q. Mr. Fitz-simmons, I will ask you if you have been heretofore tried in this court for a violation of the liquor law and a verdict of guilty returned against you? (No answer.) By the Court: Answer the question. A. Yes, sir. Q. How long was it since that time? A. I think it was a year last April. It was in the spring term of court.”

The errors assigned will be considered in the order in which they are presented in the defendant’s brief. In instructing the jury concerning the right of the defendant to defend his person, the court gave the following instruction :

“You are instructed that every one has the right to act in his own self-defense, and use such means and force as appears to him reasonably necessary to ward off an attack or to save himself from danger. And if you find from the evidence in this case that the deceased, Jack Corrigan, began an attack upon the defendant with an iron wedge or hammer, then the defendant had the right to defend himself with such means and force as appeared reasonably necessary to ward off the attack. But he had no right under the law to use any more force than appeared to be reasonably necessary to save himself. One may not resort to a deadly firearm in an ordinary fight, unless there is a real or apparent danger of his life being taken or great bodily harm done him. And in this case, if you find from the evidence that the deceased commenced an attack upon the defendant, and advanced upon him with the iron wedge or hammer that has been introduced in evidence in this case, and further find that the defendant drew his revolver, and shot and killed the deceased, and if you further find from the evidence beyond a reasonable doubt that it was unnecessary, and did not reasonably appear to be necessary, to shoot and •kill the deceased, in order to save his life or his person from great bodily harm, then the defendant would be guilty of manslaughter in the first degree. (Excepted to by John P. Hickam, attorney for defendant. Exception allowed. A. H. Huston, Judge.)”

The argument is that this instruction is erroneous:

“Because it puts the defendant under the burden of proving that the deceased was the aggressor, and fails anywhere to define ‘the appearance of danger,’ and that the situation must be viewed from ‘the standpoint of the defendant,’ and utterly fails to advise the jury what the defendant had a right to do under the theory presented by the evidence.”

It appears that counsel for the defendant presented no request for instructions, and this exception and another to an instruction defining murder and manslaughter in the language of the statute were the only exceptions taken to the instructions given. We think the instruction itself answers the criticisms, and shows them not to be well founded, with one exception; that is, it omits to state that the appearance of danger is to be viewed from the defendant’s standpoint. However, the defendant in his testimony does not state that at the time he fired the fatal shot it reasonably appeared to him that he was in danger of losing his. life or suffering serious bodily injury at the hands of the deceased, and while the testimony of the defendant and his witnesses tended to show that thé deceased had made threats against the defendant, and that he was the aggressor, there is no testimony showing that the defendant believed that he was in danger of losing his life or suffering serious bodily injury at the hands of the deceased at the time he fired the fatal shot. It is elementary that a person assaulted is justified in using so much force as is necessary to his defense; however, to repel a slight assault,'the person assaulted will not be justified in doing those acts that are calculated to destroy the life of his assailant, unless the assault is of such a character as to endanger his life, or inflict on him seri.ous bodily injury, or to excite his fears as a reasonable man that such would be the result of the assault. The law limits him to such acts as are necessary to self-defense, and- the appearance of danger is to be viewed from his standpoint, and as he saw it.

In another instruction the court defined justifiable homicide in the language of the statute. Penal Code, sec. 2384, Rev. Laws 1910. In the closing paragraph of the instruction criticized the court instructed the jury that unless they—

“find from the evidence beyond a reasonable doubt that it was unnecessary, and did not reasonably appear to be necessary, to shoot and kill the deceased in .order to save his life or his person from great bodily harm, then the defendant would be guilty of manslaughter in the first degree.”

We think this was as favorable to the defendant as he could demand. Our Procedure Criminal provides:

“Upon a trial for murder the commission of the homicde by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” (Section 5902, Rev. Laws 1910.)

Under this section of the statute the presumption of innocence has been overcome when the commission of the homicide by the defendant is proven beyond a reasonable doubt. A presumption of' guilt then obtains, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable, and thereupon the burden shifts to the defendant to produce sufficient testimony to raise a reasonable doubt, either as to the degree of homicide, or as to his justification or excuse. If the defendant discharges this burden, then it returns to the prosecution, and, to warrant a conviction, the presumption must overcome such reasonable doubt thus raised by proof beyond a reasonable doubt of each essential element of the crime. Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478; Williams v. State, 9 Okla. Cr. 206, 131 Pac. 179; Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248.

Our Procedure Criminal provides that:

“In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present tó the court any written charge and request that it be given. If the court thinks it correct and pertinent, it must be given;' if not, it must be refused.” (Section 5905, Rev. Laws 1910.)

Under this provision, if counsel for the defendant desires the court to give any particular instruction, or that one that is given be made more specific or comprehensive, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request a conviction will not be reversed, unless this court is of the opinion, in the light of the entire record, including the instructions given, that the defendant may have been prejudiced by the erroneous instruction given and to which an exception was duly taken. We are of the opinion that the instructions given, taken as a whole, substantially presented the law of the case fairly.

Counsel in their brief say:

“The only other points we desire to make go to the question of the admissibility of the evidence offered by the state. As has been said, this defendant, as far as the "material facts of the homicide are concerned, was confronted at his trial by no witness. • The testimony introduced, and under which he was convicted, was read from the stenographer’s notes, reduced to writing, as made at the preliminary trial. Timely objections were made at various points to the introduction of this evidence. The only point in relation thereto that we care to urge is the claim that the foundation, or showing, necessary to be made as a predicate for the introduction of the evidence, was not sufficient; that is to say, that it was not shown that the witnesses, or either of them, were dead, insane, sick, and unable to testify, beyond the jurisdiction of the court, or that sufficient diligence had been used in the premises.”

Considering the competency of the testimony as it is met by the objections urged, it appears that the first witness called by the state was Albert Dinwiddie, a deputy court clerk, who testified that he was also official stenographer for the county court, and as such took testimony of the witnesses J. W. Barrett and J. R. Long upon the defendant’s preliminary examination, and as clerk of the court he produced the files and identified the original complaint as filed before the committing magistate, including the order indorsed thereon holding the defendant to the district court. He identified the praecipe for subpoenas for witnesses J. W. Barrett and J. R. Long, which1 was filed on September 15, 1915; also the affidavit of .the assistant attorney showing that said witnesses were nonresidents of Payne county; also the subpoenas for said witnesses, issued September 24th, directed to the sheriff of Creek county, and the return of said sheriff, showing that said witnesses could not be found in Creek county. And the same was offered in evidence. He further testified to the correctness of his report of the testimony of said witnesses as given upon the preliminary examination of the defendant and that the same was duly certified to by him. Thereupon the transcript was offered in evidence. The defense objected on the ground:

“That the showing as required by law has not been made. By the Court: You have offered a subpoena and two names on there. You ought to show that they are without the. jurisdiction of the court, before you can offer secondary evidence. I think there is no doubt as to the rule; you cannot show it by merely a return on a subpoena. Have you any witnesses you can prove this by? By Mr. Turner: None except myself. I will go on the stand and take oath that those people are not in the state.”

Thereupon A. W. Turner was sworn and took the stand. The defense objected to this witness testifying— “for the reason that his name and post office address was not furnished to the defendant, as required by the Constitution of the state, and for the further reason that his name is not indorsed' upon the information. By the Court: He does not testify to any facts of the case. He only testifies towards laying the foundation for offering other testimony. (Objection overruled and exception allowed.)”

He testified as follows:

“That J. W. Barrett and J. R. Long are the witnesses whose evidence is sought to be introduced by the transcript; that from every source or information I could get, and covering within the last two months of diligent search, I know that these two witnesses are not within the jurisdiction of this court, and their whereabouts are unknown. I don’t know whether they are outside of the state or not. I can’t definitely state that.-' I do know their whereabouts are absolutely unknown so far as the state has been able to trace them.”

Cross examination by Mr. Hickam:

“Q. You may state, Mr. Turner, to what extent you personally know that their whereabouts is not known. Have' you any information, except the return of that subpoena, only hearsay? A. One can only acquire knowledge of that kind by hearsay. I went over in Drum-right, and inquired of Mr. Long’s people over there (that is, his associates) if they knew where he was, and Mr. Barrett’s also, and they told me he had gone, and they didn’t know where he had gone. Mr. Billy Derrig, deputy sheriff, tells me he has made diligent search in this county, and cannot find these two witnesses, or any of them, except Billie Reed, whose evidence is not in this transcript; that he made diligent search for her and at one time found her. Service was had on her, as the sheriff’s return will show, in this county, and she went away. I talked with Mr. Bradley, deputy sheriff of Creek county, who served these papers over there, and he told me that he had searched Creek county high and low, but could not find these witnesses, and could not trace their whereabouts.”

Thereupon the. transcript of the testimony of the witnesses Barrett and Long was again offered, and the defense renewed their objections, which were overruled, and the testimony of said witnesses as taken on the preliminary examination ■ was read to the jury.

■ Upon a careful consideration of the evidence we think that the objections were properly overruled. There was no error committed in allowing the subpoenas for these witnesses, that had been issued and returned un-served, to be received in evidence for the purpose of showing what had been done towards making service upon the missing witnesses. As was said in Jeffries v. State 3 Okla. Cr. 146, 162 Pac. 1137:

“The objection to this is based upon the contention: First, that the state only proved by hearsay that Belmay was absent from the state; and, second, that the name of the stenographer who identified the evidence as that taken at the preliminary, and the’ witnesses used to prove Belmay’s absence, were not indorsed on the information. And defendant relies upon Driggers v. U. S. 1 Okla. Cr. 167, 95 Pac. 612, 129 Am. St. Rep. 823, to support his first contention. But the doctrine announced in Driggers v. U. S. has never been followed by this court, and, we think, is not the law. Under the doctrine insisted upon by the defendant, the state would not be allowed to use the former testimony of an absent witness, unless it could produce some one who saw him cross the state line, and could then swear with equal positiveness that he had never returned. Such was -never contemplated by the law. But this court has followed the doctrine, announced by Mr. Wigmore, that ‘if the witness has disappeared from observation, he is in effect unavailable for the purpose of compelling his attendance.’ Such a disappearance is shown by the party’s inability to find him after diligent search. The only objection to recognizing this ground of unavailability is to the possibility of collusion between party and witness; but, supposing the court to be satisfied that there has been no collusion, and that the search has been bona fide, this objection loses all of its force. For former testimony this cause of unavailability has long been recognized. Wigmore on Evidence, vol. 2, par. 1405; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701; Henry v. State, 10 Okla. Cr. 369, 136 Pac. 982, 52 L. R. A. (N. S.) 113.”

It is sufficient answer to the contentions made to say that we think, after a careful survey of the facts in evidence, that the testimony was susceptible of only two conclusions;- that, taking the case as made by the state, it was a deliberate, cold-blooded, fiendish murder, and, taking the testimony of the defendant, he is, we think, guilty of manslaughter in the first degree upon his own statement. To hold that the testimony of the defendant and his witnesses established the defense of justifiable homicide would be to upset all well-settled rules and statutes, which point out the duty of one engaged in a quarrel, and the necessity of his avoiding the attack, if in his power, and, at most, to use only such force as was necessary to prevent injury to himself.

We ought not to close this review without adverting to the fact that the defendant was carrying a pistol in violation of the statute making it a misdemeanor; that when he fired the fatal shot he was surrounded by his friends, and, although he was their bondsman, they did not appear to testify at his preliminary examination, which was held on the day following that of the homicide, and the undisputed testimony of the witnesses at the preliminary examination made out a case of unprovoked murder. Upon the final trial all of these "witnesses were missing, and while it does not appear that they were absent through the connivance or by the ■ procurement of the defendant, it was to his advantage.

Discovering no prejudicial error in the record, the judgment is affirmed. The court clerk of Payne county is directed to issue forthwith to the sheriff of said county a commitment in accordance with the judgment and sentence of the court.

ARMSTRONG and MATSON, JJ., concur.


text:
    BILLY MILES v. STATE.
    No. A-2774.
    Opinion Filed October 3, 1917.
    (167 Pac. 636.)
    INTOXICATING LIQUORS — Possession with Intent to Sell — Sufficiency of Evidence. In a prosecution for the possession of intoxicating liquors with intent to sell the same, the evidence examined, and held sufficient to sustain the verdict and judgment.

      Appeal from County Court, Tulsa County; John R. Ramsey, Judge.

    Billy Miles was convicted of possessing intoxicating liquors with intent to sell them, in violation of the prohibitory law, and he appeals.
    Affirmed.

      Earl Sneed, for plaintiff in error.

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

Plaintiff in error, Billy Miles, was tried and convicted in the county court of Tulsa county on an information charging that he did have possession of intoxicating liquors with the unlawful intent to sell the same, and his punishment was assessed at a fine of $100 and imprisonment in the county jail for 30 days. From the judgment rendered in pursuance of the verdict, he appeals.

An examination of the record discloses that the information is sufficient. The evidence shows that in the execution of a search warrant against the Diamond Drug Store, in the city of Tulsa, the officers found a sack containing about 40 bottles of beer behind the prescription case. There was evidence tending to show that' Billy Miles was the owner and proprietor of said drug store. There was no evidence offered on the part of the defense.

Upon a careful examination of the record we find the charge of the court fairly presents the law of the case; that the evidence is sufficient to support the verdict and judgment.

No error being apparent, the judgment appealed from is affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    WALT COOK v. STATE.
    No. A-2802.
    Opinion Filed October 3, 1917.
    (167 Pac. 641.)
    APPEAL AND ERROR — Affirmance. Where an appeal taken for delay was abandoned by plaintiff in error, and an examination of the record showed no error which would authorize a reversal, a conviction will be affirmed on motion of the Attorney General.

      Appeal from District Court, Garfield County; James B. Cullison, Judge.

    Walt Cook was convicted of keeping and maintaining a place in the city of Enid for the purpose of selling, bartering, giving away, etc., beer and whisky contrary to the law, and he appeals.
    Affirmed.

      H. J. Sturgis, Geo. W. Buckner, and W. 0. Cromwell, for plaintiff in error.

      W. W. Sutton, Co. Atty., H. Blasdel, Asst. Co. Atty., S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Walt Cook was informed against.in the district court of Garfield county for the crime of keeping and maintaining a place in the city of Enid, on or about the 28rd day of March, 1915, for the purpose of selling, bartering, giving away, etc., beer and whisky contrary to law. He was convicted, and his punishment fixed at imprisonment for 30 days in the county jail and a fine of $50. From this judgment of conviction he has appealed to this court.

No brief had been filed, nor oral argument made, in behalf of this defendant at the time said cause was submitted. The cause was submitted on a motion of the Attorney General that the same be affirmed for want of prosecution. It is apparent that the appeal in this case was taken for the purpose of delay, and that the prosecution of the same has been abandoned by the plaintiff in error. An examination of the record shows that there are no errors which would authorize a reversal of the judgment, and the motion of the Attorney General to affirm is sustained, and the judgment of the «district court of Garfield county is affirmed.

Mandate forthwith.