text:
    FLOYD KIRK et al. v. STATE.
    No. A-2122.
    Opinion Filed November 16, 1914.
    (145 Pac. 307.)
    1. EVIDENCE — Character of Defendant — Right to Attack. The state cannot attack the character of a defendant unless he first puts that in issue by introducing evidence of his good character.
    2. WITNESSES — Cross-Examination of Accused — Right. A defendant, by_availing himself of the statutory privilege of becoming a witness in his own behalf, has voluhtarily changed his status from defendant to witness, and consequently may be cross-examined within the usual boundaries, and thus be discredited and impeached.
    3. SAME — Impeachment—Reputation—Scope of Inquiry. Where the purpose of testimony is to impeach a witness for want of truth ■ and veracity, the inquiry and the answer must be as to his general character or reputation for truth and veracity in the community in which he resides, and testimony as to the general reputation of a defendant for being a bootlegger is incompetent to impeach the credibility of a defendant as a witness in his own behalf, or for any other ■ purpose.
    4. TRIAL — Instructions—Circumstantial Evidence. Where the evidence relied upon by the state is entirely circumstantial, it is error for the court to refuse to give a requested instruction on the law applicable thereto.
    (Syllabus by the Court.)

      Appeal from County Court, Bryan County; J. L. Rappolee, Judge.

    Floyd Kirk and Charley Masoner were convicted of violating the prohibitory law, and appeal.
    Reversed.

      Kyle & Newman, for plaintiffs in error.

      Chas. West, Atty. Gen. (B. G. Spilman, Asst. Atty. Gen., of counsel), for the State.
   DOYLE, J.

The plaintiffs in error and one Clint Durant were jointly informed against for the offense of unlawfully conveying intoxicating liquor. When the case was called for trial, on the request of the county attorney, the case as to the defendant Durant was by the court dismissed. Upon their trial the jury found the defendants guilty and assessed their punishment I at a fine of $100 and 90 days’ confinement in the county jail. The judgment was entered on the 15th day of September, 1913. To reverse the judgment, the defendants appeal.

The evidence offered by the state tended to prove the following facts: That on the night of the day named in the information L,ib Heart and Tom Tabor, officers, went to the house of one Vanhoy, in the southern part of Durant, where a dance was going on; they secreted themselves in an alley, and shortly after three boys came out of the house; that they heard something rattling like bottles; that it was too dark to see, and they ran up and arrested them; that they searched them, but found no intoxicating liquor on them. They then secured a light and found three half-pint bottles of alcohol on the ground near where they arrested the defendants. The defendants as witnesses in their own behalf, and for each other, denied ever having possession of or of having conveyed the alcohol, or any other intoxicating liquor.

The first assignment of error is that the court erred in admitting testimony relating to the reputation of the defendants. It appears that, over the objection of the defendants, three witnesses were permitted to testify that they knew the reputation of the defendants for being bootleggers, and that it was bad.

The Attorney General contends that under the doctrine of the Wilkerson case, 9 Okla. Cr. 662, 132 Pac. 1120, the general reputation of the defendants as to being bootleggers was competent and admissible. We do not assent to this contention. The Wilkerson case was a prosecution for unlawful possession with intent to violate provisions of the prohibitory law. It is held in that case, and uniformly in all cases where the offense charged was unlawful possession, that testimony tending to show that the defendant had previously sold other liquor, or kept other liquor for sale, is admissible on the question of intent, and if such liquors were kept at a place at which the public generally resorted, and the circumstances of the case indicated that such place was used for the purpose of selling intoxicating liquor, the general reputation of siich place is admissible on the question of intent. The charge in this case is a violation of that subdivision of the enforcement act which provides that it shall be unlawful “to ship or in any way convey such liquor from one place within this state to another place therein, except the conveyance of a lawful purchase as herein authorized,” and it was only necessary for the state to prove such unlawful conveyance. It was not necessary to prove unlawful intent, and character was not an element of the offense, and did not tend to prove the issue to be tried. Proctor v. State, 8 Okla. Cr. 537, 129 Pac. 77.

It is a fundamental principle of criminal law that the character of the defendant cannot be impeached dr attacked by the state, unless he puts his character in issue by introducing evidence of good character.

Says Bishop:

“Bad character is never admissible in evidence against a defendant as ground for presuming guilt. This doctrine is absolute; thus, the evidence of stealing a horse cannot be reinforced by showing that the defendant is an associate of horse thieves.” (1 Bishop’s New Cr. Proc. par. 1112)

And we hold, the fact that an offense has been committed cannot be proved by common rumor or general repute.

It appears that the jury were instructed, over the' defendants’ objection:

“That the testimony touching the general reputation of these defendants as to being bootleggers is to be considered by you only touching the credibility of these two defendants and for no other reason or purpose.”

The question presented is whether such evidence is competent and admissible to impeach the credibility of the defendants as witnesses.

In general, it may be said that a defendant, by availing himself of the statutory privilege of becoming a witness in his own behalf, has voluntarily changed his status from defendant to witness, and consequently may be cross-examined within the usual boundariés, and thus be discredited and impeached. Buxton v. State, ante, 143 Pac. 58.

Our statute provides (section 5046, Rev. Laws 1910) that a witness may be discredited by showing on cross-examination his conviction of a criminal offense.

In the case of Hendrix v. State, 4 Okla. Cr. 611, 113 Pac. 244, it is held that:

“For the purpose of affecting the credibility of a witness, he may b'e asked as to whether or not he ha‘s ever been convicted of a violation of the prohibitory liquor law of the state.”

In the absence of any further specific provision in our Code of Criminal Procedure, the common-law rule prevails (section 5543, Rev. Laws 1610); and, when it is sought to impeach a witness by general reputation, the inquiry and the answer must be as to his general character or reputation for truth and veracity in the community in which he resides. In other words, where the purpose of testimony is to. impeach a witness for want of veracity, the testimony, to be competent, must be confined to witness’ general character or reputation for truth in the community in which he resides. To impeach him on this inquiry the testimony must show that his general reputation for truth is bad. Knode v. Williamson, 17 Wall. 586, 21 L. Ed. 670.

If it were the law that everything which has a natural tendency to lead the mind towards a conclusion that a person charged with crime is guilty must be admitted in evidence against him on the trial of that charge, the argument for the state would doubtless be hard to answer; but the law is otherwise. It is the law that a defendant in a criminal case is presumed to be innocent until the contrary is proved by competent evidence beyond a reasonable doubt. Whether the law in this respect is wise or unwise, whether it accords with human reason and experience, whether it affords too great protection to the criminal, or too little to society, are not questions with which we have to do. It is not the province of the courts to change and relax the rules of evidence in order to facilitate convictions in a particular class of offenses. Until the lawmaking power intervenes and prescribes differently, the same rules of evidence must govern the trials of defendants in this class of offenses that govern in all other criminal trials.

It follows, that evidence of the general reputation of the defendants as to being bootleggers was incompetent to impeach the credibility of the defendants as witnesses, or for any other purpose. Its admission was therefore prejudicial to the substantial rights of the defendants.

The next assignment is that the court erred in refusing a requested instruction on the law on circumstantial evidence. The evidence relied upon by the state was entirely circumstantial, and the court not only refused' the instruction requested, but failed to charge the law on circumstantial evidence.

In Rutherford v. United States, 1 Okla. Cr. 194, 95 Pac. 753, it was held that:

“Where, in a criminal case, circumstantial evidence solely is relied on for a conviction, it is error for the trial court to fail and refuse to instruct on the law applicable thereto when the defendant requests it.”

Under the evidence in the case the requested instruction, or one similar, should have been given.

We do not deem it necessary to consider the other assignments of error.

For the errors noticed, the judgment of conviction is reversed, and the case remanded.

ARMSTRONG, P. J. concurs. FURMAN, J., not participating.


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    JOHN ETTER v. STATE.

      No. A-2012.
    Opinion Filed December 5, 1914.
    (144 Pac. 560.)
    1. HOMICIDE — Appeal — Conclusiveness of Verdict — Sufficiency of Evidence, (a) When the evidence introduced on behalf of the state is such that a legitimate deduction of guilt can be drawn therefrom, this court will not reverse a conviction on the ground that the verdict is contrary to the evidence or weight thereof.
    (b) For-facts sufficient to sustain a conviction for murder and which amply warrant the conclusions of the jury, see opinion.
    2. PARTIES TO OFFENSES — “Principal.” All persons concerned in the commission of a crime are guilty as principals, under our statutes.
    3. VENUE — Change of Venue — Second Application, (a) When an application for change of venue is filed and properly overruled by the trial court, it is within the discretion of that court to hear and determine additional applications based upon the same grounds and supported only by additional compurgators.
    (b) When a person who is charged with crime desires to make a second effort to secure a change of venue, the application should contain a statement of material facts in addition to those already submitted to the court which upion the face of the same would entitle him. to the relief sought.
    4. SAME. For proceedings which are held insufficient to entitle the petitioner to a change of venue on a second application, see opinion.
    (Syllabus by tho Court.)

      Appeal from District Court, Rogers County; T. L. Brown, Judge.

    John Etter was convicted of murder, and appeals.
    Affirmed.

      J. R. Charlton, Thompson & Smith, and E. H. Sornberger, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, John Etter, was convicted at the December, 1912, term of the district court of Rogers county on a charge of murder, and his punishment fixed at imprisonment in the state penitentiary for life.

It appeal's that the homicide out of which this conviction grew occurred on the 20th day of September, 1912, near Col-linsville, Rogers county, Okla. About the 1st of September, 1912, the plaintiff in error got a barrel of whisky at Joplin, Mo., and had it brought to Oklahoma by George Goode. Goode lived some six miles north of Collinsville, in Rogers county. The whisky was brought to his home and placed in a smokehouse. On the 20th day of September the plaintiff in error, Etter, arranged with a liveryman, named Miller, at Collinsville, for a team and closed carriage to go out to Goode’s place. The liveryman furnished a driver. Etter directed the liveryman to send the team around to a certain barber shop in Collinsville. At the barber shop one Triplett, who was jointly charged with the plaintiff in error in this case, and who was convicted upon a separate trial prior to the conviction of this plaintiff in error, got into the carriage and was driven by direction of Etter to his home two or three miles from Collinsville. Etter rode a horse to his home, and then got into the carriage, which was driven to Goode’s place by a circuitous route. At the home of Etter two empty kegs were placed in the carriage. On arriving at Goode’s place, the kegs were filled with whisky and placed in the carriage, and after dark the driver, plaintiff in error, and Triplett were returning along the road toward Collinsville. When they reached a place near the home of one Finley, they were stopped by the sheriff and a deputy named Starr. The sheriff ordered the driver to stop the team, saying he wanted to see what was in the vehicle. The driver testified to what occurred immediately thereafter ; his testimony being as follows:

“Q. What conversation did you and Etter have after you left George Goode’s? A. Me and Etter never had none. The only thing, when we were going through the bottom, laughing and joking about a big, mad bull in the bottom, and that I had better_watch out for him. Q. Tell just what was said. A. That is the only conversation I heard between them. Q. State just what Etter said, as well as you can remember. A. Well, he said, ‘There is a big, mad bull or wild bull,’ or something like that, ‘in the bottom here,’ and said I had better watch out for him. I never really paid any attention to it. I thought they were just joking me about it. Q. Is there any house along that road through the bottom? A. I never saw any. Q. Where did you strike the first house after you left George Goode’s place? A. The first house I saw was out there on top of the hill. Q. After you hit the main north and south road? A. Yes, sir. Well, no, sir; going east and west before we turned. Q. How far before you come to the main north and south road? A. Sets right on top of this hill there; about a quarter, I reckon. Q. Then, after you turned south towards Collinsville, what occurred? A. We drove on south until we met Mr. Sanders and Mr. Starr — I presume that is who they were, but I didn’t know them at the time — and they demanded me to stop the team. Q. Who told you to stop the team? A. Mr. Sanders. Q. What did he say? A. He said: ‘Stop that team. I want to see what there is in that wagon.’ Or something like that. Q. What did you do then? A. I jerked the horses up and stopped them. Q. What did Mr. Sanders do then? A. Took the horses by the bits. Q. Which horse did he take by the bits? A. The one on the left, hand side. Q. What did the other man do with him? A. Walked around the other side of the hack, and went to the back end of the hack. Q. Then what occurred? A. I heard somebody say, ‘You fellows go down the road,’ or ‘You go down the road.’ Q. Know who said that? A. No, sir. I don’t know who said that, and Triplett 'come by with this man in front of .him. Q. Where was Mr. Starr at that time? A. He was in front of Mr. Triplett, going down the road. Q. Did he have a gun? A. Yes, sir. Q. Where was it? A. Mr. Starr? I don’t know whether Mr. Starr had any gun or not. Q. Did Triplett have a gun? A. Yes, sir. Triplett had a gun. Q. Where was he holding the gun? A. Holding it on Mr. Starr, about like that. Q. Where was Mr. Starr with reference to him? A. Right in front of him. Q. Just stand up here behind me and show the jury, as near as you can, how Triplett was holding that gun on Mr. Starr. A. Something like that [indicating]. Q. Holding it almost in the center of the back? A. Yes, sir. Q. How far did they go down the road? A. I presume 20 or 30 steps. Q. After they passed there, when did you next see the defendant, John Etter? A. After they passed the hack? Q. Yes, sir. A. I saw him when he walked out on the other side. Q. How far was he behind Jack Triplett? A. I don’t know. I turned around, and Etter was standing there. Q. Then what’ occurred? A. Mr. Sanders asked him — he said, ‘Is that you, John?’ He said, ‘Yes, is that you, Ed?’ He said, ‘Yes.’ And he said: ‘Come over here. I don’t want to hurt you.’ That is the way he spoke. That’s about all the conversation I heard. Q. Then what occurred? A. About that time the shot was fired down- the road, and Triplett come running back, and he and Mr. Sanders began to shooting. Q. Did you see Etter any more after that? A. Yes, sir. I saw him as I left there. Q. When did you leave? A. About the time the horse fell. Q. You say the shot was fired down the road. How far was that? A. Down the road? Q. Yes. A. About 20 or 30 steps, I reckon. Q. Do you know who fired that shot? A. I could not swear exactly who fired it. Q. Did you see the flash? A. Yes, sir. Q. Which way did it go? A. South. Q. About how far above the ground? A. Oh, it seemed to be about four or four and one-half feet. Q. And you saw Jack Triplett immediately after that running up towards the horses with a gun in his hands? A. Yes, sir. Q. Did you see this man George Starr any more? A. No, sir. Q. Where was Jack Triplett when the shooting commenced? A. Right up there on the other side of the horses from Mr. Sanders. The horses were between him and Mr. Sanders. Q. What part of the horses was Triplett opposite? A. Up about the horse's head. Q. What did you do? A. I stayed there holding the lines until the horse was shot and killed. Q. Then where did you go? A. Went right back out through the hack and up the road. Q. Did you see John Et-ter? A. Yes, sir. I passed John Etter up there. Q. Know whether he had a gun at that time or not? A. I am pretty sure he had — had a gun in his hands as I passed him. Q. How" far up the road was he then? A. I don’t know. Probably 30 steps up the road from the hack. Q. What did you do next then? A. I went on down north of Mr. Finley’s house' and went across the railroad track and went' on into town. Q. What county and state was that in? A. Rogers county, state of Oklahoma. Q. That is all.”

Sheriff Sanders testified to the immediate facts in connection with the transaction as follows:

“A. We walked out to the section line and went down the road, I expect, a hundred yards from the gate, and we saw a wagon coming down the road, and when it got pretty close to us I told the driver to stop, that I wanted to see what was in the wagon. Q. What then occurred? A. And I got hold of the horse on the east side and stopped him, and Mr. Starr went around on the west side to the hind end of the wagon, and when he passed the wagon (the wagon was covered all over) I could not see him after he passed the front end, and pretty soon the three men come back and passed the front end of the wagon, and I could see the tops of their heads and shoulders, and one said, ‘Take him on down the road.’ Q. Do you know who that was? Did you recognize the voice? A. Yes, sir. Q. Tell the jury. A. It was John Etter, and I didn’t know the other man that went on down the road, and I could see Etter then. He had his hand raised in this position [indicating], and I said, ‘John, drop that gun.’ He said, ‘Is that you, Ed?’ I said, ‘Yes’; and he took his arm down, and I stood there with my gun kind of pointed at him, and about that time there was a shot fired down the road, and I took my eye off of him, and I saw this fellow coming back kind of stopped, and he run up right on the opposite side of the team where I was, and it looked to me like he was getting under the neck of the horses, and so I expected something to happen, and so I got ready, and we commenced shooting about that time. I was shooting right under the horses’ necks, and I guess he commenced shooting about the same time. I don’t know which fired first. Q. Was either of you or the man you were shooting at wounded? A. Yes, sir. I was shot in the arm. Q. Did you afterwards see the bullet taken from your arm? A. Yes, sir. Q. Examine that and see if you can identify that bullet. A. That is the bullet taken from my arm. Q. Well, go ahead, and tell just what occurred. Now, you testified, I believe, that after you had this conversation with Mr. Etter your attention was directed to the shot fired down the road. A. Yes, sir. Q. When did you next see John Etter? A. Well, it was, I suppose, five or ten minutes later. Q. Did you see him while this fusilade of shooting was going on there? A. No, sir. Q. Do you know where he was at that time? A. No, sir. Q. Now, after the shooting was over between you and Trip-lett, what did you next do, Sheriff? A. Went around to the hind end of the wagon, and about that time Mr. Einley come up and wanted to know what the trouble was. Q. Go ahead. A. I told him we had a little shooting down there. I didn’t know how bad it was, but that I was shot, and for him to come on down, and he and Etter then come on down to where I was at the wagon, and we went on down to where Starr was. Q. When Etter come to you, do you know whether he was armed or not at that time? A. Yes, sir. Q. Was he armed? A. Yes, sir; he was armed. Q. When did you next see him? A. I saw him right along then all the time, and we went on down to where Starr was laying. Q. What was Mr. Starr’s condition? A. Why, he was dead. We turned around then, and I asked Etter for his gun. I asked him if he had a gun, and he said he did, and I told him to give it to me, and he give me the gun, and I handed his gun to Mr. Einley. My arm was paining me considerable, and I give the gun to Mr. Einley. Q. Can you state what kind of a gun that was? A. It was a 32 Colts on about a 45 frame, looked to be. Q. Examine that gun and see if you can identify it.' A. Well, that is the same gun. Yes, sir. About the same kind of a gun, anyway. Q. If it is not the same gun, it is the same kind of gun? A. Yes, sir. Q. What was the condition of that gun with reference to being loaded? A. There were two empty chambers. Q. How many loads? A. Four loads in it. Q. What did you do with the gun after Finley come over and talked to you? What did you finally do with the gun? A. Brought it over here and give it to you. Q. Brought it to me? A. Yes, sir.”

No evidence was introduced on behalf of the plaintiff in error. The evidence introduced by the state therefore stands un-contradicted. There are only two propositions argued in the brief of counsel for plaintiff in error.

First, counsel contend that the evidence introduced by the state does not support the conviction. This question was raised on a motion for a new trial, and it is contended that the court erred in denying the same on that ground. If the evidence introduced was such that a legitimate deduction of guilty could be drawn therefrom, then this court would not be justified in reversing a conviction on this ground; the trial court having approved the verdict by declining to disturb it. Beyond question the plaintiff in error and Triplett were engaged in the commission of a crime at the time the homicide occurred. The plaintiff in error appears to have been the prime mover in the transaction. It was he who procured the introduction of the whisky in violation of the laws of the United States. It was he who arranged for the team, and continued the unlawful asportation thereof after it had been brought into Oklahoma. It was he who directed Triplett to march the deceased down the road to where he was killed. After killing Starr, Triplett ran immediately back to where the sheriff had hold of the team, and a fusilado of shots were fired, in which the sheriff was wounded. It is. clearly apparent that these violators of the law knew that they were being stopped by the officers. Both were armed. When the plaintiff in error was arrested, a 32 caliber Colts pistol was taken from his person. One of the horses had been killed by a bullet of similar size. There were no empty shells in plaintiff in error’s revolver, but ample opportunity had occurred for the ejection and disposition of shells, if there had been any. No one says this had not occurred.

The court instructed the jury that all persons assisting, aiding, and abetting in the commission of a crime were guilty as principals. We cannot say, from an examination of this record, that the jury were not warranted in finding the verdict of guilty. It was the exclusive province of the jury to say whether or not the evidence tending to establish the guilt of the plaintiff in error was so lacking in convincing force that it left no doubt in the minds of an intelligent and discriminating body as to the truth of the charge set forth in the information. In reviewing a proposition of this kind, this court will not disturb the findings of the jury, if there is any evidence which tends reasonably to support the verdict, even though different inferences could possibly or might probably be drawn therefrom. The jury’s judgment on such question is final.' We must be able to say that the verdict' was clearly against the evidence. If not, it will be allowed to stand. There is no doubt from the evidence adduced that the plaintiff in error and Triplett had entered into a conspiracy to do an unlawful act, and at the time of the homicide they were carrying out that conspiracy, and, in order to protect themselves in their violation of the law, one officer was killed and another wounded by them. We are of opinion that the jury legitimately concluded that the plaintiff in error and Triplett were acting together in the murder, and that the judgment should not be interfered with. See Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300.

The only other proposition urged is that the court erred in sustaining the motion of the county attorney to strike in connection with a second effort to secure a change of venue. Counsel say in their brief that they are not inclined to insist that the court abused its discretion in refusing their first application. The compurgators supporting the application for a change of venue were produced in open court, and their testimony incorporated in the record. We are of opinion that it was properly overruled. The second effort to procure a change of venue occurred five or six days later, when counsel asked leave to refile their original motion and attach thereto nine additional affidavits in support thereof. These proceedings the county attorney sought to have stricken from the record, and in this effort was sustained by the trial court. There was no showing made nor attempted to the effect that the public sentiment against the plaintiff in error had changed since the prior hearing, nor was there any allegation of surprise at the testimony given upon the hearing of the first application.

We are of opinion that the second proceedings were addressed to the sound discretion of the trial court, and, upon an examination of the record, find no abuse of discretion on the part of that court. In Duckworth v. State, 86 Ark. 357, 111 S. W. 268, the proposition here advanced was considered by the Supreme Court of Arkansas. In the opinion the court said:

“When the court overruled the petition for a change of venue, the defendant’s- attorney withdrew from the case and declined to have anything further to do with it. Other attorneys were selected by the defedant, and, after time given for consultation and preparation, the trial proceeded. The first step taken by these attorneys was the filing of a second petition for change of venue. It was to the same effect as the one theretofore passed upon, on the same day, and was supported by T. W. Carlock, W. R. Morrell, E. D. Hays, and Dennis Dailey. The latter three were not upon the former petition. The court declined to hear this petition, and overruled it without investigation. The statute (sections 2317, 2318, Kirby’s Dig.) permits a defendant to file a petition for a change of venue when he believes, for the causes therein mentioned, that he cannot obtain a fair and impartial trial in that county, and it requires the petition to be supported by affidavits of at least two creditable persons, qualified electors and actual residents of the county, not related to the defendant in any way. There is nothing in the statute to indicate that a defendant is at liberty to continue filing petitions for a change of venue after one is acted upon. It might occur that an examination of the compurgators would develop that they had sworn recklessly, and yet the defendant might still be entitled to a further opportunity of presenting his petition, but then he should show that he was surprised by the testimony of his compurgators failing to meet the requirements of the law and offer to bring in others who would sustain his position. In such instances it might occur that a defendant would be entitled to a further hearing on his petition, and it might be an abuse of discretion for the court to refuse to permit him to further prosecute his right to a hearing upon his petition for change of venue, when a strong showing was made indicating an injustice to him if further opportunity was not given. But no facts appeared entitling this defendant to a second hearing. The circuit judge carefully examined the witnesses, and found that they had failed to answer to the statutory requirement of being creditable persons in that they had sworn recklessly in this particular. The defendant then filed another petition supported by the affidavit of four persons (one of whom had just been examined and found wanting in information as to the matter under inquiry), without any showing of surprise over, or explanation of, the failure of his former compurgators to sustain their affidavits. In the absence of such showing, it was proper for the court to disregard such petition and treat it, as he did, as matter merely for vexation and delay.”

In Nichols v. State, 102 Ark. 266, 143 S. W. 1071, the same court, discussing the same proposition, said:

“Allowing a defendant in a criminal prosecution to present successive petitions for a change of venue is a matter of discretion with the court, which will not be disturbed on appeal, unless abused; and, where a defendant failed to promptly announce his surprise at the incompetency of witnesses named in support of a petition, there was no abuse of discretion in overruling succeeding petitions.”

Upon a careful review of this record, we are of opinion that the plaintiff in error had a fair and impartial trial. There is not an indication to the contrary.

The judgment is therefore affirmed.

DOYLE and FURMAN, JJ„ concur.


text:
    JOHN C. DUNCAN v. STATE.
    No. A-2090.
    Opinion Filed December 8, 1911.
    (144 Pac. 629.)
    1. SEARCHES AND SEIZURES — Right to Search Private Residence. (a) Under the provisions of the prohibitory law in this state as expressed in section 3616, Rev. Laws 1910, no officer is authorized to search a private residence occupied as such, or any portion thereof, unless it or some part of it be used as a store, shop, hotel, boarding house, or place of storage, or unless such residence is a place of public resort.
    (b) No magistrate in this state has the power to issue a search warrant to search the private residence of any inhabitant of the state .unless it is made clearly to appear that such private residence comes within the exceptions stated in section 3616, Rev. Laws 1910.
    (e) No officer has a lawful right to search any private residence, even though he possesses a search warrant issued by a magistrate, unless the conditions, or some one of them, referred to in section 3616, exist in the habitation at the time the search is to be made.
    2. SAME, (a) It is the law of the land that no man, however high the office he holds, is permitted to ruthlessly invade the sacred rights of any home, however humble, unless he is clearly within the statutory provisions.
    (b) The home of the American citizen is his castle supreme, and he who dares to invade the sanctity thereof does so at his peril.
    3. SHERIFFS AND CONSTABLES — -Unlawful Search — Invalid. Warrant. (a) A search warrant once served cannot be further resorted to for the purpose of additional searches. An attempt to make a second search on a warrant once served, even though valid originally, would place the officer attempting the search in the attitude of a trespasser.
    (b) Under the facts disclosed by the record in the case at bar, the search warrant was wrongfully issued and therefore void. It would have afforded no protection or justification to any officer entering the premises at any time.
    4. SAME — Execution of Search Warrant — Subsequent Effectiveness. The following instructions given by the trial court is held to be a correct statement of the law: "You are instructed that after a search warrant has been executed and the property and things therein described have been seized thereunder, its office has been performed and a lawful search cannot again be made thereunder. ’ ’

    5. HOMICIDE — Appeal'—Harmless Error — Instruction, (a) An assignment of error, based upon an instruction of the court bearing on the question of the guilt or innocence of the person on trial of murder, is of no avail when the jury return a verdict finding such person guilty of manslaughter and not of murder.
    (b) For an instruction complained of, but which is held correct, see opinion.
    6. SAME — Murder—Sufficiency of Evidence. For facts which in the opinion of the court are sufficient to justify a conviction of murder, see opinion.
    7. APPEAL — Harmless Error — Instructions. An instruction of the court which, taken as a whole, states a rule of law more favorable to the accused than he is entitled to receive, although subject to criticism in some respects, if free from fundamental error, will not ordinarily justify a reversal.
    8. TRIAL — Refusal of Instructions. It is not error for the court to refuse to give instructions which are not applicable to the facts disclosed by the record and do not contain correct statements of the principles of law applicable to the issues on trial.
    (Syllabus by the Court.)

      Appeal from District Court, Washington County; R. H. Hudson, Judge.

    John C. Duncan was convicted of manslaughter, and he appeals.
    Affirmed.

      J. R. Charlton, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, John C. Duncan, was tried at the March, 1913, term of the district court of Washington county on a charge of the murder of Dallas Alexander, and convicted of manslaughter in the first degree. His punishment was fixed at imprisonment in the state penitentiary for a period of ten years.

The homicide occurred at Ochelata in Washington county on the 6th day of August, 1912, which was the day upon which the general primary election was held in that year. The deceased was a man about 65 years of age, and 'had been engaged in the cattle business at Ochelata. The wife of the plaintiff in error was a candidate’before that primary, for.the nomination as a party candidate for county superintendent of public instruction of Washington county. It appears that the deceased was actively opposing her nomination. The night before the election a conference was held among the friends of Mrs. Duncan at the store of one Fuller in the town of Ochelata, at which conference the plaintiff in error was present. Plans were laid for the purpose of counteracting the opposition to Mrs. Duncan’s candidacy. Alexander’s name was mentioned at the conference as one of her opponents. The plaintiff in error made a statement to the effect that he would take care of Alexander. About 9 o’clock on the morning of the election the plaintiff in error procured a search warrant from the local justice of the peace to search the deceased’s residence for intoxicating liquor. He did not make the search immediately after procuring the warrant, but did search the premises about noon, and secured 'one quart of whisky, which he displayed to bystanders, and after-wards destroyed the same. About 5 o’clock in the afternoon the plaintiff in error again attempted to search Alexander’s house by virtue of the same warrant he had served in the forenoon. The deceased resisted the search, contending that the plaintiff in error had no further authority to search his premises under the warrant. In his effort to prevent the search the deceased took hold of plaintiff in error and shook him around considerably. The plaintiff in error, on account of this action, placed the deceased under arrest for, as he says in his testimony, resisting an officer of the law. In making this arrest he drew a revolver. The deceased finally subsided. By use of force the plaintiff in error took the deceased out of the house and started down toward the office of the mayor. He had gone some little distance, it appears, when the deceased put his hands in his pocket in an attempt to pull out his pistol. The testimony of witnesses conflicts as to just what was done.

The witnesses on behalf of the state testified that the deceased said, “John Duncan, you have gone far enough,"’ or something of that import, and then prilled out his revolver. The plaintiff in error stepped a short distance ahead of deceased and grasped him by the wrist of the hand, in which he held the pistol. At the same time plaintiff in error drew his own pistol, and immediately thereafter two shots were fired, almost simultaneously, and shortly thereafter other shots were fired to the number of five or six.

The plaintiff in error testified that the deceased pulled out his pistol before he knew anything about it, and somebody across the street yelled, “Look out, he has got a pistol!” and he seized the deceased by the left hand, in which he was holding the pistol, to prevent him from shooting, and said “Don’t do that!” but the deceased fired immediately, and the bullet struck him in the upper part of the left arm. At the time of this shot, he, the plaintiff in error, was pulling his pistol out of his pocket, and he immediately fired a shot at deceased, the bullet taking effect in the abdomen and passing out through the spinal column. Other shots were fired by both parties; at least one more shot was fired by plaintiff in error, which entered the left side of the deceased and passed through his body. Two or three more shots were fired by deceased, one of which struck the plaintiff in error in the hand; another in the left arm. There was also a bullet wound in the left hip of the plaintiff in error.

Some of the witnesses testified that the deceased fired three shots; others, four. There were only three empty shells, however, found in his pistol. There was evidence of ill feeling on the part of the combatants on account of the election being held at the time, and it was the theory of the state on the trial of this cause in the court below that the plaintiff in error, with malice in his heart, went to the home of deceased to search it, in order to provoke a difficulty with him and give the plaintiff in error a pretext for killing him. It appears that the plaintiff in error knew the deceased as a man who kept whisky in his home for his own use, and that he did not sell it, and that his home was not ja place where people congregated for drinking intoxicating liquor.

The theory of the state also appeared to be that the arrest attempted by the plaintiff in error was unlawful; that he had no authority to search the premises or to apply for the said warrant, and that his action in attempting to make a second search amounted to an assault and an unlawful entry to the home of deceased which he, the deceased, had a right to resist; that the plaintiff in error knew that the deadly weapon he used in making the assault and in attempting the arrest gave the deceased the right to resist with similar force, and the plaintiff in error’s right of self-defense under the circumstances did not attach until he had in good fáith withdrawn from the conflict that was occasioned by his own unlawful conduct in attempting the search and unlawful arrest. It was the theory of the defense in the trial court, as disclosed by the record, that plaintiff in error had a right to search the premises with or without a search warrant, and that his act in placing deceased under arrest was lawful, and that the assault made on him by deceased was felonious and one which he had a right to defend against without withdrawal.

There is no contention on the part of counsel that the verdict is contrary to the evidence. Their contentions are all based upon alleged e.rrors of law.

This homicide was one of many that have occurred under somewhat similar circumstances in Oklahoma. The plaintiff in error was wholly in the wrong for two reasons: In the first place, he was not an officer of the law, and had no right to serve process on the pretense of being an officer. Second, the warrant he attempted to act under was void. The office of deputy enforcement officer was never created by the Legislature in this state. It was never the purpose of the law-making power to authorize a number of irresponsible individuals, or responsible individuals, for that matter, to act as law enforcement agents without any responsibility whatever. The sheriffs and constables elected by the people are required to' give bond for the proper performance of their duties, upon which bonds the citizenship of this state or any member thereof who is deprived of any legal right can recover in damages from the principal and bondsmen. No sheriff of this state is entitled to search the home or private residence of any citizen without a warrant issued upon a showing of “probable cause,” and to say that an individual presuming to act as an officer, who was not selected by the people, who gives no bond, who is responsible to no one, and who is not even required to be a law-abiding citizen, is to be permitted to search the homes of our citizens at will and without responsibility is going farther than the people of Oklahoma ever intended or the law permits. The statute law of this state is plain, and forbids the issuance of search warrants or the searching of private residences, except in the manner therein set out and in strict compliance therewith. The statutes upon the issuance and service of search warrants under the prohibitory act are as follows:

Section 3615, Rev. Raws 1910, provides:

“No such warrant shall issue but upon probable cause,-supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

Section 3616, Rev. Raws 1910, provides:

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

Under these sections of the law a search warrant cannot be lawfully issued, and no officer can lawfully enter and search the private residence of airy one unless such residence is a place of public resort, or it or some portion of it is used as a store, or as a shop, or as a hotel, or as a boarding house, or as a place for storage. There is no contention in this entire record that any of these conditions attached to the habitation of the deceased, and not a line of proof in the record to indicate that any such condition existed. On the contrary, it appears that the plaintiff in error knew such conditions did not exist. Magistrates have no power to issue warrants to search a private residence; unless it is made clearly to appear that such residence comes within the exceptions of section 3616, supra. No officer has a lawful right to search any such residence, even though he possesses such warrant, unless such conditions, or some of them, exist in the habitation at the time the search i.s to be made. No man, be he officer or otherwise, is permitted to ruthlessly invade the sacred rights of any home, however humble, unless he is clearly within the law. The home of the American citizen is his castle supreme, and he who dares invade the sanctity thereof does so at his peril. Even though the plaintiff in error had been a lawful officer, his second attempt to search the premises of the deceased was an unlawful act, a wicked trespass, and an intolerant invasion of the sacred rights of a sovereign citizen, and one that he-had a light to resist for the reason that the warrant had already been served and was no longer authority under any condition. To this unlawful act was added the effort of plaintiff in error to make an unlawful arrest of the deceased at the point of a revolver, without a warrant or without other authority. He provoked the difficulty, and was not entitled to plead the law of self-defense. The jury made a mistake in convicting him of manslaughter instead of murder. Under the statute law of this state he was clearly guilty of murder. Under the circumstances disclosed by the record, the deceased had a right to apprehend the force that was used by the plaintiff in error and to resist it with like force if occasion demanded. The actions and conduct of plaintiff in error were such that he had himself been shorn thereby of the protection of the law.

This case has been poorly briefed on behalf of the plaintiff in error; in fact, the purported brief is a brief in name only. It contains scarcely no argument or authority, but simply states, in general terms, that the court erred in certain respects. In cases of this importance counsel should not bring these appeals, unless they intend to properly brief and present them to the court. It is the duty of counsel to brief cases, and not the duty of this court to brief them.

The first assignment of error is that the court erred in giving the following instruction:

“You are instructed that after a search warrant has been executed and the property and things therein described have been seized thereunder, its office has been performed and a lawful search cannot again be made thereunder.”

This instruction is a correct statement of the law, and was properly given. The principle it states is so elementary and well understood that a man of ordinary intelligence would need no advice thereon.

It is next contended that the court erred in giving the following instruction:

“You are instructed that if you find and believe from the evidence in this case beyond a reasonable doubt that the defendant shot and killed the deceased, and you further find and believe beyond a reasonable doubt that his sole purpose of shooting and killing him was from motives of revenge, for any real or imaginary wrong previously inflicted upon him by the deceased, if any, and such motive was the sole moving cause of the killing, then the killing under such circumstances and for such reasons is murder, and if you so believe from the evidence beyond a reasonable doubt, you should return a verdict of guilty of murder as charged in the information.”

This instruction was also a correct statement of the law, but even if it were not, an assignment of error based thereon would be of no avail in this case, for the reason that the plaintiff in error was convicted of manslaughter instead of murder. See Byars v. State, 7 Okla. Cr. 650, 126 Pac. 252; Morgan v. Territory, 16 Okla. 530, 85 Pac. 718.

It is next contended that the court erred in giving the following instruction:

“You are instructed that after the defendant had made a search of the dwelling house of the deceased, Dallas Alexander, under the search warrant that has been introduced in evidence in this case, and had seized liquor thereunder and had done all of the acts required of him under said warrant, except to make return thereof, he had no right to make another search of said premises under said warrant; and if you believe from the evidence in this case beyond a reasonable doubt that he did attempt to make a second search under the said warrant, then and in that event his acts were wrongful, and the deceased was justified in resisting any further search of said premises under said warrant, and the defendant had no right, when so resisted, to arrest the deceased on the ground that he was resisting an officer in the performance of his duties, and if he did so arrest the deceased, then such arrest and detention were wrongful, and deceased had the right to resist the said arrest and detention with all the force necessary to prevent the same, and if as a result of such unlawful arrest and detention a combat ensued between the deceased and the defendant, the defendant could not justify the shooting and killing of the deceased upon the ground of necessary self-defense, but he would be guilty of the crime of manslaughter in the first degree; even though the defendant by reason of the act of the deceased in resisting such arrest may have been in danger of losing his life, or of receiving great bodily harm at the hands of the deceased, unless before firing the fatal shot the defendant, by some word or positive act indicated to the deceased his intention to no longer detain the deceased under such unlawful arrest, and to in good faith withdraw from such combat, in such case he would have the right of self-defense, but, if after having indicated to the deceased his intention to withdraw from such combat, the deceased continued his assault upon the defendant, then the defendant had the right to give blow for blow, and to use all the means reasonably necessary to save his life, or to prevent serious bodily injury being done him, even to the extent of taking the life of his assailant. If you entertain a reasonable doubt as to whether or not the defendant was acting in his own lawful self-defense, then it will be your duty to give the defendant the benefit of the doubt and acquit him.”

Counsel do not cite a single authority nor present a single argument in support of the contention that this instruction was erroneous. It was in fact more favorable to the plaintiff in error than the law warranted. Under our law the most favorable conception of the difficulty would be mutual mortal combat.

In Carter v. State, 30 Tex. App. 551, 17 S. W. 1102, 28 Am. St. Rep. 944, the Court of Criminal Appeals of Texas, in discussing a proposition very similar to this, but affected by law more favorable to the occasion, reviews the law fully. We quote the following from that opinion:

“Now, if the intent of the defendant was only to make an illegal and unwarranted arrest, this would not constitute a felony. If the arrest had been accomplished, it would have constituted only false imprisonment on the part of defendant, and in this state this is but a misdemeanor. The fact that the party arrested, or sought to be arrested, without warrant, may be .shown to have been justly suspected of felony will not justify a homicide on the part of the officer, if he had no warrant, unless he bring himself within some of the rules laid down authorizing such arrest without warrant. Staples v. State, 14 Tex. App. 136; Jacobs v. State, 28 Tex. App. 79, 12 S. W. 408; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812. An officer having lawful authority to make an arrest may, on meeting with resistance, use such force as may be necessary to overcome such resistance, but he is not authorized to use greater force than is necessary for the arrest and detention of the accused party. Beaverts v. State, 4 Tex. App. 175; Giroux v. State, 40 Tex. 97. But this rule does not apply where the officer, in violation of law, undertakes to arrest a party without a warrant, nor in cases where he has not the right to make such arrest. As we have seen, the defendant was engaged in attempting to make an unlawful arrest. Now, it is clear that he was in the wrong, because he was engaged in the attempt to perpetrate false imprisonment, and on account of that wrong was placed in a situation where, taken most strongly in his favor, it was necessary for him to defend himself against an attack made upon himself superinduced by that wrong. In such case the law justly limits his right of self-defense, and regulates it according to the magnitude of that wrong. In Reed’s case, White, P. J., said: ‘Wherever a party, by his own wrongful act, produces a condition of things wherein it becomes necessary for his own safety that he should take life or do serious bodily harm, then, indeed, the law wisely imputes to him his own wrong, and its consequences to the extent that they may and should be considered in determining the grade of the offense, which, but for such acts, would never have been occasioned. Mr.. Bishop says: “The rule is commonly stated in American cases thus: If the individual assaulted, being himself without fault, reasonably apprehends death or serious bodily harm to himself unless he kills the assailant, the killing is justifiable.” Bish. Crim. Raw, sec. 865. But a person cannot avail himself of a necessity which he has knowingly and willfully brought upon himself. State v. Neeley, 20 Iowa, 108; Adams v. People, 47 Ill. 376; State v. Starr, 38 Mo. 270; People v. Hunt, 59 Cal. 430; Wills v. State, 73 Ala. 362; Barnett v. State, 100 Inch 171; Story v. State, 99 Inch 413. That is, it will not afford him a justification in law. How far and to what extent he will be excused or excusable in law must depend upon the nature and character of the act he was committing, and which produced the necessity that he should defend himself. When his own original act was a violation of law, then the law takes ’that fact into consideration in limiting his right of defense and resistance while in the perpetration of such unlawful act. If he was engaged in the commission of a felony, and, to prevent its commission, the party seeing, or about to be injured thereby, makes a violent assault upon him, calculated to produce death or serious bodily harm, and in resisting such he slay his assailant, the law would impute the original wrong to the homicide, and make it murder. But if the original wrong was or would have been a misdemeanor, then the homicide growing out of or occasioned by it, though in self-defense from an assault made upon him, would be manslaughter under the law.’ Reed v. State, 11 Tex. App. 509, 517, 519 [40 Am. Rep. 795]; Pen. Code, art. 49. Defendant’s theories of defense in this case were mistaken identity and self-defense. In Peter’s case Judge Hurt said: ‘The defenses interposed are mistaken identity and self-defense. For the purpose of this opinion, the former will he considered as though Leek Crook had been the subject of the homicide.’ In that case the deceased was mistaken for Leek Crook, as the deceased in this case was mistaken for Lawson. ‘It will be further assumed as true,’ says that opinion, ‘that deceased, at the time the fatal shot was fired, was indicating; by some act done, a purpose to kill appellant or do him some serious bodily harm. The question then arises, How far, under what circumstances, did the right of self-defense attach? * * * Plaving then killed Leek Crook (or his legal equivalent) in the attempt to illegally arrest him, the homicide cannot be of a less grade than manslaughter, though done upon reasonable apprehension of danger. The slayer in such case stands in the attitude of a trespasser, his situation being analogous to that of him who provokes the difficulty, or furnishes the occasion therefor, in the course of which he slays his adversary to save himself.’ Peter v. State, 23 Tex. App. 684, 687, 5 S. W. 228; King v. State, 13 Tex. App. 277. ‘Cases may arise in which an original trespasser, or one who provokes or furnishes the occasion for a difficulty, becomes entitled to the right of full and perfect self-defense. * * * This right being forfeited or abridged by his own act, it must be revived by his own act; as where one condones the trespass or wrong by retiring from the difficulty in an unequivocal manner, and his adversary then renews the combat. In such case, the nature and character of the original trespass or provocation enters as an element in illustrating the animus of the party renewing the difficulty, and fixes the grade of the offense committed in its progress." Peter v. State, 23 Tex. App. 684, 5 S. W. 228.”

It is next contended that the court erred in failing to give certain requested instructions. A reading of the record indicates that these instructions were based upon an erroneous theory, and were properly refused. There is no évidence in the record upon which some of them could be properly based. Counsel present no reasoning nor authority to sustain their contention, and, none appearing to this court, these assignments will receive no further consideration.

The record as a whole, as well as brief of counsel in this case, is subject to severe criticism. There is no index to the case-made, and not a single page of the same is numbered. It requires almost endless effort to review the record and the contentions of counsel. We trust that similar appeals will not be brought to this court. Our examination of the record and brief fails to disclose any error prejudicial to the substantial rights of plaintiff in error. In fact, he was convicted of manslaughter when he should have been convicted of murder. The judgment of the trial court is affirmed.

DOYLE, J., concurs. FURMAN, J., absent on account of sickness.


text:
    J. M. BALDWIN et al. v. STATE.
    No. A-2158.
    Opinion Filed December 12, 1914.
    (144 Pac. 634.)
    1. GAMING — Prosecution—Scope of Inquiry — Evidence. When an indictment or information charges the person or persons on trial with gaming, under the provisions of section 2499, Rev. Laws 1910, the sole and only issue is: Was such offense committed in the manner and form charged?
    2. APPEAL — Ground for Reversal — New Trial. This court has often held in its opinions that the proof introduced on the trial of a person charged with a specific offense should conform to the issue as laid, and the county attorneys have been warned repeatedly from excursions into other issues which could have no purpose other than by improper methods to prejudice the minds of the jurors. When the record discloses the fact that the county attorney has been guilty of such unfair conduct and ruthless disregard of the rules of evidence, the trial court should set aside a verdict of conviction and see' that the case is tried according 'to law; otherwise this court will reverse a judgment and require him so to do.
    3. EVIDENCE — Other Offenses. On the trial of a person or persons charged with gaming, the county attorney has no right to attempt to prove that the person or persons charged were engaged in the maintaining of a place where intoxicating liquors were kept and sold, or that any one of them has been guilty of corruption in 0--.ee, or that any one of them has been advised by others to discontinue a lawful business and engage in conducting a saloon. Such offenses are foreign to the issue and should be prosecuted by separate information or indictment, if the facts so warrant.

      4. TRIAL — Instructions—Circumstantial Evidence. When the proof on the part of the state is wholly circumstantial, it is the duty of the trial court to give the law of circumstantial evidence in his instructions.
    5. SAME, (a) It is as much the duty of the trial court to give a correct statement of the law of circumstantial evidence as it is to give any instruction whatever.
    (b) Por an instruction condemned as incomplete and not a fair statement of the law of circumstantial evidence, as applied to the facts in the record of the ease at bar, see opinion.
    (c) Por a correct statement of the law of circumstantial evidence which should have been given by the trial court, see opinion.
    (Syllabus by the Court.)

      Appeal frow County Court, Osage County; Paul B. Mason, Judge.

    J. M. Baldwin and others were convicted of gaming, and appeal.
    Reversed and remanded.

      J. M. Worten, for plaintiffs in error.
    .S'. I. McBlhoes, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiffs in error, J. M. Baldwin, Rowe Little, and M. R. Hill, were jointly tried and convicted at the July, 1913, term of the county court of Osage county, on a charge of gaming. The jury fixed the punishment of Little at a fine of $50 and imprisonment in the county jail for a period of 30 days, the punishment of Baldwin at a fine of $100 and imprisonment in the county jail for a period of 30 days, and the punishment of Hill at a fine of $100 and imprisonment in the county jail for a period of 30 days. The record brings the case up as to all three of the parties. The brief filed by counsel is for Baldwin and Little. No brief is filed on behalf of Hill.

There are many assignments of error, only a few of which, however, will be considered. This is a case wherein the proof is based entirely on circumstances. The officers raided a joint in the town of Bigheart about the 8th of March, 1913. There were some twelve or fifteen persons in the place at the time, a number of whom departed from the scene hurriedly when the officers appeared. Poker chips and money and a deck of cards were found upon a table. The plaintiffs in error were in the place at the time, and two of them were seated at a table upon which were cards, money, and poker chips. The plaintiffs in error were arrested, charged with playing poker.

The county attorney, in the cross-examination of the plaintiffs in error, seems to. have lost sight of the issue that was on trial, and extended his examination into issues that could have had no relation to the case, except to show the jury that he was trying men who were either engaged in running a gambling house, selling whisky, or otherwise violating the law. The sole and only issue in the case on trial was: Did the plaintiffs in error, at the time and place alleged, play poker for money? When plaintiff in error Little was on the stand as a witness for himself, the county attorney asked:

“Q. Did they have any whisky in there? A. I think so. Q. Who was selling it?”

On objection being interposed, this question was followed with another, to wit:

“Q. Was anybody drinking any whisky?”

On objection being interposed, the witness was asked if he saw money on the table, and then was asked:

“Q. Had you ever assisted in the running of this house up there, Mr. Little?”

Objection was interposed and overruled. Witness was then asked:

“Q. Who was the owner of the building you were in? A. G. R. Little. Q. Who is G. R. Little, if you know? A. My father. (Objection overruled.)”

Later witness was asked:

“Q. Did you ever tell John Malone, in the presence of Mr. Hays, that you were running a barber shop down there, and that your father decided to close that barber shop up and run a gambling house upstairs? (Objected to. Sustained.) Q. I will ask you if you ever told Mr. Malone, after you had been arrested and charged with this offense, in Tulsa, in the presence of Mr. Hays, that you were running a barber shop, and that your father decided to sell out the barber shop and let you run a gambling house upstairs ?”

Objected to and overruled, and, before answering, the witness was asked the following question:

“Q. I am talking about the building this gambling was in, to make it clear to you, Mr. Little. I might have had in mind the wrong place about where you were when Henry Majors came in. It wasn’t upstairs, was it? A. It was downstairs. Q. Didn’t you state to John Malone, in the presence of Mr. Hays, at Tulsa, that this was your money, and that your father — you had been running a barber shop, and that he decided to not let you run a barber shop and put in a gambling house instead, or words to that effect? (Objected to, and overruled.)”

Then the following question was asked:

“Q. I will ask you if you didn’t tell, after your arrest charged with this crime, if you didn’t tell John Malone in Tulsa, that your father advised you to get out of the barber shop and run a saloon, and that this was your money, and that you were going to fight this case, thinking that John Malone was going to resign, and your testimony would be taken for more than Henry Major’s? (Objected to, and overruled.) * * * Q. Who had charge of that house? A. I don’t exactly know. Q. Well,- do you about know? A. I couldn’t say. Q. Who was running it? A. I don’t know that. Q. Who was the manager? A. I couldn’t say. Q. It was your father’s building? A. Yes, sir. 0. You don’t know who had it in charge? Who did he rent it from? A. Yes, sir. Q. Now don’t you know that Jim Baldwin had the running of that building and was running a whisky and gambling house in there?”

Baldwin was a codefendant. On objection being interposed to this class of examination, the following was asked:

“Q. Now the question was, Mr. Little, you had been there often, you stated, and do you know whether or not Mr. J. M. Baldwin, one of the defendants here, had control of the house and managed the house or not? (Objected to and overruled.)”

This character of examination was not calculated to throw any light upon the issue on trial. If the county attorney wanted to prosecute Baldwin for maintaining a gambling house and a place where intoxicating liquor was sold, he had a right to do so, and it was his duty to do so, if the facts warranted, but that issue was not raised in the case at bar, wherein the persons were charged with the offense of gaming only. A similar examination was indulged in in connection with the cross-examination of witness Hill, wherein the county attorney apparently sought to produce before the jury facts to indicate that Hill, as town marshal, and other city officials were permitting a gambling house and joint to be run in the town. These issues had nothing whatever to do with the case on trial; and, while county attorneys are to be commended for the faithful discharge of their duty, it is not their duty to undertake, by unfair methods and a wanton disregard of the law of evidence, to seek convictions in this manner. The question of whether or not the plaintiff in error Tittle admitted that the money seized from the gambling table was his could have been properly drawn out, but not by connecting it with the question of whether or not his father had advised him to abandon a legitimate business and open a saloon in violation of law. Plaintiff in error cannot be convicted because some one had given him bad advice. Neither should plaintiff in error Hill have been convicted because the city authorities, including himself, were permitting the law to be violated by paying stipulated fines. All of these offenders should have been indicted and prosecuted under the statutes penalizing corruption in office, if the facts warranted; but, for the purpose of securing a conviction of the marshal for playing poker, the corruption of the city officials had nothing to do with the issue, and was not admissible for any purpose.

Counsel complains of the following instructions of the court:

“The jury are instructed that circumstantial evidence is to be regarded by the jury in all cases, and is many times quite as conclusive in its convincing power as direct and positive evidence. When it is strong and satisfactory, the jury should so consider it, neither enlarging or belittling its force. It should have its just and fair weight with you, and if when it is taken as a whole, and fairly and candidly weighed, it convinces the guarded judgment beyond a reasonable doubt, you should convict, and on such conviction you are not to fancy situations of circumstances which do not appear in the evidence, but you .are to make those just and reasonable inferences from circumstances which the guarded judgment of a reasonable mind would ordinarily make under like circumstances. And if, in connection with the other evidence before you, you then have no reasonable doubt as to the guilt of the defendants, you should convict them, but, if you entertain such doubt, you should acquit them.”

This was not a complete and correct statement of the law of circumstantial evidence, as applied to the facts disclosed by the record, and should not have been given. If the foregoing instruction is to be given, it should be accompanied by one' giving the law of circumstantial evidence to the jury substantially as follows:

“You are instructed that the state relies for a conviction in this case upon what is known as circumstantial evidence, and in this matter you are instructed that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established (that is, the guilt of the defendant) must be proved by competent evidence, beyond a reasonable doubt, and that all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other, and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and sufficient to produce in your minds the reasonable moral certainty that the accused committed the offense charged against him. And you are instructed that, when the circumstances are sufficient under this rule herein given you, they are competent and are to be regarded by the jury as competent for your guidance as direct evidence.”

The instruction given was prejudicial; at least, it did not state the rule of law correctly. These people may all be guilty of this offense and many others, but upon a retrial of this case the county attorney should try it according to law and, if other offenses have been committed, file further informations and try them in the same manner. It is the duty of the trial court to see that a case is properly tried.

The judgment is reversed, and the cause remanded, with directions to the trial court to grant a new trial, to be conducted according to law.

DOYLE, J., concurs. FURMAN, J., absent on account, of sickness.


author: DOYRE, J.

text:
    TONY PETITTI v. STATE.
    No. A-1915.
    Opinion Filed December 28, 1914.
    (145 Pac. 305.)
    TRIAL — Time for Trial — Dismissal — Delay- — “Good Cause to the Contrary.” “In all criminal prosecutions the accused shall have the right to a speedy and public trial. ’ ’ Bill of Rights, see. 20. “When a person has been held to answer for a public offense, if an indictment or information is not filed against him” at the next term of court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown.” Procedure Criminal (Rev. Laws 1910), see. 6095.
    In this ease it appears that two terms of court had passed before the committing magistrate returned to the clerk of the trial court the papers in the case, and three terms of said court had passed without an information being filed against the defendant.
    ' Held, that the dereliction on the part of the magistrate, and the want of time and press of business on the part of the county attorney, are not “good cause to the contrary,” within the meaning of that phrase as used in said section. It was therefore error to deny the defendant’s motion to dismiss the prosecution.
    (Syllabus by the Court.)

      Appeal from Superior'Court, Pittsburg County; W. C. Liedtke, Judge.

    Tony Petitti was convicted of arson, and appeals.
    Reversed.

      Horton & Smith, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYRE, J.

This appeal is prosecuted from a judgment and sentence that Tony Petitti, plaintiff in error, be imprisoned in the state .penitentiary at McAlester for the term of five years for the crime of arson.

The information alleges, in substance, that on the 12th day of December, 1910, Ton'y Petitti did willfully and feloniously set fire to and burn certain goods and chattels, the property of the said Tony Petitti, to wit, a certain stock of merchandise located in a certain store building in the town of Alderson, Pitts-burg county, Okla., and in the possession of said Tony Petitti, with the unlawful and felonious intent thereby to injure and defraud certain corporations, to wit, Hamburg-Bremen Fire Insurance Company of Hamburg, Germany, and the Fire Association of Philadelphia. It appears from the record that on the 14th day of December, 1910, a complaint was filed before a justice of the peace at McAlester, charging Tony Petitti, John Petitti, and Jasper Petitti with the crime above charged, and all three were held to answer to the next term of the superior court, commencing on the first Monday in January, 1911. The transcript of the justice of the peace in said case was not filed in the superior court until July 30, 1911, and no information was filed in said court until November 21, 1911, or nearly a year after the preliminary examination was had. No information was ever filed against John and Jasper Petitti. Upon arraignment the defendant filed his motion to dismiss, and that he be discharged for want of prosecution, under section 6095 of the Code of Criminal Procedure. That section is as follows:

“When a person has been held to answer for a public offense, if an indictment or information is not filed against him at the next term of court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown.”

To this motion the state replied by the county attorney as follows:

“(1) That it is true that the defendant had his preliminary and was held to the superior court on December 20, 1910, and that the transcript in the case was not filed by the justice of the peace with the clerk of said court until July 30, 1911, but your respondent shows to the court that the preliminary was held so shortly before the January term of the superior court that said cause could not have been brought to hearing at said term for want of time.
“Respondent further shows to the coitrt that defendant was on bond from the date of the preliminary, and had attorneys residing in the city of McAlester, and that the delay of the justice of the peace in sending up his transcript was not called to the attention of the justice'of the peace, the county attorney, or the court, and that said transcript was in fact filed by the justice of the peace after the setting of the criminal docket for the July term of said court, and that the county attorney did not find such transcript until shortly before the filing of the information herein; that when he did find it he filed the information immediately, set the cause down for hearing at the present term of the court, and is now ready for trial.
“Respondent further shows to the court that the county was without funds with which to hold an April term of the court, without power to make a debt for such expenses, and therefore could not hold said term.
“Your respondent submits that he has shown sufficient cause for not bringing this case to a trial sooner, and submits that said motion should be denied.''8

The provision of Procedure Criminal above quoted was enacted in the light and under the operation of section 20, Bill of Rights, providing that “in all criminal prosecutions the accused shall have the right to a speedy and public trial.” .Const, art. 2, sec. 20. The authorities uniformly hold that such statutes are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision. Eubanks v. Cole, 4 Okla. Cr. 25, 109 Pac. 736.

It was the duty of the justice of the peace, as the committing magistrate, to return immediately to the clerk of the superior court of Pittsburg county the original complaint, with his order holding the defendants to answer the same indorsed thereon, also the warrant and transcript of the testimony of the witnesses examined before him, and all undertakings of bail taken by him, together with a certified transcript of the proceedings as they appear on his docket. Procedure Criminal, secs. 5680, 5692.

It is undisputed that two terms of said court had passed before the magistrate returned to the clerk of the said court the papers in the case, and if no cause existed other than appears in the record for his failure to return them earlier than he did, he was guilty of inexcusable negligence. Three terms of said court had passed without an information being filed against the defendant. Under the facts as shown, the court below should have granted the defendant’s motion, and dismissed the prosecution against him. The want of time and press of business on the part of the county attorney is not “good cause to the contrary/’ within the meaning of that phrase as used in said section. The bond mentioned in the county attorney’s reply was for the appearance of the defendant at the next term of said court, and we know of no law that requires the defendant or his attorneys to call the county attorney’s attention to the dereliction of the committing magistrate. The filing of the information in the trial court could not be affected by the condition of the court fund.

We are constrained to think that the reply of the county attorney to the motion to dismiss was in effect a confession that the motion was well founded. It follows that the judgment should be reversed, and the court below directed to dismiss the prosecution and discharge the defendant.

ARMSTRONG, P. J., and FURMAN, J., concur.