text:
    GEORGE FORTNER v. STATE.
    No. A-2704.
    Opinion Filed January 18, 1919.
    (177 Pac. 380.)
    APPEAL AND ERROR — Affirmance. Where (lie guilt of tlie defendant is admitted in liis brief, and no prejudicial errors are therein pointed out or insisted upon, and as tlie only apparent object of tlie appeal was to secure a modification of tlie sentence, and the record failing to show .any justifiable grounds’ for tlie exercise of the power conferred upon this court by section 600:!. Revised Laws 1M0, the judgment of tlie trial court will be affirmed.

      Appeal from County Court, Canadian. County; R. B. Forrest, Judge.

    George Fortner was convicted of having unlawful possession of intoxicating liquors with the intention of violating the prohibitory liquor laws of this state, and he appeals.
    Affirmed.

      J. N. Roberson, for -plaintiff in error.

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

The plaintiff in error, George Fortner, hereinafter designated defendant, was convicted of the offense of unlawfully having in his possession intoxicating liquors with the intention of selling, bartering, and otherwise furnishing same contrary to law, and was convicted and sentenced to pay a fine in the sum of $400 and costs, and to be confined at hard labor in the county jail of Canadian county for four months, and providing that if said fine of $400 and costs he not paid, then the defendant to be confined at hard, labor in the said county jail, or upon the public roads or any public work in which the county is interested, for an additional term of one day for each dollar of said fine and costs aforesaid, and that upon service of the jail sentence imposed, the defendant may give bond in double the amount of said fine and costs to secure payment of the fine and costs within 30 days thereafter. To reverse the judgment rendered, defendant prosecutes this appeal.

The charging part of the information in this case is as follows:

“That George Fortner, on or about the 1st day of October, 1915, at and within the county of Canadian, state of Oklahoma, did then and there willfully and unlawfully have possession of intoxicating liquors, to wit, whisky and beer, with the intention of selling, bartering, and otherwise furnishing the same contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The defendant demurred to the information, which was overruled and exception saved.

The uncontradicted evidence is that the defendant was engaged in the business of selling intoxicating liquors at the time and place averred in the information, and had a retail liquor license from the United States in force at the time and designating the place where said business was being carried on by the defendant.

We have carefully considered the information, and find it sufficient, and that the court did not err in overruling the demurrer thereto. In the printed brief of the defendant, his guilt is practically admitted, and it is not insisted or pointed out that any prejudicial error intervened in the trial.

It is evident that the only object of this appeal is to secure a modification of the sentence inflicted on the defendant, and this is emphasized by the introduction of evidence by the defendant as to his age, condition, and number of his children, which facts were not germane to any issue involved in this case, and upon objection properly made should not have been admitted in evidence. The condition of the defendant, the number of his children dependent upon him, and the severity of the sentence imposed are proper. matters to present in support of executive clemency, but cannot be considered on this appeal.

The undisputed evidence in this case, and the admission of the defendant, shows the defendant guilty of. being regularly engaged in the business of unlawfully selling intoxicating liquors, and leaves no ground whatever for the exercise by this court of the power granted it by section 6003, Rev. Laws 1910, and therefore this court declines to modify the judgment rendered.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J„ concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    EARL THAYER v. STATE.
    No. A-3321.
    Opinion Filed January 18, 1919.
    (177 Pac. 381.)
    LARCENY — Theft of Automobile — Sufficiency of Evidence. In ii prosecution for tbe tlioft of iin automobile, tlic. evidence considered, and held sufficient to sustain a conviction, and that no reversible error was committed on the trial.

      Appeal from District CouH, Oklahoma County; Frank Mathews, Assigned Judge.

    Earl Thayer was convicted of stealing an automobile, and anneals.
    Affirmed.

      Pruiett, Sniggs & Burns, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Earl Thayer, was convicted, and in accordance with the verdict of the jury was sentenced to a term of two years’ imprisonment in the penitentiary upon an indictment charging the theft of one Ford five-passenger touring automobile, from the owner, J. B. Sheefers. From the judgment rendered on the verdict, an appeal was perfected by filing in this court on April 20, 1918, a petition in error, with case-made.

The only assignment of error presented in the brief is that the verdict of the jury is not supported by sufficient evidence, and is contrary to law.

A substantial statement of the testimony of each witness who testified in the case is as follows:

The state’s first witness, J. B. Sheefers, testified that he lived in Oklahoma City, was the owner of a Ford automobile, 1916 model, No. 6405-28; that on the night of June 12, 1917, he took a big chain and wrapped it around the front axle and locked it to a big sycamore tree in front of h;is house; that the car was taken that night without his consent; that the lock on the chain had been pried open; that there were four casings and an inner tube in the car; that the car was worth about $875; that the next day he saw a part of it at the police station; that his initials, printed on both sides of the car and under the front seat, had been removed with some kind of fluid, and the places painted.

Joe F. Braun, motorcycle policeman, testified: That at 3 o’clock in the morning of June 13th he saw the defendant in the south part of town in an automobile, coming north, and followed him. and called to him to stop. Then the defendant tried to pocket him between the curbing and the car, and he pulled his gun and ordered him to stop. The defendant said, “You don’t think this is a stolen-car?” That some automobile casings, inner tubes, and curtains were in the car. That he told the defendant he would have to walk to the station, and the defendant made a break for his gun, and he told him: “You keep your hand's up; I don’t want to kill you.” The defendant had a gun stuck in his waistband, with his suspenders wrapped around the handle, and he disarmed him and marched him from Walker street to the station. The defendant said: “Let me talk to you. I have got a little money here, and I will make you some money and myself some money” — and he told him, “Nothing doing.” That, meeting Officer Youngblood, he directed him to search the defendant, and they found a box of shells and a bottle of acid in his pockets.

Mike Conners testified that he was a police officer for II years, knew the defendant for seven years, and with Officers Braun and Smith went out in the police car to bring in the Sheefers car. They found the tires off, the tag number rolled up, and the spark plugs out, and the name on the sides of the car had been erased.

For the defense Mon Quick testified that he lived at Oilton, but was at Gus Anthony’s on the 13th day of June, 1917; left there at midnight; that Gus Anthony drove up in a Ford car about the time that he left in a car that had some auto casings in it, and Anthony asked him to drive the car to Jimmie Jones’ and also to go and see the defendant, Earl Thayer; that he found the defendant in bed.

On cross-examination he stated that he heard the next morning that the defendant was arrested; that Mr. Shee-fers’ car had been stolen that night, and also Jimmie Jones’ car.

Mrs. Ella Hodges testified that Mrs. Gus Anthony was her sister, and on that evening she went riding with Mr. and Mrs. Anthony, Bill Webber, and the defendant, Earl Thayer, and his wife in a car; that about 10 o’clock the Thayers and Webber got out of the car at Thayer’s house; that that night about 12 o’clock Gus Anthony left his home with Mon Quick.

Mrs. Anthony testified she was the widow of Gus Anthony, lived at 218 West Oak, and on the evening of the 13th her husband- and sister and the defendant, Thayer, and his wife went out riding in Jimmie Jones’ car.

Mrs. Thayer, wife of the defendant, testified that she was out riding with a party the evening before her husband was arrested; that they returned home about 10 o’clock; that that night about 12 o’clock a party called and asked her husband to take Jimmie Jones’ car back; that the car was at Gus Anthony’s, her husband got up and went away.

Frank Lewis, son-in-law of . the defendant, testified that he was staying at the defendant’s house that night, and about 12 o’clock a party came to the door, and said Gus Anthony had sent him to have the defendant come and get Jimmie Jones’ car and take it home. The defendant did not testify.

We think the foregoing statement shows that the verdict was fully warranted by the evidence in the case. When the jury returns their verdict finding the defendant guilty, which is approved by the trial court, and there is evidence tending to support every material allegation in the indictment, the conviction will not be reversed, in the absence of prejudicial error.

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

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    ED HARTWELL v. STATE.
    No. A-2899.
    Opinion Filed January 18, 1919.
    (177 Pac. 383.)
    WITNESSES — Impeachment — Contradictory Statement — Collateral Matters. A witness may not be impeached on any matter collateral to the matter in issue with a view to eliciting from such witness an admission at variance between former statements and those testified 1o on the trial. Where, however, the matter inquired about is relevant to the issue in the cause, and the witness denies having made a statement material thereto, such statement, if contradictory to his testimony given on the trial, may be shown to impeach him.

      Appeal from District Court, Bryan County; Jesse M. Hatchett, Judge.

    Ed Hartwell was convicted of larceny of live stock, and sentenced to serve two years in the state penitentiary, and appeals.
    Reversed and remanded.

      MePherren & Cochran and Geo. F. Deck, for plaintiff in error.

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

This is an appeal, from the district court of Bryan county, wherein the defendant was convicted of the crime of larceny of live stock, and sentenced to serve a term of two years’ imprisonment in the state penitentiary.

Among other assignments of error relied upon to reverse this judgment of conviction, is the following: That the court erred in refusing to permit the defendant to prove that the witness F. B. Mitchell had stated to several witnesses, about the time of the disappearance of the Logs-den cow, that that old cow would not bother them any more, and in which he said, “Say, boys, you haven’t seen that old cow around here lately, have you?” to which they answered, “No,” and to which he replied that they would not see her any more; “I have taken care of her.”

If the proffered testimony that the witness Mitchell had admitted to the other witnesses in substance and effect that he had done away with the cow that the defendant was alleged to have stolen was material to the issue then being tried, it is apparent that the refusal of the trial court to permit the impeachment of the witness Mitchell on this subject was erroneous. In order to determine the materiality of this proposed impeaching testimony, it is necessary to review some of the evidence affecting the issues presented.

The evidence on the part of the state disclosed that one Logsden was the owner of a dark brown cow about five or six years old, which had been permitted to wander on the range in the vicinity of the town of Platter, in Bryan county, Okla., during the summer of 1915; that along about the 20th of August, 1915, said cow disappeared, and the owner Logsden, offered a reward of $20 for her return, or, if stolen, for the conviction of the person who had taken her.

In November, 1915, the defendant was arrested and charged with the larceny of this particular animal. His arrest was occasioned largely by the disclosures of the witness F. B. Mitchell, who had theretofore informed Logs-den that the defendant, Hartwell, had admitted to him, Mitchell, that he had stolen such cow. In addition to the alleged extrajudicial confession of the defendant made to Mitchell, the state also introduced evidence to the effect that the defendant had driven a cow, answering the description of Logsden’s cow, to the city of Durant, and had there sold said animal to a butcher for the sum of $40, the trip having been made by foot and in the nighttime. The facts and circumstances testified to by the state’s witnesses, considered together with the extrajudicial confession of the defendant, are ample and sufficient to sustain this conviction.

If the defendant was not permitted to have the jury consider all the evidence relevant to the defense interposed, then that fair and impartial trial which was guaranteed to him under the Constitution and laws of this state was. not afforded. The defense interposed was twofold: First, the defendant offered evidence to show that the cow which he admitted to have sold to the butcher in Durant was an animal which he had obtained in a trade from his mother; second, in order to explain the absence of Logsden’s cow, he also introduced evidence to show that the witness F. B. Mitchell had likely shot and killed Logsden’s cow when trespassing upon his (Mitchell’s) corn crop during the summer of 1915.

The trial court permitted the witness Mitchell to be cross-examined as to the shooting of Logsden’s cow, and also permitted said witness to be examined as to his interest in obtaining the reward offered for the conviction of the defendant. Said witness Mitchell was also cross-examined as to his statements relative to having done away with the Logsden cow, which statements he denied making at the times and places and to the witnesses referred to in the impeaching questions. Subsequently the defense introduced such impeaching witnesses, and propounded to them, in substance and effect, the same questions relative to the alleged conversations with Mitchell concerning his having done away with the Logsden cow which had previously been asked of Mitchell. The court excluded, upon objection by the state, this evidence, and counsel for the defendant thereupon offered to prove by said witnesses that such statements were made by the witness Mitchell at the times and places referred to in the question.

It has been repeatedly held by this court that a witness may not be impeached on any matter collateral to the matter in issue with a view to eliciting from such witness an admission at variance between former statements and those testified to on the trial. Payne v. State, 10 Okla. Cr. 314, 136 Pac. 202; Watson v. State, 7 Okla. Cr. 597, 124 Pac. 1101.

It is equally true, however, that where a matter is relevant to the issue in the cause, and the witness denies having made a statement material thereto, such statement, if contradictory to his testimony given on the trial, may be shown to impeach him.

In this case, the state contends that this is an attempt to introduce in evidence a purported extrajudicial confession made by the witness Mitchell, and that it is never competent as a part of the defense to introduce proof which has for its purpose the establishing of the fact that some other person has confessed that he has committed the crime, and that the defendant had nothing to do therewith, citing the cases, Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84, and Williams v. State, 13 Okla. Cr. 189, 163 Pac. 279. The doctrine established by the decisions in those cases is not applicable to this. The purpose of offering this testimony was to impeach the witness Mitchell and to affect his credibility before the jury. Said witness was a very important witness for the state — he was the only witness who attempted to detail any evidence showing an admission or confession on the part of the defendant to the crime. He was interested in the collection of the reward offered by Logsden for the conviction of the thief. It was certainly competent for the defendant to show, not only the interest of the witness Mitchell in his, defendant’s conviction, but also to show to the jury the fact, if it was true, not only that the witness Mitchell had shot the cow that defendant was alleged to have stolen (an overt act on Mitchell’s part), but also that he admitted, on different occasions along about the time the cow was alleged to have been stolen, that he, Mitchell, had done away with her, and that she would not be found bothering anybody in the future. None of the witnesses who testified to having seen Mitchell shoot Logsden’s cow knew what was the final effect of such shots; the only evidence the defendant was able to offer on the subject of the effect of such shots was the statements of Mitchell, made to these witnesses a short time after the alleged shooting of the cow. If Mitchell had done away with the cow by shooting her, centainly the defendant could not be guilty of stealing her, and such evidence was competent to be admitted to the jury to rebut the presumption arising from Mitchell’s testimony as to the confession of defendant, and from the other facts and circumstances testified to by state’s witnesses. The defendant was not compelled to rely solely upon his defense that the cow sold by him in Durant was an entirely different cow' from that lost by Logsden, but he had a right also to present to the jury any circumstances which tended to explain or account for the loss of Logs-den’s cow. He had a right, not only to offer proof that the witness Mitchell had shot Logsden’s animal, but also to follow up said proof by showing, after the witness Mitchell had denied it on cross-examination, that said witness had admitted that he had done away with Logsden’s cow for trespassing upon his, Mitchell’s, crop..

We take the view, therefore, that this evidence was material and relevant to the matter in issue in this cause, and that the court erred in refusing to permit defendant to impeach the witness Mitchell by showing such contradictory statements and admissions. This was a closely contested case. The evidence given by the defendant and other witnesses in his behalf, if believed by the jury, entitled him to be acquitted. Without the testimony of the witness Mitchell as to the confession of the defendant that the cow he sold in Durant was Logsden’s cow, there is very little proof of the identity of the cow sold by defendant with the one lost by Logsden, and it is apparent that without the evidence of Mitchell, the jury would have very little evidence of the fact, if it were a fact, that the cow sold to the butcher by the defendant and the one lost by Logs-, den were one and the same animal. The importance, therefore, of impeaching the witness Mitchell by statements out of court variant to those made in court, which were material to the matter in issue in the cause, is very evident. We deem the error of the court in refusing to permit this impeachment to be such as to • render a reversal of this judgment compulsory.

Other errors are complained of, but an examination of the record convinces the court that the same aré without substantial merit.

For the reasons stated, the judgment is reversed, and the cause remanded.

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


text:
    EDWARD HEMBREE v. STATE.
    No. A-2749.
    Opinion Filed January 18, 1919.
    (177 Pac. 385.)
    1. APPEAL ANI) ERROR — Transcript, of Record — Review. Mixed questions of law and fact, involving rulings of the trial court on the admissibility of evidence and failure of the trial court to fully instruct on the law applicable to the evidence, can only he presented for review on appeal by incorporating the same into a bill of exceptions or case-made. Such questions are not presented for review on appeal by transcript of the record alone.
    2. SAME — Record—Continuance. An application for continuance and the rulings thereon do not constitute a part of the record proper which can he brought to this court for review by transcript.
    3. SAME — Appeal in Felony Case — Review. Where' the appeal in felony cases is by transcript of the record alone, this court will carefully review such transcript for any reversible error properly raised by such an appeal, this though the alleged errors presented may ho such only as are required by statute to he incorporated in a bill of exceptions or case-made.

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

    Edward Hembree was convicted of murder, and appeals.
    Affirmed.

      S. E. Welch, Baxter Taylor, and Pruiett & Sniggs, for plaintiff in error.

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

Edward Hembree was informed against in the district court of Pushmataha county by information filed on the 18th day of October, 1915, which jointly charged the said Hembree and one Earl Everidge and one Floyd Aikins with the murder on the 16th day of September, 1915, in said county, of one P. H. Hearn. Upon application, a severance was granted this defendant, and in the month of November, 1915, he was separately tried and convicted of murder, and his punishment fixed at imprisonment in the penitentiary for life.

From this judgment of conviction, he has appealed to this court, and the appeal is brought to this court on a transcript of ;the record alone. No case-made is attached to or made a part of the record in this court.

Under section 5960, Rev. Laws 1910, the transcript of the record is composed only of the following papers:

“First, the indictment and a copy of the minutes of the plea or demurrer; second, a copy of the minutes of the trial; third, the charges given or refused, and the indorse-ments, if any, thereon; and, fourth, a' copy of the judgment.” Day v. State, 7 Okla. Cr. 276, 123 Pac. 436.

The first assignment of error relied upon for a reversal of this judgment is that the trial court erroneously admitted, without giving a proper instruction to the jury, a purported confession of the defendant. In this connection, it is contended that it was the duty of the trial judge to instruct upon every phase of the law applicable to the issues in the case; that the evidence was conflicting as to whether or not the purported confession was voluntarily made, therefore it became necessary for the trial court to instruct the jury on the law applicable to the admissibility of confessions made by the defendant.

It is apparent from the statement of this proposition that in order for this court to pass intelligently upon the question of the admissibility of the purported confession of the defendant, and also upon the question of whether or not the trial court should have instructed the jury on the law applicable thereto, it would be necessary for this court to have before it the evidence heard by the trial court relative to the circumstances under which the confession was made. In the case of Berry v. State, 4 Okla. Cr. 207, 111 Pac. 676, 31 L. R. A. (N. S.) 849, it was said:

“Primarily there are two facts which render a confession inadmissible: First, that it was obtained under any form of compulsion so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination; and, second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustworthiness. And while the greater number of cases hold the contrary, yet we think the proper rule is that, in the absence of a statute governing the matter, prima facie any confession is admissible in evidence; and, where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means' or under such circumstances as to bring it within one or the other of the conditions stated, unless there is. something in the confession itself or the other evidence on the part of the state which shows that it is inadmissible. This was so held in Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; State v. Grover, 96 Me. 363, 52 Atl. 757; Com. v. Sego, 125 Mass. 213; Com. v. Culver, 126 Mass. 464; Rufer v. State, 25 Ohio St. 469; State v. Meyers, 99 Mo. 107, 12 S. W. 516; State v. Storms, 113 Iowa, 385, 85 N. W. 610, 86 Am. St. Rep. 380; State v. Icenbice, 126 Iowa, 16, 101 N. W. 273; People v. Barker, 60 Mich. 277, 27 N. W. 539, 1 Am. St. Rep. 501; State v. Jones, 171 Mo. 401, 71 S. W. 680, 94 Am. St. Rep. 786.”

The burden is upon plaintiff in error to show, either that the confession was obtained by duress or compulsion, or else that it was made under promise of hope or by reason of fear, in order to create a probability of its testimonial untrustworthiness.

While there has been incorporated in this transcript a purported copy of a written confession made by the defendant in this case, it forms no part of the clerk’s transcript, and may not be considered by the court where the appeal'is by transcript alone. It is sufficient to state, however, that nothing appears upon the face of this alleged written confession which would render it in any way inadmissible as evidence against the defendant.

Also in considering the question as to whether or not thé court should have given to the jury an instruction covering the question of the admissibility of a purported confession by the defendant, it would be necessary to have before us the evidence relative, as heretofore stated, to the circumstances under which the confession was made. As this evidence is not before the court, we are not at liberty to decide any question which involves an application of the law of the case to the facts. Rhea v. U. S., 6 Okla. 249, 50 Pac. 992.

Another assignment of error urged as grounds for reversal is the failure of the trial court to grant the application of the defendant for a continuance on account of the absence of witnesses in his behalf. The clerk’s minutes show that an application for a continuance was presented and overruled by the court. The application itself, not being a part of the record on appeal by transcript, is therefore not before the court for consideration. Stueble v. State, 7 Okla. Cr. 728, 123 Pac. 1134. We are not at liberty to say, therefore, that there was any abuse of discretion on the part of the trial court in overruling this application.

This being a conviction for murder, in which the liberty of the defendant has been taken from him for the term of his natural life, the court has carefully scrutinized the record, and the conclusion is reached that there are no reversible errors contained therein. The information clearly contains a sufficient charge of murder, the minutes of the trial show the proceedings to have been regular in every respect, and the court’s instructions apparently cover the law and are correct. The judgment of the court is in conformity with the information and the charge.

No showing is made to this court why the appeal was not taken by case-made as well as by transcript, and it is to be regretted in a case of this importance to the defendant that the questions raised were not presented on appeal by case-made. Had the defendant been a poor person, he was entitled to have the transcript of the evidence made at the expense of the county; had he been financially able to pay for the same ánd could not obtain such transcript within the six months allowed for the appealing of felony cases, he could have filed a transcript of the record and partial case-made, with petition in error in this court within that time, and thereafter applied for permission to attach a complete case-made as an exhibit thereto. Lyons v. State, 6 Okla. Cr. 581, 120 Pac. 665.

This court has been ever zealous to protect the constitutional and statutory rights of a person convicted of crime, and to give to his appeal the fullest consideration permitted by law. We have done that in this case. No reversible error is presented by the appeal taken, and the judgment must be affirmed. It is so ordered.

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


author: ARMSTRONG, J.

text:
    JOHN DAVIS v. STATE.
    No. A-2974.
    Opinion Filed January 20, 1919.
    (177 Pac. 625.)
    1-7. INDICTMENT AND INFORMATION — Homicide — Companion Case. The syllabus in this case is the same syllabus as that in its companion case of Joe Davis v. State, No. 2619, ante. p. 386, 177 Pac. 621, recently affirmed by this court, with the addition of the following paragraph. ■>
    8. WITNESSES — Testimony—Variance. Where a witness was ex-examined and cross-examined by the defendant at a preliminary examination, and at a subsequent mistrial of the case, but is absent at the final trial of the case and without the jurisdiction of the trial court, upon a proper predicate having been laid therefor, the state may legally introduce the transcript of such witness’ testimony given at the preliminary trial, and if the defendant desires to attack the credibility of such witness, because of a material variance between his evidence at the preliminary trial and that at the mistrial, he may introduce such parts of such evidence given at the mistrial as show variant statements from those given at the preliminary trial.

      Appeal from District Court, Rogers County; W. J. Campbell, Judge.

    John Davis was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      Woodson E. Norvell and T. L'. Broim, for plaintiff in error.

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

The plaintiff in error, John Davis, hereinafter referred to as defendant, was jointly with Joe Davis, his brother, informed against for murder, tried separately, and convicted of manslaughter in the first degree, and sentenced to confinement in the penitentiary at hard labor for a term of 25 years. To reverse the judgment rendered, the defendant brings this appeal.

This case is'a companion case to the case of Joe Davis v. State No. 2619), ante, p. 386, 177 Pac. 621, recently affirmed by this court, and both cases are submitted upon substantially the same brief, and all of the errors assigned in the instant case, except one to be hereinafter considered, were fully considered and determined in the said Joe Davis Case adversely to the contention of the defendant therein.

The error assigned in the instant case, but not assigned in the Joe Davis Case, is:

“That the court committed prejudicial error in admitting the evidence of a witness given at the preliminary examination of the defendant, because that subsequently the witness was examined in a former trial of the case to a jury.”

It is earnestly contended by the defendant that the examination of the witness on a trial of the case to a jury superseded and destroyed the evidence given by the witness at the examining trial of the defendant and renders the same inadmissible at this trial of the defendant, but the defendant does not cite an authority in support of his said contention.

We are of the opinion that the said contention of the defendant is without merit, as the state had the legal right, upon showing that the witness was beyond the jurisdiction of the trial court, to introduce in evidence the evidence of the witness given at any former trial of the case where opportunity was afforded the defendant to cross-examine the witness. If the evidence of the witness at his different examinations in the case materially differed, the defendant had the legal right to introduce such conflicting evidence for the purpose of affecting the credibility of the witness, and the court did not err in permitting the state to introduce in the case the evidence of the witness ■ given at the examining trial of the defendant.

For the reason given, and upon the authorities cited in the said Case of Joe Davis, No. 2610, this case is affirmed.

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


text:
    GEORGE LOVE v. STATE.
    No. A-2996.
    Opinion Filed January 20, 1919.
    (177 Pac. 387.)
    1. HOMICIDE — .Manslaughter in First Degree — Sufficiency of Evidence. In a homicide case the evidence considered, and held sufficient to support the verdict of manslaughter in the first degree, and that no reversible error was committed on the trial.
    2. ARREST — Homicide—Commission of Offense — Resistance—Degrees. A peace officer has the right without a warrant to arrest a person who is committing 'a public offense in his presence, and a person so arrested has no lawful right to resist. The officer being in the right, and in the discharge of his duty, the person resisting arrest does so at his peril, and in so doing if he kills the officer, he is guilty of murder, if he knew that the person attempting to make the arrest was an officer, and guilty of manslaughter in the first degree if he did not know it.

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

    George Love was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      J. B. Chapman and Brown & Brown, for plaintiff in error.

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

Plaintiff in error, George Love, and his brother Mose Love were jointly indicted by the grand jury of Carter county for the murder of one Oscar Alexander. They were jointly tried, and the jury rendered verdicts, finding Mose Love not guilty; and finding George Love guilty of manslaughter in the first degree, fixing his punishment at eight years in the penitentiary. From the judgment rendered upon the verdict he prosecutes this appeal.

The facts as shown by the testimony for the state, brifiy stated, are as follows: George McLaughlin, constable of Morgan township, Carter county, Dow Brazil, deputy United States -marshal,. Tom Adams, and Oscar Alexander, the deceased, went, on the afternoon of August 31, 1916, to the home of Mr. Cox, in the Hoxbar community, for the purpose of intercepting and arresting the plaintiff in error and his brother, Mose Love, who, said officers had information, were transporting intoxicating liquor. The officers stayed that night in the neighborhood, and the next day took up certain positions along the road which the Love brothers were expected to travel, and remained all day and into the night following, until McLaughlin fired a warning shot and the four officers together in their car went in pursuit of the Love wagon. Having gone some distance eastward they heard the wagon cross a bridge going north, and they took up positions along the roadside and waited for the wagon to come along; as the wagon approached, McLaughlin said, “Stop! I want to see what is in the wagon; I’m an officer,” — and threw a searchlight on the wagon, and the man on the wagon said, “Throw that light on me again, you son of a bitch, and I will set you on fire.” He again said that he was an officer, and the man said, “It don’t, make any difference.” Dow Brazil also told them to stop, saying that hq was a United States officer, and that he wanted to see what they had in the wagon. Oscar Alexander, the deceased, threw a searchlight on the wagon. Then two shots were fired from the wagon, the officers then commenced to shoot, then George Love fired the shot that killed Oscar Alexander. The officers found 19 cases of whisky, each case containing 24 pint bottles. They arrested the plaintiff in error, and asked him where he brought the whisky from. He answered that he did not have any statement to make.

For the defense Mose Love testified that he was driving the wagon, which was loaded with 19 cases of whisky covered by a wagon sheet and three or four quilts; that he and his brother George had been down on Hickory creek fishing, and a man in a Ford car, whose name they did not ask, hired them to haul the whisky to Provence, saying that he would be there to receive it; that there was a ■loaded double-barrel shotgun in the wagon, which belonged to his brother George; that about 10 o’clock that night a man standing by the roadside flashed a light and said, “Stop, you damn son of a bitch,” and then several shots were fired at the wagon, and he was hit and fell off of the wagon, and soon thereafter he heard his brother George fire the shotgun; that the shotgun was fired only one time; that the officers fired 12 to 15 shots before his brother fired the shotgun. The plaintiff in error testified that he was lying down crossways .on the boxes in the wagon, and several shots were fired, one striking him in the foot; that he then picked up his shotgun and fired one shot in the direction of the gun flashes; that before he fired the shot his brother Mose was hit and fell off the wagon; that before the shooting commenced he heard somebody say, “Hold up there, you damn son of a bitch.” ;

On cross-examination he stated that he had been convicted in that court in a homicide case, but did not serve the sentence, and had been convicted in the federal court at Ft. Worth for having whisky in his possession for the purpose of transporting it to the Indian Territory.

W. H. Darter testified that he heard the shooting, and that towards the last of the rapid shots he heard a different and louder report.

Bill Slater testified that he resided with W. H. Darter, and heard the shooting; that there were about eight or ten shots fired rapidly, that sounded very much alike, and towards the last he heard one different and louder report.

Henry McNeely testified that he lived about 200 yards from the scene; that he was sitting in the door about 10 or 11 o’clock, and heard the shooting; that he was familiar with firearms and the different reports made by different kinds of guns, and could distinguish between the report made by a shotgun when fired and a rifle and pistol; that he heard between 12 and 15 pistol or Winchester shots, which were very rapid, and after that heard a single shot from a shotgun.

Annie Hawkins testified that she heard the shooting, and there were a number of shots fired one right after the .other so fast that she could not count them, and towards the last she heard a big gun fire.

J. H. Hargis testified that he heard several shots, seemed to be five or six guns cracking, and towards the last he heard one dead sound.

Winnie Rosalis testified that she heard an awful noise —sounded, “Pop, pop!” like guns and pistols, very fast; that along towards the last of the popping there was a , big gun fired.

Ben Henshaw testified that he heard the shooting; that there was something like five or six that sounded like pistol shots, and towards the last he heard a shotgun.

The errors assigned are that the verdict is contrary to law, and is not sustained by the evidence, and that the court erred in giving certain instructions, and in refusing to give instructions requested.

An examination of the record discloses that the evidence is ample to sustain the conviction. Our Criminal Code provides that:

“A peace officer may, without a warrant, arrest a person: First, for a public offense, committed or attempted in his presence” (section 5654, Rev. Laws 1910) —and further provides that:
“When arresting a person without a warrant, the officer must inform him of his authority and the cause of arrest, except when he is in actual commission of a public offense, or is pursued immediately after an escape.” (Section 5657, Rev. Laws 1910.)

Under our statutes a peace officer has the right, and it is his duty, to arrest one who is committing a public offense in his presence and to use such force as may be necessary to effect the arrest, arid if the person committing the offense resists arrest, and in so doing kills the officer, he is guilty of murder, if he knew that the person attempting to make the arrest was an officer, and at least guilty of manslaughter in the first degree if he did not know it.

The officer being in the right, and in the discharge of his duty, the person resisting arrest does it at his peril, and if he kills, he is guilty of murder or manslaughter, as it may appear that he knew or did not know the character in which the officer was acting. In Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375, it is said:

“An arrest by a' peace officer without a warrant for a public offense committed or attempted in his presence, made in substantial compliance with the terms of the statute, is a legal arrest, which no one can lawfully resist, and the officer may use whatever force is reasonably necessary to prevent an escape, and secure the offender, but the officer must use no more force and violence than is reasonably necessary to secure the arrest.”

However, if the lawful power of arrest is exercised in such wanton and -Unlawful manner as to make such officer a trespasser, resistence will be justified. This was the theory of the defense made in this case. The instructions given by the court fairly and fully presented the law of the case, including that of the defense made. The instructions requested were properly refused. Finding no material error in the record, the judgment appealed from is affirmed.

ARMSTRONG and MATSON, JJ„ concur.


text:
    JIM ROGERS v. STATE.
    No. A-2707.
    Opinion Filed January 21, 1919.
    Rehearing Denied August 9, 1919.
    1. APPEAL AND ERROR — Assignment of Error — Sufficiency—Instructions. Where counsel for plaintiff in error incorporate in their brief only detached parts of a paragraph of the court's instructions as alleged error, and do not present the entire paragraph of the court’s instructions, and treat it in its relation to the entire charge, this court will not review such an alleged assignment of error, as the charge of the court must be considered as a whole and not piecemeal.
    2.' SAME — Consideration of Assignment of Error. Unless an inspection of the entire record shows some fundamental error not assigned, only such errors as are argued in defendant’s brief will be considered, as errors not argued will be regarded as abandoned.
    3. HOMICIDE — Instructions—Sufficiency of Evidence. The instructions given by the court in this ease are free from prejudicial error, and the evidence fully supports the verdict of the jury* and all the errors argued in defendant’s brief are without merit.

      Appeal from District Court, Pontotoc County; Tom D. McKeoum, Judge.

    Jim Rogers was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      B. C. King, Crawford & Bolen, Jean P. Day, and Pruiett, Sniggs & Patterson, for plaintiff in error.

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

The plaintiff in error, Jim Rogers, hereinafter designated defendant, was, jointly with Crocket Daggs, indicted for the murder of Mrs. Mary Harrison, tried separately, convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary at hard labor for a term of 20 years. To reverse the judgment rendered, the defendant prosecutes this appeal.

Crocket Daggs was jointly indicted with the defendant in this case, tried separately, convicted of manslaughter in the first degree, and his conviction affirmed by this court (See Crocket Daggs v. State, 12 Okla. Cr. 289, 155 Pac. 489, a companion case to this case), and the facts in the said Daggs Case being identical with the facts in this case, renders it • unnecessary to recite them.

Very many errors are assigned in the petition in error in this case, but only the following errors are stated in defendant’s brief: (T) The court erred in overruling the motion for a new trial; (2) the court erred in overruling the demurrer to the indictment; (3) the verdict is contrary to the law and evidence; (4) the court erred in its. instruction to the jury in paragraphs 12 and 13 of its instructions.

But the only error argued at all in defendant’s brief is the error of the court in giving the said paragraphs 12 and 13 of said instructions, and therefore all other errors assigned must be regarded as abandoned. Paragraphs 12 and 13, as set out in defendant’s brief, read as follows:

“(12) The court instructs you that if you find from the evidence in this case, beyond a reasonable doubt, that during the row, or after the same had subsided between Mart Lancaster and Long Conley and others, that Jim Rogers and Crocket Daggs, acting together in a common design to aid Mart Lancaster by fighting, and you believe beyond a reasonable doubt that in pursuance to said design on the part of the said Jim Rogers and Crocket Daggs, etc.
“(13) The court further instructs the jury that to constitute a person an aider and abettor he must be aware of his companion’s designs, and must participate in the crime,” etc.

The record discloses that all of paragraphs 12 and 13 of the instructions of the court are not correctly copied in the defendant’s brief, parts of same being omitted, and therefore only parts of said paragraphs 12 and 13, respectively, are submitted for consideration, and this cannot be legally done, as in order to review a paragraph of an instruction, the entire paragraph must be presented; however, we have carefully considered respectively the said paragraphs 12 and 13 of said instructions as they are shown by the record to have been given, and when thus considered, said paragraphs of said instructions are free from error.

Notwithstanding the demurrer to ’the indictment is not argued in the defendant’s brief, we have carefully considered the indictment, and find that, while there are a surplus of averments therein, the indictment is sufficient,' and the court did not err in overruling the demurrer thereto.

In the well-considered case of Daggs v. State, supra, it is said by Presiding Judge Doyle, and the statement is equally applicable in the instant case, approved, and adopted herein, that:

“The evidence shows that the crime in question was committed under circumstances indicating on the part of the perpetrator a depraved mind and a wanton and reckless disregard for human life. Upon the whole case, we are satisfied that the verdict was neither against the weight of evidence, nor against law; that the trial was conducted in substantial conformity with the law, and the result was such as the jury might properly reach upon the evidence.”

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

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


author: MATSON,. J.

text:
    CLIFTON COPE v. STATE.
    No. A-2817.
    Opinion Filed February 2, 1918.
    Rehearing Denied January 25, 1919.
    (177 Pac. 920.)
    1. CONTINUANCE — Cumulative Evidence. When a motion for continuance is interposed upon the ground of the absence of material witnesses, and the record discloses the fact that the testimony of such witnesses would be cumulative, this court, as a general rule, will not interfere with the order of the trial court overruling such motion.
    2. APPEAL AND ERROR — Sufficiency of Evidence. Where there is competent evidence in the record from which the jury could rationally conclude that the crime has been committed as alleged, ancl that the defendant is guilty thereof, a verdict will not be dis turbed upon the ground that it is contrary to the evidence.
    3. APPEAL AND ERROR — Harmless Error — Remarks of County Attorney. Where objection was made to the argument of the county attorney, and the court promptly sustained said objection, and there was no request to withdraw such remarks from the consideration of the jury, and the remarks of the county attorney are not made statutory grounds for reversal, but are apparently improper, this court will not reverse or modify a judgment of conviction therefor, where it is apparent from a consideration of the entire record that the defendant was in no wise prejudiced thereby.
    4. JUDGMENT AND SENTENCE — Place of Imprisonment. All persons convicted of a felony in this state may be sentenced by the trial judge to serve the term for which the jury has convicted either in the state penitentiary, located at McAlester, or in the state reformatory, located at Granite, in the discretion of the trial judge passing sentence.
    5. APPEAL AND ERROR — Assignments of Error — Citation of Authorities — Review. It is necessary for counsel for plaintiffs in error not only to assert error, but to support their contentions by both argument and the citation of authorities. Where this is not done, and it is apparent that the defendant has been deprived of no fundamental rights, this court will not search the books for authorities to support the mere assertion that the trial court has erred.

      Appeal from District Court, Custer County; Thomas A. Edwards, Judge.

    Clifton Cope was convicted of grand larceny, and he appeals.
    Affirmed.

      D. W. Buckner, for plaintiff in error.

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

Clifton Cope was convicted in the district court of Custer county, Okla., of the crime of grnad larceny, in that he stole a saddle belonging to one Henry Pietz. The saddle was taken from Englewood, Kan., and carried into Custer county, Okla., where it was found in possession of one Homer Dodder, a farmer who lived near the city of Clinton, Okla. Mr. Dodder had, some time before the discovery of the saddle, purchased same from Mr. Cope, who lived in the town of Gage, Okla., about 12 miles from Englewood, Kan. Mr. Pietz, the owner of the saddle, lived at the town of Knowles, Okla., about 15 miles west of Gage, and about 22 miles southwest of Englewood, Kan.

The first alleged error relied upon for reversal of this judgment is that the court refused to grant a continuance on account of absent witnesses. It is admitted by counsel in the brief for plaintiff in error that the testimony of the absent witnesses was cumulative, and this fact clearly appears from the record, because other witnesses were used by the defendant who testified to the same state of facts that the affidavit for continuance 'shows was expected to be proved by the absent witnesses. That the court under such circumstances did not commit error in refusing a continuance is held in the following cases: Bethel v. State, 8 Okla. Cr. 61, 126 Pac. 698; Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873; Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L. R. A. (N. S.) 153.

It is next contended that the court erred in refusing to peremptorily instruct to acquit the defendant. This assignment of error may be properly considered- in connection with the assignment that the evidence is insufficient to sustain a conviction, and the judgment should therefore be set aside. We have carefully examined the evidence in this case. It is unnecessary to enter into a discussion of the same, because, under repeated holdings of this court, it is only necessary to determine, where questions of this kind are raised, whether or not ' there is any evidence in the record from which the jury could rationally conclude that larceny was committed as alleged, and that the defendant is guilty thereof. There are numerous circumstances and facts testified to by the witnesses, both in chief and on rebuttal, that indicate clearly the guilt of this defendant of the crime charged, and under such circumstances this court will not set aside a judgment, especially after its approval by the trial court, where the same question was raised upon motion for new trial. See Ostendorf v. State, 8 Okla. Cr. 362, 128 Pac. 143; Caple v. State, 3 Okla. Cr. 621, 105 Pac. 618; Bishop v. State, 9 Okla. Cr. 175, 130 Pac. 1173.

The argument of the county attorney is also complained of, but the record shows that, when this argument was objected to, the court promptly sustained the objection of defendant’s counsel. There was no further request by said counsel to withdraw the remarks from the jury. The remarks were not such as are made grounds for reversal' by statute, and while we believe them to have been improper, in view of the fact that the punishment for the offense committed was fixed at five months’ imprisonment, we cannot believe that the defendant was seriously harmed thereby. Apparently they had very little weight with the jury, and in no way prejudiced the defendant.

It is also contended that the court erred in not sentencing the defendant to the state penitentiary in accordance with the verdict of the jury. Such verdict provided five months’ imprisonment in the penitentiary. The court sentenced defendant to five months’ imprisonment in the state reformatory, located at Granite. ' Section 7 of chapter 217, Session Laws of Oklahoma 1913, apparently authorizes the trial judge, in passing sentence in felony cases, to either sentence convicted persons to imprisonment at the state penitentiary or to imprisonment at the Oklahoma state reformatory, except where the defendant is convicted of certain crimes (not including grand larceny) as therein noted in said section. It was certainly not prejudicial to the defendant that he be imprisoned in the state reformatory, instead of the state penitentiary. This assignment of error is frivolous.

Other alleged errors are complained of. Matters are asserted to be prejudicial to this defendant by his counsel, without the citation of a single authority to support same. The entire brief does not contain the citation of a single case to support a single contention advanced in behalf of this defendant. He was energetically defended in the trial court by the same counsel who represents him here, and we are inclined to the belief that, if authorities had existed to support numerous contentions relied upon by counsel, the same would have been incorporated in his brief. This court has repeatedly warned counsel representing plaintiffs in error, upon whom exists the burden of convincing this court that the trial court has by its actions and rulings prejudiced the substantial rights of a convicted person, that it is necessary,, not only to assert error, but to support the contentions made by both argument and authorities. Where this is not done, and it is apparent that the defendant has been deprived of no fundamental rights, this court will not search the books for authorities to support the mere assertion that counsel makes of error. The crowded condition of our docket renders it practically impossible to do so. We are constrained to state, however, the defendant in this case is to be congratulated that the punishment inflicted is so wholly disproportionate to the offense committed. New states provide a minimum punishment for grand larceny at imprisonment for less than one year.

The judgment of the trial court is affirmed.

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


author: MATSON', J.

text:
    HORACE SIMMONS v. STATE.
    No. A-2858.
    Opinion Filed January 25, 1919.
    (177 Pac. 626.)
    1. APPEAL AND ERROR — Review of Evidence. A judgment of conviction will not be set aside because the evidence is conflicting, provided there is evidence in the record from which the jury could reasonably reach the conclusion that the defendant was guilty.
    2. HOMICIDE — Assault with Intent to Kill — Information. For information held sufficient to charge the -offense of “assault with intent to kill by shooting at another,” see body of opinion.
    S. SAME. Where an information charges the offense of intentionally and wrongfully “shooting at another with a pistol with intent to kill and murder.” the words “and murder” will be treated as surplusage, where the other allegations of the information clearly and distinctly charge the offense of assault with intent to kill by shooting at another.
    4. HOMICIDE — Assault with Intent to Kill — Verdict—Sufficiency. Where the information charges the defendant with assault with intent to kill by shooting at another with a certain pistol which is alleged in the information to be a deadly weapon, and the verdict returned finds the defendant guilty of “assault with a deadly weapon as charged in the information,” and fixes the punishment at three and one-half years’ imprisonment in the state penitentiary. and the court sentences the defendant to imprisonment for three and one-lialf years for the crime of assault with intent to kill as charged in the information, said judgment will not be set aside by this court on the ground that the verdict is too indefinite and uncertain, and that the judgment does not conform to the verdict; it being apparent from a consideration of the allegations of the information, the form ,of the verdict and punishment imposed therein, that it was the intention of the jury to find the defendant guilty of the particular crime for which judgment of conviction was pronounced against him.

      Appeal from District Court, Okfuskee County; George C. Crump, Judge.

    Horace Simmons was convicted of assault with intent to kill, and brings error.
    Affirmed.

      W. T. Banks, for plaintiff in error.

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

This is an appeal from the district court of Okfuskee county, wherein the plaintiff in error, hereafter designated defendant, was convicted and sentenced to serve a term of three and one-half years in the state penitentiary for the offense of assault with intent to kill. This alleged offense occurred in the town of Paden in Okfuskee county near the depot in said town, the defendant and one Bennett engaging in a pistol duel at that place and at a time when numerous people were assembled for the purpose of taking a passenger train out of said town. Neither party using the pistols was punctured by bullets, but, as is ofttimes the case, several innocent bystanders received wounds.

A perusal of the record will convince any disinterested person that both participants were anxious and willing to go “over the top,” and from the.number of shots fired, many of the spectators no doubt were led to believe that the battle of the Marne was in progress.

The defendant admits the shooting, but contends that he acted in his own necessary self-defense. It is argued here that because the defendant, according to the testimony of some of the witnesses, was not guilty of firing the.; first shot, he was therefore not the aggressor in bringing on the difficulty, and had a right to shoot because Bennett was shooting at him, but, as is ofttimes the case, there are two sides to this question. Under the state’s theory, the defendant armed himself for the purpose of engaging in a difficulty with Bennett, and then sought the opportunity of bringing said difficulty about, and the jury was perfectly justified in taking this view of the evidence, and the mere fact that the evidence of the different witnesses may be in apparent conflict as to who was the Aggressor does not render it mandatory that the jury should acquit, or accept the construction most favorable to the defendant. If the evidence will warrant a reasonable inference of guilt, the fact that it is conflicting is no ground to set aside a judgment *of conviction in this court.

Among other assignments of error is one that the information is insufficient to charge the offense of assault with intent to kill. The information, in substance, omitting the formal parts, is as follows:

“That at and within the county of Okfuskee and state of Oklahoma, on the 8th day of February, 1916, Horace Simmons did knowingly, willfully, unlawfully, wrongfully, and feloniously shoot at one Charlie Bennett with a certain loaded pistol then and there held in the hands of him, the said Horace Simmons, same then and there being a deadly weapon, with the felonious intent of him, the said Horace Simmons,, to then, there, and thereby kill and murder him, the said Charlie Bennett, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

It is contended in this connection that the information charges the defendant with the crime of assault with intent to murder, a crime unknown to the statutes of this state. While the' common-law offense of assault with intent to murder is unknown to our statutory law, and there is a well-recognized distinction between- assaults with intent to murder and assaults with intent to kill, we cannot see wherein defendant was harmed or in any way misled by the allegations that the shooting was done with the felonious intent “to "then, there, and thereby kill and murder.” The allegation “and murder” is mere surplus-age, and, when treated as redundant matter, the other allegations of the information fully state the crime of assault with intent to kill by shooting a pistol, as defined in section 2336, Rev. Laws 1910; the allegation that the pistol “then and there being a deadly weapon” being unnecessary and also redundant, because the statute provides that the intentional and wrongful shooting at another with any kind of firearm with intent to kill is a felony, and a pistol when used as a firearm is considered and treated as a deadly weapon. It is the opinion of the court, therefore, that the trial court did not err in overruling the demurrer to the information.

In the case of Love v. State, 2 Okla. Cr. 1, 150 Pac. 913, an information having more matter redundant than is contained in the information in this case was held to be sufficient to charge the offense of assault with intent to kill by shooting with a pistol, this court considering the allegations “of premeditated design and malice”' and “to murder” as redundant matter not affecting the validity of the charge.

It is also contended that the verdict of the jury is too indefinite and uncertain to authorize the pronouncement of a judgment of guilty of the crime of shooting at another with intent to kill as defined in section 2336, Rev. Laws 1910. The verdict of the jury is in the following form:

“We, the, jury, drawn, impaneled and sworn in the above cause, do upon our oaths find the defendant, Horace Simmons, guilty of an assault with a deadly weapon, as charged in the information, and assess his punishment at •confinement in the penitentiary for three and a half years.
“R. P. Rorex, Foreman.”

It will be noted that the jury found the defendant guilty of the crime of “assault with a deadly weapon as charged in the information,” and assessed his punishment for a term of three and one-half years.

The only charge contained in the information of an assault with a deadly weapon was the shooting by the defendant of a pistol with intent to kill, and the punishment assessed by the jury is such as is permissible under section 2336, supra. Counsel says that the verdict returned finds the defendant guilty of the crime defined by section 2344, Rev. Laws 1910, which reads as follows:

“Any person who,- with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another,, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

With this contention we cannot agree. The verdict returned, when construed in connection with the crime defined by section 2344, would be clearly more indefinite and uncertain than when construed with reference to section 2336.

It is admitted that the information attempted to charge an assault with intent to kill under section 2336; and, while the verdict returned does not find specifically that the defendant was guilty of assault with intent to kill as charged in the information, still the verdict does. find him guilty of assault with a deadly weapon as charged in the information, and the charge in the information is that he used a deadly weapon by shooting it with intent to-kill. We believe it is reasonably clear, therefore, that it was the intention of the jury to find the defendant guilty of the crime of assault with intent to kill as charged -in the information, and that the court was justified and authorized to pronounce judgment against the defendant of guilt of the crime charged, and assess his punishment at imprisonment for a term of three and one-half years, in conformity with the verdict.

While it is contended that there is no sufficient judgment in the record on appeal showing exactly of what offense the defendant was convicted, we find that the county attorney suggested an amendment to the case-made by inserting a copy of the formal judgment and sentence, and that such copy was accordingly inserted, and properly forms a part of the record in this case, and shows that the court pronounced judgment against the defendant for a conviction of the crime of assault with intent to kill by shooting. Such judgment is sustained by the allegations of the information, the evidence adduced, the charge of the court, and the verdict returned.

While this is a case in which the evidence is conflicting, and the jury could have acquitted the defendant had his theory of defense been believed, the fact that the evidence is conflicting cannot operate as a reason why this court should set the judgment aside. The frequent use of deadly weapons in public places in this state should meet with stern rebuke and severe punishment, because, as in this case, nine out of ten times it is some innocent bystander who is injured, and the parties to the difficulty escape without a scratch.

Finding no reversible error in the record, the judgment is affirmed.

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


text:
    JOE McCLATCHEY v. STATE.
    No. A-2777.
    Opinion Filed January 25, 1919.
    (177 Pac. 922.)
    1. HOMICIDE — Appeal — Self-Defense—Question ?or Jury — Sufficiency of Evidence. In a homicide case, where there is evidence-supporting the theory of the state that the defendant did not act-in self-defense, and also evidence supporting the theory of the defendant that he acted in self-defense, it is the exclusive province of the jury to determine which is the correct theory; and, having-don? so, if the instructions of the court properly present the law of the case, this court will not disturb the verdict rendered.

      2. HOMICIDE — Instructions. The instructions given, and the instructions requested and refused, carefully considered, and the giving of said instructions, and th? refusal to give such requested . instructions, found free from prejudicial error.
    3. HOMICIDE — .Indictment and Information — Murder. An information for murder, which also includes the crime of manslaughter in the first degree, which, after alleging the venue and time, charged that defendant feloniously and with premeditation fatally o shot deceased, contrary to the statutes, etc., waS sufficient against demurrer.
    4. TRIAL — Requested Instructions — Given Instructions. The refusal of requested instructions was not error, where the principles-eontained therein were given in the general instructions of the-court.
    5. SAME — Instructions—Instructions as a Whole. Instructions must be considered as a whole.

      Appeal from District Court, Haskell County; W. H. Brown, Judge.

    Joe McClatchey was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      A. L. Beckett and H. M. Carr, for plaintiff in error.

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

The plaintiff in error, Joe Mc-Clatchey, hereinafter designated defendant, was informed against for the murder of Columbus Hess, convicted of manslaughter in the first degree, and sentenced to confinement in the penitentiary at hard labor for the term of four years. To reverse the judgment rendered, the defendant prosecutes this appeal.

The charging part of the information is as follows:

“That Joe McClatchey did, in Haskell county and in the state of Oklahoma, on or about the 21st day of December, in the year of our Lord one thousand nine hundred and thirteen, and anterior to the presentment hereof, commit the crime of murder, in the manner and form as follows, to wit:
“The said defendant, Joe McClatchey, in said state and county then and there being, did then and there un-, lawfully, willfully, and feloniously, without authority of law, and with a premeditated design then and there to effect the death of a human being, to wit, Columbus Hess, shoot and discharge a leaden bullet from a certain loaded pistol which he, the said Joe McClatchey, then and there had and held in his hand, into the body of him, the said Columbus Hess, then and there and thereby inflicting upon the body of him, the said Columbus Hess, a certain mortal wound, of which the said Columbus Hess did then and there die, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The defendant demurred to the information, which demurrer was overruled, and an exception saved.

The evidence in this case is remarkable for the evident effort of each of the witnesses on each side of the case to tell the exact truth, and with the result, not often found in cases of this character, the entire evidence is almost without serious conflict.

The undisputed evidence is that on a Sunday, several of the friends of the defendant, including the deceased, at the invitation of the defendant, gathered at the home of the defendant to indulge in strong drink, which each of them, with one exception, did to the extent of becoming more or less intoxicated. The deceased concluded that one of the assembled guests of the defendant, C. M. Wilson, had not sufficiently indulged, and cursed and abused the said Wilson, and thereupon Wilson and deceased engaged in a fight in the house of the defendant, and were told by the defendant that if they, Wilson and deceased, wanted to fight, to go out into the yard, which Wilson and deceased, and others, including defendant, did; that Wilson and deceased clinched, and some one hollered that Hess had a pistol, and thereupon the defendant ran up and took the. pistol from Hess; that Hess cut Wilson with his knife, and thereupon Wilson drew out his knife, and that Hess and Wilson were standing there ready for further combat, when the defendant demanded of Wilson his knife, which Wilson surrendered to the defendant; and that the defendant then demanded of Hess his knife, which Hess refused to give up and defied the defendant, and the defendant continued to demand of Hess his knife, and thereupon defendant, with Hess’ pistol, shot down on the ground near Hess’ feet, and Hess cursed and defied the defendant, and defendant continued to advance on Hess and to demand of him his knife, and, shortly after the first shot was fired, another shot was fired by the defendant, which caused the almost instant death of Hess.

It was also testified by the defendant that, just before he fired the shot that caused the death of Hess, Hess lunged at defendant with his knife and cut his (defendant’s) clothing, and that he (defendant) was forced to shoot in self-defense, and these statements of the defendant were corroborated in part by other witnesses.

Other witnesses testified that, just before the fatal shot was fired, the hands of the deceased were hanging down by his side, and that he was retreating.

It was also in evidence, without contradiction, that prior to the difficulty, that resulted in the death of the deceased, defendant and deceased were good friends and associates.

The defendant excepted to many paragraphs of the instructions given by the court, and to the refusal of the court to give instructions requested, which said instructions given, and requested instructions refused, we deem unnecessary to insert herein.

Within the time provided by law, the defendant filed a motion for a new trial, which was heard, overruled, and exceptions saved.

We have carefully considered the information, and as it avers every element of the offense charged — which includes manslaughter in the first degree, the crime of which the defendant was convicted — and informed the defendant of the charge he was to meet, we are of the opinion that the court did not err in overruling the demurrer thereto. Section 5746, Rev. Laws 1910.

It is earnestly argued by the defendant that the verdict of the jury is not sufficiently supported by the evidence, and with this contention we cannot agree.

The defendant admits that he killed Hess at the time, place, and in the manner averred in the information, and there is evidence that in killing Hess he acted in self-defense, and there is also evidence tending to show that the defendant .was the aggressor in bringing on the difficulty, and that, when killed, Hess was retreating from the defendant. Consequently two theories were presented to the jury by the evidence, and it was the exclusive province of the jury to determine which theory was the correct one, and, the jury having found against the theory of the defendant, that he acted in self-defense in killing Hess, there being evidence, though in conflict, to support the verdict, if the jury was properly instructed as to the law of the case, this court will not disturb the verdict rendered.

We have carefully considered the instructions given, and the instructions refused, and are of the opinion that the court did not commit prejudicial error in giving said instructions, and in refusing to give the instructions requested. It' is true that some paragraphs of the instructions given are somewhat involved, but, when considered as a whole, they correctly state the law of the case, and do not, as contended by the defendant, tend to mislead the jury or improperly instruct them as to the law of self-defense.

“The instructions must be considered as a whole.” (Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107.)
“Where the instructions of the court, considered as a whole, fully and fairly present the law of the case and are not inconsistent, they are without error.” (Bill Nutt v. State, 8 Okla. Cr. 266, 128 Pac. 165.)

The requested instructions refused contained principles of law given in the general instructions of the court, and hence were properly refused.

“It is not error for the trial court to refuse to give a requested instruction, although it may be a correct statement of the law, if the principles therein contained have already been given, in the general instructions to the jury.” (Frank Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029; Tom Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Ed Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350; John Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; Ed Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Davis Miller v. State, 9 Okla. Cr. 55, 130 Pac. 813.)

Upon a thorough review of the motion for a new trial, we are of the opinion that the court did not err in overruling the motion.

Finding no prejudicial error in the record, the' judg- . ment of the trial court is affirmed.

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


text:
    T. S. WILCOX v. STATE.
    No. A-2926.
    Opinion Filed January 25, 1919.
    (177 Pac. 924.)
    J. APPEAL AND ERROR — Case-Made—Validity. A case-made must be settled and signed by tlie judge who tri'al the. case, and where a case was tried by one judge, and the case-made is signed and settled by another, and no showing is made as to inability of the trial judge to do so. such case-made is a nullity.
    2. SAME. Where (lie appeal is attempted to be Liken by case-made alone, and such case-made is a nullity, because not settled and signed according to law, upon proper motion by the state, such case-made will be stricken, and the appeal dismissed.

      Appeal from District Court, Greer County; R. W. Higgins, Assigned Judge.

    T. S. Wilcox was convicted of crime, and he appeals.
    Appeal dismissed.

      J. Q. A. Harrod, for plaintiff in error.

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

In this case the Attorney General has filed the following motion to strike the case-made and dismiss the appeal:

“Comes now S. P. Freeling, Attorney General, by R. McMillan, Assistant Attorney General, and moves the court to strike the pretended case-made in the above-entitled case from the docket of the court, and to dismiss the attempted appeal herein, for the following reasons:
“Because the record shows: That the trial of this case was had before and judgment rendered by R. W. Higgins, the regular judge of the Fourth judicial district of the state of Oklahoma, who was specially assigned by the Supreme Court to hold a term of the district court in Greer county, Oklahoma, at the time that this said case was tried in said district court. That under and by virtue of section 5244, Rev. 'Laws 1910, it was and became the duty of the said R. W. Higgins, trial judge, to certify, sign, and settle the case-made upon appeal in this case. But the record shows (pages 345, 346) that the said case-made was certified to, signed, and settled by T. P. Clay, the regular judge of the Eighteenth judicial district of the state of Oklahoma, of which district Greer county forms a part, and it does not appear from said case-made that the said R. W. Higgins, judge presiding at the trial, had died between the time of trial and the certifying to said case-made, or that the said R. W. Higgins was out of office or absent from the state of Oklahoma, or for any other reason unable to sign and settle said case-made on the 3d day of February, 1917, the day said case-made was certified to, signed, and settled. And the Attorney General contends that by reason of the provisions of section 5245. Rev. Laws 1910, some of the causes above enumerated must have existed before any other than the trial judge is permitted to sign and settle case-made in a criminal cause, and the Attorney General further contends that the pretended case-made in this case was never certified to, signed, and settled according to law, and that the pretended case-made filed on appeal herein is no case-made at all, and that this court has no jurisdiction to entertain the attempted appeal herein, because the same is attempted to be taken wholly by case-made with petition in error attached, and there is no proper authenticated transcript of the record made by the court clerk of Greer county, Oklahoma.
“Wherefore the Attorney General prays that the said pretended case-made herein be stricken from the docket of this court, and that the attempted appeal be dismissed for want of jurisdiction by this court, to entertain the same.”

The plaintiff in error, in response to the motion, admits the allegations of the same, but attempts to avoid a dismissal of this appeal because of the mistake of the court reporter in having the wrong judge certify to the case-made, and also because it is contended that the court clerk of Greer county certified to a transcript of the record for appeal and attached same to the case-made, and delivered same to the defendant for the purpose of-filing the same in this case, and that said appeal should not be dismissed, because the defendant has meritorious grounds for a reversal of the judgment, and apparent injustice will be occasioned by reason of the dismissal of this appeal.

An examination of the record shows that the motion of the Attorney General to dismiss is well taken. This is an appeal by case-made, and not by transcript. Although it is contended in behalf of the plaintiff in error that a transcript of the record was prepared and certified to by the court clerk of Greer county, the county in which this case was tried, and delivered to the defendant for the purpose of filing same in this court, such a transcript was not filed in this court, and the purported case-made certified to by a judge who did not try the cause, without a proper showing of the inability of the trial judge to certify to the same, is a nullity. Nothing has been filed in this court, therefore, to confer jurisdiction upon the court to hear and determine this cause upon its merits. The only jurisdiction the court has under the circumstances is to dismiss the appeal. Sections 5244 and 5245, Rev. Laws 1910; Town of Guymon v. Triplett, 177 Pac. 570, not yet officially reported; Brown v. Marks, 45 Okla. 711, 146 Pac. 707; Scott v. State, 4 Okla. Cr. 657.

The appeal is dismissed.

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


text:
    G. W. ROBINSON v. STATE.
    No. A-2556.
    Opinion Filed February 1, 1919.
    (177 Pac. 925.)
    1. HOMICIDE — Conviction—Degree—Complaint. Where a defendant is placed on trial for murder and convicted .of manslaughter in the second degree, lie cannot legally complain because convicted of a less crime than the evidence shows him to have, been guilty of.
    2. APPEAL AND ERROR — Failure to Argue — Assignments—Consideration. Errors assigned in the petition in error, but not argued in defendant’s brief, will be regarded as abandoned, and will not be considered, unless such errors as are not argued in ' defendant’s brief present fundamental error.
    3. HOMICIDE — Prejudicial Error. Upon a full consideration of errors argued in defendant’s brief, it is found that no prejudicial error intervened in his trial.
    4. SAME — Manslaughter in Second Degree — Sufficiency of Evidence. Evidence held to sustain a conviction of manslaughter in the second degree.

      Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

    G. W. Robinson was convicted of manslaughter in the second degree, and he appeals.
    Affirmed.

      . A. C. Sewell and Carl Monk, for plaintiff in 'error.

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

The plaintiff in error, G. W. Robinson, hereinafter referred to as defendant, was by information prosecuted for the murder of Will Cully, convicted of manslaughter in the second degree, and sentenced to confinement in the penitentiary for tfvo years at hard labor. To reverse the judgment rendered, the defendant prosecutes this appeal.

No question is raised by the defendant as to the sufficiency of the information.

The material evidence, other than that of the defendant, is that the deceased, on the morning of the tragedy, went into the barber shop in which the defendant was employed, and used abusive language to the defendant, to which the defendant replied in like language, and directed the deceased to leave the barber shop, and that about 1 o’clock of the same day the deceased returned to the barber shop and renewed the altercation with the defendant and drew a pistol upon him, but did not attempt to shoot the defendant, and thereupon the defendant armed himself with an automatic pistol, and the deceased retreated to an adjoining room to the barber shop, known as the tailor •shop; that defendant grabbed another and larger pistol than the one he had, and, with two pistols in his hands, called upon deceased to come out of the tailor shop, saying that deceased was a coward if he did not come out; that there was an open door between the barber shop and the tailor shop; that something was heard to drop' in the tailor shop, and that afterwards a pistol was found on the floor of the tailor shop; that the deceased came to the door between the barber shop and the tailor shop, and was attempting to apologize to the defendant, when the defendant shot the deceased, setting his clothing afire, from the effects of which shot, and within a few hours after being shot, the deceased died; that an examination of the clothing of the deceased disclosed that the deceased was not armed with a pistol at the time he was shot.

There was also evidence to show that the character of the deceased as a man of peace was bad, and that the character of the defendant as a man of peace and quiet was good.

The foregoing evidence, as stated, is largely corroborated by the evidence of the defendant, and varies little therefrom, but in addition the defendant testified:

“That he did not want to be killed or to kill the deceased; that he (defendant), was scared and excited; that he thought he would knock the arm of the deceased down, and that when he hit at his arm the gun went off , and he (defendant) did not know what he was doing; and that at the time he thought deceased was going to shoot him.”

It is urgently insisted by the defendant that “the verdict of the jury is contrary to law and the evidence, and is not sustained by the evidence,” and with this contention we cannot agree, as the evidence not only warrants the verdict rendered, but was sufficient to have sustained a conviction of a higher offense than manslaughter in the second degree, the offense of which the defendant was found guilty.

We are of the opinion that, eliminating all the evidence’ in the case other than that of the defendant, his evidence was sufficient to at least support a conviction of manslaughter in the second degree. Certainly the defendant cannot say that the jury did not construe the evidence as favorably as'possible to him, and resolved every possible doubt in his favor.

In an information for murder, manslaughter in the second degree is included, and the defendant cannot rightfully complain that he was convicted of a less offense than was authorized by the evidence.

We have carefully considered the parts of the given instructions complained of, and are of the opinion that the said instructions of the court, taken as a whole, correctly state the law, and are as favorable to the defendant as he had any right to expect.

Requested instructions, numbered respectively 1, 2, 3, and 4, refused by the court, we think were properly refused, because said instructions numbered 2 and 4 are covered in the general instructions of the court, and said instructions numbered 1 and 3 do not correctly state the law of the case under the evidence.

Having considered all the errors argued in defendant’s brief, and finding that no prejudicial error intervened in his trial, and the entire record showing that he had a fair and impartial trial, that under the evidence the defendant might have been rightfully convicted of a higher offense than he was, the judgment of the trial court is affirmed.

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