author: MATÍSON, J.

text:
    E. F. LOVEJOY v. STATE.
    No. A-3529
    Opinion Filed Jan. 29, 1921.
    (194 Pac. 1087.)
    (Syllabus.)
    1. HOMICIDE — Abortion Resulting in Death — Murder. A person may be properly charged with and convicted of murder under the third subdivision of section 2318. Revised Laws 1910, where death results to the woman in the commission of the felony defined by section 2436, Revised Laws 1910.
    2. SAME — Manslaughter Statute. Section 2323, Revised Laws 1910, does not have the effect of withdrawing from the operation of the murder statute a homicide resulting in the death of a woman by a person engaged in the commission of the felony defined by section 2436.
    3. STATUTES — Adopted from Another State — Construction. It is a familiar rule of statutory construction that, when one state adopts a statute from another state, it also adopts the construction which has uniformly been given to it by the highest courts of that state prior to its adoption.
    4. STATUTES — Repeals by Implication. Repeals by implication are not favored, and will not be indulged in if there is any other reasonable construction.

      5. SAME — Specific and General Statutes. Where a specific statute amounts merely to an exception tó a general statute, all that is not clearly embraced in the specific statute remains within the scope of the general statute.
    8. CONSTITUTIONAL LAW — Province of Legislature — Wisdom of Legislation. The judiciary is not concerned with the wisdom of statutory enactments. We have no power to amend or repeal constitutional or statutory provisions, although we may disapprove of them. Arguments against such provisions must be ad-, dressed to the people or to the Legislature.
    '7. HOMICIDE — Dying Declarations'. For certain statements included within a dying declaration held to have been properly admitted, see body of opinion. • .
    8. HOMICIDE — Instructions on Manslaughter in Second Degree. Action of the trial court in giving to the jury an instruction upon manslaughter in the second degree, and in submitting a form of verdict conforming thereto, held prejudicial error. For reasons, see body of opinion.

      Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.

    E. F. Lovejoy was convicted of manslaughter in the second degree, and appeals.
    Reversed and remanded.

      E. G. McAdams and L. D. Mitchell,' for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATÍSON, J.

The plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Oklahoma county of the crime of manslaughter in the second degree, on the verdict of the jury to that effect. Sentence was pronounced and judgment rendered on the 7th day of December, 1918; the punishment assessed in accordance with the verdict 'being a fine of $500 and imprisonment in the county jail for a period of 30 days.

The charging part of the information is as follows.:

“* * * On the 20th day of March, A. D. 1918, in Oklahoma county, state of Oklahoma, and within the jurisdiction of this court, E. F. Lovejoy and Jesse Warren, whose more full and correct names are to your informant unknown, then and there being, did then and there willfully, unlawfully, and feloniously commit the crime of murder, in manner and form as follows, to wit: On the 20th day of March, A. D. 1918, at and within Oklahoma county, state of Oklahoma, and within the jurisdiction of this court, the above-named defendants, E. F. Lovejoy and Jesse Warren, then and there, being, did then and there unlawfully and feloniously use and employ a certain instrument, the exact kind and character of which is to your informant unknown, in and upon the body of one Ruby M. Alexander, who was then and there a pregnant woman, with intent then and there upon the part of them, the said E. F. Love-joy and the said Jesse Warren, by the use and employment of such instrument as aforesaid, to procure the miscarriage of the said Ruby M. Alexander., the miscarriage of the said Ruby M. Alexander not being necessary to preserve the life of the said Ruby M. Alexander.

“That by the use and employment of the said instrument as aforesaid the said E. F. Lovejoy and the said Jesse Warren did procure the miscarriage of the said Ruby M. Alexander, and by reason of such miscarriage so procured as aforesaid the said Ruby M. Alexander was made mortally sick, and from said sickness so caused as aforesaid the said Ruby M. Alexander did linger, and, lingering, did die. * * *”

The trial court instructed the jury in part as follows:

“Homicide is the killing of one human being by another, and is classed as murder, manslaughter in the first degree,'manslaughter in the second degree, excusable homicide, and justifiable homicide.

“In so far as affects this case, homicide is murder when perpetrated without a design to effect death by a person engaged in the commission of a felony.

“Homicide is manslaughter in the second degree when perpetrated by the act, procurement, or culpable negligence of another, under such circumstances and conditions as not to constitute either murder or excusable homicide.

“Homicide is excusable when committed by accident and misfortune in doing a lawful act ¡by lawful means, with usual and ordinary caution and without an unlawful intent.

“There is in this case no element of either the crime of manslaughter in the first degree or of justifiable homicide; therefore you will not be burdened with definitions of either such homicides.”

“The using or employing in and upon a pregnant woman of any instrument with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, constitutes a felony.”

“If you shall find from the evidence, facts, and circumstances disclosed upon the trial beyond a reasonable doubt that in the fore part of the month of March, 1918, the deceased, Ruby M. Alexander, was a pregnant woman, and that in this county and state, in said month, and prior to the 19th day of said month, the said defendant, E. F. Lovejoy, used) and employed in and upon her body any instrument, with intent thereby to procure the miscarriage of the said Ruby M. Alexander, and you shall further find from such evidence, facts, and circumstances beyond a reasonable doubt that the use and employment of such instrument with intent thereby to procure such miscarriage was not necessary in order to preserve the life of the said Ruby M. Alexander, and that her death resulted from such use and employment of such instrument, you will find the defendant guilty of murder, as charged in the information.”

“If, from the evidence, facts, and circumstances disclosed upon the trial, you believe that the defendant is guilty of some grade or class of homicide, and you have a reasonable doubt as to whether the offense, if any, is murder, it will be your duty to give the defendant the benefit of that doubt and acquit him of that crime.”

“If you acquit the defendant of the crime, of murder, you will then consider as to whether the death of the said Ruby M. Alexander was caused, in this county and state, prior to the 19th day of March, 1918, by the act, procurement, or. culpable negligence of the defendant, the crime included in the charge set out in the information; and if, from the evidence, facts, and circumstances, you find beyond a reasonable doubt that her death resulted from such act, procurement, or culpable negligence as aforesaid, you will find the defendant guilty of manslaughter in the second degree.”

“If, upon a consideration of all the evidence, facts, and circumstances disclosed upon the trial, you entertain a reasonable doubt either, first, as to whether the defendant used and employed in and upon the body of the said Ruby M. Alexander any instrument, with intent thereby to procure the miscarriage of the said Ruby M. Alexander, as charged in the information, or, second, if he did use such instrument with such intent, as to whether such use and employment was necessary in order to preserve the life of the said Ruby M. Alexander, or, third, if he did use such instrument with such intent, as to whether her death resulted from such use and employment of such instrument, you will return a verdict of not guilty.”

“Under the law a person found guilty of murder shall suffer punishment of death or life imprisonment at hard labor in the state penitentiary, in the discretion of the jury. If you find the defendant guilty of murder, you will assess his punishment therefor.”

“The punishment for manslaughter in the second degree is imprisonment in the state penitentiary not more than four years and not less than two years, or by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $1,000, or both such fine and imprisonment. If you find the defendant guilty of manslaughter in the second degree beyond a reasonable doubt, you may, if you- so desire, assess the punishment therefor, to be definitely stated in your verdict.”

The prosecution was instituted and the cause tried upon the theory that defendant had committed the crime of felonious homicide (murder) as defined and included within the third subdivision of section 2313, Revised Laws 1910, which provides:

“Third. When perpetrated without any design to effect death by a person- engaged in the commission of any felony.”

Section 2436, Revised Laws 1910, makes it a felony to produce or attempt to produce a miscarriage or abortion (with that intent) in the following language:

“Any person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not exceeding three years, or in a county jail not exceeding one year.”

Section. 2323, Revised Laws 1910, defines the crime of manslaughter in the first degree upon a woman pregnant with a quick child (with intent to destroy such child) in the following language:

“Any person who administers to any woman pregnant with a quick child, or who prescribes for such woman, or advises or procures any such woman to take any medicine, drug or substance whatever, or who uses or employs any instrument or other means with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, is guilty in case the death of the child or of the mother is thereby produced, of manslaughter in-the first degree.”

In the trial court counsel for defendant interposed a demurrer to the information upon the following grounds:

“Comes now the defendant, E. F. Lovejoy, and presents this, his separate demurrer to the information filed and leveled against him in the above-entitled cause, and for grounds of said demurrer says:

“First. That said information fails to state facts sufficient to constitute the crime of murder under and by virtue of the laws of the state of Oklahoma.

“Second. That the facts alleged and set forth in said information show upon its face that this defendant cannot be charged, under and by virtue of the laws of the state of Oklahoma, with the crime of murder.

“Third. IThat the facts stated in said information do not give this court jurisdiction to require this defendant to plead to the crime of murder, or to place this defendant upon trial charged with the crime of murder, as alleged and set forth therein.”

It is the contention here, as. it was below, that section 2323, supra, having made it only manslaughter in the first degree for one to produce, in the same manner and by the same means enumerated in section 2436, the death of a woman pregnant with a quick child (with intent to destroy such child), there was necessarily and by plain intendment taken without the operation of the third subdivision of the murder statute, supra, that class of felony defined by section 2436, supra. This for the reason that the kind of felonious homicide intended to be punished only as manslaughter under section 2323. is much more, heinous, both in morals and- in law, than the kind resulting from the commission of the felony defined by section 2436.

Had section 2323, supra, never been incorporated in the statute laws of this state, there could hardly be the semblance of a basis for the contention that death resulting from the commission of an abortion, in the manner and by the means provided in section 2436., upon a pregnant woman, would not constitute murder finder our statutes.

But the Legislature, in adopting the Criminal Code, has seen fit, as it had the right to do, to withdraw from the operation of the murder statute all deaths resulting from similar means and in like manner, where the abortion is performed without necessity, upon a woman pregnant with a quick child, with intent to destroy such child.

Under the Code of Criminal Procedure of this state, one charged with crime may be convicted of any lesser degree of the same crime (where the same is by law divided into degrees), or may be convicted of an offense necessarily included within that charged. See sections 5922 and 5923, Revised Laws 1910.

As the specific crime defined by section 2323, sup'i a, has no lower or lesser degree, it is not necessary to give consideration to that phase of the question.

Does section 2323, supra, however, include within its scope all kinds of felonious homicide committed upon a pregnant woman without necessity in the identical manner and by the same criminal agencies enumerated in both sections 2323 and 2436? If so, then clearly a death resulting from the commission of the felony defined by section 2436 was, beyond the peradventure of a doubt, withdrawn from the operation of subdivision 3 of section 2313, supra.

The question is one not without difficulty of correct solution. ' However, upon mature reflection and careful consideration of the statutes and of the decisions of the highest courts of other states construing the same and similar laws, the conclusion is reached that section 2323, supra, does not of necessity include within its scope and operation a death resulting from the commission of the felony defined by section 2436. Had the Legislature so intended, how easy it would have been to cover the same without ambiguity by adding to section 2436 a provision to the following effect:

“And in event the death of the woman or of any unborn child result therefrom, the crime shall be manslaughter in the first degree.”

Such a provision added to section 2436 (would have included within its scope and operation everything covered by section 2323. But the Legislature did not do that. Instead the Legislature only saw fit to withdraw from the operation of the murder statute a death resulting either to the child or the mother from an abortion on the mother, who was then pregnant with a quick child, and with the specific intent to destroy the child.

Manslaughter in the first degree, as defined in section 2323, supra, may only >be committed upon a woman pregnant with a quick child. All other classes of subjects are plainly excluded from the operation of the act. The intent present also must be one to destroy such child.

The felony defined by section 2436, however, may be committed upon any pregnant woman, whether she be quick with child or not. Here, then, we have a broader field of subjects for the act to operate upon. However, if death results, and the woman was quick with child, and the intent was to destroy the child, then the prosecution must be based upon section 2323, and not otherwise. The Legislature had authority to specifically define and prescribe punishment for an unlawful act resulting in death, and, when this authority is exercised, the prosecution should be under the statute specifically defining the crime.

If, on the other hand, death results to a pregnant woman not quick with child, but with intent to produce a miscarriage, the crime is still left at murder, because it falls within the scope of subdivision 3 of section 2313, Revised Laws 1910, and is not necessarily included within the scope of section 2323.

The particular statutes were evidently taken from the Dakota laws. The Supreme Court of North Dakota had occasion to construe the same prior to the adoption of our Code, and the views herein expressed, although the question here involved never seems to have been directly raised, are consonant with the conclusions of that court in the following cases: State v. Belyea, 9 N. D. 353, 83 N. W. 1; State v. Reilly, 25 N. D. 339, 141 N. W. 720.

The statutes of North Dakota (section 7068, Revised Code 1899; section 9462, Compiled Laiws 1913, subd. 3) defining murder are identical with subdivision 3 of section '2313, Revised Laws Oklahoma 1910. Section 7065, Revised Code North Dakota 1895, the same being section 9469, Compiled Laws 1913, provides:

“Every murder perpetrated by means of pois,on, or by lying in wait, or by torture, or by other willful, deliberate or premediated killing, or in committing or attempting to commit any sodomy, rape, mayhem, arson, robbery or burglary, shall be deemed murder in the first degree. All other kinds of murder shall be deemed murder in the second degree.”

Section 7086, Revised Code North Dakota 1899, the same being section 9490, Compiled Laws 1913, is identical with section 2323, Revised Laws Oklahoma 1910. Section 7177, Revised Code North Dakota 1899, the same being section 9604, Compiled Laws 1913, is identical with section 2436, Revised Laws Oklahoma 1910.

Both of the above-cited cases from North Dakota were prosecutions for murder in the second degree, resulting in the death of the woman in the commission of the felony defined by section 7177, Revised Code 1899, the same being section 9604, Compiled Laws 1913. In the Belyea Case the court held' the information sufficient to charge the crime of murder in the second degree under said statutory provisions, but reversed the case upon other grounds; while in the Reilly Case a conviction of murder in the second degree based upon these identical statutes was sustained.

As heretofore stated, nothing was said in said opinions concerning the provisions of section 7086, Revised Code 1899, the same being section 9490, Compiled Laws North Dakota 1913, which is identical with section 2323 of our Penal Code, making it manslaughter in the first degree where the abortion is committed upon a woman pregnant with a quick child with intent to destroy such child, where death of the child or the mother is thereby produced. But the ¡Supreme Court of North Dakota necessarily reached the conclusion that the section making it manslaughter in the first degree under the latter statute did not have the effect of withdrawing from the operation of the statute defining murder in the second degree that kind of homicide occasioned by the commission of the felony defined toy section 7177, Revised Code 1899, the same being section 9604, Compiled Laws 1913. ‘This was the construction then placed upon the identical provisions of law here involved toy the highest appellate court of the state from which they were adopted by the state of Oklahoma and prior to the adoption of such statutes by this state.-

It is a familiar rule of statutory construction that, when one state adopts a statute from another state, it also adopts the construction which has been given to it by the courts of that state prior to its adoption. State v. Caruthers, 1 Okla. Cr. 428, 98 Pac. 474; Barnes et al. v. Lynch et al., 9 Okla. 156, 59 Pac. 995; St. L. & S. F. R. Co. v. Bruner, 52 Okla. 349, 152 Pac. 1103; Amsden v. Johnson, 74 Okla. __, 158 Pac. 1148.

It is also a cardinal rule of statutory construction, applicable to criminal statutes as well as civil, that repeals by implication are not favored and will not toe indulged in if there is any other reasonable construction. 25 R. C. L. 918, sec. 169, and cases cited under note 9.

Also it has been held by the Supreme Court of this state in Comanche v. Ferguson, 67 Okla. 101, 169 Pac. 1075:

“Where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court — no purpose to repeal being clearly expressed or indicated — is, if possible, to give effect to both, The construction is to be on the entire statute, and where one part is susceptible of two constructions, and the language of another part is clear and definite, and is consistent with one of such constructions and opposed to the other, that construction which will render all sections of the statute harmonious must be adopted.”

Also it has been held:

“All that is not clearly embraced in an exception from the general words of a statute remains within the scope of the principal provision.” Hopkins v. U. S., 235 Fed. 95, 148 C. C. A. 589.

Applying the above rules of statutory construction to the question before us, the conclusion is reached that a person may be properly charged with and convicted of murder under the general murder statute of this state where death results to the woman in the commission of the felony defined by section 2436, supra; this for the following reasons: (1) Because such was the construction placed upon said statutory provisions by the highest court of the state from which said provisions were borrowed prior to their adoption by this state; (2) because said construction gives life and force to all the statutory provisions here involved. To construe such provisions otherwise would be to hold that section 2323, supra, by necessary implication had the effect of repealing and rendering inoperative the general murder statute which otherwise would operate and be effective where death resulted from the commission of the felony defined in section 2436, supra. This, construction Should not be adopted for the evident reasons that repeals by implication are not favored, and further that, while the statutes relate in part to the same subject-matter, they are not absolutely irreconcilable, and that construction should be adopted which will render all the sections of the statute harmonious,; further, for the reason that section 2323 amounts only to an exception from subdivision 3 of section 2313, and withdraws from the operation of the general (murder statute only that class or kind of felony where '.death results from the production or attempt to produce an abortion upon a woman pregnant with a quick child. That class of felonies, therefore, not clearly embraced in such exception must be construed to remain within the scope of the general statute.

Wfe quote from the brief of the Assistant Attorney General as follows-: -

“This statute (section 2323) by clear implication takes the crime of causing death by procuring an abortion out of the class designated as murder (perpetrated by a person engaged in.the commission of a felony) and makes it a felony of a lower grade — -‘abortion’ in one case, and ‘manslaughter’ in the first degree in another, according to whether or not the crime was committed upon a woman quick with child.

“This principle was announced in the cases of Commonwealth v. Railing, 113 Pa. 37, 4 Atl. 459, and Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815.”

While this court has great respect for the learning and ability of the Assistant Attorney General, we cannpt concur in the conclusion reached that section 2323 “by clear implication takes the crime of causing death by procuring an abortion out of the class designated murder (perpetrated by a person engaged in the commission of a felony) and makes it a felony of a lower grade.” Nor do we think that the cases cited in support of the assertion sustain the assertion. In the case of Commonwealth v. Railing, supra, the court was construing a statute more comprehensive than section 2323, supra, as is shown from the body of the opinion, from which we quote as follows:

“In Railing v. Com., 16 Wkly. Notes Cas. 452 (S. L. 1 Atl. Rep. 314), the unlawful acts charged were presented under an indictment of another form. We reversed that judgment for error in admitting certain declarations in evidence. The indictment- then charged the defendant with having administered a drug to Annie Foust with intent to produce a miscarriage, and that her death resulted as a consequence of so administering it. That indictment was framed under the eighty-seventh section of the Criminal Code of March 31, 1860. It declares, if any person shall unlawfully administer to any woman, pregnant or quick with child, or supposed and believed tó be so, any drug, poison, or other substance whatsoever, or shall unlawfully use any instrument or other means whatsoever, with the intent to procure the miscarriage of such woman, and such woman or any child with which she may be quick shall die in consequence of either of said unlawful acts, the person so offending shall be guilty of felony, and shall be sentenced to pay a fine not exceeding $500, and to undergo an imprisonment by separate or solitary confinement at labor not exceeding seven years. Section 183 of the same Code declares, in all cases where a remedy is provided or duty enjoined or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of said acts shall be strictly pursued, and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect.

“Thus section 87 took the crime therein specified out of the class designated as murder, and made it a felony of' lesser grade, and prescribed the punishment therefor.. Hence no penalty therefor shall be inflicted or anything be done in punishment thereof otherwise than as directed by said section.”

In the case of Montgomery v. State, supra, the Supreme Court of Indiana also was construing a statute more comprehensive in its effect than section 2323, supra, as is evident from the body of the opinion in that case, from which we quote as follows:

“Appellant was tried and convicted upon a count in an indictment charging him with a violation of section 1923 of the R. S. of 1881. IThat section reads thus: ‘Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to be pregnant, any drug, medicine, or substance whatever, with intent thereby to procure the miscarriage of such woman; or, with like intent, uses any instrument or means, whatever, unless such miscarriage is necessary to preserve her life — shall, if the woman miscarries or dies in consequence thereof, be fined not more than five hundred dollars nor less than fifty dollars, and be imprisoned in the state prison not more than fourteen years nor less than three years’.”

A careful perusal of the statutes construed in the two cases last above referred to discloses that the statutes there considered cover a death which would result to the woman or to. an unborn child included within both sections 2323 and 2436 of our Code, while section 2436 of our Code is not intended as a homicide statute, and no punishment will lie thereunder for any death resulting. If our statute making it manslaughter in the first degree (section 2323) was as broad as either the Pennsylvania or Indiana statutes, there would be no question but that the Legislature, having covered the entire subject-matter of a death resulting from an abortion or attempted abortion, thereby substituted a specific statute and necessarily included within its scope matters which otherlwise would have been included within the general murder statute (subdivision 3, sec. 2313, supra).

The rule of statutory construction applicable to such a situation may be stated as follows: That where a statute covers the whole subject-matter of an act, and it is evident that it was intended to be a substitute for such act, although it contains no express words to that effect, the provisions of the act operate as a repeal to the extent to which the former or general act is revised and supplied.

The statutes before us are contemporaneous statutes; they were adopted into our Code from the laws of Dakota at the same time. In construing such statutes, they must be construed in pari materia, as they relate partly to the same subject. Under such circumstances, the courts will exhaust all the resources of interpretation before coming to the conclusion that there is an irreconcilable repugnancy between them, and that one repeals the other by implication only. 25 R. C. L. 931, sec. 180.

Furthermore, it is clearly indicated in the body of the opinion in Montgomery v. State, supra, by Chief Justice Elliott, that, were there no statute (the condition existing in this state) expressly defining the offense, there could be a prosecution under the general homicide statute, provided, of course, such statute or statutes were broad enough to include the same. Judge Elliott says:

“It is clear that, if there were no statute expressly defining the offense of which the appellant was convicted, he might, upon the theory that the evidence established the acts charged against him, have been convicted of manslaughter. The elementsi of our statutory definition of that grade of felonious homicide are present, the commission of an unlawful act, and death resulting from it. But, as we have seen, the state was bound to prosecute under the statute specifically defining the offense.”

The case of Montgomery v. State, therefore, instead of supporting the contention that there can .be no prosecution under the general homicide statute of this state, clearly supports the contrary conclusion.

In principle the case of State v. Power, 24 Wash. 34, 63 Pac. 1112, 63 L. R. A. 902, is also in point on this question. In that case it was held:

“That a statute making it a misdemeanor to employ means to procure the miscarriage of a pregnant woman prescribes the penalty for the offense does not take such act, when it results in death, out of the provisions of a statute making it manslaughter to kill another in the commission of some unlawful act.”

In the body of the. opinion it is said:

“The information was founded upon section 7042 of the statute (Ballinger’s), which provides: ‘Every person who shall unlawfully kill any human being without malice, express or implied, either voluntarily upon a sudden heat, or involuntarily, but in the commission of some unlawful act, shall be deemed guilty of manslaughter.’

“Another section of the statute (section 7068, Id.) makes it an offense for any person to administer to any pregnant woman whom he supposes to be pregnant any medicine, drugs, or substance whatever, or to use or employ any instrument or other means on her person ‘thereby to procure the miscarriage of such woman,’ unless the same is necessary to preserve her life. It is first contended that the trial court erred in refusing to sustain a demurrer to the information. The appellant calls our attention to the sections of the statute above cited, and argues therefrom that, inasmuch as the latter makes it a sufostan-tive offense, punishable as such, for any person to administer drugs to, or use instruments upon, a pregnant woman for the purpose of procuring her miscarriage, such acts must be punished in the way the statute points out, under an indictment or information charging one or more of these specific acts alone, and cannot, therefore, be the unlawful acts which were intended to be included -within the statute defining the crime of involuntary manslaughter. We cannot think this contention sound. The statute, it will be noticed, prescribes a punishment for doing these specific acts without regard to the effect <such acts may have had upon the person operated upon. The crime is completed when the prohibited acts are committed, and their effect is not made a material inquiry. Had the statute gone farther and made a death resulting from them a substantive offense, to be punished in the manner therein prescribed, it might be contended with some force that a'person committing the acts causing "the death would have to be informed against undér the statute and punished as the statute directs. But, as the Legislature has made the acts punishable as acts, without reference to their consequences, we cannot think it was intended to exempt a person causing the death of another by these means from being informed against and punished under the general statutes relating to unlawful homicides.”

The judiciary is not concerned with the wisdom of statutory enactments, and we have no power to amend or repeal constitutional or statutory provisions, although we may disapprove of them. Arguments against such provisions must be addressed to the people or to the Legislature. White v. State, 4 Okla. Cr. 143, 163, 111 Pac. 1018.

The conclusion is reached, therefore, that the information in this case sufficiently charged the crime of murder under the third subdivision of section 2313, supra, committed in the perpetration of the felony defined by section 2436, supra; that the contemporaneous adoption of section 2323, supra, did not have the effect of withdrawing from the operation of the general murder statute a death resulting from the commission of the felony defined by section 2436; and that for such reasons also the objections of counsel to the introduction of evidence and to' the instructions of the court defining murder under said provisions were not well founded.

It is also contended that the trial court erred in overruling the motion of defendant to strike from the evidence of the witness Margaret Denman certain portions of the alleged dying declaration of deceased, to wit, “The miscarriage was produced by Dr. Love joy, of Oklahoma 'City/' for the reason that it was a conclusion of the witness, and again to strike out, “I was sent there by Jess Warren, of Dookeba, who is the father of the child,” also- “Tell Jess I more than forgive him, that I still love him,” and further to strike out also that part in which the witness quoted an alleged prayer of deceased, part of which was as follows: “Yea, though I walk through the valley of the shadow of death, I will fear no evil; for Thou art with me; Thy rod and Thy staff they comfort me.”

The record discloses, that the trial court, in the absence of the jury, first heard the testimony of the witness Den-man relative to the dying declaration of deceased and to its admissibility, at which time counsel for defendant made certain objections to the admission of the portions above ; quoted, which objections were overruled, and a proper exception saved. After the jury was recalled, counsel for defendant again moved to strike this alleged incompetent testimony from the record, which motion and request was denied by the trial court, and an exception saved to such ruling.

The objection that the statement, “The miscarriage was produced by Dr. Lovejoy, of Oklahoma City,” was a conclusion of the witness, is, in the opinion of this court, not tenable. We consider the statement one of fact, relating to the cause of the death of deceased, and testimony such as a living witness would have been permitted to -give.

Similar expressions were held to be admissible by this court in the following cases: Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003; Thomas v. State, 13 Okla. Cr. 414, 164 Pac. 995.

In the latter case it is said:

“Another matter which is complained of, and will, in all probability, likely arise on a retrial of this charge, is that the court erred in admitting that part of the dying declaration of Gammill in which he said, ‘Those negroes shot me and robbed me.’ It is contended that this evidence should have been excluded because it was nothing more than the opinion of the deceased, and the deceased, if living, would not have been permitted to testify to such effect. There seem to be two rules upon this question: First, the strict rule which is followed by some courts to the effect that it is indispensable that the dying declaration should consist solely of facts, and not of conclusions or opinions; and, second, the liberal one that opinion rule is not necessarily applicable to dying declarations.

“The latter rule is pointed out by this, court in the case of Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003. The doctrine is well established in this state that matters like this should be construed liberally. This rule is laid down by Prof. Wigmore in his work on Evidence, § 1447, as follows: ‘The opinion rule has no application to dying declarations. The theory of that rule (post, § 1918) is that, wherever the witness can state specifically .the detailed facts observed by him, the inferences to be drawn from them can equally well be drawn by the jury, so that the witness’ inferences become superfluous. Now, since the declarant is here deceased, it is no longer possible to obtain from him by questions any more detailed data than his statement may contain, and hence his inferences are not in this instance superfluous, but are indispensable.’

“Numerous cases are cited in the note to this section which disclose that expressions very similar to the one here made by the deceased have been admitted, such as the following : ‘He cut me for nothing.’ ‘He killed me for nothing.’ ‘I know that one of the two shot me.’ ‘You have killed me without cause.’ ‘They have murdered me.’ ‘He shot me down like a dog.’ etc. — all of which contain certain expressions of opinion and conclusion on the part of deceased. Applying the liberal rule, therefore, whicth we hold to govern in this state, it is our opinion that the statement aforesaid made by the deceased in his dying declaration was admissible.”

The statement, “I was sent there by Jess Warren, of Lookeba, who is. the father of the child,” we think was admissible in this case. Jess Warren was jointly informed against with defendant Lovejoy, charged with the commission of the crime. The evidence showed that it was Warren who made arrangements with defendant to have the alleged abortion produced; that deceased sought defendant at the request and instigation of Warren; that Warren had first been to see defendant concerning the operation; and that defendant told him that he would have to see the girl. Defendant in his own behalf as a witness admitted that Warren came to see him, and that later deceased came to his office, and that he (defendant) recognized1 her as the young lady Warren had referred to.

While it would be immaterial in most cases of this kind who was responsible for the pregnancy of deceased, we think in this case the evidence was proper. In view of defendant’s admissions concerning his dealings with Jess Warren and subsequently with deceased, it at least may not be said that the admission of this portion of the dying declaration operated to prejudice the substantial rights of defendant within an impartial interpretation of section 6005, Revised Laws 1910. Upon a subsequent trial of this case, if one is had, no harm could possibly result to either side by the exclusion of this statement, as it clearly had no appreciable bearing on the issues either one way or the other.

The other expressions complained of were evidently admitted upon the ground that they tended to show that deceased had abandoned all hope of recovery, and that the statements were made under a sense of impending death. We think, for this purpose, the statements were admissible.

Finally it is contended that the trial court erred in ¡giving any instruction covering that 'degree of felonious homicide designated by the Criminal Code of this state as .manslaughter in the second degree, over the objection and exception of defendant.

In the fourth paragraph of the instructions the court says:

“Homicide is manslaughter in the second degree when perpetrated by the act, procurement, or culpable negligence of another, under such circumstances and conditions as not to constitute either murder or excusable homicide.”

And in the eleventh paragraph of the charge the court told the jury:

“If you acquit defendant of the crime of murder, you will then consider as to whether the death of the said Ruby M. Alexander was caused in this county and state, prior to the 19th day of March, 1918, by the act, procurement, or culpable negligence of the defendant, the crime included in the charge set out in the information; and if from the evidence, facts, and circumstances you find beyond a reasonable doubt that her death resulted from such act, procurement, or culpable negligence as aforesaid, you, will find defendant guilty of manslaughter in the second degree.”

We believe the giving of these instructions constituted error in this case. The defendant was prosecuted under an information which charged him with the commission of murder, the result of the perpetration of a felony by him. The act of attempting to produce a miscarriage or abortion is none the less a felony, it matters not whether negligently performed, or performed with the most consummate skill known to the medical profession. Under the state’s theory of the case, there could be no manslaughter in the second degree, and under the express wording of 'our statutes we are unable to comprehend how the element of manslaughter in the second degree can enter into the alleged commission of murder perpetrated by one engaged in the commission of a felony. Had it been an in-veluded offense, there was no evidence in this case which authorized the trial court to give the instructions here complained of. The state’s case, under the view we take of the law, clearly established the crime to be murder. The evidence on the part of defendant and his witnesses, if believed by the jury, entitled him to an acquittal. There was no middle ground, either under the law or the evidence, justifying the submission of manslaughter in any of its degrees. Allen v. State, 16 Okla. Cr. 136, 180 Pac. 564; Ray v. State, 10 Okla. Cr. 403, 136 Pac. 980; People v. Huntington, 138 Cal. 261, 70 Pac. 284; Johnson v. People, 33 Colo. 224, 80 Pac. 133, 108 Am. St. Rep. 85.

Defendant as a witness admitted that he gave certain medical treatment to deceased after she had attempted to produce an abortion upon herself; and he further admitted that he received a fee for his services, and agreed that, if deceased would go to a hospital in Oklahoma City, he would continue to treat her.

The jury evidently reached the conclusion that defendant failed and neglected to properly -care for and attend deceased in his capacity of a physician; that his lack of attention and care was s,uch as to constitute culpable negligence on his part, and was within the definition of manslaughter in the second degree as contained in the trial court’s instructions.

That the action of the trial court in giving to the jury an instruction upon manslaughter in the second degree, arid in submitting to them a form of verdict conforming thereto, was, under the circumstances of this case, prejudicial, we think is evident. As heretofore stated, one or the other of two results could logically, under the evidence, have been reached by the jury: (1) To convict defendant of the crime of murder; (2) to acquit him. While it is true as a general proposition, finding support in numerous authorities by this and other courts, that a person charged with murder and convicted of manslaughter will not be heard to object where it appears that under the evidence he in justness ought to have been convicted of the crime of murder, the theory being that there can be no just cause of complaint by a defendant where the verdict is more favorable to him than is justified by the evidence, it is to our minds nevertheless clear that this case does not fall within that proposition. The fact that a valid conviction of manslaughter may be had under an indictment or information for murder would not justify the submission of the question of defendant’s guilt of manslaughter regardless of the character and theory of the case. 'The instructions must be applicable to the facts and to the law of the case on trial. New v. Terr., 12 Okla. 172, 70 Pac. 1012.

There being no theory, either in law or in fact, authorizing the submission of the issue of manslaughter in the second degree in this case, the defendant having been convicted thereof, without a proper basis therefor, the judgment of conviction must foe reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DOYLE, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    In re OPINION OF THE JUDGES. In re ROBERT W. BLAKELY.
    No. A-3913
    Opinion Filed Feb. 3, 1921.
    (195 Pac. 146.)
   Opinion of the judges in the matter of the conviction of Robert W. Blakely for murder, rendered in response to the request of the Governor of the state.

Hon. J. B. A. Robertson, Governor of the State of Oklahoma — Sir:

In response to your official communication of January 29, 1921, addressed to the judges of this court for an opinion (as provided by section 5969, Rev. Laws) in the matter of the conviction of Robert W. Blakely in the district court of Muskogee county of the crime of murder and judgment and sentence, rendered November 27, 1920, in pursuance of the verdict, that he suffer death ¡by electrocution on February 25, 1921, we hereby respectfully submit the .following:

Opinion of the Judges.

DOYLE, P. J.

An inspection of the record discloses that the information filed in the district court of Muskogee county on September 25, 1920, charges Robert W. Blakely with the murder of one Effie May Allford, alleged to have been committed in said county on or about the 13th day of September, 1920, by shooting the said Effie May Allford with a pistol; that on the 5th day of November, 1920, the defendant was arraigned in open court, B. B. Wheeler, presiding judge, and by his attorney offered to enter a plea of guilty of manslaughter in the first degree, which plea was not accepted; on the following day the defendant asked that E. A. Summers, another judge of said court, be assigned to sit and preside in the trial of said cause; that on the 10th day of November, 1920, the said cause was called for trial, E. A. Summers, presiding judge, the defendant present in person and by his attorneys, and the state by the county attorney, and both parties announced ready for trial; a jury of 12 good and lawful men were duly impan-elled and sworn to try said cause and <a true verdict render according to the law and the evidence.

Whereupon the state introduced its evidence and rests. Thereupon counsel for the defendant requested and the court granted time in which to confer with the defendant, after which his counsel announced that “the defendant rests.”

The court instructed the jury upon the law of the case, which charge of the court is incorporated in the record in full. It appears that no objection was made or exception taken to the instructions given by the court. After the argument of counsel the jury retired under a sworn bailiff to consider their verdict, and on the same day returned in open court the follolwing verdict:

“We, the jury in the above-entitled action, duly im-panelled and sworn, upon our oaths find the defendant guilty of the crime of murder as charged in the information and fix his punishment at death. J. J. Barrett, Foreman.”

Which verdict was duly filed on said date in the office of the court clerk. Thereafter, on the 27th day of November, 1920, the said defendant, Robert W. Blakely, was sentenced in open court in pursuance of the verdict rendered by the jury to suffer death by electrocution in the state penitentiary on the 25th day of February, 1921. Thereafter on the 1st day of December, 1920, there was filed with the court clerk a death warrant, signed by E. A. Summers, district judge, in due form and duly attested, commanding the warden of the state penitentiary at Mc-Alester to accept the said defendant, Robert W. Blakely, 'From the sheriff of Muskogee county, and closely confine and imprison the said defendant within the walls of the state penitentiary until the 25th day of February, 1921, and upon said last-mentioned date to put to death the said defendant, Robert W. Blakely, by electrocution in the manner provided by law.

Upon the trial of the defendant the uncontradicted evidence established that on the day alleged he shot and killed Effie May Allford, his stepdaughter, at his home near Brushy Mountain. There was a gunshot wound in her neck; two just below the left breast; one in the abdomen; and one in the left wrist. 'The defendant’s family consisted of his wife and four daughters, ages 12, 9, 7, and 2 years old. The deceased and an elder sister were also inmates of the family. The deceased had a baby several months old. There was testimony showing that the defendant had stated that he was the father of this baby, and that shortly before the homicide he entered the room of the deceased with a pistol in his hand, and in the presence of his wife and the sister of the deceased, took the baby, saying to deceased that if she did not come to his room that night he was going to blow her heart out; that the deceased went to his room, and after staying there a while brought her baby back to her room; that two or three days later the deceased went to Muskogee and swore to a complaint charging the defendant with rape. The defendant went on the scout, returning at times to his home. He on these occasions expressed his intention to kill her, and one time attempted to shoot her, but his wife scuffled with him and the shot missed her.

The 12 year old daughter of the defendant was the only person who saw the killing and who testified as to what took place at the time. She testified:

“My mother and Maud went to Muskogee, leaving Effie, her baby, and the other little children and myself and Baddy at home. Effie said she was going to the store to get some thread1. Daddy told her to let me go. She said, ‘No; I want to go myself.’ So she got ready and started to the front door. Daddy he ran and closed it. Then she went to the back door. Daddy .got his gun, and I commenced to holler, and he shot her in the left wrist. She jumped and said, T won’t go.’ He said, ‘No; you won’t go;’ and I grabbed hold of the gun. He pulled it out of my hand and shot her again. She staggered a little bit and said, ‘No, Bob; I- won’t go.’ He shot again and then he went away. I ran out to where Effie was, and she told me to go to Mrs. Whitewaters and tell her to come over. I went. She was just dying when I got back.”

The officer who arrested the defendant testified that—

“He said, T am the man that shot her; is she dead?’ I said, ‘Yes; that is the report that came to me;’ and he said, T am glad of it; I am ready to die too now, if she is dead’.”

The defendant made several voluntary confessions, as shown by the testimony, in substance as follows:

“This girl wanted to go to the store, and I was afraid she would call the officers, and I tried to keeep her from going. She insisted on going, and finally she got up and started to the front door. I beat her to it. Then she went to the back door. We scuffled there a little bit, and she finally jumped out. I said, ‘Effie, don’t go,’ and I shot. She turned and said, T won’t go.’ I had gone so far that I knew it would not do any good to stop, so I made up my mind that'I would finish it, and I aimed'at her heart and shot twice. She reeled, and then I fired again.”

From this abbreviated summary of the evidence given on the trial it will be seen that the defendant had been guilty of an atrocious crime, the culmination of which was the deliberate and premeditated murder of his victim.

It has uniformly been held by this court that the statute (section 5969, Rev. Laws) contemplates an advisory opinion where an appeal has not been taken in a capital case, and where the death penalty has been assessed. The questions presented. are: Has there been an observance of all the formalities of law essential to the taking of human life, or has the trial, conviction, and sentence of death been in accordance with the law of the land?

After a full and careful examination of the record and transcript, we are unable to find any error which prejudices, the rights of the defendant. The information correctly charges the crime of murder, the instructions as given by the court fully and correctly state the law of the case, and there can be no doubt as to the sufficiency of the evidence 'to support the verdict and judgment of conviction.

Under the provisions of our Code of Criminal Procedure, the time for appeal will not expire until May 27, 1921. In the meantime, under the statute (section 5970, Rev. Laws), the Governor has sole power to reprieve or suspend the execution of the death sentence pronounced against this defendant until such time as an appeal may be (perfected, or until a day beyond the time provided by statute in which an appeal may be taken, to wit, six months from the rendition of the judgment. It is a matter entirely discretionary with you to grant such reprieve or suspension of this sentence in order to permit the defendant, if he should hereafter see fit to do so, to take an appeal from this judgment. In re Opinion of the Judges, 17 Okla. Cr. 369, 189 Pac. 198; In re Opinion of the Judges, 18 Okla. Cr. 20, 192 Pac. 597.

It seems impossible to review the record and resist the conclusion that the defendant is guilty of a most brutal murder, well meriting the extreme penalty assessed by the jury.

Upon the record before us we are of opinion that by a fair and impartial trial the defendant has been adjudged to suffer the just penalty of the law.

MATSON and BESSEY, JJ., concur.


author: BESSEY, J.

text:
      In re OPINION OF THE JUDGES. In re JOHN G. LEDBETTER.
    No. A-3915
    Opinion Filed Feb. 4, 1921.
    (195 Pac. 149.)
    (Syllabus)
    1. APPEAL AND ERROR — Right of Appeal — Time. Every defendant in a criminal case, as a matter of right, may appeal from a judgment against him within six months from the time of rendition of such judgment.
    2. SAME — Death Sentence — Suspension of Execution. No court or officer, other than the Governor, can suspend the execution of a judgment and sentence of death after delivery of the defendant to the warden of the penitentiary unless and until an appeal is taken from such judgment.
    3. TRIAL — Death Sentence — Duty of Judge. It is mandatory upon the trial judge, when judgment of death is imposed, to appoint a day on which the judgment is to be executed, which day must not be less- than 60 days nor more than 90 days from the date of rendition of judgment, directing the sheriff! to deliver the defendant, within 10 days from the date of judgment, to the warden of the state prison at McAlester, to be dealt with as provided in said judgment.
    4. APPEAL AND ERROR — Death Sentence — Right of Appeal— Powers of Courts and Governors. After the delivery, by the sheriff, of the defendant to the warden of the penitentiary, pursuant to a judgment imposing death, the trial court has no authority to extend the time of execution, and this court has no jurisdiction and will acquire no jurisdiction to suspend sentence until the case has been appealed and the appeal filed in this court. It is the advisory opinion of this court that the only way to preserve to the defendant his right of appeal for the full period of six months would be for the Governor of this state to suspend the execution of the judgment until after the expiration of the six months period.
    5. COURTS — Death Sentence — Advisory Opinion to Governor. An opinion rendered by this court in response to a request of the Governor, as authorized by section 5969, Rev. Laws 1910, is advisory only. An adjudication of the matters involved cannot be made until the ease is lodged in this court on appeal.
   Opinion of the’Judges, of the Criminal Court of Appeals in response to a request by Hon. J. B. A. Robertson, Governor, relative to the conviction of John G. Ledbetter of the crime of murder.

Sir: In response to your official communication of January 26, 1921, addressed to this court, asking for an opinion, as provided in section 5969, Revised Laws of Oklahoma, 1910, in the matter of the conviction of John G. Ledbetter in the district court of Muskogee county, Okla., on the 16th day of November,- 1920, of the crime of murder, and who was on the 2d day of December, 1920, by judgment of the court sentenced to be put to death by electrocution on the 25th day of February, 1921, within the walls of the state penitentiary at McAIester, Okla., we hereby respectfully submit the following:

Opinion of the Judges.

BESSEY, J.

It appears from-the transcript of the record submitted to us by you:

That John G. Ledbetter was prosecuted in the district court of Muskogee county, Okla., by information filed in saiu court on the 3d day of September, 1920, which information charged said John G. Ledbetter with the murder of Robert Moreland m said county on the 15th day of August, 1920, by shooting said Robert Moreland with a pistol.

That on the 5th day of November, 1920, said defendant appeared in open court, in person and by his attorneys, and was duly arraigned and pleaded not guilty and the cause was set for trial for the 15th day of November, 1920, upon which date the cause was called for trial. The defendant was present in person and by his attorneys, and both sides announced ready for trial. A jury was impan-elled, examined, and sworn according to law, 'and the trial then proceeded according to the forms of law. The state introduced its evidence in chief and rested, and thereupon the defendant introduced his evidence in defense and rested; and, .both sides having announced that there was no further testimony to be introduced, the court thereupon presented to the attorneys certain instructions which he proposed to give in the cause, and offered each side an opportunity. to file objections to the same. No objections to these instructions being offered, the court thereupon instructed the jury upon the law of the case, which instructions appeár at length in the transcript of the record sub-mitted1 herein. Thereupon the cause was submitted to the jury, which rendered into open court the following verdict:

“We, the jury in the above-entitled action, duly impaneled and sworn, upon our oaths find the defendant, John G. Ledbetter, guilty of the crime of murder as charged in the information, and designate that he be punished by death.”

IThat on the 19th day of November, 1920, the defendant filed a motion for a new trial, and that thereafter, on the 29th day of November, 1920, the defendant filed a supplemental motion for a new trial, which motions were by the court overruled, and exceptions allowed the defendant.

Thereafter, on the 2d day of December, 1920, the said defendant, John G. Ledbetter, was sentenced in open court, in conformity with the verdict, rendered, to death by electrocution on the 25th day of February, 1921, within the walls of the state penitentiary at McAlester, Okla., in the manner and form as provided by the laws of the state of Oklahoma. Whereupon a death warrant was issued by the presiding judge of the trial court directing the sheriff of Muskogee county to convey said defendant to said penitentiary and directing the warden of the penitentiary to execute said judgment on the date designated.

The record shows that at the rendition of this judgment the defendant, John G. Ledbetter, excepted to the judgment and sentence of the court and gave notice in open court of an appeal to the Criminal Court of Appeals of the state of Oklahoma. The court thereupon made an order-allowing the defendant 30 days from the date of judgment 'in which to prepare and serve a case-made, and allowing 10 days after such service for the state to suggest amendments, the same to be settled and signed upon 5 days’ notice in writing, after which the appeal might be filed in the Criminal Court of Appeals as provided by law.

That the certificate of the clerk to this record here under consideration bears date of December 13, 1920, and at that time, as appears from this record, no case-made had been filed and no steps taken to lodge an appeal in this court; and an examination of the records of this court discloses that no appeal has been filed in this court prior to this date, February 3, 1921.

Under the statutes of this state, the defendant has an option to take an appeal to this court by filing in this court a duly certified case-made, with a petition in error attached, or by filing in this court a duly authenticated transcript of the record, which may be dlone at any time prior to the expiration of 6 months from the date of the judgment. It follows, therefore, that the defendant cannot now appeal to this court by filing herein a case-made with petition in error attached, for the reason that the time allowed by the court in which to prepare and settle the case-made has expired, unless by proper sholwing, in case of accident or misfortune which could not reasonably have been avoided by the defendant, he has been prevented from so doing within the time designated by the trial court, an ¡appeal may :be allowed out of time, as provided in section 5246, Revised Laws of Oklahoma 1910, but that the defendant, under the law, without preparing or filing a .case-made, has until the 2d day of June, 1921, to take an appeal to this court by filing herein an authenticated transcript of the record below, with a petition in error attached.

Section 5991, Revised Laws of Oklahoma 1910, provides that every defendant in a criminal case, as a matter of right, may appeal from a judgment against him within 6 months from the time of the rendition of such judgment.

According to the provisions of section 2, c. 113, Session Laws of 1913, it is made mandatory upon the trial judge, when judgment of death is rendered, to appoint a day on which such judgment is to be executed, which must not be less than 60 days nor more than 90 days from the date of the judgment, and he must direct the sheriff to deliver the defendant, within 10 days from the date of the judgment, to the warden of the state prison at McAlester, to be dealt with in accordance with the judgment and sentence.

After the delivery by the sheriff of the defendant to the warden of the penitentiary pursuant to such judgment, the trial court has no authority to extend the time of execution, and this court has no jurisdiction and will acquire no jurisdiction to suspend sentence until the case has been appealed and the appeal filed in this court. It is the advisory opinion of this court that the only way to preserve to the defendant his right of appeal for the full period of 6 months will be for the Governor of this state to suspend the execution of the judgment until after the expiration of the 6 months’ period. Section 5970, Revised Laws OMa. 1910.

We have carefully examined the authenticated transcript of the record, testimony, and proceedings in this case submitted, and find that there was a proper observance of all the regularities and formalities of law essential to the rendition of judgment involving the taking of human life, and that the trial, conviction, and sentence of death was ail had and done in the mianner and form as provided by the laws of the state.

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


text:
    J. L. ELLINGTON v. STATE.
    No. A-3354
    Opinion Filed Feb. 12, 1920.
    (187 Pac. 250.)
    (Syllabus.)
    FALSE PRETENSES — Evidence Warranting Conviction. In a prosecution for obtaining money by false pretenses, evidence considered, and held sufficient to sustain the conviction, and that no reversible error occurred upon the trial.

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

    J. L. Ellington was convicted of obtaining money by false pretenses, and he appeals.
    Affirmed.

      Crockett & Fowler, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, J. L. Ellington, was convicted of the offense of obtaining money by false pretenses, and his punishment fixed at imprisonment in the penitentiary for the term of one year and a fine of $15. From the judgment rendered on the verdict, an appeal was perfected by filing in this court on May 10, 1918, a petition in error with case-made.

The errors assigned are as follows: Irregularities in ¡the proceedings of the court and jury, and abuse of discretion by which the defendant was prevented from having a fair trial; error of court in misdirecting the jury in matters of law arising during the course of trial; error in admitting incompetent evidence on the part of the state, and error in rejecting competent evidence offered on the part !of the defendant; that the verdict is contrary to law, and is not sustained by the evidence; and error in overruling motion for new trial. No brief has been filed. The case was submitted on the record.

Notwithstanding the failure to file brief, we have care- . fully examined the entire record. The information in substance charges that the defendant obtained from H. A. Wright the sum of $4.50 and 50 cents worth of merchandise, by presenting to the said H. A. Wright a certain false and bogus, check, drawn for the sum of $5 on the Ameri-can State Bank of Durant, signed by one Ed. Malley, and representing, with the intent to defraud, said check to be genuine and of the value of $5, when in truth and in fact said check was bogus, and not of the value of $5 in money, (or any other sum; said Ed. Malley did not have money on deposit in said bank to meet said check upon its presentation, all of which the said defendant well knew.

The evidence shows or tends to sholw that the defendant wrote the cheek and had Ed. Malley sign the same; then the defendant went into Wright’s, place of business ,and bought 50 cents worth of meat, paying therefor by giving said check and representing that said check was good: that he then walked1 out and gave one-half of the money so received to Ed Mal-ley, who was waiting for him outside Wright’s place of business.

Three or four other checks of similar amounts, executed previously, were on the same day passed by the defendant, and were offered in evidence for the purpose of showing the plan to defraud. It does not appear that any exception was-taken to any ruling of the court at the trial, and it does not appear that a motion for a new trial was filed in the case. There is- consequently nothing before us to review upon the assignments of error, unless some fundamental error is apparent.

Finding no fundamental error in the record, the judgment of the district court of Bryan county is affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: MAITISON, J.

text:
    HENRY PEYTON v. STATE.
    No. A-3501
    Opinion Fled Feb. 12, 1921.
    (195 Pac. 151.)
    (Syllabus.)
    1. HOMICIDE — Manslaughter in First Degree — Evidence. For evidence held sufficient to support a conviction ol manslaughter in the first degree, and that the verdict was not the result of passion and prejudice on the part of the jury, see body of opinion.
    2. CONTINUANCE — Refusal—Absent Witness. Where an application for a continuance is based upon tbe absence of a witness wbo was present and testified in a former trial of tbe case, and there is no showing of anv reasonable probability of obtaining tbe presence of such witness at any subsequent term of court, nor facts stated in tbe application showing that tbe absent witness would testify differently at this trial than at tbe first trial, and the testimony of tbe absent witness given at tbe first trial is read as bis deposition, no error prejudicial to tbe substantial rights of defendant was committed in overruling tbe motion for a continuance.

      Appeal from District Court, Cotton County; Cham Jones, Judge.

    Henry Peyton -was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      J. F. Thomas and Louis Hunter, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the .State.
   MAITISON, J.

This is an appeal from the' district court of Cotton county, wherein on the 10th day of July, 1918, the plaintiff in error, Henry Peyton, hereinafter designated defendant, was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of 18 years' imprisonment in the state penitentiary. From the judgment rendered against him, he has appealed to this court, and relies for a reversal on the grounds that the evidence is insufficient to sustain the conviction, that the verdict was the result of passion and prejudice on the part of the jury, and that the trial court erred in overruling his motion for a continuance.

Defendant, a negro man, was the father of a boy 13 years old. This boy on the morning of the day the homicide occurred, was sent by his mother to a hotel in the town of Temple to gather some washing for her. As the boy entered the hotel and left with the washing, he wore his hat, and on leaving was accosted by a white man named Stone, and told that he should remove his hat on entering a house. According to the testimony of the state’s witnesses, the boy replied, “No white man could make him take off his hat,” whereupon Stone hit the boy in the mouth with his fist.

The boy went home and was crying, and on inquiry by his father and mother, told them that he had been struck by a white man because he forgot to take his hat off in the hotel. Defendant, accompanied by his wife, the mother of the boy, immediately drove over to the hotel in the same vehicle the boy had brought the washing. Uipon arrival at the hotel, the mother of the boy .got out of the buggy and went over to the house, and inquired of some women who were there who it was that had hit her boy. About this time Stone appeared on the scene, and told the woman that he had struck her boy, whereupon a fight and struggle ensued between Stone and the negro (woman.

As soon as the fight started, defendant, Henry Peyton, jumped out of the buggy, and ran to where Stone was, and stabbed him with a knife. Stone ran around to the side of the hotel, and Peyton followed him for a short distance, then turned around, and walked to where deceased, Parrott, was standing (Parrott having come out of the hotel shortly after Stone), and also stabbed Parrott in the left breast with the knife. From the wounds s,o inflicted by defendant, Parrott died, after lingering for about a week.

The defense interposed was self-defense, defendant claiming that he and his wife had gone to the hotel merely for the purpose of finding out whether the boy had told them, the truth about how he had received the injury to his mouth, and that upon their arrival at the hotel both Stone and Parrott viciously assaulted defendant’s (wife, and that the use of the knife on his part was to protect her from the assaults of both Stone and Parrott. Defendant testified that he stabbed Parrott with the knife before he had stabbed Stone. The testimony of defendant and his wife is not corroborated by a single disinterested witness.

The transaction was witnessed by several persons, all of whom except defendant and his wife say that the deceased, Parrott, made no attack upon defendant’s wife, and that at the time def endant stabbed him, he did nothing except to strike at defendant with his fist in order, to avoid the attack defendant was making upon him at that time.

The testimony on the part of the state’s witnesses conclusively shows that the defendant and his wife drove over to the hotel in an angry mood for the purpose of avenging the injury iwhich had been inflicted on their boy a short time previous. A conviction of murder would have been justified under the evidence adduced by the state’s witnesses. The claim .of defendant that the assault made upon deceased was in defense of the wife finds no support in the testimony of any witness other than of defendant and his wife. Defendant was extremely fortunate that the jury only returned a verdict of guilty of manslaughter in the first degree. The contention that the verdict was the result of passion and prejudice on the part of the jury is 'wholly without merit.

The trial court was unusually favorable to defendant in the instructions given, and fully covered the theory of the defense in a very careful and painstaking manner, and so thoroughly presented the issue that defendant has made no complaint of the court’s instructions.

The 'petition in error contains an assignment that the court erred in refusing to grant a continuance because of the absence of ,a material witness for defendant, but the brief filed contains no argument in support of this assignment. The application for a continuance |was based upon the absence of one of the state’s principal witnesses, R, L. Stone. The application for a continuance was properly-overruled, because it was evidently made solely for the purpose of delay, and there was no showing of any reasonable probability of obtaining the presence of the witness at any subsequent term of court. Stone had already testified in a previous trial of the case as a witness for the state, and was at the time of this, trial in the service of the United States army stationed at Camp Beauregard, Louisiana. Upon proper showing of these facts, the court permitted the testimony of the -witness given at the former trial to .be read as his deposition on this trial.

The statement contained in the affidavit of defendant for the continuance as to the matters and things witness Stone would testify to is not supported1 by the testimony of such witness given at the former trial, and the court-was justified, having once had the witness in court, in overruling the application for a continuance because the same was clearly based upon erroneous statements of facts as to what the witness Stone would likely testify to. Defendant had no opportunity to talk with the witness Stone between the time of the first trial and the time the application for a continuance was presented. The witness Stone had been in the army during that time, and defendant had been confined in jail. Trial courts are not organized for the purpose of granting continuances merely for purposes of delay, but only in instances where the administration of justice reasonably requires them. There is no merit, therefore, in the assignment that the court erred in overruling the motion for a continuance.

After a careful examination of the evidence, instructions of the court, the verdict, - and the judgment, we are convinced that defendant had a fair and impartial trial, that the evidence clearly supports the verdict rendered, and that the sentence is not excessive. Defendant was fortunate in having the 'benefit of able counsel, who were at all times zealous in protecting his constitutional and statutory rights throughout the progress of the trial, and that a conviction for murder did not result is largely attributable to their untiring efforts in his behalf.

Judgment affirmed.

DOYLE, P. J., and BESSEY, J., concur.


text:
    FRANK HALBERT v. STATE.
    No. A-3561
    Opinion Filed Feb. 14, 1921.
    (195 Pac. 504.)
    (Syllabus.)
    1. RAPE — Attempt—Sufficiency of Evidence. Tbe testimony of tbe abused person and tbe testimony corroborating tbe same, tbe defendant being charged with an assault to commit rape, examined, and found sufficient to support a verdict of guilty.
    2. TRIAL — Province of Jury — Former Jeopardy. Ordinarily, tbe question of former jeopardy is for tbe jury, upon a separate plea raising tbe issue; but where tbe question is prematurely presented to tbe court on a motion to quash tbe information, disclosing to the court disputed facts as to tbe identity of tbe offenses and a question of whether or not the former plea of guilty was collusive, tbe court properly submitted tbe question to the jury, after the plea of former jeopardy was subsequently filed.
    3. EVIDENCE — Best Evidence of Former Conviction. The best evidence of a former conviction in a court of record is: 1. The indictment or information and a copy of the minutes of the plea or demurrer. 2. A copy of the minutes of the trial. 3. The charges given or refused, and the indorsements, if any, thereon, when tried to a jury. 4. A copy of the judgment.
    4. FORMER JEOPARDY — Collusive Conviction. A conviction procured fraudulently or by collusion of the offender, for the purpose of protecting himself from a prosecution for the same offense, or for a higher degree of the same offense will not bar a second prosecution.
    5. SAME — 'Proof of Collusion. Where a charge of assault and battery against a defendant is pending in the county court and a few days later a charge of assault to commit rape is lodged in the same court, sitting as an examining magistrate, both charges covering the same transaction, the testimony of persons relating to their efforts to insist upon the prosecution of the latter complaint may be competent for the purpose- of throwing some light upon the question of whether a plea of guilty in the misdemeanor charge first filed was collusive.

      Appeal from District Court, Canadian County, Edward Dewes Oldfield, Judge.

    Frank Halbert was convicted of attempting to commit rape in the second degree, and he appeals.
    Affirmed.

      J. N. Roberson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W-. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

On May 22, 1916, the plaintiff in error, Frank Halbert, hereinafter called defendant, was informed against in the district court of Canadian county for an attempt made on May 12, 1916, to ravish Flora Griffin, a female under the age of 14 years. This information was later amended, and upon trial, November 29, 1918, the defendant was convicted of an assault to commit rape in the second degree, and was sentenced to imprisonment for a term of 4 years in the state penitentiary. To reverse this judgment the defendant prosecuted this appeal.

It will serve no good purpose to review the testimony in detail. The testimony on the part of the state was to the effect that the defendant and Flora Griffin resided on adjoining farms; that on May 12, 1916, Flora Griffin went from her home to get the family mail at a rural mail box about one-half mile distant; that defendant was working in a field nearby, and suddenly appeared at the mail box, and after some conversation put his arm around Flora Griffin and kissed her, and after some wrestling and scuffling he threw her on the ground, and he offered her money if she would submit to sexual intercourse, and that he forcibly tried to unbutton and remove her clothes; was astride of her person; that she successfully resisted for about 10 minutes, when he suddenly went away, after which she ran home crying and told her mother.

The defendant’s testimony was to the effect that he was there present at the time and place charged in the information, and that he and Flora Griffin wrestled and scuffled in a friendly way for the possession of - a postal card then in her possession, and that she fell down, but that there was no attempt to disarrange her ' clothing, and no intention on his part to ravish her.

The defendant entered two pleas in this case, a plea of not guilty and a plea of former jeopardy, in the latter of which he pleaded and sought to prove that he had been previously informed against, and pleaded guilty to a charge of assault and battery in the county court of Canadian county, wherein he was assessed a fine of $10 and costs, which charge involved the same facts and transactions at issue in this prosecution. In support of his plea of former jeopardy, the information charging- an assault and battery in the county court was introduced in evidence, together with the clerk’s minutes, showing that a fine of $10 had been assessed and paid.

The complaint and information charging assault and daattery were filed in the county court May 13, 1916. The complaint and information charging an assault to commit rape were filed in the same county court, sitting as an examining magistrate, May 22, 1916. The charging parts 'of the two informations were as follows:

“For he, the said Frank Halbert, then and there being, did then and there wilfully and unlawfully and with force andi violence take hold of and throw her, the said Flora Griffin, to and upon the ground, and did then and there attempt to remove the clothing from her, the said Flora Griffin, with intent to do corporal hurt to her, the said Flora Griffin.”

The charging part of the information on which defendant was tried in the district court was as follows:

“That he, the said Frank Halbert, did then and there willfully, unlawfully, and feloniously, and without the consent and against the will of her, the said Flora Griffin, take hold of her, the said Flora Griffin, and did throw her upon the .ground, and did then and there attempt to have sexual intercourse, with her and to carnally know her, the said Flora Griffin, but did so fail in his purpose; that he, the said Frank Halbert, did willfully, unlawfully, and feloniously assault her, the said Flora Griffin, and with the willful, unlawful, and felonious intent to rape and ravish her the said Flora Griffin; and he, the said Frank Halbert, was at said time over the age of 18 years.”

The defendant, before the trial and before entering any plea, sought to raise the question of former jeopardy by a motion to quash the information in the district court. After the introduction of testimony on that issue, on motion to quash, in which the two informations, the clerk’s minutes, and certain oral testimony touching the identity of the offenses was introduced, the court held the question of former jeopardy was, under the circumstances in this case, a question of fact for the jury, to be considered upon a separate plea by the defendant. Whereupon the defendant pleaded not guilty, and entered a separate plea of former jeopardy.

The defendant, in his brief, insists on but three assignments of error, viz.:

(1) That the evidence is insufficient to support the verdict of guilty.

(2) That the issue of former jeopardy in this case was for the court, and that the court, under the testimony, should have instructed the jury to- render a verdict for the defendant on the issue of former jeopardy.

(3) Admission of improper and prejudicial testimony over the objections of defendant.

First. As to the sufficiency of the evidence, Flora Griffin, in a straightf orward manner, apparently without bias or malice, testified that the defendant with.force attempted to have sexual intercourse with her. Other witnesses testified that the weeds and grass were trampled down at the place where the assault took place; that the abused child told her mother about it immediately upon her return to her home. The defendant’s plea of former jeopardy and his testimony in support of his plea in part corroborated her testimony. In the opinion of the court, upon the plea of not guilty there was sufficient evidence to support the verdict, outside of the issue of former jeopardy. As indicative of a felonious intent, the admission of the defendant in his plea of guilty to the misdemeanor charge in the county court that he “threw the said Flora Griffin to and upon the ground, and did then and there attempt to remove the clothing frorq her, the said Flora Griffin,” in connection with the oral testimony adduced, amply justified the jury in rendering a verdict of guilty.

Second. Ordinarily the question of former jeopardy is for the jury, upon a plea raising that issue, and where, as in this case, the question was prematurely presented to the court on a motion to quash the information wherein it was disclosed that there were disputed questions of fact relating to the former conviction, the court' very properly «submitted such issues to the jury after the plea of former ¡jeopardy was subsequently filed. Newton v. State, 14 Okla. Cr. 226, 170 Pac. 270.

Section 5822, Revised Laws of Oklahoma 1910, is as follows:

“An issue of fact arises. First. Upon a plea of not guilty or, Second. Upon a plea of former conviction or acquittal of the same offense.”

Section 5823, Id.:

“Issues of fact must be tried by a jury.”

The court, in instruction 7, in substance states that the crime of assault and battery is included in a charge of an assault to commit rape in the second degree, as follows:

“You are instructed .that included in the charge of assault with intent to commit rape in the second degree is the crime of assault and battery, and in this connection you are further instructed that an assault is any willful and unlawful attempt to offer with force >and violence to do a corporal hurt to another, and a battery is any willful and unlawful use of force or violence upon the person of another, and is punishable by imprisonment in the county jail not exceeding 30 days or by fine of not less than $5 or more than $100, or both.”

Assuming, without deciding, that the law as stated by the court, as above quoted, is correct, this instruction was most favorable to the defendant, so that the jury could have found, if the facts warranted it, in favor of the defendant on that phase of his plea of former jeopardy.

Moreover, the proof on the question of the identity of the two charges ¡was not supported by the best evidence. The county court in this, state is a court of record, and the best evidence of a former conviction in a county court would be the record of that court. What constitutes a judicial record in this state is defined by statute, section 5960 Revised Laws of Oklahoma 1910, being as follows:

“When judgment upon a conviction is rendered, the clerk must enter the same upon tbe minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action:

“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 in-dorsements, if any, thereon.

“Fourth. A copy of the judgment.”

It would seem, therefore, that a former conviction must be established by proving the rendition of a judgment on the verdict or plea of guilty. A judgment cannot properly be shown by an entry in the appearance docket, as was done in this case. 15 R. C. L. 581; Cockrell v. Schmitt, 20 Okla. 207, 94 Pac. 521, 129 Am. St. Rep. 737.

If the jury believed and were satisfied from the secondary testimony adduced that there wag a former conviction or plea of guilty for the same offense, then the question of bad faith and collusion in pleading guilty to the former misdemeanor charge was sufficiently supported by the records and other testimony introduced to warrant a verdict for the state on the plea of former jeopardy. It appears from the secondary evidence that the defendant was not present in the county court when the plea of guilty in the misdemeanor charge was made, entered, and satisfied. Presumably, the defendant’s attorney or his father did this for him. The record is silent as to whether the county attorney was present. On this occasion the court may have overlooked or forgotten that the more serious charge was pending; or it may be that the court was misinformed, and that a fraud was practiced on the court by the defendant or some one for him. It is very unusual in a charge of assault and battery against a little girl to charge that the offender threw her upon the ground, and then and there attempted to remove the clothing from her. This might properly be considered by the jury as a circumstance tending to show that the plea of guilty on the assault and battery charge was procured by the defendant or some one for him to forestall the more serious felony charge. This, in connection with the admissions of the defendant himself, amply justified the jury in finding for the state on the plea of former jeopardy. In answer to the question, “Why did you plead guilty to that charge?” he answered:

“For the simple reason that my father came and talked to the county attorney. We had been having trouble with the Griffins, and when they filed that charge I pleaded not guilty. Well, father went and talked with the county attorney about it, and to keep down a stink, and gossip around over the country he thought it would be best to plead guilty and be done with it.”

It is well established that a conviction procured fraudulently or by collusion of the offender, for the purpose of protecting himself from further prosecution for the same offense or for a higher degree of the same offense, will not bar a second prosecution. Evans v. Wills, County Judge, 22 Okla. 310, 97 Pac. 1047, 19 L. R. A. (N. S.) 1050, 18 Ann. Cas. 258; 16 Corpus Juris, 237, and cases, there cited: Notes and annotations, L. R. A. 1918A, 1181.

The issue of a collusive conviction for the purpose of evading a prosecution for a more serious offense, under the evidence in this case, was by the court fairly submitted to the jury in the following instructions:

“But in this connection you are further instructed that a former conviction procured by the- fraud of the defendant is no bar to subsequent prosecution; that is, where the accused, hearing of a pending or threatened prosecution, voluntarily or by a collusive arrest goes before a justice of the peace or a county court and is convicted of a misdemeanor, he cannot subsequently plead former jeopardy or former conviction to a felony charge for the same crime.

“And in this connection you are instructed that as to the defendant’s plea in this case of former conviction, if you find and believe from the evidence that the plea of guilty entered into in the county court to the assault and battery charge therein filed in this, county was col-lusively entered into by the defendant and the county attorney in order that the defendant might avoid prosecution for a felony in the district court of this county, then you are instructed that you will find for the state as to such plea of former conviction.

“However, if you find and believe from the evidence that the plea of guilty was entered into in the county court without collusion between the county attorney’s office and the defendant, Frank Halbert, then you are instructed that your verdict on the plea of former conviction should be for the defendant.

“And in this connection you are further instructed that the burden of the proof is on the state to prove to your satisfaction beyond a reasonable doubt such collusion. And unless you find and believe from the evidence that the state has proven such collusion beyond a reasonable doubt, your verdict must be for the defendant on his plea of former conviction.”

Third. The defendant in his brief complains that the court permitted the state to introduce evidence that was incompetent and prejudicial to the rights of the defendant, on the part of Mrs. Griffin, mother of the abused girl, O. M. Martin, and J. B. Griffin concerning their efforts,, and others’, to induce the county attorney to proceed with the prosecution of the felony charge in the district court. This testimony was doubtless admitted for the purpose of throwing some light upon the question of 'whether or not the misdemeanor charge was collusive. The weight that should be given to such testimony is for the jury to determine; and, considered with all the other testimony in this case, we cannot say that this testimony was incompetent or erroneously admitted, but, on the contrary, was properly admitted as being in part explanatory of the conditions surrounding the prosecution of the two charges. Whatever iweight the jury may have given to the testimony of which the defendant complains, the other testimony and the records introduced sufficiently warranted the jury in coming to the conclusion that the plea of guilty to the misdemeanor charge was col-lusively permitted to be entered for the purpose of escaping the more serious charge of assault of attempting to commit rape.

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

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