author: BAREFOOT, J.

text:
    BUCK JANEWAY v. STATE.
    No. A-9191.
    Aug. 20, 1937.
    (71 Pac. 2d 130.)
    J. N. Fortner, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Sam H. Baltimore, Asst. Atty. Gen., and C. D. Wilkinson, Co. Atty., for the State.
   BAREFOOT, J.

The defendant, Buck Janeway, was charged with the murder of “Pee Wee Moore” in McCur-tain county, Okla., on or about July 20, 1935. He wasi tried and convicted and given a life sentence. From this judgment, he has appealed.

The record in this case reveals the following facts: The defendant had served a term in the Oklahoma penitentiary for forgery, and had just been released from the Texas penitentiary, where he had finished serving, a term for burglary. The deceased was serving a term in the Arkansas penitentiary for bank robbery, but had been released on a furlough, which had expired at the time he was killed by defendant. These parties met in the Kil-gore, Tex., oil field and came to McCurtain county, Okla., where the deceased Moore had lived prior to this time. The defendant stopped at the home of Ted Futrell, where he was working for his board. The deceased was at the home of Forney Jones, which was not far distant. On the morning of the difficulty the deceased and Forney Jones came by in a car and picked up the defendant, asking him to go with them for a ride. They drove along No. 70 highway toward Broken Bow and picked up two girls who rode with them to the edge of the town and were let out because the men did not desire to go into the town. They had whisky in the car and all were drinking. The defendant was sitting in the back seat, and the deceased, who was driving, and Forney Jones were sitting in the front seat. They drove back toward the place from which they started and picked up two men who were beside the road and whom no one ever seemed to identify. They drove around through, the country all day, drinking and going swimming, and the two men were let out of the car late in the evening. There seemed to be quarreling and cursing among the men, and defendant testified that deceased had proposed that they go to Nebraska and rob a bank; that he had refused to do so, for the reason that he had been in enough trouble and intended to. go straight; that upon his refusal deceased had threatened to kill him, and “called me a yellow son of a bitch, and said if I wouldn’t help rob' a bank he would kill me. I kno wed too damn much anyway”; and that “he would make me dig my grave before night.” Both defendant and deceased were armed with six-shooters. After all these statements were made, they continued riding, over the country and late in the afternoon went in swimming, with the exception of Forney Jones.

Early in the night the defendant, the deceased, and Forney Jones were in the car and turned off of No: 70 highway into a side road. Defendant, as a witness in his own behalf, testified as follows :

“Q. And what did the deceased do? A. And the deceased stopped and said, 'You son of a bitch, here is where I leave you.’ He reached to get his pistol and raised up and I stuck my pistol in his belt and shot him. Q. Ho w1 many times? A. Twice or three times. Q. Why did yon shoot him? A. Because he said he was going to kill me. Q. Did he state 'Here is where I leave you?’ A. Yes, sir. Q. Did he have his gun in his hand? A. He did. Q. After that why didn’t you tell anybody, the people, that you killed him? A. 1 was a stranger, didn’t know anybody, and just out of the penitentiary, and afraid I would get into worse trouble and I told. Forney Jones if he knew any place we could take him and throw him out. He said he knew a place and we carried him there and taken him out. Forney got him by the feet and I got him by the hands and we laid him down, and come hack and took Forney home. And Ted went and waked Bill and we got in the car and went to Big Boy’s and dug a well for old man Futrell. I stayed two weeks, I think. And we come back and went to Bert Harbison’s and stayed there until I was arrested.”

The other eyewitness, Forney Jones, who was sitting in the front seat, testified as follows:

“Q. You were still traveling north when the shooting took place? A. Yes, sir. Q. How many shots were fired? A. I would say two, and I don’t know how many more. Q. Were there any more? A. I wouldn’t say, but I would say two. Q. You do know there was two shots fired? A. Bound to have been two. Q. At the time you heard the first shot, state whether or not the car was in motion? By Mr. Fortner: We object as leading, whether or not, all he has to say is yes. Let him answer the question. The county attorney is unfair. By Mr. Wilkinson: I asked him if it was moving and it might not have been. By the Court: I don’t think it is leading. (Q.) Was the car moving or standing still? A. It was coming to a stop. Q. But it was in motion? A. Mighty little. It was stopping. There is a big ditch on the tram and a branch on the south side of the tram, the trees going east and west, throwed it almost as near as them fences over there and he got on top of the tram and checked. That is when the shooting taken place. Q. When the car run into the ditch and. began to take the incline what was Moore doing, what did he do? A. Well, I don’t know. Any way he fell in my lap, dead, and was shot. Q. But before the shooting? A. He wasn’t doing nothing but driving. Q. At the time the first shot was fired what happened to Moore? A. I don’t know about the first shot. It was all done at once. Q. How were the shots fired, tell the jury whether they were fast or slow. A. Oh, they were fast. Yes sir, they was right fast. What I think— By Mr. Fortner: We object to what he thinks. By the Court: Don’t tell what you think. By Mr. Wilkinson: I am not asking him. I want him to> tell what he saw and wha.t he knows. (Q.) What happened to Moore when the shooting occurred? A. He just pitched over in my lap. I was to the right of him, he was under the wheel. He fell in my lap like this, and his head in my lap. Q. What did the defendant do?. A. The defendant he reached over and got a gun, Moore’s gun, I reckon. Any way it was there and he got that gun and opened the door and got out and opened the other door and got in there. Q. What side of the car did he get in on? A. The driver’s side. Q. What did you do>? A. He went to turning it around. He said, ‘Do you know of any roads in the country?’ I said, ‘Yes’. He turned around and got to the highway and turned east and it wasn’t but a few minutes he got about six or seven miles into. Arkansas. Q. Did he say anything to you or ask you about any road, or what he wanted? A. No, sir. By Mr. Fortner: Objected to as leading. By the Court: Overruled. By Mr. Fortner: Exception. A. What did you ask? Q. What did he say about the roads? A. Just asked me if I knew of a by-road that turned off from the main road. Q. What did you tell him? A. I told him, ‘Yes.’ Q. Where did you go? A. Turned right around until we went in an old field and! there he whipped the car around and turned back south and — and in a little bit at about 75 miles an hour we was in Arkansas. Q. On your way toward Arkansas, or De-Queen, tell the jury whether or not you passed Ted Fut-rell’s place? A. Yes, sir. Q. Did you stop there? A. No, sir. Q. Where did you take the body of the deceased and what did you do with it? A. We taken it, couldn’t turn off of none of the other roads, they was all so short I was afraid he would wreck it. When I seen we were in Arkansas— By Mr. Fortner: We object to what he knows, let him answer the question. By the Court: He is telling about the way they did with the body and where it was placed. Let him answer. By Mr. Fortner: Exception. A. There was good roads that turned off of 70. They fork and one goes to Chapel Hill and one to the north, a good smooth turn around. I began to tell him about a half a mile to that turn, I was afraid he would kill us all — wouldn’t kill us all but me and him. He turned at it and got into the old field. He said, ‘Anybody live here?’ I said, ‘I don’t believe there is.’ He got out on his side, come and opened my side and I stepped out, and pulled him out and pulled him out on the side of the road about ten steps perhaps. Q. What did he say when you got to that point? A. He said not to say nothing, and 1 said ‘Sure not.’ I admit X was scared, all right. Q. You say he got out first? A. Yes, sir. Q. On the lefthand side? A. I wasn’t telling anybody to do anything, I was taking orders.”

The officers, who found the body of deceased several days after the killing, testified that from the examination of the body, which was badly decomposed, they found that deceased had been shot in the back of the head near the base of the skull, and that another shot had entered the right side of the body about an inch below the nipple. Other witnesses testified to seeing the defendant on the day after the killing occurred, and to the fact that his clothes were bloody, that he was in possession of the car and driving the same, and that the front seat of the car was covered with blood.

The defendant, for a reversal of this case, contends that the court erred in the admittance of certain testimony over his exception, and that the court erred in permitting the county attorney to argue this evidence to the jury over his exception. Both of these contentions can be examined together. The defendant, while being cross-examined by the county attorney, testified as follows.:

“Q. When you wouldn’t go to Nebraska with these fellows, you say you didn’t want to get into any more trouble? A. Yes, sir. Q. And since that time, while living at Bert Harbisom’s, you did participate in a bank robbery at Horatio, didn’t you? A. I was accused of it. By Mr. Fortner: We object as incompetent, irrelevant, and immaterial. By Mr. Wilkinson: He started that racket. By the Court: Gentlemen of the Jury, the Court is about to excuse you for a few minutes to settle a little question of law. (Thereupon, the jury is withdrawn under the admonition of the court, and, after hearing the matter presented by counsel, proceedings had as follows, to wit). By the Court: The objection will be overruled and defendant’s exceptions allowed. By Mr. Fortner: Comes now the defendant and further objects to¡ the question for the reason that it is not proper cross-examination, tends to put in issue his reputation, which he has not done, and that the question is highly prejudicial to his rights, and asks the court to instruct the jury to disregard the question. By the Court: Which is by the court refused, and! exception allowed. By Mr. Fortner: Comes now the defendant and asks the court to declare a mistrial for the reason that an issue has. been raised in court that the defendant has no chance to meet, upon the charge of another crime attempted to be proved against him, jeopardizing his rights before the jury, and is highly prejudicial to him in this case. By the Court: The request will be refused, and exception allowed. (Thereupon the jury is recalled and proceedings had as follows, to wit) By Mr. Coker (Q.) : Now, Mr. Janeway, up there on the creek, when Pee Wee Moore, in company with the other men, proposed to you that you go to Nebraska with them to rob a bank, what did you tell them? A. I told them I didn’t want to rob no bank. Q. You heard Mr. Fortner make his statement to the jury? A. Yes, sir. Q. Did you tell them, as stated in your opening statement, that you were just out of trouble in Texas and was going straight? A. I did. And I told him in the first place, were we in Nebraska, I knew that country and it would be foolish even if he went to rob a bank there, if he wanted to rob one. Q. And furthermore that you had just got out of trouble in Texas and you were going straight? A. Yes, sir. Q. And that is the reason you didn’t want to help him rob a bank? A. That is it. Q. .Since that date, since the time you killed Pee Wee Moore, as you testified, and that you had been in McCurtain county, living at Bert Harbison’s I will ask you if you didn’t, with Buzby and Holmes, participate in a bank robbery at Horatio and have been identified as one of the participants? By Mr. Fortner: I want to he sure I have the record in properly. He has asked another question. I want to make my objection now. By the Court: Objection overruled, exception allowed. By Mr. Fortner: For the reason that it is improper cross-examination for the reason that it is an attempt to prove the reputation of the defendant, which has not been put in issue by him. By Mr. Coker: (Q.) : What is your answer? A. I have been accused of it. Q. I am asking did you participate in that robbery? A. No. By Mr. Fortner: Objected to as incompetent, irrelevant and immaterial, and. asking the defendant to incriminate himself in a matter which is not material to the issues in this trial.”

On redirect examination, the defendant, in answer to certain questions propounded by his attorney, said:

“Q. Mr. Janeway, they have gone into something about the Horatio Bank? A. Yes, sir. Q. You say somebody accused you of it? A. Yes, sir, that is what they told me. These officers say I have been accused of it.”

It is contended by the state that the defendant, having on direct examination testified that he had refused to join in the robbery of the Nebraska bank for the reason that he had theretofore been in trouble and desired to go-straight, the state, on cross-examination, was entitled to ask the questions above set forth in order to' controvert his testimony.

From the evidence above quoted, it will be observed that the defendant, by his direct testimony, sought to take advantage of the proposition that when he had been asked by deceased to join him in robbing a bank in Nebraska, he refused, with the statement that he had been in enough trouble and desired to go straight. If the jury believed this statement to be true, it was of material benefit to the defendant and would have no doubt been given great weight by the jury in considering the defense advanced by him. Having raised this issue, which was to' his advantage, and under the general rule governing the right of cross-examination of a defendant who takes the witness stand in his own behalf, it was proper to' permit the state to cross-examine him with regard to his conduct, since he had been in trouble in Texas and as to' whether he was really speaking the truth when he said it was his desire to' go straight. Certainly, the defendant should not be permitted to put his good faith in issue and receive the benefit of it before the jury, and then the state be denied the right to' cross-examine him and show by this cross-examination that he had made no effort 1x> do so, but, on the other hand, had been charged with the commission of another offense.

The rule that a defendant is to' be tried for the of-fenese for which he stands charged, and that evidence of other crimes may not be given, must be considered with the equally well-settled rule that when a defendant takes the witness stand in his own behalf, and on direct examination puts in issue the question of his good faith, then the state, on cross-examination, shall have the right to' examine the defendant with reference thereto. Evidence material to the issues involved in the case on tidal is not rendered incompetent merely because it may tend to' prove the defendant guilty of another offense. The testimony in this casn was brought out on cross-examination, and by way of rebuttal.

A case decided by this court, Creek v. State, 16 Okla. Cr. 492, 184 Pac. 917, 918, is nearer in point than any we have read upon this proposition. In this case the defendant was charged with murder and was convicted of manslaughter in the first degree. The defendant, while on the witness stand, testified that immediately after the killing he called the sheriff over the phone and requested the sheriff to come and arrest him; that he did not resist arrest as some of the witnesses for the state had testified. On cross-examination the county attorney was permitted! to examine him with reference to his attempt to escape jail and flee upon two> different occasions after he was taken into custody. Judge Matson, in holding the evidence admissible, says:

“The defendant, claiming to have been so zealous in his efforts to surrender and place himself in the hands of the law immediately after the commission of the alleged offense, cannot complain of a cross-examination which in effect had bearing on the question of his good faith surrender by disclosing a disposition on the part of the defendant to escape jail and flee on two different occasions after he was taken into custody. * * * '
“A sharp conflict thereupon arose between the testimony of the witnesses for the state and the testimony of the defendant himself. According, to the state’s witnesses, the defendant made armed resistance to arrest. This fact was strenuously denied by the defendant, who stated that he was at all times willing to submit to arrest, going so far as to telephone the sheriff to that effect. To rebut the presumption that the defendant was willing to submit to arrest, as testified to- by him in chief, and in support of the testimony of the state’s witnesses to> the effect that the defendant had resisted arrest, the court permitted the county attorney, in his cross-examination of the defendant, to ask the defendant about his escaping from jail on two different occasions and while awaiting trial. We think this cross-examination was proper under the issues in this case.
“A defendant offering, himself as a witness subjects himself, as regards cross-examination, to all the rules governing other witnesses. Harrold v. Territory, 18 Okla. 395, 89 Pac. 202, 10 L. R. A. (N. S.) 604, 11 Ann. Cas. 818; State v. Lewis, 56 Kan. 374, 43 Pac. 265; State v. King, 67 Wash. 651, 122 Pac. 323. The foregoing is the established rule in this jurisdiction.” See, also, Ditmore v. State, 49 Okla. Cr. 228, 293 Pac. 581; Gibbons v. State, 34 Okla. Cr. 407, 246 Pac. 1107; Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129.

We have read and examined all of the cases cited by defendant. They support the general rule that the issue in a criminal trial is single, and a person on trial for one offense cannot have proof introduced against him showing that he committed other offenses, except as indicated in said opinions. But this does not conflict with the rule which gives the state the right to cross-examine the defendant when he taires the stand in his own behalf, as above indicated. In practically all of the cases cited in defendant’s brief, the defendant did not even take the stand, and the evidence was direct and not on cross-examination. These cases are: Smith v. State, 5 Okla. Cr. 67, 68, 113 Pac. 204; People v. Schweitzer, 23 Mich. 301; Satterfield v. State, 32 Okla. Cr. 98, 240 Pac. 151; Cantrell v. State, 12 Okla. Cr. 534, 159 Pac. 1092; Vickers v. U. S., 1 Okla. Cr. 452, 98 Pac. 467; People v. Flanigan, 42 App. Div. 318, 59 N. Y. S. 101.

The evidence in this case shows that the killing of deceased by defendant was more the result of fear than of self-defense. The deceased was shot in the back of the head at a time when he was sitting in the front seat of an automobile, driving the car. The only eyewitness, other than defendant, testified that deceased, at the time he was shot, was not doing anything but driving the automobile; that he had just stopped the car; that he did not hear the deceased make any statement, and that defendant shot him at least twice; that deceased fell over in his lap. It may be that defendant was afraid that deceased would kill him, as he testified, but this did not justify him in shooting deceased in the hack of the head, as the evidence showed. He had ample opportunity during the day to leave the presence of deceased after any threats about which he testified were made. His actions in taking the body of the deceased for many miles and on to a side road where it was dumped out and left, his appropriation of the automobile of the deceased, and his not reporting to the officers or any one else, do not show the actions of a man who killed some one in self-defense.

Under the harmless error doctrine, which has been firmly established in this court since its creation, and in construing the statutes of this state, sections 3206-3210, Okla. St. 1931, 22 Okla. St. Ann., §§ 1068-1071, 1273, this court, in many cases, has held that when the evidence is clear as to the guilt of a defendant, and there is no reason to believe that upon a second trial an intelligent and honest jury can arrive at any other verdict than that of the guilt of the accused, the judgment of the lower court will not be set aside for anything less than fundamental errors. Jones v. State, 10 Okla. Cr. 216, 136 Pac. 182, 137 Pac. 121; Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264; Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003.

From the above statement, we find that no error was committed by the county attorney in his closing argument which affected the substantial rights of the defendant, and the judgment of the district court of McCurtain county is therefore affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    Ex parte FRED J. KYLES.
    No. A-9379.
    Aug. 20, 1937.
    (71 Pac. 2d 316.)
    Reily & Redly, for petitioner.
    Jess J. Pullen, Asst. Atty. Gen., and Foy Edwards, Asst. Co. Atty., for the respondent.
   DOYLE, J.

In this proceeding, petitioner, Fred J. Kyles, by his attorneys, has presented to this court a verified petition wherein he alleges that he is unlawfully restrained of his liberty in the county1 jail of Pottawatomie county by Elza Evans, sheriff; that the cause of the said restraint is that on August 14, 1937, there was filed in the district court of said county an information in substance charging that Fred J. Kyles did on or about the 10th day of June, 1937, in said county, make an assault in and upon one .Susie Cook, a female, not the wife of him, the said Fred J. Kyles, and by means; of force and violence overcoming her resistance rape and carnally know the said Susie Cook.

Petitioner further alleges upon his application to the district court of said county to' be admitted to bail bond was allowed and bail fixed in the sum of $7,500, which order of said court was later set aside and bail refused.

And he further alleges that he is not guilty of the crime of rape in the first degree as charged in the information, and that the proof of his guilt of the crime of rape in the first degree is not evident nor the presumption thereof great.

The cause coming on to be heard August 18, 1937, counsel for the state made no objection to admitting petitioner to bail, the only question being as to the amount to be fixed.

Upon a consideration of the undisputed facts it was adjudged that petitioner is entitled to be admitted to bail, and it was further ordered that said petitioner be admitted to bail in the sum of $5,000, bond to be conditioned as required by law, said bond to be approved by the court clerk of Pottawatomie county.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    Ex parte CHARLES EVANS KEEL.
    No. A-9365.
    Aug. 20, 1937.
    (71 Pac. 2d 313.)

      J. M. Roberts, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   DOYLE, J.

Upon petition filed in behalf of Charles Evans Keel for a writ of habeas corpus, a rule to show cause issued, directed to the warden of the state penitentiary at McAlester.

It appears that an information Avas filed in the district court of Ottawa county on February 27, 1937, charging that:

“Charles Evans Keel did in said county and state on or about the 23rd day of February, 1937, commit the crime of obtaining a narcotic drug by the use of a false name in the manner and form as follows, to wit: That said! defendant did then and there being, did then and there willfully, unlawfully, wrongfully, feloniously and falsely represent himself to he one Thomas Johnson with the willful, wrongful, unlawful, and felonious intent thereby to procure ten one-quarter grain tablets of morphine sulphate, a narcotic drug, contrary to,” etc.

It appears that on the day the information was filed,, the accused was taken before the court, where he was then and there duly arraigned upon the information. He thereupon entered a plea of guilty to the information and was by the court sentenced to- be confined in the state penitentiary at McAlester for the term of one year, for said crime, and to pay costs of the prosecution.

As grounds for the petitioner’s release from the custody of the warden, the petition alleges:

“Petitioner contends that the court was without jurisdiction to render any sentence imprisoning him in the said penitentiary for the reason that the purported information does not charge any crime or offense against the laws of the state of Oklahoma and that the said sentence is void; that if said purported information charges any crime or offense, it would only charge the crime of attempting to obtain a narcotic and that he could not be confined for any crime other than that named in said information; that said information is further void for the reason that it does not state any facts but only conclusions of the pleader; that the purported information does not state from whom petitioner obtained or attempted to obtain a narcotic or that he obtained any by the use of a false name, and that he is imprisoned and restrained of his liberty without due process of law as provided in section 20, article 2 of the Constitution, a copy of the said information and judgment are attached hereto marked Exhibit 'A’ and ‘B,’ and made a part hereof; and that a Writ of Habeas Corpus should be granted and the petitioner be released.”

The provisions of the habeas corpus act provide:

“Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to enquire into the cause of the restraint, and shall be delivered therefrom when illegal.” Section 682, St. 1931, 12 Okla. St. Ann. § 1331.
“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * *
“Second. Upon any process issued on any final judgment of a court of competent jurisdiction; * * *
“Fourth. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.” Section 693, 12 Okla. St. Ann. § 1342.

The foregoing provisions only apply when the court has jurisdiction to render the particular judgment. Shepherd v. State, 17 Okla. Cr. 630, 192 Pac. 238; Ex parte Grant, 32 Okla. Cr. 217, 240 Pac. 759.

In Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758, 760, this court said:

“A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act. Jurisdiction of the person of the prisoner, and of the subject-matter, is not alone conclusive, but the jurisdiction of the court to render the particular judgment is a proper subject of inquiry. If there was no legal power to render the judgment or issue the process, there was no court of competent jurisdiction, and consequently no judgment or process. All is coram non judice and void.”

The writ of habeas corpus is not designed to fulfill the functions of an appeal or a writ of error. It is not intended to bring in review mere errors or irregularities, whether relating to substantive rights or to the law of procedure, committed by a court having jurisdiction over person and subject-matter. Such errors and irregularities do not affect the jurisdiction of the court or render its judgment void, and the remedy is therefore by appeal, exceptions, or writ of error. 21 Cyc. 285.

A proceeding defective for irregularity and one void! for illegality may be reversed upon appeal, but it is the latter defect only which gives authority to discharge on habeas corpus.

The information in this case was based upon subdivision (1) of section 17, art. 6, entitled, “Uniform Narcotic Drug Act,” c. 24, p. 55, Session Laws 1935, 63 Old a. St. Ann. § 417, providing:

“(1) No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug, (a) 'by fraud, deceit, misrepresentation, or subterfuge; or (b) by the forgery or alteration of a prescription or of any written order; or (c) by the concealment of a material fact; or (d) by the use of a false name or the giving of a false address.”

The one question presented in this proceeding is, Did the court have jurisdiction to render the judgment?

When the information uses substantially the same language in charging an offense as is used in the statute creating the offense, the information is sufficient to sustain the jurisdiction of the court to render the judgment of conviction upon a plea of guilty.

In Hensley v. State, 34 Okla. Cr. 345, 246 Pac. 886, this court held:

“Where an information is not challenged either by demurrer or objection to the introduction of evidence, every intendment or presumption will be indulged to sustain it.”

From the record, the trial court appears to* have had. jurisdiction of the person of the petitioner and of the crime with which he was charged, and, in addition, full authority to render the judgment upon which the commitment issued, so that it is now impervious to collateral attack such as is here attempted.

In the case of Ex parte King, 41 Okla. Cr. 241, 272 Pac. 389, this court held that:

“The general rule is that the writ of habeas corpus may not be used either before or after conviction to test the sufficiency of an indictment or information. Where an indictment or information' is merely defective, demurrable, or subject to a motion to. quash, or technically insufficient, but may be amended to state the crime sought to be charged, the person held by process based upon it is not entitled to test the sufficiency of the indictment or information by habeas corpus. Where, however, the indictment or information is fundamentally defective in substance, so that it cannot be amended to charge a crime in any manner or form or by any intendment, it is void, and a person held by process based on such void charge is entitled to discharge by habeas corpus.”

See, also, Ex parte Wagner, 58 Okla. Cr. 161, 50 Pac. (2d) 1135; Johnson v. State, 57 Okla. Cr. 220, 46 Pac. (2d) 964; Ex parte Gardner, 54 Okla. Cr. 294, 19 Pac. (2d) 910.

Our conclusion is that the objections urged by the petitioner against the legality of his conviction are not well founded.

It follows that petitioner is lawfully imprisoned under said judgment and sentence. Wherefore the writ of ha-beas corpus will be denied. It is so ordered.

DAVENPORT, P. J., and BAREFOOT; J., concur.


author: BAREEOOT, J.

text:
    Ex parte JOHN KRUSE et al.
    No. A-9378.
    Aug. 27, 1937.
    (71 Pac. 2d 318.)
    Moman Pruiett, for petitioners.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and C. E. Barnes, Co*. Atty., for the State.
   BAREEOOT, J.

The petitioners in the above-styled application have filed their petition for writ of habeas corpus in this court alleging that on the 17th day of July, 1936, they had a preliminary hearing before Wm. T. Hirschi, county judge of Logan county, Okla. That after-wards an information was filed against them in the district court of Logan county, wherein they were charged with the crime of robbery with firearms. The district judge entered an order granting bail to* the said Carl Partenheimer in the sum of f2,000, and before the application could be made for bail in behalf of the defendant John Kruse, the district judge left the district and the state of Oklahoma, and application is here made asking that bail be set in the case of the petitioner John Kruse, and that petitioner Carl Partenheimer be released for the reason that the evidence at the preliminary hearing is insufficient to hold the petitioner Carl Partenheimer.

Under the holdings of this court where an information has been filed against a defendant and the court has jurisdiction of the person and subject-matter, the defendant will not be released on habeas corpus on the ground that the evidence is insufficient before a final trial of the case. Section 693, Okla. Stats. 1931 (12 Okla. St. Ann. § 1342 (4), provides:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * Fourth. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”

Under this statute, this court in the case of Ex parte J. C. Burroughs, 10 Okla. Cr. 87, 133 Pac. 1142, holds:

“In this case it appears from the averments of the petition that the petitioner is being held by virtue of an information preferred by the county attorney in a court of competent jurisdiction, to wit, the district court of Rogers county, and under the foregoing provision of the statute the writ of habeas corpus cannot be resorted to for the purpose of determining the sufficiency of the evidence adduced upon the preliminary examination to show1 probable cause. The office of the writ of habeas corpus is not to determine the guilti or innocence of the prisoner, and the only issue it presents is whether or not the prisoner is restrained of his liberty by due process of law. The due and proper administration of public justice requires that whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed to its final determination without interference from any other tribunal, and the writ of habeas corpus cannot be resorted to on the plea that the evidence adduced upon his preliminary examination was insufficient to show that a felony had been committed, or probable cause for believing the defendant guilty thereof.” Ex parte Pearl C. Black, 37 Okla. Cr. 83, 256 Pac. 941.

We are therefore of the opinion that the application for habeas corpus to discharge petitioner Carl Parten-heimer should be denied. We have read the evidence taken at the preliminary hearing and attached to the application. Counsel for the state malee no objection to admitting petitioner John Kruse to bail, the only question being as to' the amount to be fixed. We are of the opinion that the petitioner John Kruse should be allowed bail in the sum of $2,000.

It is therefore ordered that the petition of Carl Par-tenheimer should be denied and that the application of the defendant John Kruse should be granted and that his bail should be fixed at $2,000 and that upon the execution of said bond by each of said defendants and the approval of the same by the court clerk of Logan county, Okla., that the same should be presented to- the sheriff of said county and the defendants released.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    LOUIS McNACK v. STATE.
    No. A-9208.
    Aug. 27, 1937.
    (71 Pac. 2d 317.)

      Garrett, Kyser & Garrett, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and A. Camp Bonds, Co. Atty., for the State.
   BAREFOOT, J.

The defendant, Louis McNack, was jointly charged with John Henry Green and Leon Pride in the district court of Muskogee county with the crime of burglary in the second degree. The defendant took a severance, was tried and convicted, and was sentenced to serve a term of three years in the penitentiary, and has appealed to this court.'

The defendant lived with his mother in the town of Braggs. A man by the name of Dick Gilliland owned a store there, and it was burglarized on Saturday night, February 23, 1936. Some of the merchandise, valued at about $208, was found in a field south and west of the home of defendant. Several other homes were also in this same vicinity. The three defendants were arrested and charged with the burglary. John Henry Green, one of the codefendants, was tried and convicted. He did not testify at his own trial, but after his conviction, and while he was in the county jail, upon a promise of leniency by the county attorney (the county attorney made this statement himself at the trial of defendant), took the witness stand against defendant and implicated him in the burglary, admitting that’ he and his codefendant Pride and the defendant committed the crime. He claimed that while the three were in the penitentiary at McAlester some five months prior thereto they had entered into' an agreement to rob1 this store; that he and Pride came to Ralston on the day of the robbery and during the night of February 23d, with the defendant, robbed the store. The only witnesses used by the state were the owner of the store, who testified' to the burglary and the finding of the goods the next day and identifying them; the deputy sheriff who found! the goods the next day after the burglary and arrested the defendants and the witness John Henry Green. The testimony of these two witnesses in no way connects the defendant McNack with the commission of the crime.

The defendant denied that he had participated in the burglary; denied that he had talked to the defendant at McAlester; and said that he did not know the defendant and did not see him until the morning after the burglary was committed. We have carefully examined the record in this case and do not find that there is any evidence that corroborates the witness Green in his testimony that the defendant participated in this burglary. This witness not only admits that he was an accomplice in the commission of the offense, but says that he has just recently been discharged from the penitentiary at McAlester; that be had been sentenced to' the penitentiary at least three different times. His story is very unreasonable.

Our Code of Criminal Procedure provides (section 3071, Okla. Stats. 1931 [22 Okla. St. Ann. § 742]) :

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evi-deuce as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

This court, in construing this statute, has held many times that a conviction cannot be had on the uncorroborated evidence of an accomplice and it is not sufficient corroboration to merely connect the defendant with the accomplice in the crime, but evidence, independent of the testimony of the accomplice, must tend to connect a defendant with the crime itself, and not simply with its perpetration. State v. Wilks, 17 Okla. Cr. 247, 187 Pac. 813; Wever v. State, 22 Okla. Cr. 414, 211 Pac. 1062; Finchum v. State, 40 Okla. Cr. 192, 267 Pac. 688; Camp v. State, 7 Okla. Cr. 531, 124 Pac. 331; Brady v. State, 40 Okla. Cr. 241, 268 Pac. 317; People v. Janssen, 74 Cal. App. 402, 240 Pac. 799; People v. Ryland, 28 Hun (N. Y.) 568; Pate v. State, 91 Tex. Cr. R. 471, 239 S. W. 967; State v. Lay, 38 Utah, 143, 110 Pac. 986.

Judge Hurt of the Court of Criminal Appeals of Texas lays down the exact rule in the case of Welden v. State, 10 Tex. App. 400, when he says:

“We suggest this mode as a proper test: eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witness or witnesses with the view to ascertain if there be inculpatory evidence — evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated; if there is no inculpatory evidence, there is no corroboration, though the accomplice may be corroborated in regard to any number of facts sworn to by him.”

For the reasons above stated, the judgment of the district court of Muskogee county is reversed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    Ex parte JOHNNIE WILLIAMS.
    No. A-9374.
    Aug. 27, 1937.
    (71 Pac. 2d 320.)
    Joe S. Eaton, for petitioner.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. A. Wallace, Co. Atty., of Okmulgee, for the State.
   BAREFOOT, J.

This defendant was tried in the district court of Okmulgee county on the charge of rape in the first degree, was convicted, and appealed to this court. His case was reversed on the ground that the evidence was insufficient, with directions that if in the opinion of the county attorney other evidence was available the case could again be tried. See Johnnie Williams v. State, 61 Okla. Cr. 396, 68 Pac. (2d) 530. The ground for reversal was that the evidence was insufficient by reason of the failure to show that the defendant was the party who committed the assault upon the prosecutrix. The defendant, upon reversal of the case, was brought from the penitentiary at McAlester, where he had been since his trial, to the jail at Okmulgee. His bond was fixed at $3,000, which he gave and was discharged. Afterwards his surety upon his bond surrendered him, and the bond was exonerated., During the interval the county attorney of Okmulgee county filed in the justice court a charge of assault with intent to kill against the defendant based upon the same transaction with which the defendant had been tried and convicted and said judgment set aside by this court. The defendant, by his writ, asked that this court fix a reasonable bond under the circumstances in this case, and after due consideration of the petition and response thereto, we are of the opinion that the defendant should execute a bond in the sum of $1,000 in the original rape case, and upon the execution and approval of this bond he should be released on his own recognizance in the assault-with-intent-to-kill case. The law contemplates that defendant should be permitted to give bail pending his trial, and certainly under the circumstances in this case this defendant should have the right to a reasonable bail pending a further hearing.

It is therefore ordered that the bond of defendant be fixed in the sum of $1,000 in the case charging him with rape, and that upon the execution by him, and the approval of said bond by the court clerk of Okmulgee county he be discharged upon his own recognizance in the assault-with-intent-to-kill case. It is so ordered.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    Ex parte LILLIE MAY WOMACK.
    No. A-9348.
    Aug. 27, 1937.
    (71 Pac. 2d 494.)

      David Tant, for petitioner.
    Bill Vassar, Jr., Co. Atty., and Joe Young, Asst. Co. Atty., for respondent.
   DOYLE, J.

Petitioner, Lillie Mae Womack, filed in this court June 10, 1937, a petition wherein she alleges that she is unlawfully restrained of her liberty, and imprisoned in the county jail of Lincoln county by W. E. Gillaspy, sheriff of said county, and that her unlawful confinement and detention consist in this, to wit: That by information filed in the district court of said county, she is charged with the crime of robbery with firearms, alleged to have been committed in said county on or about the 9th day of October, 1933; that on her preliminary examination on the 24th day of May, 1937, she was held without bail to the district court of Lincoln county; that on the 29th day of May application for bail was made to the district court of said county, which application was by Leroy G. Cooper, district judge, denied.

“Petitioner further alleges that she is not guilty of the, crime of robbery with firearms as charged in the information ; that upon the evidence introduced at said preliminary examination together with the testimony of the petitioner as a witness in her own behalf and the test-i-rnony of other witnesses which are presented herewith it is shown that the proof of her guilt of the crime of robbery with fire-arms is not evident nor the presumption thereof great.”

The constitutional right to bail is granted by section 8 of our Bill of Rights (Const, art. 2), which reads:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.”

The writ of habeas corpus may be had tor the purpose of letting a prisoner to bail in civil and criminal actions. Section 695, St. 1931 (12 Okla. St. Ann. § 1344).

The right to furnish bail by sufficient sureties arises in favor of any person accused of crime, and before conviction, absolutely, and without exception, in cases of all crimes not punishable with death, and in capital cases when the proof of guilt is not evident or the presumption thereof not great. It will be observed that this constitutional provision is silent as to the status of the prosecution. Had the framers of the Constitution intended to provide that the return of an indictment or the filing of an information in the trial court should be conclusive in capital cases, they would in all probability have said so.

It follows that a person charged with a capital offense may be admitted to bail after the information has been filed and prior to the trial if the proof of guilt is not evident nor the presumption thereof great. The courts should, however, proceed with extreme caution in exercising the power to admit to bail in this class of offenses. The filing of an information charging a capital offense, where the defendant has not been admitted to' bail, is prima facie evidence that the proof of guilt is evident and the presumption thereof great, and the burden of proof is upon the defendant to establish the contrary. Ex parte Lacy, 20 Okla. Cr. 440, 203 Pac. 1050, 1051; Ex parte Andrews, 39 Okla. Cr. 359, 265 Pac. 144; Ex parte Cooper, 57 Okla. Cr. 88, 45 Pac. (2d) 548.

It is held almost without exception that such constitutional provisions for bail refer only to cases in Avhich the accused has not yet had a trial. 6 Am. Jur. p. 52, § 11; Ex parte Herndon, 18 Okla. Cr. 68, 192 Pac. 820, 19 A. L. R. 804.

The information in the case in substance charges that James Arthur Camp, Eugene Clark, and Jane Doe did on the 9th day of October, 1933, in said county, with certain firearms then and there had and held in the hands of each of them, rob the Farmers & Merchants Bank of Tryon and other named persons.

The evidence on the part of the state tends to show that the petitioner aided and abetted in the commission of the crime charged.

The testimony of petitioner tends to' sIioav that on the day the Tryon bank was robbed she Avas in Shawnee, Obla., at the home of her parents. Several witnesses testified in corroboration of her testimony.

In vieAv of the fact that petitioner must appear for trial before a jury in the district court, it might be improper for this court to pass in detail upon the weight or conclusiveness of the testimony in the case.

Procedure Criminal, section 2665, St. 1931 (22 Okla. St. Ann. § 9), provides:

“The procedure, practice and pleadings in the courts of record of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this code, shall he in accordance with the procedure, practice and pleadings of the common law.”

In capital cases, it is generally held that constitutional exceptions,. such as ours, merely deprive the prisoner of his right to demand bail guaranteed in all cases, and leave with the court the discretionary power vested in it at common law. And, therefore, the court may grant bail where peculiar circumstances appear, or where the court, in the exercise of sound judicial discretion, determines that the proof is not evident or the presumption great. 3 R. C. L. p. 7, § 5; 6 Am. Jur. p. 51, § 9.

Upon a consideration of the undisputed facts, we are of the opinion that petitioner is entitled to be admitted to bail and that her bail should be fixed in the sum of $4,000.

It is therefore ordered that petitioner, Lillie Mae Womack, be and she is hereby admitted to bail upon the charge of robbery with firearms now pending against her in the district court of Lincoln county, and that her bail be and the same is hereby fixed at the sum of $4,000, andi that she be released from custody upon the executing and causing to be filed with and approved by the clerk of said district .court a good and sufficient bond in said sum, conditioned as required by law.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    Ex parte JERRY GRIMM.
    No. A-9375.
    Aug. 27, 1937.
    (71 Pac. 2d 508.)

      John Y. Roberts, for petitioner.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Roy Holbird, Co>. Atty., for the State.
   BAREFOOT, J.

Petitioner alleges that he is unlawfully restrained of his liberty by Mason Hart, sheriff of Garfield county, Okla. In his application it is alleged that petitioner was convicted on the 18th day of April,. 1927, in the county court of Garfield county, Okla., for the crime of possession of intoxicating liquor, and was sentenced by said court to serve six months in the county jail of said county and to pay a fine of $500 and that he is now restrained by said sheriff on a commitment issued by the county judge of Garfield county on the 11th day of July, 1937, to serve out the unexpired term of said judgment and sentence.

It is- further alleged in said petition that petitioner on the 28th day of September, 1926, was convicted in the county court of Garfield county, Okla., for the crime of possession of mash and was on the 9th day of October, 1926, given a sentence of six months in the county jail and a fine of $500.

It is further alleged that on the 27th day of September, 1926, the petitioner was convicted in the county court of Garfield county of the crime of possession of a still and on the 9th day of October, 1926, was sentenced to serve a term of six months in the county jail and to pay a fine of $500.

That in all of said above cases the defendant appealed to the Criminal Court of Appeals of this' state, but the said appeals were dismissed for the reason that petitioner departed from the state and had become a fugitive from justice.

It is further alleged that on or about the 11th day of August, 1933, petitioner was returned by the officers of Garfield county to the state of Oklahoma, and an information was filed charging him with the possession of narcotics, and that on the 21st day of August, 1933, the defendant pleaded guilty to said charge and was sentenced by the district court of Garfield county to serve a term of two years in the penitentiary, which sentence has been served by said petitioner.

It is further alleged that on the 16th day of September, 1935, petitioner pleaded guilty in the district court of Garfield county to the crime of possession of narcotics and was sentenced to serve a term of two years in the penitentiary, which sentence has been served.

That on the 17th day of September, 1935, petitioner pleaded guilty in the district court of Garfield county to the crime of burglary in the second degree and was sentenced to serve a term of two years in the penitentiary, and which time has been served.

It is further alleged that petitioner escaped from the county jail of Garfield county on the 18th day of February, 1928, while being restrained in said jail for burglary in the second degree, and was a fugitive from justice until he was afterwards returned to the said jail and said county and from there conveyed to the. penitentiary to* serve the terms above set out.

No evidence was offered in this case, but it was the contention of counsel for petitioner that he was entitled to be discharged for the reason that he was in the county jail and in the custody of the officers a.t the time that he was sentenced to the penitentiary in the different cases hereinbefore set forth, and that having been in the custody of the officers, that his time ran on the jail sentences while he was confined in the penitentiary.

This court, in the case of Ex parte Porter, 60 Okla. Cr. 327, 64 Pac. (2d) 1235, has decided this question contrary to the contention of petitioner. The first and second paragraphs of the syllabus in this case are as follows:

“1. Time fixed for execution of sentence or commencement of execution thereof is not essential element of sentence, and hence, where penalty is imprisonment, sentence may be satisfied only by suffering of actual imprisonment imposed.
“2. Convicted defendant who is at liberty and has not served sentence, which has not been stayed as provided by law, may be arrested as on escape and ordered into custody on unexecuted judgment and sentence.”

This case fully discusses the propositions of law involved in this case, and the authorities are there cited which support the opinion of the court.

We are therefore of the opinion that the application for the writ of habeas corpus should be denied and it is so ordered.

DAVENPORT, P. J., and DOYDE, J., concur.


author: DAVENPORT, P. J.

text:
    LEE WILLIAMS v. STATE.
    No. A-9148.
    Aug. 27, 1937.
    (71 Pac. 2d 496.)
    C. D. Peck, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, the defendant in the trial court, was by information charged with wife and child abandonment; was tried, convicted, and sentenced to serve a term of six years in the state penitentiary. Motion for new trial was filed, considered, overruled, exceptions saved, and the defendant has appealed to this court asking that the case be reversed.

The charging part of the information is:

“On or'about the 7th day of June, A. D. 1935, in Oklahoma county, state of Oklahoma, Lee Williams, whose more full and correct name is to your informant unknown, then and there being, did then and there willfully, unlawfully and feloniously commit the crime of wife and child abandonment in the manner and form as follows to wit: That is to say, the said defendant in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there willfully, unlawfully, wrongfully, and feloniously desert and abandon his lawfully wedded wife to wit: Mrs. Lee Williams, and did desert and abandon his five minor children under the age of fifteen years, to wit: Herbert Williams of the age of twelve years, George Williams of the age of seven years, Patricia Williams of the age of five years, Ross Williams of the age of three years and Billy Williams of the age of nine months; said desertion and abandonment on the part of the said defendant left said wife and children in destitute and necessitous circumstances and defendant did! willfully neglect to maintain and provide for said wife and children, contrary to the form of the statutes in such cases made and provided against the peace and dignity of the state of Oklahoma.”

The record contains 363 pages. The proof on behalf of the- state in substance is that the defendant was an able-bodied man at the time of the abandonment, a lawyer by profession, and a court reporter; that he suffered no disease or bodily infirmity; that he separated himself voluntarily from his wife and children without any justification or excuse; that the defendant drank a great deal and would at different times remain away from home for several days, and could not be found by his neighbor's or his family.

During the times he would be away from home the family would be in destitute circumstances ; that for some time before the institution of this prosecution the defendant would fail to pay the rent, and refuse to pay the light bill, forcing the family to burn candles and rags soaked in oil for lights ; that the defendant would fail to pay the water bill and the water would be shut off from the house in which the family was residing. On one occasion the gas was turned off and it became necessary for the family to go to1 the neighbors to warm the milk for the baby’s bottle; in fact, the defendant failed to pay the rent and incidentals, and failed to provide the necessary food and clothing for his family; that the family was provided for by the Provident Association, the Kings Class of the Baptist Church, and the school cafeteria assisted them with foods and things necessary for their maintenance; that the Catholic Charities paid the rent, and paid on the furniture, and finally all of the children and the wife were taken to St. Joseph Orphanage. The defendant failed, neglected, and refused to provide for their necessary support.

The defendant and his wife had been married about twelve years. During that time, while raising their children, they moved from place to place because of the failure of the defendant to pay the rent and incidental bills. The most of the time the defendant was working as a court reporter on a good salary.

The testimony further* shows that often the children and wife would be without food for a day or more at a time and they would not know where tbe defendant was; some of the time during this necessitous condition of the family for food and clothing the defendant would come home to Avhere the family was and remain a short while and change his clothing and then return to some place unknown to his wife. This action of the defendant Avent on for a year or more; occasionally the defendant would provide a little money for the family and then go away again. On one occasion the children and wife took refuge in the Kerr Dry Goods Store, where the officers found them; they were hungry and cold; they got in touch with the defendant, the county attorney, a Mrs. Seek and Mrs. Mayer, and the defendant promised to do better. On the defendant’s promise to take care of his family, no1 charges were filed. Mrs. 'Seek and Mrs. Mayer took three of the children to the orphanage, leaving one of them Avith Mrs. Williams. The defendant took Mrs, Williams and the child with him to the Van Burén near the courthouse, where he paid for lodging for one night and breakfast the next morning, leaving Mrs. Williams after breakfast without any funds or credit, and Avithout anything to buy supplies or anything; to eat. The landlady, learning of their condition about 6 o’clock in the evening, took them to her room and fed them. Mrs. Mayer returned and! learned that the defendant had left Mrs. Williams and the child, and took them to her home for the night.

The defendant continued to fail to' provide for the family, and on the 20th day of July, 1935, the information in this case was filed charging the defendant with Avife and child abandonment.

The testimony shoAvS that the defendant had not provided for his Avife and children for many, many months and finally abandoned them to the mercy of the charitable institutions and Christian people and those knowing their condition to assist in providing for them. It is not deemed necessary to extend this opinion to the length it would require should the court undertake to set out the testimony in full, and it would serve no useful purpose; the testimony on behalf of the state showing conclusively that the defendant had failed, neglected, and refused to provide for his wife and children as a loving husband and a devoted and affectionate parent should for his wife and children.

The defendant in his testimony seeks to justify his actions by claiming he was not making sufficient funds to provide for them as they should be provided for. He admits the stealing of a watch from one of his employers, a pistol from another, and attempts to say these larcenies were committed in order to get funds to assist in providing. for his wife and children. His conduct for a year or more before this charge was filed was contemptible and such that no good citizen can approve or condone.

The defendant has assigned ten errors alleged to' have been committed in the trial of his case, and has filed in support of his assignments a brief of 63 pages. The first assignment of the defendant is:

“That the court erred in overruling the motion of this plaintiff in error for a new trial. To which ruling of the' court this plaintiff in, error duly excepted at the time.”

This assignment of error covers the other nine assignments in his motion for a new trial. All the assignments will be discussed together, and the court will examine and consider, first, whether or not the testimony is sufficient to sustain a conviction; second, are there any prejudicial or fundamental errors in the record; and, third, did the court commit any reversible error in the admission or rejection of testimony or in its instructions to the jury.

Section 1830, O. S. 1931 (21 Okla. St. Ann. § 853), is as follows:

“Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to maintain or provide for her, or who shall abandon his or her minor child or children under the age of fifteen years and wilfullly neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a felony and upon conviction thereof, shall be punished by imprisonment in the state penitentiary for any period of time not less than one year nor more than ten years.”

It is clear that the legislators, in passing the section of the statute above quoted, had in mind men who would conduct themselves as this defendant has conducted himself in this case, and would leave his wife and minor child or children without support or maintenance, and leave them to the mercies of the good charitable and Christian people to protect, support, maintain, and educate, and in the statute the Legislature wisely provided that where a husband and father failed to provide for his wife and minor children, the state could place him in prison for such gross failure and neglect.

The excuse offered by the defendant for not providing for his wife and minor children is flimsy and unreasonable. The testimony clearly shows that if the defendant had ceased his drinking and staying away from home, and worked at his honorable profession as lawyer and court reporter, he could have provided sufficient means to have comfortably maintained his family.

We are at a loss to understand why any father who has known the love of a father and mother can so far forget himself and his duty to his wife and children as. to remain away from home and fail to furnish them with the necessities of life, and permit his children and wife to go hungry for food, without clothing, and without a comfortable place to live. The paternal love for his children, if any existed, must have been swept away in a cyclone of desire for drink and riotous living.

No competent testimony is offered by the defendant to justify his actions, and no reason existed for his¡ wanton and willful abandonment of his wife and children, leaving them in necessitous circumstances.

In the case of Dyer v. State, 58 Okla. Cr. 317, 52 Pac. (2d) 1080, 1084, it is said:

“According to the great weight of authority and according to wha.t we believe is the plain intent of our statutes, the fact that the mother alone or together with other persons furnished all the support needed for the child does not constitute good or sufficient cause for any failure or neglect by the father. Hunter v. State, supra [10 Okla. Cr. 119, 134 Pac. 1134, L.R.A. 1915A, 564, Ann. Cas. 1916A, 612]. * * *
“Generally speaking, a wife is entitled to support at the hands of the husband, and both law and common humanity charge him with the duty of maintaining his own infant child.
“It was to prevent and punish such outrages against humanity and the marriage obligation that the statute was enacted, and its force and effect should not be nullified by any nicety of construction.”

The testimony in this case is sufficient to sustain the judgment and sentence. No fundamental or prejudicial errors appear in the record. The defendant was accorded a fair and impartial trial. The instructions of the court correctly advised tbe jury as to tbe law applicable to tbe facts ia tbe case.

Under tbe statute, we bold that tbe father of minor children under tbe age of 15 years is amenable to the law of child abandonment. State ex rel. Mitchell v. Swindall et al., 33 Okla. Cr. 210, 241 Pac. 456; Bardwell v. State, 36 Okla. Cr. 319, 253 Pac. 1026. Dyer v. State, supra.

We have carefully examined the record and we have no reason to doubt that tbe conviction was justified by tbe evidence in this case. In our opinion, tbe defendant bad a fair and impartial trial. Finding no errors in the record warranting a reversal, the judgment of tbe trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    BOSS FISK v. STATE.
    No. A-9190.
    Sept. 2, 1937.
    (71 Pac. 2d 499.)

      J. J. Smith, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a judgment of the district court of Ottawa county, wherein the defendant, Boss Fisk, was convicted and sentenced to serve a term of four years in the state penitentiary for the crime of manslaughter in the first degree.

It was the theory of the state that this killing was a deliberate murder, wholly without justification.

The salient facts as shown by the testimony, briefly stated, are as follows:

On the night of September 1, 1935, Boss Fisk shot and killed Jimmie England, in front of a night club and dance hall, operated by Jack Boydstun, about one-half mile north of the town of Commerce.

On the night of the killing, about 8 cf clock, the defendant Fisk and Guyman Martin left the town of Picher in a car with Mrs. Lucille Reynolds and Miss Bemiee Gamble, who lived at Commerce, intending, to go to Miami, where Mr. C. F. Reynolds, husband of Mrs. Reynolds, was employed. The party drove towards Miami, passing Boyd-stun’s night club, and stopped at Commerce; there the defendant’s pistol was pawned; the party then returned to Boydstun’s night club, where from the car they ordered drinks. About that time three or four men, members of a carnival crew from Miami, came out of the night club; one of the men attempted to* help himself to* one of the drinks ordered by the Fisk party; this started a fight in which Fisk’s face was bruised and his shirt tom; Boyd-stun and his employees stopped the fight and the carnival crew drove off in their car; the Fisk party then returned to Commerce, Mrs. Reynolds driving the car. The defendant’s pistol, which had previously been pawned, was redeemed, and the defendant placed it in the pocket on the dash of the car; then the party returned to the night club. Fisk, the defendant, Martin, Mrs. Reynolds, and Miss Gamble left the car and went into the club. At this time Jimmie England was in the night club. Neither Jimmie England nor the defendant were armed, Fisk having left his gun in the car; both were in their shirt sleeves. Jack Boydstun persuaded Fisk to* leave “because a part of the sleeve of his shirt was torn off and he was not in no* shape to be there.” Fisk and his party left the place and went to their car. Jimmie England was still inside; he had caused no trouble. Boydstun walked out with Fisk and was followed by several persons, including Jimmie England; Fisk was standing by the side of the car; Boydstun talked to him and asked him to* get in the car and leave; the defendant stepped in the car and then, getting out, remarked: “Who is going to tell me to leave here?” The other members of Fisk’s party were in the car. Boydstun then turned and started back to the house; England had followed Boydstun, and was standing a short distance behind him; he was in his shirt sleeves and had on no* gun; Boydstun had been standing about ten feet from the defendant during this conversation.

According to the testimony of the state’s witnesses, Everett Sykes, Ralph Steiner, Morris Pheebus, Roy Jamie-son, and John Boydstun, Jimmie England continued to stand still with his hands at his side, about fifteen feet from the defendant, and said nothing. The defendant looked at England, raised his left hand up to the cut on his face received during the difficulty with the carnival men, and said: “Did you cut me?” or “Did you do this?” England made no reply and continued standing as before. The defendant began shooting. At the first shot England grabbed his abdomen and began to fall. The defendant continued to shoot rapidly, firing six shots, and snapping the gun several times thereafter.

After the shooting, Roy Jamieson knocked the defendant down and with the assistance of Morris Pheebus took the gun away from him,' then took him into the clubhouse, where he remained until the arrival of the officers. Just after taking the gun, from him the defendant said to Jamieson: “It is a good thing I ran out of shells or I would have killed you too.” Three witnesses testified that after taking the defendant into the building the defendant stated he wanted to kill him and was glad he did kill him.

It was the uncontradicted testimony of the state’s witnesses that the deceased was unarmed.

From the testimony of the undertaker and the attending physician, it appears that all six bullets struck the deceased; one bullet entered the abdomen passing! through the spine, one the right shoulder, one the left shoulder, one the right thigh, one the left hip, and one the knee.

The deceased had no weapon of any kind. It appears that several persons standing on the porch walked over to where he fell. He said to them, “I would like to> live but I can’t,” then became unconscious, and remained so-until he died a few hours later.

The defendant admits the killing, but claims that he acted in his own necessary self-defense.

As a witness in his own behalf he testified: That, he lived at Pieher, and had worked for Mr. Walker for the past four or five years in the tap room and drug store: that he had known Jimmie England for the past five or six years; that he was standing in front of the place he worked' talking to Gfuyman Martin. Mrs. Reynolds and Miss Gamble came by in a car, stopped, and called Martin over to the car. Martin then asked him if he wanted to go with them; they were driving around; he said we were going over to a night club and got in the ear; it was then somewhere about 7 o’clock; that they drove around a while and stopped at Jack Boydstun’s night club, and ordered some drinks, which were brought out to the car on a tray; that some guy came up and took one of the drinks, and he told him to put it down, it was not his; the man hit him in the face and kept on hitting him and they tore his shirt off; that Jack Boydstun came out and drove them away, and his party drove into Commerce and shortly after returned to Boydstun’s place, parked the car, and ivent in; that with Mrs. Reynolds he went into the dance hall, looked around, then came back into the bar room, and there saw Jimmie England a,t the far end of the bar; that he said to Mrs. Reynolds, “There is Jimmie England and I am liable to have trouble with him”; that with Mrs. Reynolds, he went out and got in the car, and took his pistol out of the dashboard pocket because Jimmie England had followed him. England said, “Wait a minute, I want you,” and was walking towards him. England put his hand back, and he shot him, firing six times as fast as he could; that he thought England was going to draw a gun; that after the last shot was fired Roy Jamie-son ran up and struck him on the head; that the next thing he knew he was. walking in the door; that he waited there for the officers to come and get him; that he had a previous difficulty with Jimmie England five or six months before; that England came in where he was employed and kicked the wall in. He said, “Jimmie, what do you mean by tearing up this wall and kicking the place in?” England said, “Go to hell, I will kick you in,” and he shot him in the hip. After this difficulty several persons told him that Jimmie England had made threats against him, saying that he was going to kill him, and he secured a permit from the mayor to carry a gun; that he knew Jimmie England’s reputation in that community as to being a turbulent man and a dangerous character and it was bad.

On cross-examination he stated he was carrying the gun for Jimmie England, but didn’t have it with him there when he had trouble with the carnival men; that his gun had been pledged at McCall’s place in Commerce that evening, but before returning to Boydstun’s place from Commerce, Miss Gamble redeemed the gun, and he placed it in the dashboard pocket of the car.

The eyewitnesses for the defendant, Mrs. Reynolds and Guyman Martin, testified that the deceased put his hand back to his hip; that when he did this the defendant fired the shots that killed him.

Several witnesses testified to having heard the deceased make threats against the defendant.

A number of witnesses testified that the general reputation of the deceased was that of being a quarrelsome man, and further testified to particular instances of violent and quarrelsome conduct on the part of the deceased.

A number of witnesses asked if they knew the general reputation of the defendant in the community in which he lived as to being a quiet, peaceable, law-abiding citizen, or otherwise, answered that they did; and asked if it was good or bad, they replied good.

In support of the contention of counsel that the judgment should be reversed, numerous errors are assigned, only three of which are argued.

The first is that the verdict is contrary to the law and the evidence.

Upon the whole case we think, after a careful survey of the facts in evidence there was no element of self-defense in this case. Considering the testimony of all the witnesses in the case, excepting that of the defendant, it seems clear to us that the defendant should have been convicted of murder. No person has the right to kill another through unfounded fear or cowardice, and while the defendant’s account of the killing differs somewhat from that given by the other witnesses, he is, we think, guilty of murder upon his own statement. However, the court submitted the question of manslaughter in the first degree, and the jury found the defendant guilty of this lower degree.

The next assignment argued is that the court erred ih. submitting the issue of manslaughter in the first degree against the defendant’s objections and exceptions.

It is claimed for the defendant that under the evidence he was either guilty of murder, or should have been ■acquitted on the ground of self-defense.

Counsel in his brief states:

“There is room for no half way ground in this case. Either the state’s theory, unsupported though it may be, or that of the defendant must be correct.”

Section 3097, St. 1931 (22 Okla. St. Ann. § 916), Procedure Criminal, provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

By numerous decisions of this court the rule is well settled that on a trial for murder, if the evidence demands a conviction of a higher degree of homicide, and does not warrant an acquittal, the defendant is not entitled to a new trial on the ground that, under the instructions so permitting, the jury found him guilty of a lower degree. Lytton v. State, 12 Okla. Cr. 204, 153 Pac. 620; Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526; Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879; Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742; Calloway v. State, 38 Okla. Cr. 418, 262 Pac. 696.

In the case of Wilmoth v. State, 20 Okla. Cr. 453, 203 Pac. 1055, 21 A. L. R. 590, this court held:

“In a prosecution for murder, when the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and facts make the crime murder, it is an error in the defendant’s favor, of which he has no cause to complain.”

In Taylor v. State, 44 Okla. Cr. 58, 278 Pac. 1117, this court held:

“In a prosecution for murder when the court submits the issue and the jury finds the defendant guilty of manslaughter in the first degree, although under the law and the facts the crime is murder, yet, if defendant is convicted of a lower degree of homicide than that shown by the evidence, no prejudice could have resulted to him, and' this court will not reverse a conviction because of such error.”
“Manslaughter in the first degree” is defined as follows^
“1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.” Section 2223, O. S. 1931 (21 Okla. St. Ann. § 711).

A . The testimony of the defendant shows that he was parrying a pistol in violation of the statutes making it a misdemeanor, when he fired the fatal shots. Sections 2589, 2590 (21 Okla. St. Ann. §§ 1277, 1278).

It is the province of the jury, if the defendant is found guilty, to determine and fix .the degree by their verdict, and where the jury in a homicide case finds the defendant guilty of a lower degree, where the law and facts make it murder, it is an error in favor of the defendant of which he cannot complain. Juries frequently render just such verdicts, and this can only be accounted for upon the theory that the verdict was the result of a compromise of opinion. '

The remaining assignment' of error is based upon the -action of the sheriff who, it appears, as the jury left the courthouse to go to dinner, walked along behind them and ate at the same restaurant, but at a separate table.

It is sufficient answer to this assignment to say that it is wholly destitute of merit.

It appearing that the defendant had a fair and impartial trial, and that no error was committed prejudicial to his substantial rights, the judgment of the district court of Ottawa county is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    H. H. DESKINS v. STATE.
    No. A-9273.
    Sept. 2, 1937.
    (71 Pac. 2d 502.)

      Sigler & Jackson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen. Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from a judgment of conviction of direct contempt of court and sentence to undergo confinement in the county jail for a term of 90 days.

It appears that the case of E. J. Cowles v. C. G. Whitchurch was on trial in the district court of Carter county, John B. Ogden, presiding judge. Appellant, H. H. Deskins, was on the witness stand testifying, when plaintiff, E. J. Cowles, said to him: “You are a God damn liar.” Thereupon appellant said in reply: “You’ll not call me that,” and reached over in front of the judge on the bench, grabbed the judge’s gavel, and threw it at said Cowles. The court bailiff and counsel then prevented Mr. Cowles and Mr. Deskins from passing blows in the presence of the court and jury. After the parties had returned to their chairs^ the following proceedings occurred:

“By the Court: As soon as I can get the sheriff up here I am going, to sentence you for direct contempt of court. Call the clerk. I am going to try you people right now. Mr. Cowles, you are charged in this court with direct contempt of court, in that while Mr. Deskins was on the witness stand testifying I heard you make this statement: ‘You are a God damn liar.’ By Mr. Cowles: I beg your pardon, it was ‘Damn liar.’ By the Court: Well, I understood it the other way. Now, then, I therefore conclude that you were in direct contempt of this court in using such contemptuous language. What do you have to say in your behalf? By Mr. Cowles: I am sorry it occurred; he made me mad. By the Court: That isi not a justification of that kind of conduct or language in the presence of the court and jury. I am holding you in direct contempt of this court. I am not going to fine either one of you. I am going to send you to' jail. When people have that little respect for the court it is my opinion they, should be sent to jail. The only question is as to how long. No man can sit here in this court and use that kind of language in court and expect to be fined. He is not entitled to> be fined, but should receive a jail sentence. Do you have anything to say for him, Mr. Schenk? By Mr. Schenk (counsel for Mr. Cowles) : No, sir, nothing. By the Court: I am going to sentence you to 90 days in the county jail. Now, Mr. Deskins, what do you have to' say for yourself? By Mr. Deskins: If the court please, the man called me a God damn liar when I was testifying to the truth. If a man would sit up here and call you a word like that you would resent it. Anybody would resent it. By the Court: You always get protection in this court as to anything that happens in court. ' I am going to run this court as long as I am judge. Now, then, as to your conduct; Mr. Sigler, do' you have anything you want to say in his behalf? By Mr. Sigler: No, except that you should take into consideration the acts of provocation and that a lot of people lose their temper. By the Court: They cannot lose their temper in this court and grab the gavel off the bench and throw it in the manner that was done in this instance, and not be charged with direct contempt of court. The court admonished him to stop and was preparing to take steps to punish the plaintiff for his contemptuous language when Mr. Deskins grabbed the gavel off the bench and used vile and profane language and it was necessary to have the bailiff to run and grab him to keep him from Mr. Cowles.. This was after he had already thrown the gavel. I am going to sentence him to 90 days in the county jail for direct contempt of this court in making this display of personal violence and using profane language. You cannot get up in this court and show that much disrespect and not be punished accordingly. I am going to declare a mistrial in this case. You know and I know that this trial has been destroyed. This jury couldn’t go out and try this case after what has happened in their presence and use their cool, calm judgment in this matter. Therefore, a mistrial is declared in this case. The sheriff will take charge of Mr. Cowles and Mr. Deskins. I want to look into the law with reference to this matter a little further. Let me have the statutes, please. When I get through sentencing these parties I will be through with this matter. I want to proceed exactly as the law provides. The bailiff will bring the reports from the county attorney’s office and I will read these opinions.”

It appears at this time another case was called for trial, and during the selection of the jury the court proceeded to read the authorities brought to him by the bailiff, and after his perusal all parties appeared before the court, in person and by counsel; the following proceedings were had:

“By the Court: Both E. J. Cowles and H. H. Des-kins, having been represented by counsel, and having had an opportunity to be heard, and admitting the charge against them, that is, the statements made by them and acts done by them, and to which there is no denial, the same ..having taken place here in open court. This is the order of this court and it shall be reduced to writing.”

Thereupon the court pronounced and entered judgment as follows:

“.State of Oklahoma. Carter County. SS.
“In the District Court.
“Judgment and Sentence of the Court on Direct Contempt.
“As to H. H. Deskins.
‘ “Now, then, Mr. Deskins, in this case I don’t presume there is any dispute as to the facts of what you did, as I have just related them? What do you have to say? By Mr. Deskins: I just lost my temper. By the Court: You did take the gavel from the bench and throw it at this man? By Mr. Sigler (of counsel for Mr. Deskins) : I would like the court to put in the record his part of it that this man called him a damn liar. By the Court: Yes, I put it in, everything that took place is reflected by this record. Now then, the way it was you heard him say— By Mr. Deskins: I understood him to say ‘You are a God damn liar.’ By the Court: That is the way I understood it. He said he only used the words ‘Damn liar.’ On the matter of punishment I am taking it at his own words on that. Now then yon are charged with direct contempt of court, Mr. Deskins, in that on this date while the case No. 21653, E. J. Cowles vs. C. G. Whitchurch came on regularly for hearing and plaintiff had offered all his testimony and rested, and the defendant in this case, Mr. Whitchurch, had testified, and you were on the witness stand testifying and as to what your testimony was at that particular time I don’t recall, but the record! will reflect that, Mr. Cowles was sitting in front of the bench and you were sitting on the witness stand, to my right about two' feet of me, when I heard Mr. Cowles remark, I thought he said to you ‘You are a God damn liar.’ When I use the language I apologize to the audience for doing so, but it is proper to do this in order to' put this in writing to dispose of this matter legally, using these words merely in this maner to complete the record. Whereupon you arose and he said something, else I didn’t understand, there was a great lot of confusion and the jurors were greatly excited. The lawyers began running, and I- had to call the bailiff, and you grabbed the gavel on the bench over in front of me and I think also this paper weight. By Mr. Deskins: I picked it up. By the Court: You threw the judge’s gavel at Mr. Cowles and I don’t think you missed him very much, and it was picked up by one Mr. Howland about 50 or 60 feet back in the audience and returned to the bench. By virtue of such disturbance a mistrial was declared in said case. Justice was therefore impeded to that extent. You are charged with direct contempt of court. I want to give you a full opportunity to say anything in your own behalf and to correct these facts if I have misstated any of these facts. By Mr. Deskins: Judge, I just lost my temper. If a man were to call you a God damn liar I believe you would resent it. I just did this before I had time to think. I am very sorry and I ask for the mercy of the court. By the Court: I will say this to you and to Mr. Cowles both that so far as yourselves are-concerned it is no pleasure on my part- and it has never been any pleasure on my part to inflict punishment, but you can’t run this court and permit that kind of conduct to prevail, or to permit that attitude on the part óf any person. I am just doing my solemn duty. I tried to get you to stop, as I already had his remarks before me and I had started to call his attention to the fact that he was in contempt and. to take up the matter of his being in direct contempt but you did not stop. I don’t permit that kind of conduct in this court. The only way I have in matters of this kind is to do what the law directs me to do. I have just read a case where a. party was given 12 months sentence and a $5,000 fine for filing a brief in a case wherein he was held in direct contempt. Now I don’t want to get this too severe, but I think ninety days penalty is about right, I will make it the same as Mr. Cowles; you both were in direct contempt of court. I want you to have a full opportunity to be heard, you are here with your attorneys. By Mr. Sigler: We want to reserve an exception, and give notice of our intention to appeal to the Criminal Court of Appeals and we ask that you fix the amount of bond. We are appealing on the theory that the sen-tenee is out of reason, too severe. By the Court: Not upon the question of guilty? By Mr. Sigler: Upon the question of this, in this instant case he was more or less provoked into this, he had more reason for doing what he did than the other man, I think. I don’t say he ought not to be punished, but I am just saying this about it, I think if the court would think this over for 48 hours you would decide that this punishment is too severe. When a man that provokes the difficulty is not given more than 90 days then you ought not to give the man that is provoked that much punishment. By the Court: Mr. Des-, kins is a capable man, he should have known that if a person mistreats him in this court that he will have the protection of this court. I told Mr. Deskins to stop at the time I was starting to take up the matter of Mr. Cowles’ contempt, but he disregarded me and grabs over here and picks up that gavel and throws, it. I will say this to you both that I don’t have any ill feeling toward you, but such conduct in this court a few minutes ago cannot be permitted. Then Mr. H. H. Deskins, in this case I find you guilty of direct contempt of court by virtue of the fact that in this court a few minutes ago you conducted yourself as heretofore outlined, and contained in this statment, and you admit that you grabbed the gavel from the bench of this court and threw it at Mr. Cowles and created a disturbance in this court to such an extent that it even became necessary to have the officers come in order to keep order in the courtroom, attempting to do violence in the presence of the court. You don’t deny doing the acts already in the record, you admit that, but you seem to think the punishment of 90 days is too severe; I have thought the matter over very seriously and I don’t think it is; that kind of conduct is a crime against justice and destroys the administration of the court and tends to destroy justice itself. It has destroyed it already to the extent that it has became necessary to put the trial of this case off. Therefore, it will be and is the judgment and sentence of this court that you are found guilty of direct contempt herein, and further that you be taken into custody by the sheriff of Carter county, state of Okla-boma, and that you be by tbe sheriff of Carter county, confined in the county jail of this county for a period of 90 days from this date.
“Signed this the 11th day of January, 1937.
'“[Signed] John B. Ogden,
“District Judge.”
“Commitment.
“Therefore it will be and is the judgment and sentence of this court that you are found guilty of direct contempt herein, and further that you be taken in due custody by the sheriff of Carter county, state of Oklahoma, and that you be by the sheriff of Carter county, confined in the county jail of this county for a period of 90 days from this date.
“Signed this the 11th day of January, A. D. 1937. .
“[Seal] John B. Ogden, District Judge.
“Attest: Ernest W. Tate, Court Clerk,
Carter County, Oklahoma.”

Appeal bond fixed at $500. Ten days allowed to make same.

The errors assigned are:

“First: That the judgment is void for the reason that the court pronounced the defendant guilty without a hearing and without a trial;
“.Second: The judgment is void because the commitment did not comply with section 1959, O. S. 1931 (21 Okla. St. Ann. § 568) ;
“Third: The judgment shows that the punishment Avas excessive.”

In support of the first assignment counsel in their brief quote section 25, art. 2, of the state Constitution; citing the following cases with quotations from the opinions :

“Ex parte Sullivan, 10 Okla. Cr. 465, 138 Pac. 815, Ann. Cas. 1916A, 719; Moore v. State, 41 Okla. Cr. 310, 272 Pac. 1032; Ex parte Reily, 60 Okla. Cr. 217, 62 Pac. (2d) 1035; Ex parte Morse, 141 Okla. 75, 284 Pac. 18; Cannon v. State, 58 Okla. Cr. 451, 55 Pac. (2d) 135.”

In a proceeding, for contempt of court, if the contem-ner is found guilty, the punishment imposed is a sentence in a criminal case. Such adjudication is a conviction, and! the commitment in consequence thereof is in execution of sentence for a criminal offense. Burnett v. State, 8 Okla. Cr. 639, 129 Pac. 1110, 47 L. R. A. (N. S.) 1175.

The third and last clause of section 25 of the Bill of Rights (Const, art 2) provides:

“In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given”; thus prescribing that which the plainest dictates of natural justice must prescribe to every tribunal, the law that “No man shall be condemned unheard.” Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 810.

The statute (Penal Code, section 1956 [21 Okla. St. Ann. § 565]) provides:

“Contempts of court shall be divided into direct andf indirect contempts. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, and of the unlawful and willful refusal of any person to be ¿worn as a witness, and the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings, shall be deemed direct contempt of court, and may be summarily punished as hereinafter provided for.”

The constitutional provision and the statute merely affirm a pre-existing power. Without the power, courts could not fulfill their responsible duties for the good of the public.

No one doubts either the right or duty of a court to punish as contempts disorderly and contumelious behavior, breaches of the peace, or any willful disturbance in its presence. The right rests on the necessity that was found to exist to enable courts to administer the law without interruption by improper interference, and to maintain their own dignity. So indispensable is this power that its just exercise, so far as it-may be necessary for the due protection of the courts, has never been questioned.

In cases of direct contempt under the constitutional and statutory provisions, the contemner being present in court, neither formal charge against him in writing nor process is required. It is only required that punishment shall not be imposed until the contemner shall have an opportunity to be heard. iSince the court acts upon view and hearing, no witness need be sworn nor formal evidence taken. The court in its discretion renders judgment imposing such punishment as it may deem proper within the limits prescribed by the statute. No record is made other than the judgment, in this, as the statute provides, “The substance of the offense shall be set forth in the order for his confinement, and made a matter of record in the court.” Section 1959, St. 1931 (21 Okla. St. Ann. § 568). This provision can only mean that the order of confinement must contain a recital of those facts which make it a direct contempt, and is, mandatory in its terms. Ex parte Dawes, 31 Okla. Cr. 397, 239 Pac. 689; Lynn v. State, 38 Okla. Cr. 313, 260 Pac. 1069.

The record here shows a waiver of the right to- a hearing, but an opportunity to be heard was given and a hearing was had.

It also appears that not only the substance of the offense but the essential facts are fully stated in the judgment and sentence of the court and set forth in the order of confinement in full compliance with the requirement of the statute above quoted, and that the same was made a matter of record in the court.

It is apparent from the record before us, and it follows from wha,t has been said, that the first two assignments of error are without merit.

We conclude, therefore, that the trial court had jurisdiction to render the judgment herein.

Finally, it is earnestly insisted that the punishment imposed is excessive, and this court is asked to reduce the sentence if we find the trial court was not without jurisdiction to render the judgment.

We fully agree with this contention. Section 1957, Penal Code (21 Okla. St. Ann. § 566) provides:

“Punishment for contempt shall be by fine or imprisonment, or both, at the discretion of the court.”

It may be that the punishment imposed upon the party plaintiff in the action on trial was not disproportionate to the offense committed by him. While the sentence was severe, it was a contempt of the most flagrant character. He voiced a gratuitous insult to- the witness testifying, thus to browbeat the witness and to impugn his testimony. His language in itself was alone sufficient to warrant the co-urt in declaring a mistrial, or it was such misconduct of party plaintiff which would require a reversal after trial. Nevertheless, we are inclined to think that the infliction of a fine would have been more appropriate.

On the other hand, appellant in obedience to- the court’s process was in attendance and testifying as a witness. He was under the protection o-f the court when this vile insult was offered. In resentment lie committed the act before he had time to think. He made full apology and asked the mercy of the court.

It follows that the court erred in finding and holding that both’parties were equally guilty of contempt of court.

Under Procedure Criminal, section 3204 (22 Okla. St. Ann. § 1066), this court has the power to modify the judgment appealed from. Without this .power we would feel constrained to reverse the judgment for the reason that the punishment imposed was excessive.

A careful consideration of all the facts and circumstances surrounding this contempt and the punishment imposed therefor by the trial judge convinces this court that the ends of justice would be best subserved by modifying the judgment and reducing the sentence to a fine of

For the reasons stated, the judgment of the district court of Carter county finding H. H. Deskins guilty of direct contempt of court is modified by providing a fine of $10, and, as thus modified, the judgment appealed from is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.