text:
    HARVE JOHNSON v. STATE.
    No. A-4190.
    Opinion Piled March 15, 1924.
    (223 Pac. 890.)
    (Syllabus.)
    1. Appeal and Error — Harmless Error — Manner of Introduction of Testimony. An accused person cannot complain of the rejection of testimony offered in proper form, where the court permits the introduction of the identical evidence in an irregular way. Where the facts are fairly before the jury the manner or form of introduction is immaterial.
    2. Trial — Refusal to Delay Trial, after Testimony in, to Secure Another Reporter, Held Proper. Under the circumstances shown, the refusal of the court to delay the trial, after all the testimony had been heard, until another court reporter could be secured, was proper.
    3. Trial — Remarks in Argument not Prejudicial. Alleged improper remarks of counsel for the state held harmless.
    4. Trial — Alleged Misconduct of Jurors Insufficient for Reversal. Held, that certain irregularities in the conduct of the jurors were of such slight importance as not to warrant a reversal of the cause.

      Appeal from District Court, Delaware County; H. L. Marshall, Special Judge.
    Harve Johnson was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    W. W. Hastings and Miller & Miller, for plaintiff in error.
    The Attorney General, and J. Roy Orr, Asst. Atty Gen., for the State.
   BESSEY, J.

This is an appeal from a judgment of the district court of Delaware county upon a verdict of a jury rendered October 21, 1921, against plaintiff in error, Harve Johnson, here referred to as the defendant, fixing his punishment at confinement in the state penitentiary for a term of 20 years.

The information charged the defendant with the murder of Lum Moore on the 29th day of April, 1913. At the preliminary trial, held soon thereafter, the defendant was admitted to bail pending his appearance in the district court to answer to the charge. In the meantime he became a fugitive from justice, and his whereabouts were unknown until some time in December, 1920, when he was apprehended in Ft. Dodge, Iowa; so that the case actually came on for trial more than 8 years after the homicide occurred.

In the spring of 1913 defendant and Lum Moore were living in the same community; Moore having rented some land from the defendant. There was some misunderstanding about the way Moore was taking care of the land. A few days prior to the homicide the defendant made a statement to a banker at Kansas, Okla., who made some inquiry about Moore, to the effect that Moore had not treated the defendant fairly concerning the rental of some land, and that he ought to have taken his gun and gone over there and killed him.

It was shown by the testimony of another tenant that on the day preceding the homicide the defendant and Moore had a quarrel about their business affairs. Moore demanded payment from defendant for the loss of some' cotton scales, and defendant claimed that Moore was indebted to him. In the course of the difficulty Moore drew his knife on the defendant, and the defendant retreated.

On Tuesday, the following day, defendant and Bert Pierce, the other tenant, were plowing in a field a portion of which had been rented to Moore. Moore and his son, Johnny, a boy 12 years old, left their home near by to work in this field. Moore was leading his horse with one hand and had a' bucket of water in the other. After going some distance Johnny separated from his father to go to another part of the field for the purpose of cutting sprouts. Johnny testified that his father came up to where the defendant and Pierce were plowing; that his father stopped some distance away from defendant’s plow; that he (Johnny) was too far away to hear any of the conversation, but that he saw the defendant step out from between his plow handles, remove the lines from around his waist and fire three shots in rapid succession at his father, inflicting two mortal wounds; ahd that his father expired at his home at about 6 o’clock that evening.

Soon after the shooting a number of witnesses gathered at the place where it had occurred, and these witnesses testified that Moore was lying about 20 or 30 feet from the plow and that a bucket was near his side; that his horse was standing near by. Pierce, who was plowing with the defendant, testified that Moore approached the defendant in a belligerent attitude, threatening to cut the defendant’s throat, and stating that it looked as though they were bound to have trouble and that they might just as well have it now; that after Moore made this statement he thrust his hand into his jumper pocket and started toward the defendant; that the defendant drew his pistol and fired three shots in rapid succession.

The defendant testified in his own behalf, claiming self-defense, and stating that when Moore put his hand in his jumper pocket he believed that Moore was armed with a pistol and believed that it was necessary for him to shoot quickly for his own protection.

Witnesses who took charge of Moore after he was wounded and who removed and examined his clothing found an unopened black-handled pocket knife. There is no testimony indicating how large a knife it was. The wife of the deceased testified that she kept the knife for some time after the homicide, until it was lost or stolen.

The several assignments of error urged will be treated in the order in which they appear in the briefs.

Frank Partain, a character witness, a cousin of the deceased, testified that Lum Moore, the deceased, had the reputation of being a peacable law-abiding citizen. The defendant sought to impeach this testimony in the manner following:

“Q. Did you ever hear about his cutting Jim McCoy’s throat? A. Yes, sir. (The state objects to the question as being leading. The objection is sustained by the court, to which the defendant excepts.) A. He was separating two brothers.
“Q. Was you present? A. I was.
“Q. And he cut one of their throats? A. I didn’t see the act exactly, but heard the shooting and seen them coming up the road and seen Jim shooting at him.
“Q. Jim who? A. Jim McCoy.
“Q. Do you remember of him having a fight over at Scott Welch’s yard with a cattle man? A. No, sir; I never heard of it.
"Q. Did you hear of him and John Partain having a shooting scrape? A. Yes; heard something about it, but not the particulars. ’ ’

The objection made, as quoted above, should have been overruled, but the witnesses answered the question despite the objections, and this answer, together with the explanation following, sufficiently apprised the jury that the witness knew that the deceased had been in at least two serious difficulties, thus qualifying witness’ testimony in chief. It appears therefore that defendant succeeded in getting before the jury all the facts to the same effect as though no objections had been interposed.

It is next urged that the court erred in not permitting attorneys for the defendant to introduce parts of a certified transcript of the testimony taken at the preliminary trial, given by Mrs. Moore, widow of the deceased, for the purpose of showing discrepancies between the testimony given by her at the preliminary trial and her testimony at the trial on the merits, just given. Bearing in mind the fact that the preliminary trial had occurred more than 8 years prior to the trial in district court, and that the stenographer who took the testimony at the preliminary could not be produced to authenticate that testimony, it was agreed between counsel on both sides that the testimony taken at the preliminary might be used the same as if the stenographer were present to verify it. To show certain discrepancies, attorneys for the defendant read portions of Mrs. Moore’s testimony from the transcript of the record of the preliminary trial, and then offered the portion so read in evidence. This was by the court refused, in the following language:

"The request was that they might use the transcript of the testimony as evidence before the jury, and the court holds that, inasmuch as they have read all this portion of the transcript into the evidence in this case, it would not be proper to introduce portions of the transcript unless they introduce the whole transcript.”

We think it would have been proper to have permitted the introduction of this portion of the record, but, since the matters sought to be shown were read into evidence in the presence of the jury, the refusal to permit it to be introduced formally is harmless.

In this connection the court intimated that they might introduce the entire record if they so desired. The reasons for this suggestion do not appear, but if the defendant felt aggrieved because he was not permitted to introduce this part of the record he could have done it by introducing the whole record.

Another point urged relates to the failure of the eourt to secure the services of a stenographer to record the argument of counsel to the jury. It seems that the regular court stenographer was not present at the trial and that by agreement the parties procured the services of a stenographer who was regularly employed at a nearby abstract office, and that her employer refused to permit her to continue on to the end of the trial. In order to avoid delaying the trial until they could send away to another town to secure a stenographer, the county attorney suggested that any objections that might arise in the course of the argument to the jury be written out in long hand to permit the. court to pass upon the same, whereupon the argument proceeded.

Special counsel for the state, G. W. Goad, in his opening argument to the jury, among other things, said, “Gentlemen of the jury, Harve Johnson has been proved guilty of the crime of murder by his accessory,” referring to witness Bert Pierce, who the record shows was arrested for the homicide but the cause later dismissed as to him. We find little if any evidence in this record indicating that Pierce was an aecesssory. The record does show, however, that he was a most willing witness for the defendant; that although he stood within a few feet of the defendant when the shots were fired he made no effort to prevent the homicide. The word “accessory” was not defined by the court. To refer to Pierce as an accessory was technically a misstatement of fact, not warranted by the evidence, but the fact that he had been charged jointly with the defendant in the beginning may be considered as some excuse for counsel’s making that remark. The testimony of Pierce was clear-cut and unequivocal — of such a nature that the jury could not reasonably be misled by the remarks quoted.

The county attorney in his closing argument, referring to a witness who had testified for the defendant, said, “This old man, in trying to find out something favorable to the defendant, had discussed the case so much with his wife that he had come to imagine that what he wanted to be true was true.” This was rather a far-fetched deduction from the testimony given, but was a deduction predicated upon some evidence, with which the jury might or might not agree.

It appears that during the course of the trial some of the jurors became impatient because, as it appeared to them, the proceedings were unnecessarily tedious; that before final ■submission of the cause, while the jury were eating dinner at a separate table in a hotel dining room, one of the jurors, in the hearing of the others in' the dining room, said, “We might get through if Miller don’t have to send to Kentucky for more evidence; ’ ’ that another juror made the remark that it would not take long to decide the case after it was submitted — that he intended to take a stick of stove wood with him into .the jury room, presumably to hasten agreement among the jurors. This remark, we assume, was of a jocular nature and not intended to be considered seriously. It further appears that while the jurors were in charge of the bailiff, before final submission, two or three of them at different times left the others on the sidewalk long enough to step into a drug store and buy cigars. Further complaint is made that at one time, before the taking of testimony had been concluded, and during a recess of the court, one of the jurors had commenced to talk with a neighbor, when the county attorney admonished him not to do so, stating that it might result in a mistrial. Another irregularity complained of is that after the jury entered the jury room, preparing to begin deliberations, one of the jurors asked for the plat. The sheriff communicated this to the county attorney, who in turn spoke of it to one of the attorneys for the defendant. The sheriff then returned to the jury room and asked the jurors if they still wanted the plat, and they said they did not.

As we view it, none of the irregularities touching the conduct of the jury is of sufficient importance to warrant a setting aside of the verdict.

The court fully and fairly instructed the jury upon every degree of homicide; upon the law of self-defense; upon the law of which of the parties appeared to be the aggressor; upon the question of former threats, communicated and uncommunieated; upon the law of former difficulties between the parties ; and as to the law touching upon character evidence.

From the undisputed facts showing that the defendant shot the deceased when the latter was 20 or 30 feet distant, and that the only hostile movement made by the deceased was to advance a step as he placed his hand in his pocket, with the declaration that he intended to use a knife, the jury must have concluded that the defendant was not in such imminent danger as would induce a reasonable person to resort to the use of firearms, as shown by this record. The defendant was in company with a friend, who would doubtless have interfered to prevent a cutting affray, if indeed such an affray seemed imminent. These outstanding facts, together with the fact that after the preliminary trial the defendant became a fugitive from justice, all considered together, warranted the jury in rendering the verdict it did. To us it seems that the irregularities pointed out in this opinion are not vital nor prejudicial under the peculiar conditions shown.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RANDOLPH TILLIS v. STATE.
    No. A-4136.
    Opinion Filed March 22, 1924
    (224 Pac. 207.)
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    Randolph Tillis was convicted of assault with a dangerous weapon, and he appeals.
    Remanded, with directions to abate.
    E. T. Barbour, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Randolph Tillis, was convicted in the district court of Canadian county on the 28th day of May, 1921, of the crime of assault with a dangerous weapon, and sentenced to serve a term of three years’ imprisonment in the state penitentiary at McAlester, Okla. Prom the judgment rendered against him, an appeal was taken to this court. Since the appeal was taken suggestion of the death of plaintiff in error has been made, and his counsel of record has filed, for this reason, a motion to abate. This motion is also supported by the affidavit of one J. T. Smith, who was a prosecuting witness against the plaintiff in error in the trial court, stating that he has been informed, and believes, that the plaintiff in error has since the taking of this appeal died, and that since he has been informed of the death of plaintiff in error the affiant has not seen plaintiff in error, who before his death was a resident of the city of El Reno, Okla., and that affiant has no doubt that the plaintiff in error, Randolph Tillis, is now dead. In a criminal prosecution, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially under the judgment therein rendered, do abate. It is so ordered, and the cause is remanded to the district court of Canadian county, with directions to enter an appropriate order to that effect.


author: BBSSEY, J.

text:
    JOHN BLAER v. STATE.
    No. A-4349.
    Opinion Piled March 22, 1924.
    (224 Pac. 208.)
    (Syllabus.)
    1. Information Sufficient. The information examined, and held sufficient.
    2. Appeal and Error — Questions of Fact — Defense of Alibi for the Jury. Where the state’s evidence is clear and positive, indicative of guilt, the defendant’s showing of an alibi raises an issue of fact involving the weight of the evidence and the credibility of the witnesses. Such issues, when decided by the jury, will not be disturbed under the circumstances in this case.
    Appeal from District Court, McIntosh County; Geo. S. Marsh, Special Judge.

      John Blaer was convicted of first degree robbery, and he appeals.
    Affirmed.
    Green & Green, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BBSSEY, J.

This is an appeal from a judgment of the .district court of McIntosh county, rendered December 2, 1921, in which plaintiff in error was found guilty of robbery in the first degree and sentenced to serve a term of 20 years in the state penitentiary.

On the 15th day of September, 1921, Tom Grider, a farmer residing some 8 or 10 miles west of Eufaula, delivered a load of cotton in Eufaula, and while returning to his home, at about 5 o’clock in the afternoon, he' was accosted by a highwayman armed with a pistol, under cover of which Grid-er was forced to alight from his wagon and to proceed to a secluded spot approximately 200 yards distant from the place where he was first halted. The highwayman then commanded him to lie down upon his face, after which he • tied his hands behind his back with a cotton cord and tied his feet together. He then gagged Grider by means of a handkerchief tied tightly across his mouth, turned him over upon his back and took from his pocket a pocketbook containing $6.40, leaving him tied and in this position. About 30 minutes later the highwayman returned and asked Grider if there were other farmers in town who would pass along the road; he said that he was a highjacker and was looking for other victims. He then readjusted the gag in such a manner as to prevent Grid-er from giving any alarm. The highwayman was not seen thereafter by Grider.

By desperate efforts Grider crawled and rolled until he reached a point on the road side, near where he was first aecosted by the highwayman. He lay there until about 10 o’clock that night, when a man by the name of Tudos came along on horseback and was asked by Grider to assist him to get the cords with which he was bound loosed. Mr. Tudos, through fear, refused to do this, but said he would go and get some others. Several men soon arrived there and released Grider. To his companions Grider then described the man who had assailed him as a person dressed in a dark coat, a blue polkadot shirt and blue overalls, and as being lame in the left leg.

The following day Grider notified the officers and others about the robbery, describing the person who perpetrated it as being lame in one leg, stating that he spoke with a foreign accent, and describing his physical features and the clothing he wore. Upon the information so received the constable and another peace officer, at Indianola, a town across the river in Pittsburg county, on October 3d, saw the defendant and a companion named Byan strolling about town, and observed that Blaer’s appearance corresponded with the description furnished them by Grider. The two men were placed under arrest and thrown in jail. The next day Grider came to Indianola and positively identified the defendant as the man who had robbed him.

When the constable made the arrest he took from the defendant’s pocket several articles, including a ball of cotton cord. After a time the constable secreted himself near the jail door for the purpose of listening to the conversation of the men, and while there heard Byan ask the defendant why it was that the constable kept asking about the twine. The defendant replied, "The s- o— b- thinks he knows something about the hand-typing business.”

The defense was an alibi. The defendant described his occupation as being that of traveling salesman; the evidence indicates that he was engaged in selling toilet articles from house to house, at county fairs, and other public places. Numerous witnesses from various places testified positively that he was in attendance at the Okmulgee county fair on September 15th, the day the robbery occurred. Several of these witnesses might be described as birds of passage, who like the defendant had no fixed place of abode nor definite occupation. The truth of the alibi was, of course, a question for the jury, and it is manifest from the verdict rendered that the jurors did not believe these witnesses.

There are but two assignments of error urged in the brief. The first challenges the sufficiency of the information. A careful consideration of the averments found in the information does not support this assignment. The record shows that the information was drawn by the late Judge Collier, and that the information fairly and fully informed the defendant of the accusation he was required to meet.

As to the sufficiency of the evidence, where the proof on the part of the state is of a clear and convincing nature, such as is disclosed by this record, this court would not be justified in setting aside a verdict upon the defendant’s showing controverting the state’s evidence. Under such circumstances the weight of the evidence must be determined by the jury, and their finding will not be disturbed in this court on appeal.

The identification of the defendant was more positive than is usual in cases of robbery. On the other hand, the evidence of an alibi was definite and positive. The companions of this migratory defendant were men of like type and habits, and necessarily his witnesses had to be drawn from that environment. Because they were of that character it does not necessarily follow that they were mistaken or that they deliberately committed perjury. Members of society commonly called “floaters” may be just as truthful as those who have established homes, but it is one of the misfortunes common to the former class that when one of them is accused of an offense he is at a disadvantage in procuring witnesses of known good repute to testify in his behalf.

The punishment assessed in this casé is severe — 20 years in the penitentiary. It would be harsh indeed to inflict such punishment upon one who is innocent, but, since that question was purely one of fact for the jury, we cannot disturb the verdict. If perchance the jury was mistaken, it becomes a case that may appeal to the Governor on an application for executive clemency.

The judgment of the trial court is affirmed.

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


author: MATSON, P. J.

text:
    WILLIE McBROOM v. STATE.
    No. A-4229.
    Opinion Piled March 22, 1924.
    (224 Pac. 210.)
    (Syllabus.)
    1. Continuance — Denial Where no Likelihood of Obtaining Attendance of Witness. A motion for a continuance on account of the absence of a witness for the defendant is properly denied, where there is no showing of any greater likelihood of obtaining the attendance of the witness at a subsequent term of court should the cause be continued.
    2. Assault and Battery — Right of Relative or Third Person to Defend Another. One who goes to the aid of a relative or third person acts at his own peril, and his right to defend the other is coextensive with the other’s right to defend himself at the time.
    3. New Trial — Improper Remarks of Counsel' Prejudicial. Improper remarks of a prosecuting officer, objected to at the time, will be considered and construed in reference to the evidence, and, if it appears that the improper argument may have determined the verdict, a new trial should be granted.

      Appeal from District Court, Cherokee County; J. H. Jar-man, Judge.
    Willie McBroom was convicted of assault with a dangerous weapon, and he appeals.
    Beversed and remanded.
    On the 18th day of January, 1921, the county attorney of Cherokee county filed in the district court thereof an information against the plaintiff in error, Willie McBroom, the charging part of which is as follows:
    “That is to say, the said William McBroom, in Cherokee county, state of Oklahoma, then and there being, did, then and there, on or about the 3rd day of November, 1920, knowingly, willfully, unlawfully, and feloniously make an assault and battery upon one A. C. Howell with a certain knife, said knife being then and there a dangerous and deadly weapon in the hands of the said William McBroom, and did, then and there, with said knife strike, cut, and stab the said A. C. Howell in and upon the neck, chest and face, in a manner reasonably calculated to produce death, with the unlawful and felonious intent then and there to kill the said A. C. Howell, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.’ ’
    Thereafter the defendant was arraigned and entered a plea of not guilty, and on the 7th day of September, 1921, the cause was called for trial and the defendant moved to continue the cause because of the absence of one Os Neal, whom he alleged to be a material witness in his defense. The motion for a continuance was overruled and excepted to. The cause then proceeded to trial and resulted in a verdict of guilty of assault with a dangerous weapon, with punishment fixed as above stated. A motion for a new trial was filed and overruled, and on the 8th day of September, 1921, judgment was pronounced against the defendant in accordance with the verdict.

      An appeal was prayed for and time allowed for perfecting the same, and the petition in error and ease-made were filed in this court on the 6th day of March, 1922.
    The assignments of error relied upon may be grouped as follows: (1) Error of the court in overruling the motion for a continuance on account of the absence of the witness Os Neal. (2) Error of the court in giving certain instructions excepted to, and in refusing to give requested instruction. (3) Prejudicial argument on the part of special counsel employed to assist in the prosecution. (4) Failure of the trial court to fully instruct the jury as to the law of the case.
    In order to present understandingly the propositions of law urged as a basis for the reversal of this judgment, it is necessary to state concisely enough of the facts to present the issues upon which this case was tried.
    This prosecution was the result of a controversy between one A. C. Howell and one I. N. McBroom, the father of this defendant. All of the parties lived in the town of Hulbert, Cherokee county, Okla. At the time of the controversy Howell was engaged in the livery business, and I. N. McBroom and his wife were running a restaurant, and the defendant Willie McBroom lived with his father and stepmother. Howell boarded at the McBroom restaurant, and his livery stable was located on the same street with the restaurant, with a vacant lot or two between the two places of business. Prior to the time of this controversy the parties had evidently been on friendly relations with each other. The trouble apparently arose over the relative racing merits of a couple of horses owned by parties living in that community. The trouble occurred in front of Howell’s livery stable on the afternoon of the 3d day of November, 1920. Old man McBroom had probably been drinking some that day, but the defendant, Willie McBroom, had not been drinking. As to what occurred immediately preceding and at the time of the difficulty, the prosecuting witness, Howell, testified in chief as follows:
    “Q. Did you see the old man, Newt McBroom, there that day? A. Yes, sir. Q. Did you see him when he come up to the front part of your barn? A. Yes, sir. Q. Did any one come with him, and, if so, whom? A. A man we called Os Neal. Q. Which direction did they come from? A. Coming from towards the restaurant. Q. Going east? A. Yes, sir. Q. What condition were they in? A. Just walking along with one another. I disremember whether they had a hold of one another’s arms or hands or not; they were together. Q. What condition were they in — drunk or sober? A. That man, Neal, looked about like he had drank some that day, and old man McBroom, I am not — I did not — I did not pay any particular attention to him acting like he was drunk at that time. Q. Where were you standing at the time these men came up there? A. Standing right at the outside of this pole. Q. Inside or outside ? A. On the outside, on the dirt walk. Q. Where was this negro, Ed Cole? A. Standing just to one side of this door. Standing there together talking. Q. Which direction was he from you? A. On the right of me. Q. And east of you or west of you? A. West of me. Q. Standing west of you? A. Yes, sir. Q. How long had you been there when these people came up there? A. I disremember. Some little bit. He got down and talked to me. Q. What did he do with his horse? A. He had a hold of it. Q. Had it up on the sidewalk? A. Yes, right across the sidewalk. Q. Across the sidewalk? A. Yes; holding the reins towards him. Q. The head of the horse was pointing towards this door was it? A. Yes, sir. Q. Which way was the rear of the horse? A. It was standing directly north and west, a little bit to the south. Q. Now, tell the jury, what was said and done when these two men came up? A. Well, this man Neal proposed to this colored man a horse race. The first that was said. He proposed a horse race, and the colored man saw that he was drinking, and he said, ‘No; he didn’t want to run it,’ and he had some silver in his hand, and he said, ‘Let’s match a quarter then,’ and Ed said, ‘No,’ and they were coming passing around the horse’s heels— Q. Whose? A. Ed Cole. Q. Who? A. Wm MeBroom and Neal, Os Neal we called him, and I said, ‘Neal, I bet you $10 that horse can outrun .that horse we run this morning,’ and he said, ‘No; I have a horse at home that can outrun him, and I bet you $50 he can outrun him,’ and I said, ‘No; ten is enough,’ and old man Me-Broom spoke up and said, ‘I will bet you $50,’ and I said, ‘No; let’s bet ten,’ and he said, ‘No; I bet you fifty,’ and he said, ‘You damn lying son of a bitch, you won’t bet nothing.’ Q. ‘You damn lying son of a bitch, you won’t bet nothing?’ A. Yes, sir. Q. Where was he standing? A. Passed around the horse and standing almost in front of me, about three feet. Q. Where was Neal? A. Probably a step on his right. Q. When you say ‘Mac,’ you mean I. L. MeBroom? A. Yes, sir. Q. All right. What happened? A. When he called me that, ‘You damn lying son of a bitch, you won’t bet nothing,’ I said, ‘I cannot take that, Mac,’ and he jerked his knife, and when he did that I struck at him with my fist, and he struck me with his knife, and this man Neal tripped me, and when I went down on my hands and knees this man Will struck me with a knife— Q. When did you first see the knife? A. Just as quick as he said, ‘You damn lying son of a bitch.’ Q. Did you see him open it? A. It was open when it come out of his pocket. Q. When you told him that you wouldn’t take it then was when he pulled the knife, is it? A. Yes, sir. (Mr. Coursey: Object to the leading of -witness.) Q. When He pulled the lmife what did you do ? A. When he pulled the knife I struck with my fist, and this man tripped me, and when I' fell he reached right over my neck and cut me, and as I was getting up almost straight up, that man W. M. Me-Broom stabbed me in the throat. Q. On which side? A. On the right side. Q. Had you seen W. M. MeBroom before that? A. Never seen him until he got in two feet of me. He was making that strike when I saw him. Q. What condition or shape were you in? A. I was just getting up. Had not gotten straight up yet. Q. Did this defendant, W. M. Me-Broom, say anything? A. If he did, I didn’t hear it. Q. Did the old man say anything? A. He was cutting after me and had the knife in his hand cutting toward me. Q. What did Will do when he cut you? A. He jumped off a piece and then got his father and started towards the restaurant.”
    The defendant McBroom, in detailing what occurred at the time of the difficulty, testified in part as follows:
    “Q. Do you know whether you were — where were you at the time A. C. Howell and your father got into this trouble out there? A. No, sir. Q. Did you see your father with Os Neal at the time they went up to that livery stable? A. No, sir. Q. State whether or not you came along there? A. The first time I saw them they were — ■ Q. If you came along there, from what place had you come? A. From the drug store there. Q. Where is it from the livery stable? How far away? A. It is almost a block away I guess. Q. On the same side of the street, is it? A. Yes, sir; on the south side of the street. Q. Almost a block from the livery stable and on the south side of the street? At the time that you came along there do you know how long it had been since you had seen your father or Os Neal? A. I had not seen Os Neal all day. Q. Was any one with you when you came along there? A. No, sir. Q. Who did you see? How did you come — first? A. I came west on the south side of the street and got to by Mr. Thomas’ store and heard some loud talking and saw my father and Mr. Howell there. Q. And who else? A. Ed Cole and Jeff Smith and Os Neal. Q. What did you do then? A. They seemed like they were in a racket, and I walked across the street where they were. Q. What did you do when you got there? A. I said, ‘Come on, let’s go to the house and not be having any trouble out here.’ Q. What did — what occurred then? A. He said, ‘All right, and started to go with me.’ Q. Now, what next attracted your attention? A. Just as I got up there I heard Father say that he got a horse that could outrun Ed Coles’ horse, and I heard Howell tell him that he was a God damn lying son of a bitch, and he wouldn’t do anything and papa— Q. That was when you told your father to go to the house, was it or not? A. Yes, sir; and papa said, ‘Mr. Howell, I hate to take that, I am not able to fight you,’ and Howell, he had on a jumper and he started to take it off: and pnt it back on and run his hand in his pocket and jerked out a knife and made for my father. Q. Do you know whether he opened it? A. Yes, sir. Q. What did he do? A. He run up, but Jeff Smith and Os Neal made a run to stop him. Q. All right, tell what happened? A. He fell on his way —I don’t know which tripped him. Q. Who fell? A. Mr. Howell. Q. What happened then? A. When he fell my father stepped off: from him — backed up a step or two, and as he got up he made for him again and then I went into him. Q. What did you do? A. I run and stabbed him. Q. Why? A. I did it to protect my father — to keep him from killing my father. Q. Did you think he was going to cut your father? A. Yes, sir; he was making at him with a knife, and had it open. Q. You say when he first started at your father he opened the knife — before he fell? A. Yes, sir. Q. Did you see the knife after that? A. No, sir. Q. After the time that you saw it open and— A. No, sir. Q. After he made —A. No, sir; just as he struck at my father I struck at him. Q. After he had gotton up? A. Yes, sir, after he had gotten up. Just as he struck at my father I struck him — stabbed him right in there. Q. Which hand did you use? A. My left hand. I cannot very well use my right hand. I haven’t got one. Q. You are practically one handed? A. Yes, sir. Q. And you thought that was the only manner you had of stopping him? A. Sure, I could not handle him fair. Q. Do you know what your father’s condition was at that time? A. Well, yes; he was — he had a bad side. He had trouble with it, and the doctor claimed he had appendicitis. Q. When you struck him that one lick, what did he do? A. He whirled around. Q. What did he do? What did you do then? A. I got my father and told him to come on down to the house. Q. Did Howell say anything after you struck him? A. He said, ‘I will get you sons of a bitches,’ and started for the barn, and I took my father and went on down towards the restaurant. Q. Did you personally know whether or not he had anything in the barn? A. Howell? Q. Yes. A. I knew that he kept a gun in there — sixshooter. Q. Do you know what he did when he first went back towards the barn? A. He grabbed a monkey-wrench. Q. What did he do with it? A. Threw it at us, my father and I, as we were going away from him. Q. When you went up on the porch, do you know who, if any one, was there? A. On the porch? No; my stepmother was out on the porch. Q. Do you know of anybody else? A. No, sir; I don’t remember whether anybody else was there or not. Q. Did any one stop you or interfere with you from cutting the prosecuting witness any further? A. No, sir; nobody ever tried to stop me. When he stopped we stopped. All I was trying to do was to stop him. After he stopped I stopped and' got my father and took him down to the house.”
    The prosecuting witness testified that he and Willie McBroom had never had any trouble before that — “had never had a hard word.”
    On cross-examination, the prosecuting witness further testified as follows:
    “Q. When that man cut you, he then took his father back to the porch? A. Yes, sir. Q. Which porch? A. His restaurant. Q. How far from the barn? A. Twenty-five feet from my wall to his wall. Q. East or west? A. West to their place of business. Q. And the east side of that porch — the porch is on the south side of the restaurant and the east end of the porch is 25 feet from the west of your barn? A. Yes. Q. And that is the direction they were going when they left? A. Yes, sir. Q. Where was Ed Cole? A. When the fellow hit at me he jumped on his horse and jumped out in the street. Q. After you say this second lick was struck, what did you do? A. I made for the barn. Q. What did you do ? A. I made after my gun. Q. Did you get it? A. Yes, sir. Q. Had you gotton anything before that time? A. I first grabbed this monkey-wrench. I thought they were both going to cut me again. Q. What did you do with it? A. I threw it and run after my gun. Q. They were going away, were they? A. Yes, sir. Q. At that time they were going away? A. Yes, sir.”
    There was also some evidence by other witnesses, both on the part of the state and on the part of the defendant, which tended respectively to corroborate on the one hand the prosecuting witness and on the other hand the defendant. We deem it unnecessary to enter into a detailed statement of the testimony of each and every witness. Suffice it to say that the foregoing statement fairly presents enough of the evidence to afford a clear understanding of the theories of both the state and of the defendant. The evidence is directly conflicting, and the record presents a close case on the facts.
    J. I. Coursey, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). Of the various errors assigned we deem it only necessary to give full consideration to those relative to the charge of misconduct on the part of the special prosecutor.

The motion for a continuance on account of the absence of the witness Os Neal was properly overruled. There was no abuse of discretion in denying the continuance. There is no showing of any greater likelihood of having obtained the attendance of this witness at a subsequent term of court, had the cause been continued. Furthermore, the record discloses that the testimony of the witness, if present, would have been cumulative of that introduced at the trial.

The errors assigned relative to the instructions and refusal to give requested instructions are not sufficiently meritorious to require of themselves a reversal of this judgment. An examination of the instructions given convinces us that the trial court fairly covered the law of the right of a son to defend his father. For a full discussion of this right see the opinion of this court in Moore v. State, 25 Okla. Cr. 118, 218 Pac. 1102.

We now revert to that assignment of error which we deem the most serious, and which, in view of the conflicting nature of the testimony and the unsatisfactory evidence of guilt, is considered sufficiently prejudicial to require that this defendant be granted a new trial. It has frequently been held by this court that the improper remarks of a prosecuting officer, objected to at the time, will be considered and construed in reference to the evidence, and, if it appears that the improper argument may have determined the verdict, a new trial should be granted. Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Mulky v. State, 5 Okla. Cr. 75, 113 Pac. 533.

During the course of argument of counsel employed to assist in the prosecution, it was stated “that McBroom called Howell a black republican son of a bitch, and that said McBroom is not a republican.” Counsel for the defendant objected, and the court instructed the jury not to consider the fact that McBroom was not a republican. Counsel further stated “that he had known the parents of this prosecuting witness, and that he did not blame the prosecuting witness for wanting to fight him for calling him that, that his mother was a splendid woman, and that he don’t know but that the flowers are growing on her grave, and that he don’t know but that her spirit has gone above.” These remarks objected to, and the court instructed the jury not to consider remarks of counsel. Further in the argument the following argument was objected to and the court overruled the objection and permitted the remarks to stand: “Fourteen Mile creek is known as Dead Man’s Valley, so many men have been murdered who now sleep there in their graves, and their bones are bleaching all over that country.”

This prosecution was based on section 1756, Compiled Statutes 1921, which provides:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

Defendant was found guilty of the crime defined by section 1764, Compiled Statutes 1921, which provides:

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

The jury assessed the maximum punishment provided by the statute for the latter crime. The prosecuting witness himself testified that, before old man McBroom or this defendant struck him with a knife, he had struck at old man McBroom with his fist. He admits that he struck the first blow. On this proposition there seems to be no conflict. The defendant says that the prosecuting witness ran his hand in his pocket and jerked out a knife and “made for my father,” that the prosecuting witness was tripped and fell, and that his father backed off from the prosecuting witness a step or two and that the prosecuting witness made for his father again, and it was not until this time that the defendant cut him with a knife in order to protect his father. There is also no dispute in the record as to the fact that this defendant only cut the prosecuting witness once, that he and his father immediately left the scene of the difficulty, but that the prosecuting witness went into his barn and procured a monkey-wrench which he threw at old man McBroom and this defendant, who were then leaving the place. This is admitted by the prosecuting witness, and the incident itself shows that the prosecuting witness was angry at that time at old man McBroom and Willie McBroom, and a consideration of the entire record indicates that there was more animosity against the McBrooms on the part of the prosecuting witness than on the part of this defendant against him. The evidence in this case is not such as to require or demand the severest penalty of the law for the lower grade of felonious assault defined by section 1764, supra. Had the jury not been appealed to in the manner above indicated, we seriously doubt whether this defendant would have been found guilty of any grade of felonious assault. There is no evidence to indicate that he entered into the dispute and controversy that resulted in the cutting of Howell until such a time as this defendant believed his father, an old man, was in danger of being cut by Howell. We have no sympathy for one who resorts to the use of a knife in defending himself. The brave man never does that, but there is some excuse for this defendant in view of the fact that he was a frail man and had but one hand, and was unable to fight with his fists. It must also be remembered that on the spur of the moment this all happened. These parties had been friends. The prosecuting witness said that there had never been a hard word between him and this defendant. The prosecuting witness was at that time boarding with the mother of this defendant, and there appears no reason from any of the testimony on the part of the state or on the part. of the defendant why this defendant should want to inflict a serious injury upon the prosecuting witness.

A conviction of a felonious assault under this evidence ought not to be permitted to stand. It will forever brand this young man as a felon. We do not believe the evidence is susceptible of a fair construction which should impute a felonious intent on the part of this defendant to kill or to commit serious bodily injury upon Howell by the use of the knife. Taking that view of the evidence, it is apparent to our minds that the inflammatory remarks of the special prosecuting officer were calculated to influence the minds of the jurors and to arouse their prejudice against offenses of this character and thereby against the defendant himself. The argument was not legitimate. Counsel went beyond the bounds of fair argument to discuss matters outside of the record and of a very inflammatory nature. These were not matters of common notoriety or of public history, but were matters peculiarly within the knowledge. of th'e one making the argument. They were highly improper as comments upon matters not in evidence and not legally competent and admissible in evidence. The fact that the trial court instructed the jury not to consider some of these remarks to some extent alleviated the injury, but we are unable to disabuse our minds of the conviction that, all the evidence considered, the jury would not have found this defendant guilty on such a state of facts of a felonious assault, had not their minds been inflamed by such a line of argument.

Were this not a close case on the facts, a different result might and probably would be reached by this court, but where the evidence of guilt is so unsatisfactory, and the remarks so clearly prejudicial, we cannot escape the conclusion that this defendant would either have been acquitted of the charge or else have been found guilty of a lower degree of assault. For such reason, therefore, the judgment is reversed, and the cause remanded to the lower court, with instructions to grant the defendant a new trial.

BESSEY and DOYLE, JJ., concur.


author: MATSON. P. J.

text:
    MATT COLLINS v. STATE.
    No. A-4431.
    Opinion Filed March 22, 1924.
    (224 Pac. 207.)
    (Syllabus.)
    Appeal and Error — Appeal of Misdemeanor not Timely Filed Dismissed. Where the record discloses that an appeal from a judgment of conviction in a misdemeanor case was not filed in this court until 150 days after the rendition of the judgment in the lower court, the appeal will he dismissed.
    Appeal from County Court, Muskogee County; Enloe Y. Vernor, Judge.
    Matt Collins was convicted of the unlawful possession of intoxicating liquor, and sentenced to pay a fine of $500 and to serve six months in the county jail, and he appeals.
    Dismissed.
    P. A. Gavin, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   MATSON. P. J.

This is an attempted appeal from a judgment of conviction rendered against the plaintiff in error in the county court of Muskogee county on the 17th day of February, 1922, wherein plaintiff in error was convicted of the offense of unlawful possession of intoxicating liquor and punishment fixed as above stated. .From the judgment rendered against him plaintiff in error attempted to appeal by filing in this court oh the 16th day of August, 1922, a petition in error, with case-made attached. The Attorney General has filed a motion to; dismiss the appeal, for the reason that the same was not filed in this court within the time allowed by section 2808, Compiled Statutes 1921. This being an attempted appeal from a judgment of conviction for a misdemeanor, the longest period allowed by law after rendition of the judgment for filing the appeal in this court is 120 days. The appeal was not lodged in this court until 150 days after rendition of the judgment. This court has never acquired jurisdiction of the appeal, and the same is therefore dismissed.

BESSEY and DOYLE, JJ., concur.


author: BESSEY, J.

text:
    J. A. COPUS v. STATE.
    No. A-4133.
    Opinion Filed March 27, 1924.
    (224 Pac. 364.)
    (Syllabus.)
    1. Abortion — Negative Exception in Statute — Manner of Proof • Immaterial. Where a statute makes it a felony to commit an abortion on a woman quick with child “unless the same shall have been necessary to preserve the life of such ' mother,” this qualifying clause is a negative exception, sufficiently proved in this case.
    (a) That being true, we are not required in this case to decide whether the obligation to prove such exception is upon the state in the first instance, or whether proof to the contrary is a matter of defense for the defendant.
    2. Appeal and Erroi — Evidence—Testimony Admissible Though Incompetent on Another Issue — No Reversal if Other Facts Prove Issue, or if Error Invited. Where testimony is offered tending to explain some disputed issue, it need not be excluded because it is inadmissible, or even prejudicial, as applied to some other issue; and the admission of such testimony will not operate to reverse a conviction where there was other undisputed proof of the same facts, and where the person complaining was in part responsible for the objectionable answers given.
    3. Trial — Improper Argument Provoked by Opposing Counsel. Where the record contains portions only of the argument of counsel, and it appears that the remarks of which complaint is made were probably provoked or brought on in answer to remarks made by opposing counsel not appearing in the record, the verdict' ordinarily, under such circumstances, will not be disturbed.
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    J. A. Copus was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    S. M. Rutherford, James W. Cosgrove, Alvin F. Molony, and P. A. Gavin, for plaintiff in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is- an appeal from a judgment of conviction in which plaintiff in error was sentenced to serve a term of four years in the state penitentiary at MeAlester. The record in the case is remarkable in two particulars; remarkable for the evidence it contains, and for the absence of proof ordinarily supplied in such cases by those best qualified to testify and furnish that proof.

The plaintiff in error, herein designated the defendant, was charged with and convicted of manslaughter in the first degree under the provisions of section 1743, Comp. Stat. 1921, providing as follows:

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

The testimony on the part of the state shows that the defendant was a dentist who practiced his profession in the city of Muskogee; that a practicing physician in that city was informed by the defendant on July 5, 1921, that the defendant was in trouble with a girl out on a certain street in Muskogee, and that he wanted the physician to help him out; that the defendant had performed an operation on the woman to produce an abortion, and that she needed the services of a physician. The physician then went to the place as requested, and found the woman with a very high temperature and abnormal respiration, and she informed him that an operation had been performed to produce an abortion. The physician, as is customary in such cases, called in another physician for consultation, and the two caused her to be removed to a hospital, where they assisted in the delivery of a still-born child, the fetus being about five months old. An examination disclosed that septic poisoning had set in. It was the opinion of both these physicians, based upon the examination made and the symptoms present, from their experience and practice in such cases, and from statements made by the woman hérself, that the fetus had been quick a few days prior to that time, and that life had been destroyed by means of instruments recently used for the purpose of producing an abortion.

The hospital and physician’s fees and fees for medical attention, to the amount of $150, were paid or satisfied by the defendant. In anticipation of the death of the woman from septic poisoning, her affidavit was taken in the presence of the physicians. This affidavit was not introduced in evidence, and is not in the record, so that this court is not advised of its contents or import. The woman survived, and was in attendance at the trial, was placed on the witness stand by the state, and then excused without having had any questions propounded to her.

The defendant denied that he either committed or advised an abortion. He stated that the woman about five months prior to the time of the alleged abortion had consulted him about some dental work; that she had several defective and ulcerated teeth, and that he contracted to treat her and make such extractions as appeared necessary, and to do certain special bridge work for her; that the cost of this work was to be $400, and that because the woman was of unknown financial standing he exacted the payment of this sum in advance; that under this arrangement he rendered some service by treating her mouth and extracting some teeth, but that she was physically unable to go on with further extractions and treatment; that later, when she was taken to the hospital, her husband came to defendant’s office and reminded him that he had performed only a small part of the dental services contemplated, and that he might never be called upon to complete the work; that the physicians and hospital attendants insisted upon immediate payment for services, and he asked defendant to refund sufficient money to pay these demands; that pursuant to this request defendant caused to be paid Or satisfied the hospital and physicians’ fees to the amount of $150; that he was under no obligation to do this, but did it purely out of motives of human sympathy.

It was shown in evidence that the woman was physically fráil, and had been for months afflicted with acute rheumatism, and that she was given home treatment by application of hot water bags to her abdomen and lower back to relieve these rheumatic pains. One physician testified that such treatment of a pregnant woman, in her frail and run-down condition, might bring on an abortion naturally without the use of instruments.

The husband of the woman testified for the state as to the refund of money by defendant, but did not assume to know anything except what his wife told him about a forced abortion. The woman, although present, did not testify at all.

One of the assignments of error is. that the proof is insufficient to support the verdict because the corpus delicti was not proved, and because there was no showing made by the state that, if an abortion was indeed committed by the defendant, it was not necessary to preserve the life of the mother.

The information states and there was proof supporting the averment, that the offense was accomplished by the “use and employment of instruments,” without stating or showing the particular kind of instrument used. Two physicians testified that, from their knowledge, gleaned from a physcial examination of the mother and from the appearance of' the fetus after delivery, it was their professional opinion that there had been an attempted' abortion by means of instruments. One of them stated further that this conclusion was confirmed by what the patient -told him.

It is necessary that the corpus delicti be proved by either direct or circumstantial evidence showing every essential element of the crime charged, in this case including the use of instruments. But it was not necessary to prove the particular instruments used. State v. Longstreth, 19 N. D. 268, 121 N. W. 1118, Ann. Cas. 1912D, 1317; 1 Corpus Juris, 318, and cases cited. As to circumstantial evidence of ways and means employed, see 1 Corpus Juris, 330 et seq. It was not necessary to prove, or for the jury to believe, that because the defendant was a dentist he used one or more of the instruments of torture commonly used in filling or extracting teeth.

Commenting on the sufficiency of the evidence with reference to the refund made to the husband of the woman, the attorneys for the respective parties advance these arguments:

By the Attorney General: “If there be one who can read defendant’s story and explanations and accept them as true, his credulity is infantile, or his mind approaches a state of senility. Yerily, not since the days of the Good Samaritan has there been one whose generosity has paralleled or equaled that of this liberal defendant. As a dentist he attends the aching voids of cavernous grinders and then gives back the fees to those thus administered unto! 0 generous soul!”

Defendant’s counsel thus: “Wizzardy of language may please the ear and charm the eye, Ciceronian periods may add grace and poetic inflection to the classic page, but neither in one or the other do we find ‘the sabre cut of Saxon speech’ that carries conviction to the mind.”

This case cannot be decided on general deductions of philosophy or embellished periods of rhetoric. Abstractly, the record shows that an abortion had been performed by the accused, and if it was not done hy him to save the life of the mother he was guilty as charged.

The defendant claims that the burden of proof was upon the state to show that the act was not done to save the life of the mother; that the qualifying clause in the statute quoted, “unless the same shall have been necessary to preserve the life of the mother,” states an integral and necessary part of the offense. This statute was copied from a like statute in the Dakota Code, and became effective here December 24, 1910. In the case of State v. Longstreth, 19 N. D. 268, 121 N. W. 1115, Ann. Cas. 1912D, 1317, decided June 11, 1909, the court held:

“Defendant’s contention that the evidence is insufficient to support the verdict of guilty, upon the ground that the state failed to prove that the abortion was not necessary to preserve the life of the woman, was properly overruled, as the facts and circumstances sufficiently establish at least a prima facie case in favor of the state on such issue. * * * Mr. Bishop [Bishop on Statutory Crimes (3d Ed.) § 762] says: ‘Under a statute which makes it an element of the offense that the abortion was not necessary, some courts hold that, though this want of necessity must be averred in the indictment, it need not be proved; but the burden is on the defendant to show a necessity. This is a sort of question on which judicial opinions differ.’ * * * Under the record in this case we are not required to adopt either rule, as a consideration of the testimony serves to convince us that, without the aid of such presumption, the state has sufficiently established at least a prima facie case on this issue.”

In California, where a like statute exists, the question of whether there must be such negative averment and proof of the same by the state has not been decided. In the ease of People v. Balkwell, 143 Cal. 259, 76 Pac. 1017, decided May 12, 1904, the court said:

“There is a wide divergence of authority upon the question as to whether, under a statute such as ours, the burden of establishing that the abortion was actually necessary is an affirmative defense, or whether the proposition is to be negatived in the first instance by the prosecution.. * * * Conceding that it was for the prosecution to establish the fact that the operation was not necessary to preserve the life of the pregnant woman, that was sufficiently done in this instance.”

And to the same effect was People v. Thompson, 16 Cal. App. 748, 117 Pac. 1033.

Likewise in the case here under consideration it is not necessary to decide whether the burden is on the state in the first instance to show that the abortion was not necessary to save the life of the mother. The defendant was a dentist, who had no right under any circumstances to perform such an operation. The woman upon whom it was performed was not related to him, there was no bond of friendship between them, and he was under no obligation to render her any assistance if indeed her life was in danger. Furthermore, the direct and circumstantial evidence indicates that the operation was performed for no good purpose. The question of whether the obligation is upon the state in the first instance to show that the abortion was not necessary to save the life of the mother will be for decision in some future case, if ever such arises. The states holding that this burden is upon the state are Connecticut, Delaware, Illinois, Indiana, Iowa, Massachusetts, Missouri, Ohio, Vermont, and Utah; those holding to the contrary are Colorado, Texas, Wisconsin, Washington, Alabama, and possibly other. The courts in some of the states enumerated in the list first given qualify the rule by stating that a negative allegation as to a matter peculiarly within the knowledge of the adverse party need not be proved.

It is urged further that the cause should be reversed because certain incompetent testimony was permitted to go to the jury. The record discloses that the defendant himself was responsible for some of the objectionable testimony which was brought out on cross-examination of the witnesses, and resulting re-direct examination by the state. One of the questions propounded to the husband of the woman by the defendant was:

■ “You went to Dr. Copus as a friend, after you found out that your wife had paid him that money and he. had not yet done the work, to get money to pay Dr. Earnest; you didn’t have-it, and that is the reason you went to him, isn’t it? Answer: No; I went to him because Dr. Earnest asked me to go.”

On re-direct examination of this witness the state asked:

“Do you recall wbat your wife told you sbe had paid Dr. Copus $400 for?”
Counsel for defendant thereupon interrupted, stating:
“The witness has answered that once; he said he didn’t know. ’ ’
The court then said:
“I will let him answer it.”
Answer:
“For performing an abortion, think' it was; I am not sure. ’ ’

Counsel for defendant then said:

“I am going to object to that, and ask that it be stricken, and that the jury be asked not to consider it. I never asked him a question about what she said.”

The court replied:

“You asked him if he learned that this was paid for dental work. I will have to deny the request.”

This approaches the border line of ineompetency, as being hearsay and privileged communication. However, other portions of the testimony so strongly show that the defendant had performed the abortion, and the testimony elicited was explanatory of the payment of money, which was competent testimony for the proper consideration of the jury, that we are constrained to hold that the irregularity, under all the circumstances, was not vital.

Finally, it is contended that this cause should be reversed because of highly prejudicial and unwarranted remarks of the prosecutor in his closing argument to the jury. The remarks complained of followed this situation: The woman was a witness for the state, her name having been indorsed ■upon the information as such. At the close of the testimony she was called to take the stand in rebuttal, and had qualified as a witness, whereupon the county attorney addressed the court thus:

“If the court please, the state will ask permission to examine this witness as a hostile witness; although she has been subpoenaed by the defense (as well as by the state) I wish to get her testimony in rebuttal of certain matters.”

Then followed objections and dialogue between the attorneys, in which the attorney for the defendant said:

“We object to any such play like that before the jury.”

At the conclusion of the dialogue, the hour of 5 o’clock having arrived, the court adjourned until the following morning, and at the appointed time reconvened with the woman still on the witness stand. The court inquired whether the parties were ready to proceed, and the county attorney announced that he had no further testimony to offer. The attorneys then proceeded with the argument, of which only the excerpts complained of are preserved in the record, they being as follows:

“By Mr. Green: I will tell you why I didn’t put her on the stand. I thought she had been tampered with; I don’t know by whom, or when, but by somebody—
“By Mr. Rutherford: I want to object to that statement. He is not authorized to make any statement of that kind here. He has had the witness all the time. He has got no right to get up before this jury and make a statement that anybody has tampered with the witness.
“By Mr. Green: I didn’t say that you had, sir, and I didn’t intimate it.
“By Mr. Rutherford: It doesn’t make any difference; you have no right to make that statement, and I want to ask the court to instruct the jury it is improper argument.
“By the Court: The counsel will not argue to the jury that any witness has been tampered with; counsel may discuss in his argument to the jury any facts that were brought out in the testimony in this case.
“By Mr. Green: And then there was a certain affidavit made and signed by Mrs. Maples—
“By Mr. Rutherford: I object to that. There wasn’t any of that got before the jury. There wasn’t any affidavit made, so far as the jury knows.
“By the Court: I will sustain the objection on that. The jury will not consider the last remark of counsel for the state. ’ ’

These alleged errors were urged before the trial court in defendant’s motion for a new trial. The court, in overruling that motion, discussing this feature of the ease, said:

“Objection No. 9 in the motion goes to certain statements made by the county attorney in arguing the ease to the jury. I am not advised as to whether the quotation in the motion is a literal quotation or the substance.
“By Mr. Rutherford: A literal quotation.
“By the Court: The record will disclose.
“By Mr. Green: Just what language is connected with the county attorney?
“By the Court: The language accredited to you is, ‘Gentlemen, I will tell you the reason we didn’t put Mrs. Maples on the stand; it was because she had been tampered with in some wise, and we didn’t know whether she would tell the truth.’
“By Mr. Green: I wish to state here that the language accredited to the county attorney on that occasion is not correctly quoted. It is not even the substance of the language used at that time.
“By the Court: The record will show whether the quotation is correct or not. The court will not attempt to pass upon that, but the court does find as a matter of fact, and' did so find at the time the objection was made, that the remarks of the county attorney were proper in view of the argument made by the attorney for the defendant in arguing the case to the jury, and that the county attorney was only answering the arguments made by counsel for the defendant, arid under the circumstances his argument was proper, and not objectionable. After considering the motion and the objections therein set forth, the court is of the opinion that it is not well taken, and should be overruled.’’

It has been held by this court that, where the record does not contain the argument of counsel in full, and it appears that the remarks of which complaint is made may have been provoked or brought on in answer to remarks made by opposing counsel not appearing in the record, the verdict will not be disturbed on that ground. In this case the trial court found as a matter of fact that the county attorney was answering the argument made by counsel for defendant, and that his reply to such argument was proper under the circumstances. Under this state of the record this ease comes peculiarly within the rule announced in Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040, and Payne et al. v. State, 21 Okla. Cr. 416, 209 Pac. 334.

The judgment of the trial court is affirmed.

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


author: DOYLE, J.

text:
    OMAR WATSON et al. v. STATE.
    No. A-4382.
    Opinion Piled March 27, 1924.
    (224 Pac. 368.)
    (Syllabus.)
    1. Former Jeopardy — Conviction of Higher Offense on New Trial. In this state a new trial granted on the motion of the defendant in a criminal case places the party accused in the same position as if no trial had been had. Upon such new trial the defendant may be tried and convicted of any offense embraced within the information, though of a higher grade than that of which he was found guilty at the first trial.
    2. Same — Conviction of Petit Larceny not Bar to Trial for Higher Offense. The granting of a new trial to a defendant convicted of petit larceny, upon an information for grand larceny, is not a bar to another trial under the same information for the higher offense.
    3. Samei — Waiver of Plea by Securing New Trial. When a new trial is granted the defendant, on his own motion, he thereby waives his constitutional right to interpose the plea of having been once in jeopardy.
    4. New Trial — Law as to Grant of New Trial Placing Parties in Same Position as Before, Trial Constitutional. The Legislature has the constitutional right' to prescribe conditions upon which a new trial shall be granted to a defendant who has been convicted of a crime; and the statute which provides that, “The granting of a new trial places the parties in the same position as if no trial had been had,” is not unconstitutional.
    Appeal from District Court, Tillman County; Frank Mathews, Judge.
    Omer Watson and another were convicted of petit larceny, and they appeal.
    Affirmed.
    P. Mounts, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were tried for grand larceny upon an information charging that they did take, steal and carry away two Ford automobile wheels, two casings, and two inner tubes of the value of $40, the personal property of W. C. Hiner. The jury returned a verdict finding them guilty of petit larceny and assessed their punishment at 30 days in jail and a fine of $65. The verdict was set aside and a new trial granted on the motion of the defendants.

On the second trial they interposed as a plea, in bar of their further prosecution for grand larceny, former acquittal, on the ground that the conviction for the lesser offense, although the verdict was set aside at their instance, was an acquittal of the greater offense, and that the only offense for which they could now be tried would be petit larceny, a misdemeanor ; therefore the district court is without jurisdiction, and they should be discharged. The plea of former jeopardy was overruled, and exception allowed. Upon the second trial the jury returned a verdict finding them guilty of petit larceny and assessed their punishment at 30 days in jail and a fine of $100. They have appealed from the judgment rendered on the verdict.

The overruling of the plea in bar, of former acquittal, is assigned as error, and is the only question presented by the record for review.

It is urged that having been convicted of petit larceny only, on the first trial, such verdict was equivalent to an acquittal on a charge of grand larceny; that a defendant does not waive former jeopardy as to the implied acquittal of the higher offense by obtaining a new trial in case of conviction for an included offense; and that the second trial was therefore in violation of the constitutional safeguard against being twice put in jeopardy for the same offense.

There is a great and irreconcilable conflict of authority as to the effect of a new trial granted at the instance of the defendant, in cases where he was convicted of a lower degree of the offense charged, or a lower offense embraced within the charge laid in the indictment or information. The main reason underlying this conflict arises from the fundamental difference in the judicial construction of the nature of the verdict in such cases. All adjudications are a unit on the proposition that a verdict of conviction of a lower offense embraced within the offense charged is an implied acquittal of the higher offense embraced within the offense charged, but some of the courts hold that such a verdict is an entirety, and cannot be severed and must stand or fall as an entirety, so when a new trial is granted it opens up the whole controversy anew, and the defendant by obtaining a new trial on his own motion waives the former jeopardy, not only as to the offense of which he was convicted, but also as to the one of which he was thereby impliedly acquitted.

In State v. Behimer, 20 Ohio St. 572, it was held, where, on a trial for murder, the defendant is found guilty of a lower degree of homicide than the highest degree charged in the indictment, and on his motion a new trial is granted, the effect of granting the new trial is to set aside the whole verdict and leave the case for retrial upon the same issues as on the first trial. The opinion is, in part, as follows:

“The question for decision, therefore, is, whether the legal effect of granting the new trial was to set aside the whole verdict, and leave the case for retrial upon the same issues on which it was first tried; or, whether the retrial was properly limited by the court to the degree of homicide of which the defendant had been found guilty, and to the inferior degree of manslaughter.
“A new trial has been defined to be the reinvestigation of the facts in a case, or rather, of the legal rights of the parties upon disputed facts. The term new trial, therefore, as applied to a jury ease, has reference solely to an issue which has already been passed upon by a jury. 2 Grah. & Wat. on New Trials, 32.
“In a civil case there would be no doubt, where part of the issue has been found for the defendant and he should obtain a new. trial, that the whole issue would be reopened for investigation on the second trial. And Mr. Wharton states, in his work on Criminal Law, that in this country the uniform and unquestioned practice, down to a comparatively late period, has been to extend to criminal cases, so far as the revision of verdicts is concerned, the same principles which have been established in civil actions. 2 Am. Crim. Law, § 3061. See also to the same effect, Hurley v. The State, 6 Ohio, *403.
“The ground relied on to withdraw criminal cases from the operation of the general rule, is the provision in the bill of rights, which declares that no person shall ‘be twice put in jeopardy for the same offense.’
“Though the existence of the power was once doubted, it is now well settled that the court has the power, at the instance of the defendant, after a verdict of conviction, to grant a new trial, without infringing this provision of the Constitution. 2 Story’s Com. on the Const, of the U. S. § 1787; 2 Whart. Am. Crim. Law, § 3060 et seq. The power has been uniformly exercised in this state, when, in the judgment of the court, a proper case arose.
“The constitutional provision extends the common-law maxim, which was limited to felonies, to all grades of offenses; and it is but the application, to the administration of criminal justice, of a more general maxim of jurisprudence, that no one shall be twice vexed for one and the same cause. On this maxim rests the whole doctrine of res judicata. The object of incorporating it into the fundamental law, was to render it, as respects criminal causes, inviolable by any department of the government.
“In the case now before us, if, after the granting of the new trial, the finding of the jury acquiting the defendant of murder in the first degree, stood as an adjudication of that fact, and had its full legal effect, it would preclude his retrial for any of the lower degrees of homicide.
“Thus, ‘an acquittal on an indictment for murder will be a good plea to an indictment for manslaughter of the same person; and e converso an acquittal on an indictment for manslaughter will be a bar to a prosecution for murder; for in the first instance, had the defendant been guilty, not of murder but of manslaughter, he would have been found guilty of the latter offense on that indictment; and in the second instance, since the defendant is not guilty of manslaughter, he cannot be guilty of manslaughter under circumstances of aggravation which enlarge it into murder.’ Starkie’s Crim. Pl. 357; 12 Pick. 504; Arch. Crim. Pl. (Old Ed.) *p. 88; Rex v. Jennings, Russ. & Ry. 388.
“But the effect of setting aside the verdict finding the defendant guilty, was to leave at issue and undetermined the fact of the homicide; also the fact whether the defendant committed it, if-one was committed. The legal presumption on his plea of not guilty, was of his innocence; and the burden was on the state to- prove every essential fact. The- only effect, therefore, that could be given to so much of the verdict as acquitted the defendant of murder in the first degree, after the rest of it had been set aside, would be to regard it as finding the qualities of an act while the fact of the existence of the act was undetermined. This would be a verdict, to the effect, that if the defendant committed the homicide, he did it without ‘deliberate and premeditated malice.’
“There can be no legal determination of the character of the malice of a defendant, in respect to a homicide which he is not found to have committed; or rather, of which, under' his plea, he is, in law, presumed to be innocent.
“The indictment was for a single homicide. The defendant could, therefore, only be guilty of one offense, and could be subject to but one punishment. The degrees of the offense differed only in the quo animo with which the act causing the homicide was committed. The question of fact was whether a criminal homicide had been committed, and, if so,whether the circumstances of aggravation were such as to raise it above the grade' of manslaughter. If the finding as to the main fact be set aside, the finding as to the circumstances necessarily goes with it.
“The same view is evinced by the Crimes Act, which defines the different degrees of criminal homicide. Section 39 provides, that in all trials for murder the jury shall, if they find the prisoner guilty, ascertain in their verdict whether it be murder in the first or second degree, or manslaughter; and if the conviction be by confession in open court, the court shall proceed by the examination of witnesses to determine the degree of the crime. S. & C. Stat. 416.
“It seems to us, therefore, that the necessary result of granting the defendant’s motion for a new trial, was to set aside the whole verdict; and this having been done at his own instance, it can neither operate as an acquittal, nor as a bar to the further prosecution of any part of the offense charged. Stewart v. State, 15 Ohio St. 155.
“The whole verdict being set aside in granting the new trial, we can discover no other ground on which to hold that the defendant was entitled to his discharge from so much of the indictment as charged him with murder in the first degree.
“It. is not the case of a discharge of the jury for an insufficient cause and without the defendant’s consent. The jury was properly discharged on rendering the verdict. The new trial results necessarily from granting the defendant’s own motion.
“In Hurley’s Case (6 Ohio, 400), the indictment contained three counts. The first charged him with murder in the first degree; the second with murder in the second degree, and the third with manslaughter. The record showed that the jury returned into court and reported that they had agreed that the defendant was not guilty on the first count; but that they could not agree on the other counts. The defendant moved the court to enter on the journal the verdict of the jury as to the first count, which the court refused. The Supreme Court declared there was no error; that ‘a verdict in either a civil or a criminal case, must be considered an' entire thing’: that the finding ‘was in law no verdict, and the court did not err in rejecting it altogether.’
“If the verdict could not be received without a finding as to the minor grades of the offense, it is not perceived how it can stand and have effect after the finding as to these grades is set aside. And it is laid down as the general rule, that ‘If the jury find only part of the issue, judgment cannot be- entered on the verdict. It is void for the whole; and a venire de novo will be awarded.’ I Grah. & Wat. on New Trials, 140; 2 Id. 1390.
“The principle contended for on behalf of the defendant would equally apply to the setting aside a verdict finding a defendant guilty of petit larceny where the indictment is for grand larceny. The effect of the principle would be, that while the fact as to the body of the offense would be open to investigation on the second trial, yet the circumstance as to the value of the property would be res judicata, and conclusively settled by the first verdict.”

In case of Comm. v. Arnold, 83 Ky. 1, 4 Am. St. Rep. 114, it is said:

“It is manifest that by the reversal of the judgment of ■ conviction and the granting of a new trial, there is no verdict or judgment in existence acquitting or convicting the accused of any of the degrees of the offense with which he stands charged. The Legislature has provided the manner in which (a new trial may be had and the causes for which it may be jgranted; and when a conviction is had, and the accused sees .proper to ask for a new trial, we see no constitutional objection in requiring him to submit to the conditions imposed by the statute. It is urged that such a ruling compels the accused to submit either to the verdict of manslaughter against him, or subject himself to a trial for a greater offense. While this may be true he stands convicted, and is relieved from the verdict of guilty on the condition that he consents to be re-tried on the charge contained in the indictment. There is no injustice or hardship in compelling the accused, when taking advantage of the provisions of the code in order to obtain a new trial, to submit to the provisions imposing the conditions upon which'a retrial is awarded. If a conviction for manslaughter implies an acquittal of the higher offense, the accused on his own motion has asked the court to set aside the verdict from which this implication of innocence or acquittal of the graver offense arises. The conviction no longer exists, and when set aside it cannot be used as evidence or pleaded in bar of the indictment. There is neither verdict nor judgment of guilt as to any degree of the offense. ’ ’

In the ease of State v. McCord, 8 Kan. 232, 12 Am. Rep. 469, it is said:

“Three propositions are asserted: (1) That a verdict of acquittal or conviction is a perfect bar to another prosecution for the same offense, and this is a constitutional guaranty, of the benefit of which neither courts nor Legislatures can deprive a party. (2) That a party may waive this constitutional safeguard, and that he does so when on his own motion he obtains a new trial. (3) That he waives this right only so far as may be necessary to obtain the new trial; and that it is only necessary to waive this right to so much of the verdict as finds him guilty of a certain degree of the offense, and not to that part that inferentially finds him not guilty of the other degrees. The first two of these propositions are admitted by all the authorities. As to the third there is some contrariety of opinion, upon which it is not our purpose to comment. For, assuming all the propositions to be correct in the absence of statutory regulations, and the result is not affected in this state, where, as we have seen, the Legislature had a right to make a law, and where they have made one, that measures the extent of the waiver, and fixes its necessity. The authorities all agree that the constitutional right may be waived by the party convicted, and that this waiver is commensurate with the necessities of the party, in order to obtain a new trial. Whatever may be the proper rule as to the extent of the waiver where there is no statute, it is plain that where the statute has fixed the necessity, it has there placed the extent of the waiver. In this state the necessity is that the party should waive the entire right so as to bring himself within the power of the court to grant him a new trial. His waiver goes no farther than his necessities. He makes his motion with a full knowledge of the risks he takes, and of all the possible consequences. To obtain a new trial, he voluntarily waives a right that neither courts nor the Legislature can take from him- — a right that he surrenders for his own benefit, and the exact extent of which was plainly written, as the terms on which it could be done, when his motion was allowed. He is estopped from now complaining.”

In People v. Wheeler, 79 App. Div. 396, 79 N. Y. Supp. 454, it is said:

"A defendant is accused of a grave crime, and is con.victed of a lesser offense, which finds no support in the evidence, and lacks the constituent elements of the crime charged. He moves for a new trial, in effect saying to the court, ‘I prefer a new trial on the indictment to submitting to this unjust verdict.’ The court takes him at his word, and sets aside the verdict, and accords him the new trial. He makes his application voluntarily within the regulations governing the practice. It is neither reasonable nor logical, upon granting his application, to hold that the verdict is a nullity, but still retain in it sufficient vitality to acquit him of the offense of which he is accused in the indictment.”

And see People v. Palmer, 109 N. Y. 413, 17 N. B. 213, 4 Am. St. Rep. 477.

The following cases hold that where there is but one offense charged in the indictment or information, and the defendant, convicted of a lower degree of that offense, obtains on his own motion a new trial, the effect of granting a new trial is to set aside the whole verdict and leave the case to be retried upon the same issue as on the first trial. They maintain that the verdict is entire, and, when set aside, leaves the ease in the same condition as if it had never been rendered: State v. McFarland, 121 Ala. 45, 25 South. 625; Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154; People v. Ham Tong, 155 Cal. 579, 102 Pac. 263, 24 L. R. A. (N. S.) 481; Fain v. Comm., 109 Ky. 545, 59 S. W. 1091; State v. Thompson, 10 Mont. 549, 27 Pac. 349; State v. Davis, 80 N. C. 384; Bohanan v. People, 18 Neb. 57, 24 N. W. 390, 53 Am. Rep. 791; Benton v. Comm., 91 Va. 782, 21 S. E. 495; State v. Cross, 44 W. Va. 315, 29 S. E. 527; Turner v. Territory, 15 Okla. 557, 82 Pac. 650.

The question presented by the record is of the gravest importance to the administration of justice under the laws of this state, which provide for the trial and punishment of offenders. It is one of first instance in this court, and we are free, so far as being bound by any previous decision, to adopt our own view of the intent of the constitutional and statutory provisions.

The Bill of Rights declares:

“Nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” Article 2, § 21.

In the Code of Criminal Procedure are these provisions:

“No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted except as hereinafter provided for new trial.” Section 2350, Comp. Stats. 1921.
“When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.” Section 2626.
“A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had, * * * and the former verdict- cannot be used or referred to either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment or information.” Section 2753.

These provisions of the statute are clear and explicit, and in no wise contravene the letter or the spirit of the fundamental law. The power to grant a new trial in criminal cases constituted no part of the jurisdiction at common law. This power is in most of the states, as in this state, conferred by express. legislation. In every case where we have seen the question discussed, it is assumed as a power conferred by legislation or by long usage, and in no case is it held to be a constitutional grant. It is a privilege offered by the law to the accused, in addition to the guaranties afforded by the Constitution. As the power is conferred by law, it is competent for the legislative department of the government to extend it, or to limit and modify it, at its pleasure, or to prescribe upon what terms it may be granted, so that it does not infringe upon any constitutional guaranty.

Where a constitutional right is largely for the benefit of the accused, or in the nature of a personal privilege, the law is well settled that an accused may waive such right. Walker v. State, 10 Okla. Cr. 533, 139 Pac. 711.

Where the statute so provides, a constitutional right or privilege may be waived by the accused. Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356.

The public, as well as the accused, have an interest in every criminal action. The life and liberty of the citizen is a matter of supreme importance to the state, and it should not allow him to throw either away by a failure, intentionally or otherwise, to take advantage of his constitutional safeguards. It will not do, however, to say that, because the state has a peculiar interest in protecting the citizen accused of crime to the extent of his constitutional rights, he shall in no case be allowed to waive them, for in some eases it may be to his interest to waive them, and a denial of the right to do so would defeat the very object in view when the rights were given, and cause them to operate to the injury, rather than to the benefit of the accused.

Section 2753 provides that—

“The granting of a new trial places the parties in the same position as if no trial had been had.”

This is clear and conclusive.

The Legislature has prescribed the grounds upon which a new trial may be granted, and has imposed certain conditions on the defendant, one of which is that he shall be deemed to have waived his constitutional protection against former jeopardy.

The sections above quoted measure the extent of the waiver and fix its necessity, and that necessity is that the party convicted must waive the entire right so as to bring himself within the power of the court to grant him a new trial. He makes his motion with the full knowledge of the risk he takes and with all the possible consequences. To obtain a new trial he voluntarily waives a right that neither courts nor the Legislature can take from him — a right that he surrenders for his own benefit, and the exact extent of which is plainly written, as the terms on which it could be done, if his motion is granted.

It follows that when he files his motion for a new trial he must be deemed to have waived his constitutional right to interpose the plea of having been once in jeopardy. That no constitutional right is invaded is a self-evident proposition, for it is a privilege whch is granted of which he may, or may not, avail himself.

In conclusion we hold that the verdict is an entirety, and that a new trial obtained at defendants’ instance in case of a conviction of petit larceny is a waiver of defendants’ constitutional right to interpose a plea of having been once in jeopardy on the implied acquittal of grand larceny as charged in the information.

The judgment appealed from is, accordingly, affirmed.

MATSON, P. J., and BESSEY, J., concur.