text:
    JIM STILWELL v. STATE.
    No. A-3496
    Opinion Filed Sept. 25, 1920.
    (192 Pac. 253.)
    (Syllabus.)
    1. NEW TRIAL — Discretion of Trial Court — Newly Discovered Evidence. The granting of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court.
    2. SAME — Sufficiency of Showing. A new trial because of new evidence discovered material to the defendant should not be granted unless the evidence is such which could not, with reasonable diligence, have been discovered before the trial.
    3. SAME. A new trial on the ground of newly discovered evidence should not be granted, unless there is a reasonable probability that the new evidence would likely change the result, should a new trial be granted.
    4. SAME — Refusal of New Trial. Where, in a motion for a new trial on the ground of newly discovered evidence, there is no proper showing that such evidence was in fact newly discovered, and the motion does not set out any facts or circumstances showing diligence to discover such evidence, and it is apparent, also, that the alleged newly discovered evidence, when considered in connection with the evidence introduced up on the trial, is largely cumulative, and is not such as would likely change the result, should a new trial be granted, no manifest abuse of discretion is shown by the trial court in overruling the motion.

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

      Jim Stiíwel'l was convicted of the crime of grand larceny, and sentenced to serve a term of four years in the state penitentiary, and he appeals.
    Affirmed.
    On-the night-of the 17th of April, 1918, one R. C. White, a farmer living about six miles east from the city of Waurika, in Jefferson county, Okla., had his Ford automobile stolen from a barn located on his premises. The absence of the car was discovered on the next morning. Jim Stilwell, the defendant, had been doing some carpenter work at White’s place, was familiar with the premises, and knew that White owned a Ford car, which he kept in his barn; the evidence also disclosing that Stilwell had driven White’s car.
    On the morning following the larceny, and after the discovery that the car was gone, White made an examination of his premises, and found the tracks of three men leading up to his barn, and similar tracks leading away from, the barn, showing that the automobile had been pushed out of the barn a distance of about a quarter of a mile down into a ravine, where it had been cranked and there driven away in a westerly direction. There was also discovered the track of a larger car, not far distant from where White’s car had been cranked, and this car had been driven into a pasture, and the tracks of three men led away from it up to White’s barn. The imprint of one of the tires oh the larger car in the soft clay was preserved, and this imprint tallied exactly with a car owned by Miss Kirk, a sister of Elmer Kirk and Wesley Kirk, who were jointly charged with the larceney of White’s car.
    'The sheriff of Jefferson county, Mr. Ballard, after having been informed that White’s oar had been stolen, made certain investigations for the purpose of discovering who might ibe the guilty parties. He made an examination of the footprints at the scene of the larceny, and the measurment of one of these footprints tallied exactly with the measurement of the shoes of Elmer Kirk, who was jointly tried with this defendant, and convicted and sentenced to serve a term of two years’ imprisonment in the penitentiary. No appeal was taken by Elmer Kirk.
    Several days after the commission of the larceny, the defendant, Jim Stilwell, was arrested at Holbrook, Ariz. The Ford oar belonging to White was also found there, close to a little shack in Which Stilwell was staying. Sheriff Ballard testified that, when he was returning to Waurika with Stilwell, Stilwell told him that he was going to plead guilty to the charge of stealing White’s car, and turn over a new leaf and try to make a man out. of himself. Stilwell, as a witness, denied making any such statement to the sheriff. Stilwell also denied that he participated in any way in the larceny of White’s car. He said that on the night of the 17th of April, about 11 o’clock, Elmer Kirk and Wesley Kirk came to his house in the Ford automobile, and that he immediately left with Wesley Kirk for the purpose of looking for work; that they drove the car through Texas into New Mexico, and from there to Holbrook, Ariz., where they both went to work for a railroad company; Stilwell in the capacity of a carpenter, making box cars, and Wesley Kirk as a bridge worker.
    There is no evidence in the record that either of the Kirks knew White, or knew that he was possessed of a Ford car. Elmer Kirk’s defense was an alibi, and in this respect he contradicted the defendant Stilwell, denying that he was at Stilwell’s house at any time on the night of the 17th of April, 1918, but testified that he stayed at home with his sister on that night from about 10:30 o’clock until the next morning; that prior to 10:30 o’clock he was in the town of Waurika. In this alibi, Elmer Kirk is corroborated by the testimony of his sister, while Stilwell is corroborated by the testimony of his wife that Elmer Kirk appeared at their house on that night. Wesley Kirk was at that time a fugitive from justice, and, although this fact was known to Stilwell, he left with him at that time. The evidence also discloses that Wesley Kirk was killed while attempting to escape arrest at or near Holbrook.
    The evidence on the part of the state tends conclusively to show that White’s car was stolen by three men, who pushed it out of his barn some time during the night of April 17, 1918, and the circumstantial evidence in the record tends' conclusively to establish that the defendant, Jim Stilwell, was a participant im this larceny in collusion with Elmer and Wesley Kirk. The theory of the defendants is that Wesley Kirk alone stole the car, that Elmer Kirk had nothing to do with it whatever, and that Jim Stilwell was not a participant in the larceny, but merely went away with Wesley Kirk for the purpose of hunting work as a carpenter.
    There was also found by the sheriff, among other papers, in the coat belonging to Jim Stilwell at the time of his, arrest at Holbrook, Ariz., a certain bill of sale to a Ford automobile, which bill of sale was dated the 21st day of March, 1918, and, after having been identified by the sheriff as having been taken from the coat belonging to this '¿defendant, was admitted in evidence, over the objection and exception of counsel for defendant. There was also admitted in evidence a certain package of mail, addressed to Elmer Kirk, which had been left in a store at Waurika, which said package contained dies, stamps, and stencils for the purpose of changing numbers on automobiles, contrivances commonly used by automobile thieves. The defendant Stilwell denied any knowledge of the possession of the bill of sale, and also denied that he had at any time ever owned a Ford automobile. He also denied any knowledge of the package of dies, stamps, and stencils. The defendant Elmer Kirk also denied any knowledge of this package;

      Bridges & Vertrees, for plaintiff in error.

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

(after stating the facts as above). The «ole ground relied upon in the brief of counsel for defendant as. ground for reversal of this judgment is that the trial court erred in overruling the motion for a new trial on the ground of newly discovered evidence. In the motion for a new trial, the defendant presented the affidavit of one L. M. Kirk, who was the mother of the defendants Elmer Kirk and Wesley Kirk. In the affidavit Mrs. Kirk says that the package of dies, stamps, and stencils were ordered by Wesley Kirk without the knowledge of Elmer Kirk, and were ordered sent in the name of Elmer Kirk, for the reason that Wesley Kirk was at that time hiding from the officers, and that, when the package came, she (witness) put them in her trunk, intending to send1 them back, but never did it; also regarding the bill of sale, Mrs. Kirk says that the same was written by Wesley Kirk in her presence sonrn time before the automobile in question was stolen, and that defendant Sti-lwell had nothing whatever to do with drawing this bill of sale. There was also attached to the motion for a new trial the affidavit of the defendant Jim Stilwell, to the effect that he had for the first time since the trial of said cause been informed of what the testimony of L. M. Kirk would be respecting these matters.

The affidavit of L. M. Kirk states that she was not subpoenaed as a witness in the trial of said case, and never mentioned the facts contained in her affidavit until some two hours after the case had been submitted to the jury. It has been repeatedly held by this court that the granting of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court. Noel v. State, 14 Okla. Cr. 548, 174 Pac. 293; Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499.

A new trial because of new evidence discovered material to the defendant should not be granted, unless the evidence is such which could not, with reasonable diligence have been discovered before the trial. Section 5937, Revised Laws 1910. The witness by whom it was proposed to produce the new evidence was the mother of one of the defendants. The very intimate relation existing between the witness and one of the defendants, especially in the- absence of any showing that the mother was not present at the trial of her son, would indicate that very little diligence was resorted to prior to the trial to learn what the mother might have known beneficial to her son. Especially is this view impresséd upon the court because of the fact that the sister of the defendant Kirk testified fully in his behalf.

The motion in this case does not state fully the circumstances which make it appear, as a matter of fact, that such evidence was really newly discovered, and could not have' been discovered by the exercise of proper diligence. We believe, therefore, that the trial court was justified in overruling the motion for a new trial, because the motion did not contain statements of facts or circumstances showing the exercise of proper diligence to procure the evidence and to show that it was. nelwly discovered.

Secondly, the evidence is to a certain extent cumulative, in that it only tends to corroborate each of thé defendants who testified as witnesses that they had no knowledge or any connection with either the bill of sale or the package of dies, stamps, and stencils. The rule is also well established that a new trial on the ground of newly discovered evidence should not be granted, unless there is a reasonable probability that the new evidence would likely change the result, should a new trial be granted. Howey v. State, supra.

When considered with all the evidence introduced at the trial, it is very improbable that, should a new trial be granted and the new evidence submitted, any different result would ensue, especially as to the defendant Stilwell. Stilwell’s connection with Wesley Kirk, both before and after the commission of the larceny, is so thoroughly established by the facts and circumstances in evidence, together with the admissions of the defendant himself, that it is entirely improbable that the mere fact that testimony that a bill of sale to a Ford automobile, the kind of car found in the possession of Stilwell at the time of his arrest, was entirely the work of Wesley Kirk, would have any likelihood of creating a reasonable doubt in the minds of the jurors that IStilwell was not connected with Kirk in this particular larceny. In truth, the evidence that Wesley Kirk forged the bill of sale which iStilwell possessed only tends to strengthen the state’s theory of the case that the three men, Wesley Kirk, Elmer Kirk, and Jim Stilwell, were all present' and active participants in this larceny. It tends to support the theory of the state that Stilwell at least aided and abetted Wesley Kirk in the asportation of the stolen car, knowing that the same was at that time in the act of being stolen.

Considering the; alleged newly discovered evidence applicable to the defense interposed by this defendant, we find no reversible error committed by the trial court in overruling the motion, as, there is no reasonable probability or likelihood that the alleged newly discovered evidence would warrant the acquittal of this defendant, or even raise a reasonable doubt of his guilt, when considered in connection with the other evidence against him, and there is no proper showing that such evidence was in fact newly discovered, and no showing of diligence by setting out facts and circumstances in the motion, and no manifest abuse of discretion shown in overruling the motion.

For reasons stated, the judgment of, conviction is affirmed.

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


source: Caselaw Access Project

author: .DOYLE, P. J.

license: Public Domain

text:
      Ex parte ROY GARVIN.
    No. A-3849
    Opinion Filed Sept. 30, 1920.
    (192 Pac. 363.)
    (Syllabus.)
    1. HABEAS CORPUS — Application for Bail — Burden of Proof. Upon an application for bail by writ of habeas corpus after commitment for a capital offense, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of proseeutiori.

      2. BAIL — Refusal—Insufficiency of Evidence. Upon an application for bail after commitment upon a charge of murder, on the ground that the proof of guilt is not evident, nor the presumption thereof great, and, upon a consideration of all the evidence offered, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt, bail will be refused.
    8. HABEAS, CORPUS — Refusal of Bail — Insufficiency of Evidence. Evidence considered, and held to justify the refusal of bail to a defendant in custody upon a charge of murder.
    Petition of Roy Garvin for writ of habeas corpus to obtain his release on bail.
    Writ denied.

      Bond & Morris, for petitioner.
    ‘The Attorney General, W. C. Hall, Asst. Atty. Gen., and P. D. Sullivan, Asst. Go. Atty., for respondent.
   .DOYLE, P. J.

In this case petitioner, Roy Garvin, by his attorneys, has presented to this court a petition alleging- that he is Unlawfully imprisoned in the county jail of Stephens county by Mrs. Florence Oates, sheriff of said county; that, having been charged with the murder of Hobbs Conkling, alleged to have been committed in said county on or about the 10th day of August,- 1920, he is so held under a commitment issued by G. T. Burrows, county judge of said county, acting as an examining and committing magistrate, on a preliminary examination held August 21, 1920, and that on habeas corpus proceedings the district judge of said county denied bail and remanded, petitioner to the custody of s,aid sheriff.

Petitioner alleges that he is not guilty of the crime of murder as charged, and that the proof of his guilt of the charge of murder is not evident, nor the .presumption thereof great. Attached to said petition is a transcript of the testimony offered Iby the state on the part of the prosecution. Petitioner did not testify in the examining trial, and there was no testimony offered in his behalf. He has filed his affidavit, wherein he states that he fired the fatal shot in his necessary self-defense. On September 11th a hearing was had, and at that time it was ordered and adjudged that the writ be denied, and bail refused.

Section 8 of article 2 of our Constitution is:

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

Upon the hearing it Was- thei contention on the part of the petitioner that he was' entitled to ¡bail upon the testimony taken upon his preliminary examination and upon his affidavit, for the reason that the proof is not evident, or the presumption great, that he is guilty of murder as charged in the complaint. This 'contention is without merit. The determination and conclusion of the court in this case is based upon a settled rule of this court that, upon application for bail by writ of habeas corpus, after commitment for capital offense by an examining magistrate, the burden is upon petitioner to show facts sufficient to entitle him to 'bail, when those facts do not appear from the evidence adduced on the part of the prosecution. Ex parte Johnson, 1 Okla. Cr. 414, 98 Pac. 461; Ex parte Smith, 2 Okla. Cr. 24, 99 Pac. 893; In re Fraley, 3 Okla. Cr. 719, 109 Pac. 295, 139 Am. St. Rep. 988; Ex parte Dykes, 6 Okla. Cr. 162, 117 Pac. 724.

We are not permitted to presume for the petitioner either justification or mitigation,- merely because the evidence for the prosecution fails to show their absence. On the contrary, unless the evidence for the prosecution shows the presence of facts or circumstances tending to justify, excuse, or mitigate the offense, then the burden is upon the petitioner to make that showing by evidence at least sufficient to generate a reasonable doubt in that respect.

It Would serve no useful purpose to review the testimony, and, in view of a trial before a jury, to do so would possibly be prejudicial to the petitioner. We deem it sufficient to say that we find therein no element of legal justification or excuse, and we concur with the district court in its finding that the petitioner is not entitled to bail. We do not know what may be shown upon the final trial.

Writ refused, and bail denied.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
      In re OPINION OF THE JUDGES.
    No. A-3859
    Opinion Filed Oct. 2,1920.
    (192 Pac 597.)
   Opinion of the Justices in response tó a request by Hon. J. B. A. Robertson, Governor of the State of Oklahoma.

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

In response to your official communication of September 28, 1920, addressed to the judges of this court, for an opinion (as provided in section 5969, Revised. Laws 1910) in the matter of the conviction of Eli Thomas in the district court of LeFlore county, Okla., on the' 8th day of Steptember, 1920, of the crime of murder, and sentenced to be put to death by electrocution in the state-penitentiary on the 23d day of November, 1920, we here-. by respectfully submit the following:

Opinion of the Judges.

MATSON, J.

It appears from the record before us: That Eli Thomas was prosecuted in the district court of LeFlore county, Okla., by information filed in said court on the 19th day of August, 1920, by D. -C. MeCur-tain, the duly qualified and acting county attorney of' said county, which information charged Eli Thomas with the murder of one Selma Mayfield in said county on the 6th day of August, 1920, by shooting the said Selma Mayfield with a pistol. 'That on the same day, the said defendant appeared in open court in person and by his attorney, and was duly arraigned and allowed 24 hours in which to plead, in compliance with section 5778, Revised Laws 1910. That thereafter, on the 23d day of August,. 1920, the defendant was present in open court in person, and also by his attorney, and entered his, plea of not guilty to the 'charge contained in the information, ‘whereupon the court by order set the cause for trial on the 2nd day of September, 1920.

Thereafter, on the 2nd day of September, 1920, in pursuance to the order entered on the 23d day of August,. 1920, the said cause was called for trial, and defendant was present in person and by his attorney, and the state was present by the county attorney, and both sides announced ready for trial, and a jury of 12 good and lawful men were duly drawn from the box and impanelled according to law for the trial of said caus,e, and the said jury was duly sworn to try said cause, and a true verdict rendered according to the law and the evidence. That thereupon the trial proceeded according to the forms of law, the state introduced its evidence in chief and rested, whereupon the defendant introduced his evidence in defense and rested, whereupon the state introduced certain' evidence in rebuttal, after which both the state and defendant closed their cases, and the court thereupon presented to the attorneys,, both for the prosecution and defense certain instructions which he proposed to give in the cause, and offered each side opportunity to file objections to the same. No objections to the instructions being offered, the court thereupon instructed the jury upon the law of the case, which said instructions are incorporated in the record in full.

Thereupon the jury retired in charge of a sworn bailiff under proper admonitions of the trial court to consider of their verdict, and afterwards, to-wit, on the 3d day of September, 1920, returned into open court the following verdict:

“We, the jury, drawn, impanelled and sworn in the above-entitled cause, do upon our oaths find the defendant Eli Thomas, guilty of murder as charged in the information herein, and we assess his punishment at death.”

r Whereupon the court read the verdict of the jury, and the jury was polled, anl as each juror’s name was called the court asked him if this was his verdict, and if he was still satisfied with, it, to which each juror answered in the affirmative, and, the jury was thereupon discharged from further consideration in the cause. The court thereupon ordered the cleric to file the verdict with the other papers in the case, which was done.

Thereafter, on the 4th day of September, 1920, the defendant being present in open court in person and by his attorney, and the state being ¡present by the county attorney, the court set the 8th day of September, 1920, as the day on which he would sentence defendant.

Thereafter, on the 8th day of September, 1920, the said defendant, Eli Thomas, in pursuance to the order entered on the 4th day of September, 1920, was. sentenced in open court, in conformity with the verdict rendered, to suffer death by electrocution in the state penitentiary on the 23d day of November, 1920.

On the said 8th day of September, 1920, Hon. E. F. Lester, judge of the said district court for LeFlore county issued a death warrant upon said judgment, which said death warrant is as follows:

“The State of Oklahoma to Frank Carter, Sheriff of Le Flore County, State of Oklahoma, and Fred Switz-er, Warden of the State Penitentiary, located at Mc-Alester, Oklahoma:

“Whereas, the above-named defendant, Eli Thomas, being charged iby information in the district court of Le Flore county, State of Oklahoma, with the crime of murder and havling been at the regular August, 1920, term of said court duly tried and convicted upon said charge on the 3d day of September, 1920; and

“Whereas, upon such' trial and conviction a judgment was rendered by the said court in said cause on the 8th day of September, 1920, a certified copy of which is hereto attached and,1 .marked ‘Exhibit A,’ that the defendant, Eli 'Thomas, be put to death on the 28d day of November, 1920, by electrocution within the walls of the state penitentiary located at McAlester, Okla., by the warden of the .said state penitentiary, and that the said execution take place between the hours of 4 o’clock a. m. and, 4 o’clock p. m. of said day; and

“Whereas, it is further ordered, adjudged and decreed !by the court in said judgment that the sheriff of Le Flore county, State of Oklahoma, within ten days from the date of said judgment, transport said Eli Thomas from the county jail of said Le Flore county, to the said penitentiary at McAlester, in said state and that the warden of said state penitentiary do closely confine and imprison said defendant within the walls of said penitentiary until the day of said execution, and that upon the day fixed therein the said warden duly and legally put to death the said defendant, Eli Thomas, by electrocution; and

“Whereas, it was further ordered and decreed by said judgment that the clerk of the district court in and for Le Flore county, state of Oklahoma, issue a warrant, directing the full execution of the said judgment and sentence against the said Eli Thomas, and that the said warden of the said state penitentiary was by said judgment directed and required to execute said warrant with dispatch and in the manner and form required by law, and see to it that the defendant, Eli Thomas, at the time and place aforesaid, be put to death by electrocution in the manner required by law; and

“Whereas, the warden of the said state penitentiary was by said judgment required and directed to give proper notice:

“Now, therefore, you, Frank Carter, sheriff of L>e Flore county, state of Oklahoma, are hereby commanded to transport said defendant, Eli Thomas, from the county jail of Le Flore county, sfate of Oklahoma, within ten days from this date to the state penitentiary located at McAlester, in the state of Oklahoma, and deliver him, the said Eli Thomas, to the said Fred Switzer, warden of the said state penitentiary, and make due return of your action, and herein fail not; and

“You, Fred Switzer, warden of the said . state penitentiary, are hereby commanded to accept the said defendant, Eli Thomas, from the sheriff aforesaid, and to closely confine and imprison the said defendant within the walls of the said state penitentiary until the 23d day of November, 1920, between the hours of 4 o’clock a. m. and 4 o’clock p; m. of said day, and upon said last-mentioned date and within the hours herein specified, you are hereby expressly commanded to put to death the said defendant, Eli Thomas, by electrocution within the walls of the state penitentiary, at McAlester, state of Oklahoma, in the manner and form provided by law.

“And, you, the said Fred Switzer, are hereby further commanded to make a report upon this warrant after the electrocution of the defendant, Eli Thomas,, showing the time, mode and manner in which this warrant has been executed, and in the' manner and form as-required by law.

“In witness whereof, I have hereunto set my hand and caused the seal of the said district court to be' affixed hereto, this the 8th day of September, 1920.

“(Seal) E. L. Dester, District Judge.

“Attest: H. S. Pilgreen, Court Clerk,

“By C. T. Bennett, Deputy.”

At the time of the rendition of the judgment, no' appeal from the same having been taken by defendant to this court, the trial court also made an order that copies' of the information, evidence, instructions of the court, verdict, judgment, and sentence and death warrant be forwarded to the Governor and Criminal Court of Appeals of the state of Oklahoma at once.

It is also to be noted that the transcript of the record before this court is properly certified to by H. S. Pilgreen, the court clerk of said Le Flore county, Okla., and in addition thereto, there appears a certificate of Hon. E. F. Lester, district judge, that the record also contains a complete and correct transcript of the evidence and other proceedings in the case.

While no motion for a new trial or in arrest of judgment was interposed in behalf of defendant in this case, the statute (section 5988, Revised Laws 1910) provides that appeals to this court may be taken by defendant as a matter of right from any judgment rendered against him, and, construing said statute, this court has in numerous cases held that the appeal in a criminal cause lies from the final judgment rendered against defendant, and not from any intermediate order or ruling of the trial court made during the progress of the trial.

An appeal in a criminal case is taken by filing in this court, with petition in error attached, either a duly certified case-made, or a duly authenticated transcript of the record. An appeal in a felony case may be taken at any time within six months after the rendition of the judgment. Section 5991, Revised Laws 1910.

The appeal may be taken by the service of the notices on the- clerk of the court and prosecuting attorney, as provided in section 5992, Revised Laiws 19Í0, or else by the issuance and service of summons in error, or a waiver of the same, as provided in section 5997, Revised Laws 1910.

While no order of the trial court was made in this cause granting defendant time beyond the 15 days allowed by statute in which to prepare and serve a case-made for appeal, the Legislature has made a further provision (section 5246, Revised Laws 1910), which in part is as follows:

“In case of accident or misfortune which could not reasonably have been avoided by the party appealing, the said court or judge, upon notice to the adverse party, may make such orders after the expiration of the time fixed in the previous order, or time allowed by statute, * * * within which an appeal or proceeding in error may be begun in the appellate court.”

It is apparent, therefore, from the foregoing statutory provisions that in this case defendant has six months within- which to file an appeal in this court from the judgment of death rendered against him in this cause. Such an appeal may be taken by merely filing a duly authenticated transcript of record proper, to which is attached a petition in error. The judgment of conviction was rendered against him on the 8th day of September, 1920. The defendant, therefore, would have until the 8th day of March, 1921, in which to perfect such an appeal.

Furthermore, upon proper showing to the trial court of accident or misfortune preventing him from preparing and serving a case-made within the 15 days’ time allowed by statute, the trial court or judge could yet after proper notice to the adverse party, make a suitable order allowing defendant time within which to prepare and serve a case-made, and he would then have, if such order should be made, until the 8th day of March, 1921, to file an appeal by case-made and petition in error in this court.

In the case of Noel v. State, 17 Okla. Cr. 308, 188 Pac. 688, it is held:

“The right of appeal is a constitutional right, and counsel appointed by the court to defend an indigent defendant fails to fulfill his duty as an attorney when he neglects to take an appeal from a judgment and sentence of death.”

And in Hutchins v. State, 13 Okla. Cr. 717, 167 Pac. 338, this court also said:

“Under the Constitution and laws of this state an appeal may be taken by the defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and he is entitled to have this court-review the proceedings had upon his trial and conviction when such appeal is taken according to law. Every citizen should feel and know that under our Constitution and laws there is no one so rich and powerful as to be above the just penalties of the law, and none so poor and helpless as to be beneath its complete protection.”

Section 2, chapter 113, Session Laws 1913, amenda-tory of section 26, article 15, chapter 68., Statutes of Oklahoma 1893, provides as follows:

“When judgment of death is rendered, the judge must sign and deliver to the sheriff of the county a warrant duly attested by th'e clerk, under the seaí of the court, stating the conviction and judgment and appointing a day on which the judgment is to be executed, which must be not less than sixty nor more than ninety days from the time of the judgment and must direct the sheriff to deliver the defendant within ten days from the time of judgment to the warden of the state prison at McAlester, in this state, for execution.” '

It will be noticed that the last above quoted statutory provision requires the trial judge to appoint a day on which the judgment of death is to.be executed, which must not be less than 60 nor more than 90 days from the time of the rendition of the judgment. The trial judge has no discretion to appoint a day beyond the ninetieth day from the rendition of the judgment upon which the death sentence shall be carried into effect. The maximum period allowed the trial judge is therefore at least 90 days, less than the time allowed by lav/' in which a defendant may exercise his constitutional right of appeal to this court, and if a defendant, convicted and sentenced to suffer death, should be executed prior to the time allowed by statute within which he may appeal to this courl, he could thereby be deprived of the review of certain questions of law by this court which could properly be raised in an appealed case and not subject to review in an advisory opinion to the Governor.

In Opinion of the Judges, 3 Okla. Cr. 315, 105 Pac. 684, it is said:

“If the appeal had been perfected, the cause would properly be before this court upon a petition in error with authority to review the same upon the assignments of error or to determine upon the whole cause whether the verdict was against the weight of the evidence or contrary to law, and, if upon such review we were of opinion that justice required a neiw trial, we would reverse the judgment, but the impropriety of an unauthorized expression of opinion by a judge or the judges of this court, especially upon a matter that may subsequently come before the court for adjudication, is obvious. Any opinion expressed in a proceeding of this kind is manifestly extrajudicial. As we view it the statute contemplates an advisory opinion, where an appeal has not been taken in a capital case, and where the death penalty has been, assessed. The proposition then presented would be: Has there been an observance of all the formalities of law essential to the taking of human life? Or has the trial, conviction, and sentence of death been in accordance with the law of the land?”

Also in Opinion of the Judges, 8 Okla. Cr. 467, 128 Pac. 734, it is said:

“As we understand the law this provision of the statute contemplates that an advisory opinion of the judges may be given to the Governor, where an appeal has not been taken from a judgment and sentence of death. But we think it would be improper for the judges to express any opinion in an ex parte proceeding as to the rights of a defendant which may afterwards be brought before them by appeal, where all parties interested would be represented. To pass upon such questions in advance of an appeal would be to deprive a defendant of his constitutional right to be heard in his own behalf. The time for taking an appeal in this case has not expired, and we have no legal information thqt the defendant has in any manner waived his right to take' an appeal.”

In view of the fact, therefore, that the statutory time for taking an appeal in this case has not expired, we deem our duty in the premises in giving an advisory opinion to your Excellency to limit the same only to pass upon the following questions:

“Has there been an observance of all the formalities of law essential to the taking of human life? Has the trial, conviction and sentence of death been in accordance with the law of the land?”

A careful review and consideration of the information, the plea of defendant, the minutes' of the trial, the instructions given, the verdict returned and the judgment and sentence convinces this court that the above questions must each be answered in the affirmative. We note, however, an irregularity in the judgment and death warrant in this case, which we do not consider sufficient to invalidate the same. The trial court in the judgment and death warrant fixed the time of the execution of the sentence to be on the 23d day of November, 1920, ¡between the hours of 4 o’clock a. m. and 4 o’clock p, m., while the statute only permits the trial court to fix the day upon which the sentence of death shall be carried into execution. In our opinion, the hour on that day at which the sentence shall be executed has been left by the Legislature to the discretion of the warden of the penitentiary.

Section 5970, Revised Laws 1910, in part provides:

“No judge, court or officer other than the Governor can reprieve or suspend the execution of a judgment of death, * * * unless a writ of error is allowed and taken.”

Under the present status of this case, and until an appeal from the judgment of conviction is taken, the Governor has sole power to reprieve or suspend the execution of the death sentence pronounced against this defendant until such time as an appeal may be perfected, or until a day beyond the time provided by statute in which an appeal may be taken, towlwit, six months from the rendition of the judgment. It is a matter entirely discretionary with you to grant such a reprieve or suspension of this sentence in order to permit the defendant, if he should hereafter see fit to do so, to take an appeal from this judgment. In order that he may have ample opportunity to perfect such an appeal before the date now set for his execution, we have given this matter our immediate attention. However, should such an appeal not be taken prior to the 23rd day of November, 1920, it would still be within your power and discretion to grant him a further reprieve or suspension of sentence for that purpose, the defendant having under the statutes until the 8th day of March, 1921, within which to perfect such an appeal.

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


author: DOYLE, P. J.

text:
    JOHN TICE et al. v. STATE.
    No. A-3426
    Opinion Filed Oct. 7, 1920.
    (192 Pac. 434.)
    (Syllabus.)
    INTOXICATING LIQUORS — Unlawful Conveyance — Insufficiency of Evidence. In a prosecution for conveying intoxicating liquor, evidence beld insufficient to sustain a conviction.

      Appeal from, County Court, Harmon County; E. C. Abernathy, Judge.

    James Tice and J. P. Tice were convicted of unlawfully conveying intoxicating liquor, arid they appeal.
    Reversed.

      , A. M. Stewart and S. A. Fowler, for plaintiffs in error.

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

Plaintiffs; in error, James and J. P. Tice, were'jointly charged, tried, and convicted of the crime of conveying intoxicating liquor. The court did not suibmit the question of punishment to the jury. Upon the verdict finding the defendants guilty as charged in the information, the court sentenced James Tice to he confined in the county jail for 90 days, and to pay a fine of $350, and sentenced J. P. Tice to be confined for 30 days in the county jail, and to pay a fine of $50, and ordered -that the sentence of said J. P. Tice on account of his youth and his previous good reputation be suspended pending good behavior. To reverse the judgments they appeal.

The assignments, of error go to the insufficiency of the evidence to support the verdict, and the refusal to give requested instructions and exceptions taken to certain instructions given. The information charges that the defendants, acting together, did, on or about the 16th day of April, 1917, unlawfully convey and transport ‘Two quarts of whiskey from the public highway about the half-mile line between sections 3 and 10 in township 2 north of range 26 W. I. M., to about the half-mile line between sections 2 and 11 also of township 2 north of range 26 W. I. M., all in siaid county and state, and a better description cannot be given, for the reason there are no other or better ways of describing said points known to informant.”

W. A. Horton, deputy sheriff, testified:

“About the 16th of April last year Mr. 'Smotherman called me and told me that he had found some whiskey out west of his house. We went down, there. I marked the bottle, and left it there, and came back to town and reported to Sheriff Gamlbill. I went back out there with Mr. Gamlbill, and we found another bottle of whiskey. We were called back out there on the same day, and on the third trip we found that the whiskey had been moved east about one-half mile. I know this was the same whiskey because I had marked the bottle. On the third trip we met these defendants on the road south of town about one-half mile, coming this way.”

W. P. Smotherman testified :

“I lived then about one mile south of town. I remember on the 16th day of April, last year, of seeing a car coming along the section line. It stopped, and some one got out of the car there. I went out there where people had been dumping rubbish, and I moved a piece of tin and found a quart of whiskey. I went and told Mr: Horton it was there. -Then we went back down there, and he picked it up and said it was whiskey, and he said, ‘We will mark it and watch to see who comes after it.’ Later we saw a car with two men s,top three or four minutes, then turn around, and come back to town. Mr. James Tice and a young man were in the car. I was present with the officers when the whiskey was found the second time, it- was something like a half-mile east. I did not see this whiskey in the possession of any one.”

J. N. Street testified:

“I am city marshal of Hollis.. I remember there was some whiskey found south of town. I went out there in 'the car to the place where the whiskey was reported to have been found. While there I saw a car coming from the east, and' turn north towards Hollis, and it met the sheriff’s car coming from Hollis.”

J. W. Thompson testified:

“I live a half mile south of Hollis. I saw two men pass my house. They went ea'st to the branch and stopped and came back. I don’t know who it was.”

J. C. Gamlbill, sheriff of Harmon county, testified:

“I was notified that some whiskey had ibeen found south of town. I went out there with Mr. Horton, and found two quarts of whiskey. I left it where it was, and told Mr. Smotherman to watch it. I came Back to town and got a field glass, and saw a car coming west, and saw it turn around and go back east, but I could not see who was in it. I 'started out, and about half a mile south of town I met Mr. Tice and young Tice in a car.”

The foregoing is in substance the whole testimony.

At the conclusion of the evidence offered by the state the defendants moved the court to instruct the jury to return a verdict of not guilty. The court overruled the motion and submitted the ease to the jury, with the result above indicated.

Under the. provisions of the act of criminal procedure, if at any time after the evidence on either side is closed, if the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. Section 5896, Rev. Laws 1910.

The evidence was entirely circumstantial, and the only fact appearing from the testimony that can be said, to create a suspicion of the defendant’s guilt was that the defendants drove along the highway and stopped near where the whiskey was found, and then drove back. Not another fact or circumstance appearing from the testimony connects these defendants in the remotest degree of.conveying the whisky. It follows that the court was in error in refusing to direct a verdict of acquittal at the close of the evidence for the state.

In cases of this kind jurors are not unlikely to find their verdict upon strong suspicion or mere probability, and where as in this case, the state relies solely upon circumstantial evidence, the court should always instruct the jury upon the law of circumstantial evidence, and that such evidence ought to be, not only consistent with the defendant’s guilt but inconsistent with any other rational conclusion. In this case the court failed to instruct on the law of circumstantial evidence, and the necessary inference is that the jury found their verdict upon a mistaken view of the law, Reaching this conclusion, it is unnecessary to notice the other assignments of error. Because the evidence is insufficient to warrant a conviction, or to sustain the verdict, the judgment is reversed.

ARMSTRONG and MATSON, JJ., concur.


text:
    BENJAMIN KNOFF v. STATE.
    No. A-3411
    Opinion Filed Oct. 8, 1920.
    (192 Pac. 596.)
    (Syllabus.)
    1. OBSTRUCTING JUSTICE — Insufficiency of Evidence. In a prosecution for obstructing an officer, evidence beld insufficient to sustain conviction.
    2. SAME — “Obstructing” Public Officer. To “obstruct” a public officer moans to oppose that officer. It does not mean to oppose or. impede the process with which the officer is armed, or to defeat its execution, but that the officer himself shall be obstructed.

      Appeal from County Court,. Carter County; Thos. W. Champion, Judge.

    Benjamin Knoff was convicted of the offense of obstructing an officer, and he appeals.
    Reversed, and cause remanded, with direction to dismiss,.

      Champion & George, for plaintiff in error.

      The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an appeal from-a judgment of the county court of Carter county, sentencing plaintiff in error to pay a fine of $100 and costs, for the offense of obstructing an officer as defined by the statute, which reads:

“Any person who willfully delays or obstructs any public' officer in the discharge or attempt to discharge any duty of his office, is guilty of- a misdemeanor.” Section 2252, Rev. Laws 1910.

The information, omitting formal parts, is as follows :

“Now comes A. J. Hardy, the d-ulv qualified and acting county attorney in and for Carter county, state of Oklahoma, and gives the county court of Carter county, state of Oklahoma, to know and be informed that Benjamin Knoff did, in Carter county, and in the state of -Oklahoma, on or about the twelfth day of. October in the year of our Lord one thousand nine hundred and seventeen, and before the presentment hereof, commit the crime of obstructing officer in the manner and form as follorws, towit: He, the said Benjamin Knoff, did then and there unlawfully, willfully, delay and obstruct one C. Sloan, constable of Ardmore township, Carter county, Oklahoma, from levying on a certain amount of cotton that was, in the possession of the said Benjamin Knoff, by then and there ordering the said C. Sloan from the premises where said cotton was located, and thereby using" rough and insulting language towards the said C. Sloan, thereby preventing and obstructing the said C. Sloan in his official capacity from levying execution on said cotton, which process was issued from Hal M. Cannon’s court of Carter county, Oklahoma, and directed to the said Sloan, to levy execution in accordance with the law.”

The only witness, introduced by the state was C. Sloan, who testified:

“I am a constable for Ardmore township. I had an execution in favor of John Whitley for $35.10, issued out of Cannon’s J. P. court, against Benjamin Knoff, who lives 10 miles north of here. I went out there about the 1st of October and had a conversation with him. I again went out there about the 12th of October last year. I walked up» to where .they were sitting down, eating dinner, and I asked him to pay it. He said ‘No;’ and I said, ‘I will have to attach this cotton.’ He got up- from where he was eating dinner, and started towards me, and said, ‘Get off the place.’ He had a knife or something in his hand. I hadl the execution with me. I told him I bad levied on the cotton. The next morning me and Deputy Sheriff Brooks went out there and could not find him; he had hauled the cotton off. He is a German, and talks broken English. I know what he said. I had a pistol. I did not show him the papers. I guess he understood me.”

The state rested, and the defendant moved the court to instruct the jury to return a verdict of acquittal, because the evidence is insufficient to sustain a conviction, which motion was overruled, and exception taken. As a witness in his own 'behalf the defendant testified:

“He came to collect. I told him I have no money at home. He had no papers. He said, ‘I am an officer: give me that money.’ I said, ‘Got any papers?’ He had none. I had money in the house to pay him. He come back the next day and arrested me. I did not have a knife. My wife and children were there, except my boy in the army.”

Ed Knoff testified:

“I was there. My father did not offer to hurt him, or do anything to him. He said he was an officer and then he left; my father took the cotton off the next morning and paid him what he owed him.”

C. Sloan, in rebuttal, testified:

“The defendant did not pay the judgment the next day. He paid it the second day after that.”

At the dose of the testimony the defendant renewed, his motion for a directed verdict, which was overruled, and exception taken.

We do not deem it necesspry to notice the various assignments of error. It is sufficient to say that the testimony in this case is entirely insufficient to sustain the conviction. The testimony of the complaining witness is that he had accomplished the purpose of levying the execution before the defendant told him to “get off the place.” Under the allegations of the information, the subsequent removal and sale of the cotton was wholly immaterial. To “obstruct” a public officer means to oppose that officer. It does not mean to oppose or impede the process with which the officer is armed, or to defeat its execution, but that the officer himself shall be obstructed. Ratcliff v. State, 12 Okla. Cr. 448, 158 Pac. 293.

There was no demurrer to the information, although there is no allegation that the defendant knew that the complaining witness was a constable, and as such officer was serving or attempting to serve an execution, and the writ or process or the return thereon was not introduced in evidence. It is obvious that this prosecution was destitute of merit.

Because there is not sufficient evidence to show the commission of the offense attempted to be charged, the judgment is reversed, and the cause remanded, with direction to dismiss.

ARMSTRONG and MATSON, JJ., concur.


text:
    HOMER NAIL v. STATE.
    No. A-3391
    Opinion Filed Oct. 8, 1920.
    (192 Pac. 592.)
    (Syllabus.)
    1. TRIAL — Directing Acquittal — Refusal. Where there is sufficient evidence at the conclusion of the state’s case to have authorized the conviction of defendant of the crime of murder as charged in the information, it is not error for the trial court to refuse to direct a verdict of not guilty.
    2. APPEAL AND ERROR — Necessity for Prejudicial Error — Overruling Challenge for Cause. Where the record affirmatively shows that neither of two jurors who were challenged for cause by defendant sat upon the trial jury, and further it dees not appear that defendant was required to and did exhaust all of his peremptory challenges, and by reason thereof was deprived of a fair and impartial jury in the trial of the cause, there is no showing of prejudicial error on the part of the trial court in overruling defendant’s challenges for cause to such jurors.
    3. EVIDENCE — Res Gestae — Conversations. Where evidence, alleged to have been erroneously admitted over the objection and exception of defendant, is clearly a part of the res Igestae, and it is also apparent from the record that the evidence com- . plained of was a part of a conversation which toot place in the presence and hearing of defendant, it was not error for the trial court to overrule the objection of defendant to the admission of such evidence.
    4. TRIAL — Instructions—Evidence to Justify. It is the duty of the trial court to instruct on the law of every degree of crime of which there is any evidence reasonably tending to establish, but it is not error to refuse to instruct on any degree of crime of which there is no evidence offered.
    5. SAME — Refusal of Requests. It is not reversible error for the trial court to refuse to instruct on some theory of defense of which there is no evidence.
    6. CONTINUANCE — Discretion of Trial Court. Applications for a continuance are addressed to the sound discretion of the trial court. Motion and application for continuance in this case considered in connection with the entire record, and it is held no manifest abuse of discretion appears in denying a continuance.

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

    Homer Nail was convicted of murder, and he appeals.
    Affirmed.
    Homer Nail was tried and convicted in the district court of MoOurtain county, in the latter part of December, 1917, for the murder of one G. T. Cole, a deputy sheriff of said county, on the 21st day of November, 1917.
    It appears from the evidence that at the time this alleged homicide was committed, defendant was a deserter from the United States army and deceased had placed him under arrest for the desertion, and according to the state’s evidence, defendant killed deceased while in the act of resisting such .arrest and for the purpose of escaping from deceased. The killing occurred in a tent at a lumber camp near the town of Bismark in McCurtain county, between the hours of 11 and 12 o’clock at night on the 21st of November, 1917. The evidence on the part of the state makes out a clear case of murder against defendant. -
    The defendant attempted to justify the killing on the ¿round of self-defense, claiming that he did not know deceased was an officer and was attempting to place him under arrest at the time of the killing, and also that deceased did not inform him of the fact that he was an officer and was arresting him for any offense.
    The testimony of defendant’s wife and other witnesses who were present at the time, of the tragedy tends to support the theory of the state that defendant knew that deceased had placed him under arrest at the time of the killing, and that the killing was the result of an effort on the part of defendant to resist such arrest for the crime of deserting the United States army, and to avoid being taken into custody by the said deceased officer.
    We deem it unnecessary to give a synopsis of the testimony of each witness, as the questions involved in the appeal may be passed upon without making a full detail of the evidence.

      Claude P. Spring's and L. E. Mifflin, for plaintiff in 'error.

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

(after stating the facts as above.) It is first contended that the trial court erred in overruling the demurrer of defendant to the evidence at the conclusion of the state’s case. While a demurrer to the evidence is not recognized in the criminal procedure of this state, this court has always treated such a motion as a request to direct a verdict of not guilty. Such request was properly ¡¡overruled in this case, because there was ample evidence ' in the record at the conclusion of the state’s case to have authorized the conviction of defendant of the crime of murder.

It is next contended that the triall court erred in overruling ,a challenge for cause to the competency of the jurors Strawn and Guest. The record affirmatively shows that neither of these jurors served upon the panel. It is not made to appear whether they were challenged peremptorily Iby the state or by defendant. If challenged by the state, it is apparent that defendant could not have been injured iby any previous ruling of the court overruling a challenge for cause by defendant. If they were afterwards challenged peremptorily by defendant before any error reversible in its nature could be based upon the alleged erroneous action of the trial court in overruling a challenge for cause, it must appear that defendant was required to and did exhaust all of his peremptory challenges, and that by reason of such action, .defendant was deprived of a fair and impartial jury in the trial of the cause. There is no shewing in this record that any of the jurors who sat upon the-trial of this cause were in any respect disqualified or in any manner prejudiced against defendant or his cause of defense. We find that this assignment is without substantial merit.

It is next contended that the trial court erred in permitting the state to introduce certain incompetent and irrelevant testimony,' over objection and exception of defendant.

The record in respect to this assignment is as follows (testimony of G. H. Vivian)':

“Q. Do you remember the occasion of Mr. Cole getting shot up there at the Front? A. Yes, sir.

“Q. Where were you at the time that happened? A. When the first shot fired, I was in the door, and the light went out, and I stepped about two steps to the southeast corner on the outside of the tent.

“Q. How come you to be there? A. To be with Cole up there? Q. Yes, sir. A. He got me to go with him up there. Q. He came to you and requested you to go7 A. Yes, sir. Q. Where were you at the time Mr. Cole went in the tent? A. I was on the outside when he went in, on the west. Q. Were you close enough to hear what was said on the inside of the tent? A. Yes, sir. Q. Who jwent m there with Mr. Cole? A. Well, Mr. Thompson, I i think, was with him. I don’t know whether he went in the.tent or not; I couldn’t say. Q. What was said when Mr. Cole went in the tent? A. ríe says,; Who is that, and what’s your name, and what do you mean?’ Q. How is that? A. He says, ‘Who is that, and what’s your name, and what do you mean?’ Q. What did Mr. Cole say? A.He says ‘This is Cole, looking for Homer Nail.’ He says, ‘He ain’t here, and ain’t been in here.’ Q. Then what did he do ? A. He went in the other tent, and I heard Thompson say, ‘That’s the man.’

“By Mr. Spriggs: We object to what Thompson said.

“By the Court: The objection will be overruled. (To which ruling of the court, defendant then and there duly excepted at the time).

“Q. Now, what was said at that time by Mr. Cole? Did Mr. Cole say anything to Nail? A. Yes, but I don’t know what he did say. I heard him say, he told him what he had him for. Q. All right, what did Cole say to Nail? A. He asked him what was this for; he said it was for der serting the army. (Defendant objects, and asks that the answer of the witness be stricken. Which said objection is, by the court overruled, to which said ruling of the court, defendant then and there duly excepted at the time.) Q„ You mean to say that Neal asked Mr. Cole what this was for? A. Yes. Q. And Mr. Cole told him for deserting the army? A. Yes. .Q. All right what was said then? A. Cole told him to get up; he said ‘Get up’, said that several times. He says, ‘No; let’s fool around here until morning.’ Cole said, ‘No; we are going to go’.”

It is apparent from the foregoing examination of the witness Vivian that there was no error in the ruling of the trial court in permitting the witness to detail what was said and done at the time of the arrest of defendant. The evidence was properly a part of the res gestae, and from the examination it also appears that defendant must have heard the conversation, because he immediately asked deceased “What this was for?” and deceased thereupon replied, “It was for deserting the army.”

Furthermore, the defendant was permitted as. a witness to detail his. version of this affair. Under the testimony of the state’s witnesses the evidence wasi clearly competent for the reasons stated above; and, while defendant denied having heard such a conversation between ¡Thompson and Cole in his presence, it. was for the jury, as the exclusive, triers of the facts, to determine which version was true and which untrue.

It is also contended that the trial court erred in giving instruction No. 3, over the objection and exception of defendant. In the instruction complained of, the court told the jury that there was no evidence tending to show that the crime committed by defendant constituted either manslaughter in the first or second degree or excusable : homicide, as defined by the statutes.

While this court has held that it is the duty of the trial court to instruct on the law of every degree of the crime if there is any evidence reasonably tending to support the same, it has also been held to be not error to refuse to instruct on any degree of crime oh which there is no evidence offered. Hopkins v State, 4 Okla. Cr. 194, 108 Pac. 420.

The 'brief filed in behalf of defendant in no way tends to point out any evidence which would tend to shorw that the homicide was either manslaughter in the first or second degree, neither was there any defense interposed which would tend to excuse the killing. Under the evidence in the record before us, from the state’s standpoint, the crime was murder and" nothing less. The defendant attempted to justify the killing on the ground of self-defense, and this theory of defense was submitted to the jury. Under such circumstances, it is the opinion of this court that the instructions fairly covered the law of the case, and are as favorable to defendant as the evidence warranted.

It is also contended that the trial court erred in refusing to give certain requested instructions on the theory -fthat defendant killed deceased while in the act of defending his domicile against a known felony about to be perpetrated by deceased. The refusal of the trial court to give such requested instruction was not erroneous, for the reason that there is no evidence in the record tending to support such a theory.

Further, it is contended that the trial court erred in overruling defendant’s application and motion for a continuance of the cause. No .argument is advanced, nor authorities cited, in the ibrief of counsel for defendant to sustain this contention. The, court has examined the motion, and has considered the same in connection with the entire record, and it cannot be said that the trial court abused its. discretion in denying a continuance in this case.

An examination of this record convinces this court-that defendant is guilty of murder, perpetrated without any justification or excuse, and in an attempt to avoid and resist an officer who was arresting defendant as a deserter from the United States army. The evidence on the part of the state, and aliso some of the evidence adduced by defendant, clearly leads an impartial investigator to the conclusion that defendant knew that deceased was an of-, ficer; that deceased informed defendant of that fact, and that he had placed defendant under arrest as a deserter from the United ¡States army; and that thereupon defendant, in order to avoid, resist, and escape such an arrest,, used a deadly weapon, or weapons, upon deceased, inflicting a mortal gunshot wound in the abdomen of deceased,, severing an artery and causing an internal hemorrhage^ from which deceased died in a few moments.

While this appeal is prosecuted as that of a poor person, it is apparent that defendant was represented by able counsel in the trial court, and that every precaution was taken to preserve his rights throughout the trial. That he was convicted of murder, and sentenced to serve the rest of his natural life in the penitentiary, was through no fault or laches on the part of his counsel, but was due rather to the convincing evidence of his guilt.

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

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


author: DOY'LE, P. J.

text:
    JIM STRIBLING v. STATE.
    No. A-3279
    Opinion Filed Oct 9, 1920.
    (192 Pac. 590.)
    (Syllabus.)
    HOMICIDE — Assault With Intent to Kill — Charge on Self-Defense — Prejudicial Error. In a prosecution for assault with intent to kill by shooting another with a pistol, the evidence on the part of the defense tended to show- that the defendant acted in his necessary self-defense. The court instructed the jury in part as follows. “’If you find from the testimony beyond a reasonable doubt that the prosecuting witness did assault the defendants with a pistol, or was advancing upon them in such an assault in such a way and manner as to induce the defendants to reasonably believe that their lives were in danger, or that serious bodily harm was about to be done them, then you are instructed that they had a right under the law to use such means as was necessary to defend themselves against such assault on the part of the prosecuting witness. And if you so find from the evidence, beyond a reasonable doubt, you should acquit the defendants- Held, prejudicial error as placing the burden of proof upon the defendant and requiring the jury before finding for acquittal to believe from the evidence, beyond a reasonable doubt, that the defendant fired the shot in self-defense.
    EVIDENCE — Burden of Proof — Presumption of Innocence. The burden does not rest upon the defendant to establish even to a. reasonable probability the truth of an affirmative defense; if, upon the evidence both, for the state and the defendant, a reasonable doubt is created as to the guilt of the defendant, he is entitled to the benefit of it, and in this respect the burden never shifts from the state to the defendant.

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

    Jim Stribling- was convicted of assault with intent to kill, and he appeals.
    Reversed, and a new trial awarded.

      Brown & Williams, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the state.
   DOY'LE, P. J.

Plaintiff in error, Jim Stribling, and Jim Orr were jointly charged with the offense of assault with intent to kill by shooting one Byrd Pruitt with a pistol, and upon their trial the defendant Stribling was found guilty of assault with intent to do bodily harm as charged in the information, and his .punishment fixed at imprison-mnent in the penitentiary for one year. From the judgment rendered on the verdict he appeals. ' The record discloses in substance these facts: The prosecuting witness, Byrd Pruitt, lived about four miles northeast of Ardmore; the defendant Stribling lived beyond him; on the date alleged both the prosecuting witness and the defendant were in the city of Ardmore, and they started to their respective homes., and the shooting occurred on the road near the home of the prosecuting witness.

IThe testimony on the part of the state is that the prosecuting witness was at work on his fence along the side of the road when the defendant and Jim Orr came along the road riding in a wagon; that as they .passed the prosecuting witness the defendant rose up in -the wagon and shot him without any provocation whatever.

The evidence on the part of the defendant was that the prosecuting witness was a short distance in front of him on the way home, riding a horse, and when he turned into his gate Carl Pruitt, his son, came riding in a lope towards the defendant, and that'the prosecuting witness came with him; that there had been some trouble between the defendant and the family of the prosecuting witness.

Byrd Pruitt testified:

“I was. fixing the fence by the side of the road, and the bullet hit me on the top of my left shoulder. Jim Strib-ling fired the shot. Jim Orr was in the wagon. My son Carl was on his horse, and after I fell they continued to shoot.”

Carl Pruitt testified:

“Byrd Pruitt is m,y father; I was coming home from my brother’s. I noticed a wagon coming north. Jim Orr was in the seat. I did not see Jim Stribling until he shot ¡the old man. The wagon had sideboards. He jumped up dn it and shot the old man twice, and shot a time or two at me before I could get my gun.”

The evidence further s,hows that the defendant and Jim Orr then drove their team in a run up the road with Carl Pruitt following and shooting at them.

For the defense, Jim Orr testified:

“I went to town with Jim Stribling. We left town that day about 4 o’clock. Mr. Pruitt was in front. We saw him ride in at his gate and we saw Carl coming through the field on horse-back towards us. We were driving along the road, and Mr. Pruitt says, ‘Wait a minute, Chock’ (meaning the defendant). Chock stopped, and he came around on the east side of the wagon and said, T heard about them damn threats you have been making about me and my boys,’ and Chocks says, T ain’t made any threats,’ and Pruitt started to get his gun, and Chock shot him. Carl was on t,he west side of the wagon, and he pulled his gun and began to shoot, and fired several shots. The mules jumped at the first shot, and I fell from the seat.”

As a witness in his own behalf the defendant testified:

“I live six miles northeast of Ardmore; I came to town that morning with Dr. Payne’s team; hauled a load of cotton for him. Jim Orr was with me. Going home we passed the Pruitt’s place. We turned north there. I saw Byrd Pruitt and Carl Pruitt leave the barn. They loped across the pasture to where we were. Byrd threw up his hands and said, ‘Stop there, Chock,’ and he and Carl crawled through the fence. The old man walked around the wagon and said, T have been hearing about some of your damn threats about me and my boys./ I told him, ‘No I hadn’t made any.’ He says, ‘By God! we will see about it.’ He came on pretty close, and reached for his gun and pulled it up like this. I had my gun in the holster. I grabbed it, and shot at him the first shot; and shot at him again. I must have hit him the second shot. Carl Pruitt was on the left, and he turned loose as I fired the first shot. He fired several shots.”

A reversal of the judgment is asked on account of alleged errors in the instructions given by the court, and in refusing to give requested instructions.

Among the instructions given by the court is the following :

“You are instructed that, in order to justify the defendant in shooting and wounding the prosecuting witness, Byrd Pruitt, under their plea of self-defense, they, the defendants, must have employed all the means within their power consistent with their safety to have averted their danger and avoided the necessity of shooting and wounding. If you find from the testimony beyond a reasonable doubt that the prosecuting witness, Byrd Pruitt, did assault the defendants with a pistol, or was advancing upon them in such an assault in such a way and manner as to induce the defendants to reasonably believe that their lives were in 'danger, or that serious bodily barm was about to be done them then you are instructed that they had a right under the law to use such means as was necessary to defend themselves against such assault on the part of the prosecuting witness. And if you so find from the evidence, beyond a reasonable doubt, you should acquit the defendants.”

The effect of this instruction, given by the court, was to place the burden of proving justification in self-defense on the defendant. The law only requires the defendant to raise a reasonable doubt as, to his guilt; if he does this, he should be acquitted. The burden does not rest upon the defendant to establish even to a reasonable probability the truth of an affirmative defense. If upon the evidence, both for the state and the defendant, a reasonable doubt is created as to the guilt of the defendant,’he is entitled to the benefit of it. The instructions quoted deprived the defendant, not only of the presumption of innocence, but placed the burden on him to prove that he acted in his necessary self-defens,e, and not only placed upon him the burden of proof, but required him to prove the same beyond a reasonable doubt. McClatchey v. State, 12 Okla. Cr. 17, 152 Pac. 1136; Smith v. State, 12 Okla. Cr. 489, 159 Pac. 668.

It follows that the defendant has not had that fair and impartial trial which the law guarantees to one accused of crime. This conclusion makes it unnecessary to consider the other questions in the case. Because the court erred in giving the instruction above quoted, the judgment is reversed, and a new trial awarded.

ARMSTRONG and MATSON, JJ., concur.


text:
      Ex parte H. C. LEDINGTON.
    No. A-3866
    Opinion Filed Oct. 13, 1920.
    (192 Pac. 595.)
    (Syllabus.)
    1. HABEAS CORPUS — Application for Bail — Burden of Proof. Under Const, art. 2, § 8, providing that: “All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.” Upon an application for bail by writ of habeas corpus, after commitment for a capital offense by a committing magistrate, the burden is upon the petitioner to show that be is illegally deprived of bis liberty.
    2. HABEAS CORPUS — Right to Bail — Rape. Petitioner charged with rape in the first degree was held and committed without bail on the preliminary examination. Evidence reviewed, and held sufficient to show that petitioner is entitled to be admitted to bail as a matter of right.
    Petition of H. C. Ledington for writ of habeas corpus to obtain bis release on bail.
    Bail allowed.

      Bert Van Leuven and J. I. Hoioard, for petitioner.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., and C. F. Gowdy, Co. Atty., for the State.
   DOYLE, P. J.

In this proceeding H. C. Ledington has filed a petition for writ of habeas corpus to obtain his release on bail pending the final hearing and determination of a charge of rape in the first degree, wherein upon his preliminary examination he was held to answer in the district court of Nowata county for the crime of rape, alleged to have been committed in said county on or about the 16th day of -September, 1920, upon one Edith Mendel, a female child under the age of 14 years. Petitioner avers that he is now unlawfully imprisoned and restrained in the county jail of Nowata county by Wm, F. Gillespey, sheriff of said county, in that he is not guilty of the crime of rape and that the proof of his guilt of the charge of rape is not evident nor the presumption thereof great, that therefore petitioner is entitled to be let to bail pending his trial on said charge.

Attached to said petition and made a part thereof is a duly certified transcript of the testimony taken upon the preliminary examination, together with the affidavits of eight citizens of Nowata county, including the affidavit of respondent, to the effect that they know the general reputation of said petitioner as to being a good and law-abiding citizen and his reputation for truth and veracity and moral character and that such reputation and character is good.

It is also shown that on habeas corpus proceeding the district judge of said county denied bail, and remanded petitioner to the custody of said sheriff.

The evidence shows that petitioner, a man about 36 years of age, has been for many years a resident of Nowata county, and resides with his family in the city of Nowata; that he is the owner of a farm in said county, on which reside the parents of the prosecutrix and their children; that their daughter, Edith, is 11 years old; that owing to poor crop prospects they intended to remove in October to Missouri; and there has been some disagreement between them and petitioner about the amount due to them for his board, as he was accustomed to frequently visit the farm, and at such times boarded with them.

The testimony of Edith Mendel was, in substance, that on the day in question her mother had gone to town; her father was working in the field, and her brother, 13 years of age, and one or two younger children and petitioner were the only persons at the house; that he sent her brother to pick peas, and asked her if she would like to have another car talk, and said he was going, upstairs to lay on the bed, and she could come up' there; that he went upstairs and she followed him; that he took off her drawers and laid her on the bed and put his “thing” in the lips of her privates; and she scooted out from under him and put on her drawers and went downstairs; that he came down and said to her “You are not mad; you only think you are;” that she then turned the grindstone for him while he sharpened a scythe; that a few days before this she was sitting with him in his car, and petitioner put his hand up under her clothes and felt of her person; that she told her elder brother about her abuse by petitioner, and asked him to tell their mother about it.

Petitioner, as a witness in his own behalf on the preliminary examination, denied all the facts of an inculpatory nature in the foregoing statement.

Upon the hearing it was the contention on the part of petitioner that he was entitled to bail as a matter of right upon the testimony taken upon his preliminary examination, for the reason that the proof of his guilt is not evident, nor the presumption thereof great. Our Bill of Rights provides :

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.” Const. art. 2, § 8.

Under the provisions of the Penal Code, rape committed by a male over 18 years of age, upon a female under the age of 14 years, is rape in the first degree, and the punishment may be death. Section 2418, Rev. Laws 1910. “Any. sexual penetration, ho'wever slight, is sufficient to complete the crime.” Section 2416, Rev. Laws 1910. However, there must be proof of some degree of entrance of the female organ, and the practice seems to be not to permit conviction in those cases in which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable. Walker v. State, 12 Okla. Cr. 179, 153 Pac. 209.

While the uncorroborated testimony of the prosecutrix may be sufficient to justify a conviction for rape under our statutes, in order to do so her testimony should stand un-impeached. Wines v. State, 7 Okla. Cr. 450, 124 Pac. 466. Assuming, but not deciding that the testimony of the pros-ecutrix is sufficient to show penetration, against it is the testimony of the defendant, wherein he denied his guilt, and impeaching testimony tending to show that- the prosecu-trix had made statements, relevant to the issues out of court contrary to what she testified to at the preliminary examination, also proof of the defendant’s good moral character, and that his reputation for truth and veracity was good, and the legal presumption of innocence is in his favor that he did not commit the act. It follows that the proof óf his guilt is not evident, nor the presumption thereof great, and that he is entitled to be admitted to bail as a matter of right.

It is therefore ordered and adjudged that petitioner, H. C. Ledington, be, and he is hereby admitted to bail upon the charge of rape now pending against him in the district court of Nowata county, and that his bail be, and the same is hereby fixed at the sum of $1.5,000, and that he be released from custody upon his executing and causing to be filed and approved by the court clerk- of Nowata county a good and sufficient bond in said sum, conditioned as required by law.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    HARGROVE et al. v. STATE.
    No. A-3552
    Opinion Filed Oct. 13, 1920.
    (192 Pac. 590.)
    (Syllabus.)
    APPEAL AND ERROR — Dismissal—Acceptance of Parole. Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and the appeal will ,be dismissed, either on motion of plaintiff in error or of the Attorney General, when the attention of this court is directed to the fact that a parole has been granted and accepted.

      Appeal from County Court, Logan County; A. H. Boles, Judge.

    R. M. Hargrove and Ofa Brown were convicted of the crime of conveying intoxicating liquors and they appeal.
    Appeal dismissed.

      E. G. McAdams, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from the county court of Logan county, wherein plaintiffs in error were jointly tried and convicted of unlawfully conveying intoxicating liquors; and on the 7th day of March, 1919, judgment was rendered against each plaintiff in error, and plaintiff in error Hargrove was sentenced to serve a term of four months in the county jail and to pay a fine of ?450, and plaintiff in error Brown was sentenced to serve a term of 30 days in the county jail and to pay a fine of $100. From these respective judgments, each has appealed to this court by filing a case-made with petition in error attached on the 27th day of May, 1919.

On the 12th day of October, 1920, the plaintiffs in error, by their attorney of record, each moved the court to dismiss their respective appeals for the reason that each of them has been granted a parole by the Governor of this state for the offense of which they were convicted in this cause, and have each accepted said paroles and complied with the terms thereof.

Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and the appeal will be dismissed either on motion of plaintiff in error or of the Attorney General, when the attention of this court is directed to the fact that a parole has been granted and accepted. Talkington et al. v. State, 15 Okla. Cr. 83, 175 Pac. 132; Odom v. State, 8 Okla. Cr. 540, 129 Pac. 445.

Each of the plaintiffs in error having been granted and accepted a parole by the Governor of this state, and having moved to dismiss their appeal for that reason, the motion is granted, and the appeal dismissed as to each plaintiff in error.

Mandates forthwith.


text:
    HECTOR LADY v. STATE.
    No. A-3413
    Opinion Filed Oct. 16, 1920.
    (192 Pac. 699.)
    (Syllabus.)
    1. APPEAL AND ERROR — Review—Sufficiency of Evidence. Where there- is ample evidence in the record from which the jury was authorized reasonably to conclude that defendant is guilty of the crime of which he was convicted, the conviction will not be disturbed because of alleged insufficiency of the evidence, although same is conflicting.
    2. WEAPONS — Discharging Firearms in “Public Places.” A public road or highway, which has for many years been open for public travel, and is a place where the public has a right to go and be at all hours of the day, is in no sense a private road or place, but is a “public place,” within the meaning of section 2577, Revised Laws 1910, making it a misdemeanor for any person to wilfully discharge any species of firearm in any public place.
    3. HOMICIDE — Instruction—Manslaughter—Homicide While Committing Misdemeanor. Where, in a trial for murder, the evidence discloses that defendant wilfully discharged his pistol in a public place, by reason of which act deceased was killed, without any apparent premeditation or design to effect death on the part of defendant, it is proper for the court to instruct the jury upon the law of manslaughter in the first degree perpetrated by a person engaged in the commission of a misdemeanor, as defined in the first subdivision of section 2320, Revised Laws 1910.
    4. HOMICIDE — Harmless Error — Instructions. Where, in a prosecution for murder, defendant is convicted of manslaughter in the first degree, an alleged erroneous instruction relating solely to the crime of murder will not be considered as a ground for reversal.
    5. TRIAL. — Instructions—Applicability—Refusal. It is not reversible error to refuse to give instructions requested by defendant, where the same are not applicable to the issues.

      Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.

    Hector Lady was convicted of manslaughter in the first degree and he appeals.
    Affirmed.

      A. L. Beckett, for plaintiff in error.

      S. P. Creeling, Atty. Gen., and W. C. Hall, Asst. Atty. . Gen., for the State.
   MATSON, J.

This is an appeal from the superior court of Okmulgee county wherein, on the 22d day of February, 1918, defendant, Hector Lady, was sentenced to serve a term of four years in the state penitentiary for the crime of manslaughter in the first degree for killing one Silas Grier in said county on the evening of the 24th day of December, 1917, near the town of Preston in said county. Two grounds of reversal are relied upon (1) The alleged insufficiency of the evidence to sustain the conviction; (2) alleged erroneous instructions given by the trial court over the objection and exception of defendant.

We think there is ample evidence in the record from which the jury was authorized reasonably to conclude that defendant killed deceased, Silas Grier, by shooting him in the head with a pistol. The killing occurred on a public highway near the town of Preston, in Okmulgee county, on Christmas Eve, 1917. It appears that defendant and deceased, who were both negroes, had known each other for several years, and apparently up until the afternoon 'or late evening of the day of the killing, had been on friendly terms. On that afternoon defendant and some other ne-groes were shooting craps at the home of Buster Mayes in the town of Preston. Defendant had been winning, and was accused by others in the game of shooting or playing with loaded dice; according to the state’s witnesses, deceased appeared upon the scene about the time the controversy arose as to the loaded dice, and remarked in substance that shooting with loaded dice was unfair, and that a person could not win, or had no right to win, with loaded dice.

Shortly after the game broke up, and defendant and one Tobe Toston, who had been playing in the game, started away in a single buggy, driving a mule belonging to defendant to a place a distance of about 4 miles north of Preston, where some negroes were giving a supper and dance. While at the outskirts of the town of Preston, defendant stopped at the home of a negro woman by the name of Isom, who had a sick boy; Toston waiting in the road in the buggy until defendant visited with the Isoms for from 30 minutes to an hour (the exact time that defendant stayed at Isom’s being in controversy.)

After defendant left Isoms, he returned to the buggy, and he and Toston started driving along the public road in a northeasterly direction to the place where the supper and dance was to be given. Toston testifies that they had driven approximately 200 or 300 yards along this public road when defendant, who was 'sitting on the right side of the buggy, drew his pistol, and began firing to the right of him. Toston’s testimony in regard to defendant’s shooting is as follows:

“Q. Go ahead, and tell what occurred. A. So he got in on the right, after we stopped to see the sick man at the creek, and in about 200 or 300 yards from where we stopped, in going along the road, when we got there, he stopped, and pulled out his pistol, of course, and shot twice. When he fired first, I didn’t see anything, but when he made the second shot, I discovered something on the ground, between the flash of the gun — I don’t know what, man, or hog, or dog. He drove on a little piece further, and shot back again. I told him, ‘Don’t be shooting that way; might be people there.’ He says, ‘I believe I seen somebody back there.’ That’s all he said; went on along the road for awhile.

“Describe the place and the ground, with reference to whether there was timber. A. There was a small tree stood a little further northeast, and a large tree stood kind of southeast, where the shooting was at that place; that is where he shot him.

“Q. Did you proceed, then, on to the supper? A.'I and him went to the supper.

“Q. What occurred? A. He got a quarter of a mile from "there, where he shot first, pulled out his' pistol, and shot twice and reloaded the pistol.

“Q. Anything said there about the shooting? A. After we got to the supper, Buster Mays came up between three-quarters of an hour, or about there, and told me that this man, ‘Rabbit,’ was killed down there; found him in the road which caused me to think that he shot him bécause I was in the buggy. He said the officers was coming up there to arrest us. He suspicioned Hector, .and Hector come to me and told me, ‘If they ask you where the shooting was you say that was. between a mile and three-quarters from town; that’s the way he spoke to me; that’s the way it was spoke.

“Q. Was there anything said at that time, or any other time, if you were asked about the shooting, to tell he shot in the air? (To the Court) Just trying to refresh his memory.

“By Mr. Beckett: To which we object as leading.

“By the Court: Sustained.

“Q. Was there anything said any other time about this shooting by this defendant?

“By Mr. Beckett: Objected to as leading.

“By the Court: Overruled.

“By Mr. Roland: Exception.

“A. I was going to ask you a question.

“Q. What was it? A. If you meant at the dance? If he got in jail, to tell the shooting was between a mile and three-quarters from town, he shot; but he shot straight up.

“Q. He told you that at the dance? A. Told me that at the dance. Buster Mays came and told me this man was found dead; the officers was coming, tracing this buggy, because they thought we done it. When he got there, Hector told me, T am going home,’ wanted me to go home. T am going home with old man Polks folks when they go.’ T sure hate it,’ he says, ‘me and Rabbit was good friends,’ that’s what he said. T hate that Rabbit got killed; me and Mm was good friends.’ ”

Defendant took the witness stand in his own behalf, and admitted firing some shots along the ¡public road that night on his way to the dance, but testified he was at least one-half mile from the Isom home before he fired the first time. If defendant’s testimony was true, this would put him a considerable distance northeast of where the body of deceased was found.

It is apparent from the record that the evidence is in conflict as to where the shooting took place, but it was the exclusive province of the jury to settle such conflicts. If the evidence on the part of the state was to be believed, the jury was authorized to 'conclude that defendant fired the shot that killed deceased. The testimony of the witness Toston and other circumstances lead to no other conclusion than that defendant shot deceased while firing his pistol from his. buggy while driving along the public highway.

Section 2577, Revised Laws 1910, provides:

“Any person who wilfully discharges any species of firearm, airgun or other weapon, or throws any other missile in any public place, or in any place where there is any person to be endangered thereby, although no injury to any person shall ensue, is guilty of a misdemeanor.”

Homicide is defined to ibe manslaughter in the first degree, under section 2320, Revised Laws 1910:

“First. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.”

Under section 2577, supra, it was a misdemeanor for defendant to discharge his pistol in a public place, and under section 2320, supra, if defendant had no premeditated design to kill any person (by discharging his pistol in a public place, and he did discharge it in such a place, and the death of some person ensued from such act, although without any design on defendant’s part, such killing would be manslaughter in the first degree.

Therefore, under the foregoing statute and_the evidence on the part of the state in this case, it being disclosed by 'the record that defendant discharged his pistol in a public road, and the jury being authorized to conclude that by such act on the part of defendant deceased was killed, without any design to effect the death of deceased by defendant, it must be held, if it foe conceded that the public road was á public place, within the meaning of section 2577, supra, that the evidence is sufficient both in law and in fact to sustain the conviction. '

Secondly, it is contended that the court erred in giving the following instructions, numbered 10 and 11:

“You are instructed that any ¡person who willfully discharges any species of firearm, airgun, or other weappn in any p.ublie place, or in any place where there is any person to he endangered thereby, although no injury to any 'person shall ensue, is guilty of a misdemeanor.”

“You are therefore instructed that, if you believe and, find from the evidence in this case, beyond a reasonable doubt, that the defendant, Hector Lady, at and in the county of Okmulgee and state of Oklahoma, on the date alleged in the information, unlawfully and wilfully, while riding along the public road, shot off his pistol, and you further believe and find from the evidence, beyond a reasonable doubt, that the deceased, Silas Grier, was killed by the discharge of said pistol in the hands of the said defendant, Hector Lady, although without any intention, or premeditated malice or design on the part of the said Hector Lady, to shoot and kill the said Silas Grier, and you further believe and find, beyond a reasonable doubt, that said act was willfully and unlawfully done, in violation of the law making it a crime to shoot upon the public highway or public place, then, in that event, you will find the defendant guilty of manslaughter in the first degree, andi so say by your verdict. On the other hand, if, after a careful and fair consideration of all the evidence in this case, you have a reasonable doubt of the guilt of the defendant, you will give him the benefit of such doubt, and acquit him.”

In substance, it is contended that the giving of the foregoing instructions was error, because: (1) The public road upon which the shooting took place was not a public place within the meaning of section 2577, supra; (2) there is no .evidence in the record to support the giving of such instructions.

As to the second contention, it is only necessary to say that the evidence upon the part of the state discloses that defendant fired certain shots from his pistol along the public road, and that the shooting was willfully and intentionally done by defendant. Under such circumstances, if death resulted from the act of shooting, the crime was manslaughter in the first degree, within the definition contained in the first subdivision of section 2320, supra.

Nor do we believe there is any merit in the contention that the highway upon which the shooting by defendant took place was not a public place, within the meaning of section 2577, supra. The undisputed evidence shows that such highway was a public road long since opened for travel, leading from the town of Preston in a northeasterly direction ; that it was a place where the public had a right to go and to be at all hours of the day, and while the evidence shows that such highway was one which was not as frequently worked and traveled as others in that neighborhood, nevertheless it was in no sense a private road or place, but was one which was open at that time, and had been open for many years, for public uses and purposes, and in the opinion of this court was a public place within the meaning of section 2577, supra. Taking such view of the law, it was not error for the trial court to give instructions Nos. 10 and 11, supra, complained of.

Further, it is contended that the trial court erred in giving instruction No. 13, as follows:

“Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time.”

This instruction is alleged to have been prejudicial to defendant, because there was no evidence to support the giving of same. In view of the fact that defendant was convicted of the crime of manslaughter, and the instruction complained of relates solely to that degree of felonious homicide defined to be murder, it cannot be said in this case that defendant was prejudiced by the giving of such instruction.

It is also contended that the trial court erred in refusing to give certain instructions requested by defendant. These instructions relate to the crime of manslaughter in the second degree, and to excusable homicide. The instructions were properly refused. There is no evidence in the record which tends to reduce this killing to that grade of felonious homicide defined to ibe manslaughter in the second degree; neither is there the slightest evidence tending in any way to excuse the killing. Under the state’s evidence, the crime committed was, either murder or manslaughter in the first degree. The defense interposed was an alibi, and the trial court fully instructed upon all theories of the case of which there was any evidence to support. The instructions given fully covered the law of the case, and were as fair to defendant as the evidence warranted.

After a careful consideration of the record in this case, the conclusion is reached that defendant had a fair and impartial trial, and that the judgment of the superior court of Okmulgee county rendered herein, sentencing defendant to serve a term of four years’ imprisonment in the state penitentiary, should be aífirmed; and it is so ordered.

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