text:
    W. T. CRABTREE v. STATE.
    No. A-3436
    Opinion Filed Dec. 20, 1920.
    (193 Pac. 1005.)
    (Syllabus.)
    1. CRIMINAL LAW — Responsibility for Crime. It may be stated, . as a general proposition, that no one can be properly convicted of a crime that he did not commit, or to the commission of which he has never expressly or impliedly given his assent.
    2. HOMICIDE — Prejudicial Instruction on Conspiracy. On a trial for murder under an information alleging that the defendant did strike the deceased- “on the head with a dangerous and deadly weapon the name and character of which is unknown to the informant,” the evidence showed that the homicide was the result of a drunken affray where each participant acted for himself, and there was no evidence tending to show a combination or conspiracy to assault and beat, or kill the deceased, and there was a direct conflict in the evidence as to whether the defendant or the principal witness for the state struck the fatal blow.
    Held, that it was prejudicial error to instruct the jury on the law of criminal responsibility, where two or more persons combine or conspire together to commit any unlawful act, and that if the defendant or the witness Freeman or “one or both of them struck the deceased, and from which blow or blows the said deceased died, then each would be liable for the acts and conduct of the other.and be held responsible for the death of the deceased,” in that the instruction given by the court authorized the jury to convict, even though they believed the blow struck by the defendant did not cause the death of the deceased.

      Appeal from- District Court, Tulsa County; N. E. McNeill, Judge.

    W. T. Crabtree was convicted of manslaughter in the first degree, and he appeals.
    Reversed.

      Pat Malloy and E. M. Gallaher (Chas R. Bostick, M. A. Breckinridge, and Lee Daniel, of counsel), for plaintiff' 'in error.

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

The plaintiff in error, W. T. Crab-tree, herein referred to as the defendant, was informed against for the murder of Chas. W. Shaw, and by verdict of a jury found guilty of manslaughter in the first degree, and his punishment fixed at 15 years’ imprisonment in the penitentiary.

To reverse the judgment rendered on the verdict he prosecutes this appeal. The facts in the case briefly stated show that on the night of the 17th day of May, 1917, the deceased, Chas W. Shaw, the defendant, Crabtree, Fred Freeman, and others were at Mabel Brooks’ roadhouse near Tulsa, indulging in the use of intoxicating liquors; that about midnight a difficulty arose between the deceased and Freeman, and the deceased drew his pistol upon Freeman and upon the defendant, Crabtree, and upon one or two other persons, and required each of them, to hold up their hands; that during the affray Freeman picked up a loaded shotgun, and some one struck the deceased a blow on the head, causjng almost instant death; that night the defendant and Fred Freeman took the body of -the deceased in a Ford car from the scene of the homicide to a tank farm near Ramona and there dropped the foody into an oil tank; three or four months°later Fred Freeman was arrested at Hammond, Ind., and, on the promise of the officer who made the arrest that if he made a statement he would not be prosecuted, Freeman made a statement and told where the body could be found. The following brief statement of the evidence will be sufficient to make clear the contentions made:

As a witness for the state, Fred Freeman testified:

“I was staying at Mabel Brooks’ roadhouse. I met Charles W. Shaw that night at Russell’s roadhouse. I drove there in a Ford with Bessie Shields. We had a few drinks together and then started to drive back to the other roadhouse. Another man named Tyler went with us. On the way I pulled out a six-shooter and shot all the cartridges out of it; and I said, ‘We will go 'back to town and get some more s,hells.’ Mr. Shaw said, T have a trunk full of them at home.’ Then Miss Shields said, T will go on home afoot,’ and she got out of the car. We went to Shaw’s house and found the cartridges, but they would not fit my gun, so Mr. Shaw gave me his gun. We then went out to Mabel Brooks’ roadhouse. Mrs. Brooks asked me why I made Bessie walk home, and we had an argument. I went into a bedroom and went to sleep. In about an hour Mr. Shaw came in, woke me, and said he wanted his gun. I got up. He poked it in my belly and told me to put my hands up. I put them up. The defendant, Crab-tree, came in, and Mr. Shaw turned his gun on him and told him to put up his hands, or he would blow his damn brains out. Crabtree put up his hands and walked out on the back porch with Mr. Shaw behind him, and I picked up a loaded shotgun and walked out behind Mr. Shaw. I was trying to get Shaw in the notion of going home. The defendant Crabtree, came in and busted him over the head with a club. He went down, and we got some water and tried to bring him to. I had the shotgun, in my hands when the defendant, Crabtree, struck Mr. Shaw, and I fired the shotgun. I don’t know why I fired it. I was excited, crazy, and did not know what I was doing after he was murdered. I helped the defendant, Crabtree, put the body in the Ford oar that I had been driving, and we drove up to Ramona and put the body in one of the tanks on a tank farm near there.”

For the defense, L. M. Payne testified: '

“I was at the Mabel Brooks’ roadhouse that night. Along between 11 and 12 Fred Freeman, a fellow called Tyler, and Mr. Shaw, the deceased, came in. Mabel Brooks said something to Freeman about making Bessie Shields walk back there and about a car. I never paid much attention to what they were saying. The next thing I saw Fred Freeman had a shotgun. Crabtree jumped up from the table and caught hold of the gun, saying, ‘What are you trying to do Fred?’..Freeman would not give up the gun. Then Mr. Shaw commenced jabbing me with a six-shooter and said, ‘Get back .in there and let them alone.’ Crabtree and Freeman both had hold of the shotgun. Finally, they both walked back in the bedroom,, and Mr. ,Shaw started in there and turned around at the door and said: ‘You dirty son of a bitch! I am. going to blow you in two. I have talked to you enough.’... He cocked the gun, and said, T am going to kill you if.you don’t-get back,’ and I got back. The next thing I saw. Crabtree was going through the dining room. He had his hands up, and Mr. Shaw was behind him with a pistol, and Freeman was right behind Shaw with a shotgun. They-went on out through the kitchen. I saw Crabtree at the door. He had a piece of board in his hands. Then Freeman made a lick with the shotgun. I suppose he hit Mr. Shaw. I jumped back and a shot was fired. I went out. Crabtree was getting some water. Mr. Shaw was laying on the porch and Freeman standing over him. I said, ‘It looks like you have killed him.’ Freeman says: ‘He ain’t hurt. The son of a bitch is just stalling. I ought to stomp his damn brains out, coming out here and trying to mistreat my friends.’ Shaw’s gun was lying by his side. I picked it up and laid it on the shelf.”

As a witness in his own behalf the defendant testified :

“My age is 46 years. I live east of the city with my wife and children. I was at Mabel Brooks’ roadhouse when Freeman, Tyler, and Shaw, the deceased, came there that night. It was the first time I ever met Mr. Shaw. I heard Shaw say he wanted his gun, and that Freeman had it; so I went in to the room where Freeman Was and took the gun from Freeman and gave it to 'Shaw. Freeman and Shaw kept wrangling and fussing in there, and Shaw began to jab and point his pistol around at everybody. The next thing Shaw pointed the gun at me and told me to get up my hands. I did, and backed out. He followed me up, and Freeman was following Shaw with a shotgun. I backed into the kitchen and out on the back porch and through the door. 'Shaw was cussing and saying, ‘Back up, you son of a bitch!’ There was a stick sitting there against the windo'w, that was used for a window prop. I picked it up and' struck Shaw. It was a pine stick about an inch thick and about three feet long. Shaw was facing me when I hit him. I thought he was going to kill me. I could not get out. When I hit him, he staggered, and Fred Freeman hit him with the shotgun, and the gun went off. I went to the well and got some water and poured it on him and rubbed him. Whitey Payne took hold of his arm and felt of his pulse and said, T believe this man is dead.’ Freeman, said: ‘He is just stalling. I ought to stomp his brains out.’ I saw that he was dead, and said, ‘We had better notify the sheriff.’ Freeman says: ‘Hell, that won’t do! Let us put him in the car.’ I said, ‘All right.’ He drove the car, and we went up through Vera and Ramona to that tank farm. Freeman said, ‘One of these tanks will be a good place to put the body in,’1 and we took it from the car and dropped it in a tank. Freeman left the country. I didn’t give him any money to go any place.”

After a most careful reading of all the testimony in the case, we have been unable to find any evidence which tended even indirectly to support the theory of combination or conspiracy to assault, and beat, or kill the deceased. The uncontroverted facts are that the homicide was the puteóme of a drunken affray, where each participant acted for himself.

Among the instructions given by the court to which objections were made and exceptions saved were the following :

“No. 13. You are instructed that where several parties voluntarily act together in the commission of any act which may result in death to another, and such death ensues therefrom, all parties so acting together are as guilty of murder as if they had intended the death of such party.

“No. 14. You are instructed if you find and 'believe from the evidence, beyond a reasonable doubt, that the defendant and the witness Fred Freeman were acting together and in concert with each other, to effect a common purpose, and that one or both of them struck the deceased on the head, .and from which blow or blows the said deceased died, then each would be liable for the acts and conduct of the, other and be held responsible for the death of the said deceased.”

“No. 23. You are instructed that all parties who, after the death and killing of the deceased, irrespective of whether the deceased was killed by the blow .of Fred Freeman, if one was struck, or by the blow by the defendant, who concealed or aided persons engaged in the killing of the deceased, knowing the persons or parties who had .killed said deceased, and with the intent that the party or parties responsible for said act might avoid or escape arrest, trial, conviction, or punishment, would be accessories after the fact of said crime, triable and punishable as such; but the jury are not to take that fact into consideration except for the purpose of determining the interest of said witnesses in said cause and the weight and value to be given to their testimony.”

It may be stated, as a general proposition, that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right and shocking to every sense of justice and humanity.

However, under the familiar rule of criminal responsibility, in cases of conspiracy or combination, if the evidence prima facie established a combination or tended to show that the defendant Crabtree and the witness Freeman entered into a conspiracy to assault, beat, or kill the deceased, the acts and declarations of-each of the confederates, done or made in furtherance of the common design, were the acts and declarations of both, then and in that event the giving of instructions numbered 13 and 14 would be proper. The rule of criminal responsibility for the acts of others is subject to the reasonable limitation that thé particular a'ct of one of a party for which his associates and confederates are to be held liable, miust be shown to have been done in furtherance of the common object and design for which they combined together. The record shows that Freeman, upon whose testimony the prosecution mainly rests, testified that there was no common purpose or design to assault and strike, or kill the deceased, and there is no evidence in the case tending to show that the defendant Crabtree and the witness Freeman conspired or agreed to assault and beat, or to kill the deceased, and, there being a direct conflict of evidence as-to whether the blow struck by the defendant, 'Crabtree,, with a club, caused the homicide, or whether the deceased' came to his death by reason of a blow struck by Freeman with a shotgun, the giving of instructions numbered 13 and 14 was prejudicial to the substantial rights of the defendant, in that said instructions authorized the 'jury to convict the defendant, even though they believed that the blow struck by him did not cause the death of the deceased, and that the homicide was caused by a blow struck by Freeman.

It follows that under the evidence in this case it would be manifestly unjust to hold the defendant liable for an act done by another which he had never either expressly or impliedly assented or agreed to.

In Wilcox et al. v. U. S., 7 Ind. T. 86, 103 S. W. 774, it is said:

“The gist of a conspiracy is planning and agreeing to commit the offense prohibited. * * * To make out a case of conspiracy, it is necessary to prove that defendants agreed either expressly or impliedly to commit some one or more of the thingsi prohibited * * * and in consummation thereof did some overt act.”

It is elementary that the giving of instructions upon a material issue in the case, not applicable to the evidence, is prejudicial error.

“A charge which asserts correctly an abstract principle of law, but is not applicable to the evidence or which is based upon the assumption of the evidence of material facts of which there is no evidence, should not be given.” 12 Cyc., p. 651, § 27, and the many citations from nearly every state in the Union supporting said text.

While instruction No. 23 correctly defines an accessory after the fact, we think said instruction as a whole was misleading and may have created upon the mind of the jury the impression that the removal and concealment of the body was sufficient to convict defendant of the homicide charged, and this vice of the instruction we do not think was cured by confining their consideration of such evidence for the purpose of determining the interest of the said witnesses in this case, and the weight and value to be given to their testimony, and that such instruction was not a clear and affirmative instruction, and hence prejudicial error.

“It is error for the trial court to single out a defendant and charge upon the weight of his testimony.” Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359.

“The instructions of the * * * court should apply the law to the competent evidence as offered by the state and the accused, and leave the jury to determine as to what facts and circumstances are established by the' evidence.” Dooling v. State, 3 Okla. Cr. 491, 106 Pac. 982.

In Brock v. State, 6 Okla. Cr. 23, 115 Pac. 1026, it is said:

“The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jury has been properly instructed as to the law of the case.”

Inasmuch as the errors pointed out must reverse the judgment of conviction rendered, we deem it unnecessary to consider any of the other errors assigned.

For the reasons stated, the judgment of the trial court is reversed, and a new trial awarded.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
      Ex parte RUBLE et al.

    No. A-3887
    Opinion Filed Dec. 22, 1920.
    (193 Pac. 1009.)
    (Syllabus.)
    1. HABEAS CORPUS — Application for Bail — Assumption of Guilt. In habeas corpus proceedings, where the petitioner has been held to answer by an examining magistrate, his guilt will be assumed upon application for reduction of bail.
    2. BAIL — Habeas Corpus — Excessiveness of Bail. This court will not assume the functions of a committing magistrate or the trial court; and, to authorize interference, the bail fixed must be per se excessive and clearly disproportionate to the offense involved.
    Original habeas corpus proceedings by Scott Ruble and another.
    Application denied.

      Moran & Osmond and F. W. Church, for petitioner.
    The Attorney General, M. Bristow, Co. Atty., and Wm. McFayden, Asst. Co. Atty., for respondent.
   DOYLE, P. J.

The petition filed on behalf of Scott Ruble and Chas. Bccleston alleges, in substance, that they are illegally restrained of their liberty and unlawfully imprisoned at Anadarko by Josh R. Cox, sheriff of Caddo county, and sets forth that petitioners were jointly charged with having on the 7th day of October, this year, burglarized the vault of the State Bank of Gracemont, and upon their preliminary examination they were held to the district' court and the bond of each fixed at $9,000, and they were remanded to the sheriff; that, without questioning the validity of the proceedings up to the fixing the amount of the bond, petitioners allege that said restraint is illegal and unauthorized in that said bonds required are excessive and unreasonable; that a 'petition was filed in the district court of Caddo county, and the district judge, upon hearing the same, refused to reduce the amount of said bonds. The petitioners base their application upon the constitutional provision which provides that “excessive bail shall not be required,” Const, art. 2, § 9.

It is well settled that, for the purpose of an application to reduce bail, the court must assume that the defendant is guilty of the offense charged, and that this court will not grant a reduction of bail on habeas corpus unless it clearly appears that the amount fixed by the trial court is excessive and clearly disproportionate to the offense involved. Ex parte McClellan, 1 Okla. Cr. 299, 97 Pac. 1019; Ex parte Houghton, 1 Okla. Cr. 302, 97 Pac. 1021.

Section 1, c. 7, of the Session Laws of 1913, provides as follows:

“Section 1. Any person who enters any building, railway car, vehicle, or structure and there opens or attempts to open any vault, safe, or receptacle used or kept for the secure keeping of money, securities, books of accounts, or other valuable property, papers or documents, without the consent of the owner, by the use of or aid of dynamite, nitroglycerine, günpowder, or other explosives, or who enters any such building, railway car, vehicle, or structure in which is kept any vault, safe or other receptacle for the safe keeping of money or other valuable property, papers, books or documents, with intent and without the consent of the owner, to open or crack such vault, safe or receptacle by the aid or use of any explosive, shall in either case be deemed guilty of felony, and upon conviction shall be punished by imprisonment in the state penitentiary for a term of not less than twenty (20) nor more than fifty (50) years.”

The record before us contains no copy of the complaint or of the order of commitment. However, it sets forth that, when the magistrate ordered the petitioners held, the county attorney stated that his information was that the defendants are residents of Kansas City, that two-other banks were robbed about the same time in this community, and he asked that the bond of each be fixed at $10,000. Thereupon the committing magistrate fixed the bond of each at $9,000.

It appears that there was about $30,000 in war saving stamps and other notes, bonds, and stocks in the deposit boxes in the vault at the time.

In applications of this kind we are not to assume the functions of the committing magistrate or the trial court in fixing the amount of bail. Before this court is authorized to interfere, the bail required must be per se excessive and clearly disproportionate to the offense involved. Upon a careful examination of the record presented and taking into consideration the character of the offense shown to have .been committed, we are of opinion that the amount fixed by the magistrate is not unreasonable or excessive.

The application is therefore denied.

ARMSTRONG and MATSON, JJ., concur.


text:
    PAT McLAUGHLIN v. STATE.
    No. A-3598
    Opinion Filed Dec. 30, 1920.
    (193 Pac. 1010.)
    (Syllabus.)
    L Provisions of Statute Quoted. Under the Code of Criminal Procedure, “if, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.” Section 5896, Rev. Laws 1910.

      2. TRIAL — Instructed Verdict of Acquittal. In the trial of a criminal case, if the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to show that he is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal.
    3. EVIDENCE — Circumstantial Evidence — Sufficiency. Where, in the trial of a-- criminal case, the evidence relied upon for a conviction is. entirely circumstantial, the circumstances tending to show guilt must be consistent, the one with the other, and point so strongly to the guilt of the defendant as to exclude every other reasonable hypothesis except that of guilt.
    4. LARCENY — Grand Larceny — Insufficiency of Evidence. Evidence on the trial for grand larceny examined, and held insufficient to support a conviction.

      Appeal from Superior Court, Creek County; Gaylord B. Wileox, Judge.

    Pat McLaughlin was convicted of grand larceny, and appeals.
    Reversed.

      F. W. Jacobs and Oscar Cooper, for plaintiff in error.

      The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This, appeal is from a judgment rendered upon the verdict of a jury finding the defendant guilty of grand larceny. The record shows that on May 19, 1919, the county attorney of Creek county filed an information jointly charging the defendant and Joe Staley with the theft of a Ford car, the personal property of Jim Hinton, in said county on the 9th day of May, 1919. On the 6th day of June, the county attorney filed an amended information jointly charging the defendant and Joe Staley and Charley Sharp with the theft of said Ford car. On June 7, 1919, the case was called for trial and the defendants Sharp and Joe Staley withdrew their former pleas and entered pleas of guilty. The trial then proceeded as to this defendant. On the same day the jury returned a verdict of guilty and that they were unable to agree on the punishment. A motion for new trial was duly filed and overruled. On the 14th day of June, the court rendered judgment on the verdict and sentenced the defendant to be confined in the penitentiary for a term of four years.

Various errors are assigned as a basis for a reversal of this judgment, 'but no brief has been filed on behalf of the defendant and we have not ¡been favored with an oral argument in his behalf. However, we have examined the record as carefully as the due and proper administration of justice demands.

The first and most important question presented by the record is the failure of the court to direct an acquittal because of the insufficiency of the evidence to support a conviction.

The evidence shows that on the date alleged Jim Hinton lived about five miles southwest of Mannford and was the owner of a new Ford car, which his son, Carl, drove to Mannford that night, about 9 o’clock, and left in front of a drug store. Carl Hinton testified:

“I saw Joe Staley and Charley Sharp in Mannford that night. They were standing about a hundred feet from the car at the time. About midnight I went to where I left the car and it was gone. I was with my father and brother and three or four others the next night when we found the car stuck in the mud near the town of Fisher. The defendant and Joe Staley were in the car when we found it.”

Several witnesses testified that they were with the parties that found the car in the road near Fisher, and that the defendant and Joe Staley were in the car at the time.

Lee Wiggs testified:

“I live at Keystone. I saw the defendant there on the night of the 10th of June. He left Keystone that night about 11 o’clock in a car with Joe Staley and a boy named Wilcox. Before they started Wilcox came into my place and got three quarts of engine oil. One quart was put in the engine and two quarts' were 'corked up and put in the car and they started down the road towards Fisher.”

Art Ward testified:

‘T am the agent for the Frisco at Keystone. I own a car. On Saturday June 10th, I contracted my car to Charley Sharp. I helped him to back the car out of the garage and then I went fishing. Some one drove the car while I was gone.”

J. T. Adair testified:

“I live at Keystone. I know all three defendants. I drove Charley Sharp and Joe IStaley on the night of the 9th of May. I did not see defendant on the night of the 10th. I had a conversation with Joe iStaley about repairing a car to take him out to Fisher that night. He said he wanted to go to the chock joint that was on the road between Keystone and Fisher.”

Tom Durham testified:

“I live at Keystone. On Friday night, May 9th, I was at a chock joint in Tulsa county east of Keystone. About 11 o’clock that night I saw a new Ford car drive up there and Joe Staley and Charley Sharp were in the car. I did not see the defendant that night.”

Loyd Carter testified:

“I live at Keystone. I was at the chock joint on the Keystone, Tulsa road, on Friday night, May 9th, about 1:30 something like that. Charley Sharp and Joe Staley drove up in a new Ford car.”

R. Hinton testified that in going east that night to where the car was found:

“I met a 'boy going back towards Keystone in a car. I did not know his name but the others said his name was Wilcox.”

J. E. Ellidge testified that:

“I was in the car with Carl Hinton as they drove east from Keystone that night and we met this boy Wilcox driving car towards Keystone. It was the depot agent’s car.”

The state rested and the defendant moved the court to direct the jury to return a verdict of acquittal because the evidence is insufficient to sustain a conviction.

The defendant testified in his own behalf and stated:

“I live at Keystone. I was there on the 9th of May and on the 10th of May until about 10:30 or 11 o’clock, when I started to Tulsa with Joe Staley and Neeley Wilcox. I missed the evening train and I offered $10 to any one that would drive me to Tulsa. I met Joe Staley and Wilcox. Wilcox said he had a car there any time. Staley said he could get a car and they made arrangements to take me to' Tulsa. Wilcox was to take me to Starks, down near Fisher, and Staley was to take me on to Tulsa in his car and they were to split the $10. The Wilcox boy was driving the car when we left Keystone. At Starks there was another car standing there and Staley said, ‘There is my car;’ and told Wilcox he could go 'back. I changed Cars and started with Joe Staley on to Tulsa, and he got stuck in a mudhole near Fisher and we were surrounded by officers and arrested.”

On cross-examination he.testified:

“I was around the business part of Keystone the most of the time Friday night, May.9th. I was at Miss Jones’ cafe until about 10:30. I ate dinner there and supper there albout 11 o’clock. Earl Hogg and I walked-home with the two Misses Jones. I then went home with him and then 1 came back to my room and slept there that night. I did not see ¡Staley or Sharp that night. The place we changed cars was a chock joint. It was where Joe Staley had been working and he said the car was his. I had known Joe Staley and Charley Sharp two or three years. I gave Joe Staley and Wilcox two $5 bills to take me to Tulsa.”

Miss Etheyl Jones testified:

“I have lived in Keystone 12 years; run a short order place. I have known the defendant 3 or 4 years. He often ate in my place at Keystone. He was at my cafe on Friday night, May 9th, about 9 o’clock and again about 10 o’clock. He ate two suppers there that night, one about 8 and one about 10. About an hour later or something like that he walked home with us girls and stayed about 80 minutes at our house and then left.”

Florence Jones testified:

“I run the cafe with my sister. I do not know the defendant personally, but I have heard of him the last two or three years. I remember that on Friday, the 9th of May, he ate breakfast at our place and I saw him off and on all day Friday and Friday night until about 11:30, and he was there on the 10th.”

Neeley Wilcox testified that on Saturday evening, May 10th:

“I was talking to Joe Staley and the defendant came across from the depot at Keystone and wanted to get to Tulsa; said he would give $10 to any one to take him. 'Staley said he had a car at Starks and if he could get any one to take! him there he would take him on to Tulsa, and I went and got the depot agent’s car and drove them down to ¡Starks and Joe Staley s.aid, ‘There is my car;’ and he got out with the defendant and I went on back.”

On cross-examination he testified:

“I am staying with Charley Sharp, the boy that pleaded guilty here this morning. Charley Sharp told me to get the depot agent’s car that evening; that he had hired the. car from the agent. The defendant was not with me when I got the ear. He paid Joe Staley $10 and Staley gave me $5.”

It is well-settled law in this state that if there is evidence to support the conviction this court will not weigh the sufficiency of the same to support the verdict. It is, however, equally well-settled law in this state that this court will consider all the evidence to ascertain whether a verdict is in fact founded upon sufficient evidence to warrant a conviction.

If the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to show that he is guilty of the offense charged', it is not only the right but the duty of the trial court: t6 advise the jury to return a verdict of acquittal. Section 5896, Rev. Laws. The court may do this of' its own motion and the defendant may present, to the court hi& right to an acquittal as a matter of law, under this section,, but tbe defendant is not confined to this formula, or ta any form of words in presenting to the court his right to-be acquitted; all that is necessary is that in some intelligible form there shall be presented to the court for its ruling and decision the question that there is not sufficient evidence to warrant a conviction. If this were not the rule, the jury would in all cases be the sole judge of the question, and there would be no remedy'against convictions clearly based upon insufficient evidence.

It appears from the record that the sole ground upon which the case was submitted to the jury was that the defendant was found in the stolen car with one of the confessed thieves. It also appears that the charge of the court did not contain an instruction on circumstantial evidence. However, the defendant did not object to the instructions given by the court and did not request any instructions. It is undisputed that the defendant was not in the town of Mannfordi when his codefendant stole the car in question, or that he had hired Staley and Wilcox to drive him to Tulsa, and there is an entire absence of testimony tending to show that this defendant aided and abetted his codefendants in any way.

It is unquestionably the law that crime may be established by circumstantial evidence, otherwise society would 'be at the mercy of the criminal classes, but it is also uniformly held that the circumstantial evidence must go beyond mere suspicion and conjecture, and where circumstantial evidence solely is relied on for a conviction the circumstances tending to show guilt must be consistent, the one with the other, and point so strongly to the guilt of the defendant as to exclude every .other reasonable hypothesis except that of guilt. Can it reasonably be said that the fact that this defendant was riding in the stolen car with one who was confessedly the thief was sufficient to show his complicity in the crime charged. It seems to us clearly that it was not, and for this reason, when the state closed its case in chief, the Instruction asked by the defendant directing the jury to return a verdict of acquittal should have been given at that time.

After a careful eonsiderction of all the testimony offered by the state and the defendant, we are of opinion that, as a matter of law, the evidence was insufficient to warrant a conviction; and accordingly the judgment of the trial court is reversed.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    D. J. CLARK v. STATE.
    No. A-3641
    Opinion Filed Dec. 31, 1920.
    (193 Pac. 1009.)
    (Syllabus.)
    .APPEAL AND ERROR — Time for Appeal. Under Code of Criminal Procedure (section 5991, Rev. Laws 1910), “in felony cases the appeal must be taken within six months after the judgment is rendered,” and not six months after the motion for a new trial is overruled.

      Appeal from District Court, Roger Mills County; T. P. Clay, Judge.

    D. J. Clark was convicted of grand larceny, and he appeals.
    Appeal dismissed.

      Perry J. Madden and H. L. Adkins, for plaintiff in in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the iState.
   PER CURIAM.

The plaintiff in error was convicted of grand larceny in the district court of Roger Mills county. A motion for new trial was duly filed, and on September 7, 1916, the court overruled the motion and rendered judgment on the verdict and sentenced the plaintiff in error to 'be confined in the penitentiary at McAles-ter for the term of 2y2 years. From the judgment an appeal was attempted to he taken by filing in this court on March 6, 1917, a petition in error. On September 24, 1918, this attempted appeal was discussed. Clark v. State, 15 Okla. Cr. 53, 174 Pac. 1093.

At the May, 1919, term of the district court of Roger Mills county the state’s motion to spread upon the minutes of the court the mandate of this court was granted. Thereupon the state’s motion for an order nunc pro tunc that the judgment rendered on September 7, 1916, which had been destroyed by fire, be reduced to writing and spread upon the minutes of the court as of the 7th day of September, 1916, was granted, and judgment nunc pro tunc was duly entered .

Thereupon plaintiff in error urged that the court grant his extraordinary motion for a new trial filed March 5, 1917, upon the grounds stated, that on the 8th day of September, 1916, the courthouse of Roger Mills county was destroyed by fire, and that all of the papers in said 'action were destroyed, including the record of the proceedings of the trial, and for this reason the defendant has been prevented, from perfecting an appeal from the judgment rendered September 7, 1916, which motion for new trial was by the court overruled. Thereupon plaintiff in error gave notice of appeal. It was by the court ordered that the petition in error (be filed in this court within 90 days; that execution be further stayed until the final determination of this cause by this court.

The errors assigned are “that the trial court erred in overruling the motion for new trial filed in said court on March 5, 1917, and that the trial court erred in holding that it was without authority and jurisdiction to grant a new trial for'the reason that plaintiff in error never attempted to comply with the provisions of chapter 71, Rev. Laws 1910, entitled, ’ “Restoration of Records,” or never made any attempt to secure or have a nunc pro tunc judgment entered for the purpose of perfecting an appeal.

The Attorney General has filed a motion to dismiss the appeal, which in part is as follows:

“Comes now S. P. Freeling, Attorney General, and moves the court to dismiss appeal in this case for the following reasons:

“Defendant’s rights in this case have become res judicata. On September 7, 1916, he was convicted of the crime of grand larceny and sentenced to serve a term of 2y2 years in the state penitentiary. From this judgment he gave notice of appeal, and a supersedeas bond was allowed and approved. Immediately thereafter the records in the case, including the stenographer’s notes of the proceedings had at the trial, were destroyed by fire. At some later date defendant filed in this court a petition in error and case-made consisting of affidavits showing that the records in this case had 'been destroyed by fire.

“On March 5, 1917, 5 months and 27 days after the rendition of the judgment, defendant filed in the court below a motion for a new trial based upon the destruction of the records and files in the case. On September 24, Í918, this court dismissed the aforesaid appeal in this case. In disposing of the case the court said: ‘There is nothing to shoiw that any proceedings were had under the provisions of chapter 71, Revised Laws, entitled “Restoration of Records,” or that any attempt was made to secure or have a nunc pro tunc judgment entered for the purpose of perfecting an appeal.’ 15 Okla. Cr. 53, 174 Pac. 1093.

“On May 22, 1919 the mandate in this case was filed' in the office of the court clerk of Roger Mills county, said mandate directing the district court of said county to enforce its judgment therein. On the same date defendant’s ‘dormant’ motion for new trial was overruled. Then it was refiled and again overruled, and from such order overruling said motion within six months thereafter he lodged in this court his -appeal.

“Instead of the court enforcing its judgment, he allowed other supersedeas bond and suspended judgment pending the determination of the matter now before this court.

“Counsel admit that they were unable to find authority that more than one appeal will lie from this judgment. If numerous appeals from one judgment were permitted, but few cases ever 'would be properly appealed, and cases, generally, would be cycled through successive attempts at perfecting proper appeals, and criminal judgments would be almost indefinitely stayed.

“As suggested by this court in its decision in this case (15 Okla. Cr. 53, 174 Pac. 1093), defendant had ample opportunity at least to attempt to comply with the provisions of chapter 71, Rev. Laws 1910, pertaining to the ‘Restoration of Records.’ He did not avail himself of the provision of the law; but after his defective appeal had been dismissed by this court, and almost three years after the rendition of the judgment, he then proceeded in the lower court to obtain a new trial, as a matter of right, by reason of the destruction of the records, and without attempting to comply with the provisions pertaining to their restoration.

“We respectfully submit the appeal in this case should be dismissed.”

The appeal in a criminal case is from the judgment, and in felony cases the appeal must be taken within six months after the judgment is rendered (section 5991, Rev. Laws), and not six months after the motion for a new trial is overruled. (Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499.)

The appeal is. taken by filing in this court a petition in error with case-made attached or a transcript of the record, together with proof of services of notices of appeal as required by the statute, and, when this is not done within the .time allowed 'by statute, this court does not acquire jurisdiction of the appeal, and such appeal will 'be dismissed.

The record shows that the papers in the ease were destroyed the day following the rendition of the judgment. The plaintiff in error, therefore, had almost six months time in which to have a nunc pro time judgment entered for the purpose of taking an appeal. If this had been done, and plaintiff in error had in due time filed a transcript thereof, attached to a petition in error, this court would have had the power to pass upon the question attempted to be raised in this and in plaintiff in error’s former attempted appeal. However, counsel for plaintiff in error made no effort to take the steps necessary for this court to acquire jurisdiction, and we are without jurisdiction to entertain this attempted appeal. The motion of the Attorney General to dismiss the same must be sustained. The appeal herein is therefore dismissed, and the cause remanded to the district court of Roger Mills county, with direction to enforce its judgment therein.


author: ARMSTRONG, J.

text:
    FRED WRATISLAW et ux. v. STATE.
    No. A-3132
    Opinion Filed Jan. 4, 1921.
    (194 Pac. 273.)
    (Syllabus.)
    HOMICIDE — Dying Declarations. Where a written dying declaration, for the admission of which in evidence a proper predicate has been laid, contains recitals of transactions had and statements made which do not shed light upon the homicide and are not l’es gestae in the strict sense, such recitals of transactions and statements are not admissible in evidence.
    TRIAL — Exclusion of Dying Declarations. Where a written dying declaration contains matter that is admissible in evidence and also matter that is objectionable, it is not error to overrule a motion to exclude such entire declaration.
    HOMICIDE — Objections to Dying Declarations — 'Requisites. Where a written dying declaration contains matter that is admissible and also contains matter that is objectionable, the objector must specifically point out the parts that are objectionable, and not make a general objection to the entire declaration, if it is desired to have the exception to the ruling of the court available on appeal.
    SAME — Erroneous Admission in Evidence — Reversal. It is reversible error for the court, where a written dying declaration contains matter that is admissible in evidence, and also contains matter that is objectionable, and which objections are specifically pointed out by an objector, to admit such entire declaration in evidence, where the objectionable matter is prejudicial to the substantial rights of the defendant.

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

    Fred Wratislaw and Martha E. Wratislaw were convicted of manslaughter in the second degree, and they .appeal.
    Reversed and remanded, with instructions.

      Bridges & Vertrees, for plaintiff in error.

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

The plaintiffs in error, Fred Wratislaw and Martha 'E. Wratislaw, were, together with.-. Alcie Waldon, informed against jointly for the murder of C. J. McCarty. Alcie Waldon was. tried separately, convicted of manslaughter in the first degree, and his said, conviction recently affirmed by this court. The said plaintiffs in error, hereinafter styled defendants, were tried jointly, convicted of manslaughter in the second degree, and each sentenced to imprisonment in the penitentiary at McAlester for four years. To reverse the judgment rendered, they prosecute, jointly, this appeal.

The evidence in this case is very voluminous and has. not been, as required by the rules of this court, abstracted in defendants’ brief. We deem it unnecessary to incumber this opinion by a detailed statement thereof and will "only state such parts of the evidence as we deem necessary to an intelligent understanding of the case, from the-court’s viewpoint.

The uncontradicted material evidence is: That on. the 31st day of January, 1916, Alcie Waldon, who was the son and stepson respectively of the defendants, shot O. J. McCarty in the town of Ringlin-g, in Jefferson; county, Okla., who from the effects of.the wounds so-inflicted died in June, 1916; that, the said Alcie Waldon was tried for the homicide, convicted of manslaughter, and sentenced to imprisonment in the penitentiary for 30 years; that for about one year prior to the said homicide the defendants had resided in New Mexico, to where-they had gone from Oklahoma, and from where they had returned to- near Ringling, Qkla., a few days before the homicide, doing so in compliance with a request so to do contained in a letter written by request of deceased to Mrs. Wratislaw, one of the defendants, and that on the day of 'the homicide, and prior to the homicide, the defendants and Alcie Waldon came together in a wagon to Ringling; that Fred Wratislaw, one of the defendants, was not present at the scene of. the homicide, and that neither one of said defendants took any -active part in said homicide; that the deceased kept a small store about 4% miles from Ringling; that on Thursday preceding the shooting of deceased on Monday Alcie Waldon and his brother and the defendants went to the store of the deceased, where the deceased at the time was, remained there some time, and, together with the deceased, went from said store to a law office in the town of Ringling, and there the deceased executed to Martha E. Wratislaw, one of the defendants, a deed to certain lands and a bill of sale for some live stock, which said deed was left in the said office to be sent to the wife of the deceased, who was in Texas, to be executed, and a letter was written by deceased to her requesting that she execute the said deed; that the day after executing the said bill of sale the deceased caused to be issued a warrant for the arrest of the defendants and the said two stepsons of Fred Wratis-law for robbery, they having, since the execution of the fiaid bill of sale, acquired possession of the said live stock; that the said Fred Wratislaw was arrested and held to bail on said charge on Saturday preceding the homicide on Monday; and that the deceased also instituted an action of replevin against them to recover said live stock.

The state proved the execution of an instrument of writing by the deceased, and that he was conscious and recognized that he was. in articulo mortis when the same was read over to, approved and executed 'by him, and offered said document in evidence as the dying declaration of the deceased. The said instrument of writing is as follows:

“State’s Exhibit 1.

“Dying statement made by' C. J. McCarty on June 25, 1916, at the farm of C. C. Ross, about four miles north of Krebs, in Pittsburg county, Okla., said statement being made in the presence of Carl Monk, county attorney of Pittsburg county, Okla., H. S. Cabell, district court stenographer, Fourth judicial district, state of Oklahoma, and in the presence of Mrs. Lottie Ross, Mrs. Ann McCarty, C. C. Ross, and D. Peacock.

“Statement: I realize that I cannot live and appreciate the fact that death is impending and bound to occur in a very short time. I have no hopes at all of living. My death will be caused 'by pistol wounds inflicted by a pistol in the hands of Aulcie Walden on January 31, 1916, at Ringling, Okla. The constable, George Simon, was present when I was shot. There was also a number of other people close by. There was nothing said to me out on the street on Monday by Aulcie Walden when he shot me. The first I knew- of his being anywhere around me on Monday was when he fired the first shot at me, which struck me below the right co'lar bone and knocked me down. I do not remember hearing any other shots after the first shot, but 3 was also shot at the same time between the fourth and fifth rib on the left side, and also through the fleshy part of the upper left .arm. I had a pistol in my overcoat pocket at the time I was shot, but did not use or attempt to use the same at all. I made no threats or advance or demonstration against Aulcey Walden when he shot me. On Thursday preceding the shooting on Monday Aulcey Walden and Hickman Wal-dron came to my house, and Aulcey asked me to go down to the store and sell him some tobacco. The three of us went to the store, about 250 yards away. Before we got to the store, Martha E. Wratislaw and Fred Wratislaw came in the store, and we were talking about the cold weather. Mrs. Wratislaw wanted to know if I was going to settle up with her and pay her what I owed her. But that time Fred Wratislaw drew a pistol on me and said to me, ‘By God, no'w don’t deny anything she says; we come to settle up and want to know if you are going to give a deed to this land.’ I told them I would give the deed. Aulcey went to get a notary and bring him to the store, but couldn’t get any on account of the ¡bad weather.‘Then Fred, Aulcey, and Mrs. Wratislaw took me in their buggy and made me go with them to Ringling. They took me to Brooks & Elder’s office in Ringling. Mr. Elder drew the deed at their suggestion, and I signed it and also a bill of sale to three mules and a mare at their demand. All the time I was doing this I noticed that Fred Wratis-'law kept his hand on his gun in his pocket. On the way "to Ringling Mrs. Wratislaw said to me that if I ever told what they had said and done to me in the store or in Brooks & Elder’s office that they would kill me. She said it was all settled satisfactory now if I did what they demanded, and if I said anything about it they would kill me, and Fred Wratislaw spoke up and said, ‘Yes; you might as well have your black box ready.’ Aft<er they left I told Mr. Elder what they had done and told him not to deliver the deed and bill of sale and letter, and then I tried to get an officer to arrest them. 'They were arrested on Saturday morning, January 20, 1916, after I signed the deed. I never saw them any more until I saw them at the office of the J. P. in Ringling on the Saturday they were arrested. On Sunday Aulcie and Hickman came by my house, but I did not speak -to them. They sent for me to come out, but they left when I went out. On Monday when I was shot I had" gone to Ringling and had gotten out papers to replevy my mules and mare. Ringling is about 41/2 miles' from my store. I never saw any of them 'but Auleey on the' Monday I was shot and I didn’t see him except just as a flash when he shot me. I was crossing the street when I was shot. While we were in Brook & Elder’s office, Fred and Mrs. Wratislaw told him to write a letter to my wife in Milford, 'Tex., requesting her to sign the' deed, and then she and Fred made me sign the letter. After I- told Mr. Elder about what had been done, I asked him to also hold this letter and not to mail it. I told him to keen the deed and letter and bill of sale. At' the time I make this statement, 4 o’clock p. m., I am: perfectly conscious and in my right mind, not at all delirious nor under the influence of any drug, and I request all of the present, as named above, to sign and' witness this my dying declaration.

“At the store on Thursday Fred Wratislaw told me-to be gone from the country in) two days.

“After this statement was written out it was read' to me in the presence of the parties whose names are signed hereto, and I sign the same by mark, being unable* to write on account of an afflicted hand.

his

.“0. J. X McCarty,

mark

“Witnesses: Carl Monk, Henry S. Cabell, Mrs. Lettie-Ross, Ann McCarty, C. C. Ross, C. D. Peacock.”

The defendants objected to the said written statement being admitted in evidence as the dying declarations-of the deceased—

“for the reason that the same has not been properly proved to be a dying declaration, and that there has-not been sufficient predicate proven to warrant the same-being admitted as a dying declaration; (2) that said dying declaration is incompetent in that it relates almost entirely to matters transpiring four days 'before the homicide and is therefore inadmissible as a dying declaration; for the further reason that the said dying declaration contains conclusions and statements pertaining to separate transactions, having no relation whatever with the homicide, and statements made outside the ¡presence of any person sought to be connected with the homicide; and for the further reason that no conspiracy has been shown to exist and therefore the same is incompetent at this time.”

Thereupon the state asked that the defendants be required to state what part of said dying declarations relates to conclusions, and the court said that, “if there is any special portion of it you desire to call to the attention of the court, you may do so as it is read.” Thereupon counsel for the defendants called the court’s attention to the entire document, “and especially to that part of the same that refers to transactions occurring at the deceased’s store prior to the homicide, and to statements made in Brooks & Elder’s office prior to the homicide.” The court overruled the said objections of the defendants and admitted in evidence the said entire written statement as the dying declaration of the deceased, to which the defendants and each of them duly excepted.

We think that a prqper predicate was laid for the admission of said written instrument as the dying declarations of the deceased, and in the absence of the defendants specifically pointing out the objectionable matter therein, if any, the court did not err in overruling the motion to exclude as evidence the entire declarations.

“In objecting to the admission in evidence of certain parts of a dying declaration counsel should point out the particular parts that he considers objectionable, and not a mere general objection to the entire declaration, if he desires to have the exception to the ruling of the court available on appeal.” 1 R. C. L. p. 531, §72.

“A written dying declaration contains matter that is admissible, and other matter not admissible, because hearsay. There is a general objection to the admission of the paper and one item thereof, but no specific objection to matter of hearsay. It was the duty of the objector to specify the objectionable matter, and there is no error in overruling the objection to the admission of the paper for such hearsay.” West Va. v. Hood, 63 W. Va. 182, 59 S. E. 971, 15 L. R. A. (N. S.) 448, 129 Am. St. Rep. 964.

The defendants, having afterwards been given an opportunity by the court to specifically point out the parts of said dying declaration which they thought objectionable, pointed out as objectionable the recitals in said dying declaration as to what occurred' in the store of the deceased, 'and in the office of Brooks & Elder, on Thursday prior to the Monday on which deceased was killed. We are of the qpinion that the court should have excluded the said recitals specifically pointed out, as they were of antecedent transactions to the time of the homicide, not immediately connected "with the killing, not res gestae in a strict sense, and should have admitted in evidence the remaining part of said dying declaration.

“It is a rule of general application that statements of facts and circumstances not immediately connected with the act of killing, but relating to previous distinct transactions, are not admissible as dying declarations; for declarations which relate to such transactions do not come within the principle of necessity on which such declarations are received. Therefore dying declarations by the injured party as to previous threats made by the accused, or as to previous attempts made on the declarant’s life by the accused, are not admissible, for the declarant does not become a general witness. He can only speak of the transaction which caused the death, and such accompanying acts, statements, and conduct as shed light®on it — the res gestae, in a strict sense. Anything previously done or said, unless called up and made a part of the altercation, cannot be proved as a dying declaration; and when so called up it can be proved as such only to the extent it is repeated or uttered in the altercation. It does not legalize any statement by the declarant of the past transaction out of which the difficulty grew. It is only such acts or statement done or uttered at the time of the final fatal encounter and catastrophe, and which tend to shed light on it as a part of the res gestae, which can be so proved. If the rule admitting dying declarations can be extended to a separate and distinct act occurring half an hour before, it will extend to any act done the day before, or a week, month, or year. As soon as the' limit fixed by absolute necessity is passed, the principle upon which the exception is based being exceeded, there is no longer any limit whatever, and dying declarations become admissible, not merely to prove the act of killing, but to make every homicide murder - by proof of some old grudge. But is has been ruled that dying declarations as to prior threats are admissible where such threats are obviously and intimately connected with the homicide.” 1 R. C. L. p. 434, § 78, and the authorities therein cited.

“The rule is well settled and safety to the meting out of justice requires that it should remain so — that a statement relating to former or distinct transactions is inadmissible. The declaration must be confined to the eir-bumstances of the death.” Chittenden v. Com., 9 S. W. 386, 10 Ky. Law Rep. 330.

Dying declarations will not be admitted in evidence where they relate to matters antecedent or subsequent to the transaction which was the cause of death. Perry v. State, 102 Ga. 365, 30 S. E. 903; Binns v. State, 46 Ind. 311; State v. Perigo, 80 Iowa, 37, 45 N. W. 399; State v. O’Shea, 60 Kan. 772, 57 Pac. 970; Peoples v. Com., 87 Ky. 487, 9 S. W. 509, 810, 10 Ky. Law Rep. 523; Lipscomb v. State, 75 Miss. 559, 23 South. 210, 230; State v. Draper, 65 Mo. 335, 27 Am. Rep. 287; Medina v. State, 43 Tex. Cr. R. 52, 63 S. W. 331; State v. Moody, 18 Wash. 165, 51 Pac. 356.

“Dying declarations are admissible to prove what was done at the time * * * of the unlawful act which caused death, -but they are not admissible to prove what occurred before or afterwards. * * * They are not -competent for the purpose of proving 'what occurred anterior to the time the act which produced death was done. * * * Matters which do not form part of the res gestae are not provable by dying declarations. The rule is confined to a statement of the circumstances connected with the fatal act and forming part of the same transaction. It is quite well settled that what occurs before or after the act has been done does not constitute a part of the res gestae, although the interval of separation may be very brief.” Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815.

In Sullivan v. State, 102 Ala. 135, 15 South. 264, 48 Am. St. Rep. 22, it is held:

“Dying declarations, are exceptional testimony, and are received from the necessity of the case; -the circumr stances and the solemn surroundings being treated as supplying the sanction and restraining force over the declar-ant, which a solemn oath imposes in ordinary cases. But the declarant does not become a general witness. He can only speak of the transaction which causes the -death, and such accompanying -acts, statements, and conduct as shed light on it — the res gestae, in a strict sense. Anything previously done or said, unless called up- and made a part of the altercation, cannot be proved as a dying declaration ; and, when so called up it can be proved as such only to the extent it is repeated or uttered in the altercation. It does not legalize any statement by the declarant of the past transaction out of which the difficulty gréw. It is only such acts or statement done or uttered at the time of the final, fatal encounter and catastrophe, and which tend to shed light on it as ,a part of the res gestae, which can. be so proved”—citing Fonville v. State, 91 Ala. 39, 8 South. 688; Bibb v. State, 94 Ala. 31, 10 South. 506, 33 Am. St. Rep. 88; Johnson v. State, 102 Ala. 1, 76 South. 99.

“It is error [for the court] to admit as evidence, in-, a trial for homicide, the dying declarations of the victim to the effect that two weeks before the perpetration of the-deed the defendant had made threats against his; life, because such threats constitute no- part of the res gestae, and the admission of the dying declarations should be restricted thereto.” Merril v. State, 58 Miss. 65.

“Dying declarations as to the facts immediately attending the act of killing and constituting the res gestae are admissible, but declarations as to matters occurring anterior or subsequent .to the act are inadmissible.” State v. Kelleher, 224 Mo. 145, 123 S. W. 551, 19 Ann. Cas. 1270.

In said case it is said:

“The proposition now under consideration was sharply presented to this court in State v. Parker, 172 Mo. 191, 72 S. W. 650. In that case, as in the case at bar, objections were interposed to certain portions of the dying-declarations, and this court, speaking through Judge Grant, very clearly and correctly, announced the well-settled: rules applicable to the admission of dying declarations. In treating of the proposition in that case, it was s-aidr ‘We are thus brought to the objection that portions of this, statement were incompetent, because it was not confined. and restricted to the identification of the accused and the deceased, * * * and the circumstances immediately attending said act and forming a part of the res gestae. Dying ’declarations are admissible as to those facts and circuirn stances constituting the res gestae of the homicide, but as to all other matters occurring anterior to the killing, and not immediately connected with it, they are incompetent”—citing State v. Vansant, 80 Mo. 76; State v. Bowles, 146 Mo. 16, 47 S. W. 892, 69 Am. St. Rep. 598; State v. Parker, 96 Mo. 392, 9 S. W. 728; 1 Greenleaf on Evidence, § 156.

In State v. Shelton, 47 N. C. 350, 64 Am. Dec. 587, dfi is held:

“Dying declarations must be restricted to the act of killing and the circumstances immediately attending the act and forming a part of the res gestae.”

In State v. Shelton, supra, it is said:

The evidence “is * * * restricted to the act of killing and the circumstances immediately attending the act and; forming a part of the res gestae. If it can be extended, to a separate and distinct act, occurring half an hour before, it will extend to any act done the day' before, or a week, month, or year. As soon, as the limit fixed by absolute necessity is passed, the principle upon which the exception is based being exceeded, there is no longer any limit whatever, and dying declarations become admissible not merely to prove the act of killing, ‘but to make' every homicide murder by proof of an old grudge. That' the exception is restricted in the manner above stated,’ is clear from the reason of the thing, and is settled by authority” — citing 1 Greenleaf, § 156, and cases there; cited; Phillips on Evidence, pt. 1610.

That dying declarations are only admissible as tcv the actual facts which point distinctly to the cause of and the circumstances immediately producing and attending-the homicide, the res gestae, in a strict sense is also held in the following cases: McLean v. State, 16 Ala. 672; Oliver v. State, 17 Ala. 587; Johnston v. State, 17 Ala. 618; Mose v. State, 35 Ala. 421; Johnson v. State, 47 Ala. 9; Id. 50 Ala. 456; Faire v. State, 58 Ala. 74; Reynolds v. State, 68 Ala. 502; Sylvester v. State, 71 Ala. 17; Pulliam v. State, 88 Ala. 1, 6 South. 839; Kirby v. State, 89 Ala. 63, 8 South. 110 Blackburn v. State, 98 Ala. 63, 13 South. 274; Allen v. State, 70 Ark. 337, 68 S. W. 28; People v. Taylor, 59 Cal. 640; People v. Fong Ah Sing, 70 Cal. 8, 11 Pac. 323; People v. Wong Chuey, 117 Cal. 624, 49 Pac. 833; McBride v. People, 5 Colo. App. 91, 37 Pac. 953; United States v. Heath, 9 Mackey (D. C.) 272; Savage v. State, 18 Fla. 909; Richard v. State, 42 Fla. 528, 29 South. 413 (implied); Parks v. State, 105 Ga. 242, 31 S. E. 580; North v. People, 139 Ill. 81, 28 N. E. 966; Boyle v. State, 105 Ind. 459, 5 N. E. 203, 55 Am. Rep. 218; Archibald v. State, 122 Ind. 122, 23 N. E. 758; State v. Baldwin, 79 Iowa, 714, 45 N. W. 297; State v. O’Shea, 60 Kan. 772, 57 Pac. 970; Walston v. Com., 16 B. Mon. (Ky.) 16; Leiber v. Com., 9 Bush (Ky.) 11; Pace. v. Com., 89 Ky. 204, 12 S. W. 271; Starr v. Com., 97 Ky. 193, 30 S. W. 397; Luker v. Com., 5 S. W. 354, 9 Ky. Law Rep. 385; Owens v. Com., 58 S. W. 422, 22 Ky. Law Rep. 514; State v. Black, 42 La. Ann. 861, 8 South. 594; People v. Olmstead, 30 Mich. 431; Payne v. State, 61 Miss. 161; State v. Jefferson, 77 Mo. 136; State v. Chambers, 87 Mo. 406; State v. Parker, 96 Mo. 382, 9 S. W. 728; State v. Sexton, 147 Mo. 89, 48 S. W. 432; Binfield v. State, 15 Neb. 484, 19 N. W. 607; People v. Davis, 56 N. Y. 95; State v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596; State v. Garrard, 5 Or. 216; Com. v. Gumpert, 6 Luz Leg. Reg. (Pa.) 187; Com. v. Murray, 2 Ashm. (Pa.) 41; Com. v. Keane, 7 Pa. Super. Ct. 293; State v. Johnson, 26 S. C. 152, 1 S. E. 510; State v. Bradley, 34 S. C. 136, 13 S. E. 315; State v. Banister, 35 S. C. 290, 14 S. E. 678; State v. Faile, 43 S. C. 52, 20 S. E. 798; Nelson v. State, 7 Humph. (Tenn.) 542; Warren v. State, 9 Tex. App. 619, 35 Am. Rep. 745; Ex parte Barber, 16 Tex. App. 369; State v. Kessler, 15 Utah, 142, 49 Pac. 293, 62 Am. St. Rep. 911; State v. Carrington, 15 Utah, 480, 50 Pac. 526; State v. Center, 35 Vt. 378; Crookham v. State, 5 W. Va. 510; State v. Cameron, 2 Chand. (Wis.) 172; Id., 2 Pin. (Wis.) 490; State v. Dickerson, 41 Wis. 299; Rex. v. Hutchinson, 2 Barn. & C. 608; Reg. v. Hind, 8 Cox, C. C. 300; Bell, C. C. 253; 29 J. M. C. (N. S.) 147; 6 Jur. (N. S.) 514; 2 L. T. (N. S.) 253; 8 Week. Rep. 421; Rex v. Mead, 4 Dowl, & R. 120, 2 Barn. & C. 605, 26 Revised Rep. 484; Ashton’s Case, 2 Lewin C. C. 147.

In Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532, it is held:

“Dying declarations must be restricted to facts concerning the cause and circumstances immediately attending the homicide, and forming a part of the res gestae, and must relate to facts, and not to mere conclusions or matters of opinion or belief.”

“In Mulkey v. State, supra, Judge Doyle says:

“The rule that dying declarations should be confined to facts concerning the cause and circumstances of the homicide is one that should not be relaxed. It must be remembered that this kind of testimony is classed as hearsay evidence and is admitted under an exception to the general rule from considerations of public necessity. It is not under the sanction of an oath, and there is no opportunity for cross-examination. It overrides the sacred constitutional right of an accused to 'w confronted with the witness against him. It is also subject to the special objection that such declarations are usually made when the declarant is in the last stage of physical exhaustion, with mental powers impaired to a greater or less extent. It leaves entirely out of consideration the fact that passions and prejudices, which in life pervert the perceptive faculties, do not always lose their power on the deathbed. 'Such evidence is also liable to be incomplete. The victim may naturally be disposed to give onlv a partial account of the occurrence, although possibly not influenced by animosity or ill will. All these objections are overcome by the one consideration of public necessity that society may not be deprived of the testimony, such as it is, and whatever it may be worth.”

Applying the rule as fixed by the very many citations of authority herein cited, as to which rule we have been unable to find an authority to the contrary, “that acts which occur and threats made prior to the commission of a homicide, and not done or made at the time of the fatal encounter, cannot be proved by dying declarations,” and the court committed prejudicial error in admitting in evidence that part of said dying declarations which recited that which occurred at the store of the defendant and the statements made in the office of Brooks & Elder on Thursday prior to the Monday on which hie homicide was committed.

Among .the other instructions given, the court instructed the jury:

“If, upon consideration of all the evidence detailed in "the trial of the case, you find beyond a reasonable doubt that the deceased came to his death by the procurement or culpable negligence of the defendants, under circumstances that do not make them guilty of murder or man'slaughter in the first degree, you should find the defendants guilty of manslaughter in the second degree.”

This instruction, under the undisputed evidence in this case, does! not correctly instruct the law, and while this instruction was not excepted to,- and was more favorable to the defendants than they were entitled to, and hence not prejudicial to them, we have, in view of the fact that such erroneous instruction may work a mistrial of justice in another trial of the case, thought best to direct attention to said improper instruction, that said error may* not again occur.

Section 2332 defines manslaughter in the second degree as follows:

"'When committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, provided that no undue advantage is taken nor dangerous weapon used, and that the killing is not done in a cruel or unusual manner.”

In this case the undisputed evidence is that the homicide was committed with a dangerous weapon iper se, a. pistol, and therefore the instruction that the jury might find the defendants guilty of manslaughter in the second degree was. entirely unwarranted, and should not have been given. Where the killing is with a deadly weapon; as in the instant case, and there is no pretense that the killing was accidental, no issue of manslaughter in the second degree is presented. Ballard v. State, 12 Okla. Cr. 277, 154 Pac. 1197.

As . the error pointed out must cause a reversal of the judgment rendered, we, in view that another trial of the case may be had, will not discuss, other than we have, the evidence in the case.

The judgment of the trial court is reversed, and the cause remanded, with instruction to grant the defendants another trial.

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


text:
    W. N. SMITH et al. v. STATE.
    No. A-3633
    Opinion Filed Dec. 6, 1920.
    (193 Pac. 744.)
    (Syllabus.)
    APPEAL AND ERROR — Record of Judgment — Necessity. When an appeal is taken from an alleged judgment of conviction and the transcript of the record or case-made contains no copy of the judgment of the trial court, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.

      Appeal from Superior Court, Tulsa County; L. J. Martin, Judge.

    W. N. Smith and another were convicted of contempt, and they appeal.
    Appeal dismissed.

      E. L Saddler and Brown & Stewart,, for plaintiffs in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were convicted in the superior court of Tulsa county. An appeal was attempted to he taken by filing in this court on September ^23, 1919, a petition in error with case-made. No briefs have been filed. When the case was called for final submission, no appearance was made on behalf of the plaintiffs in error. Thereupon the Attorney General moved to dismiss the appeal for failure to prosecute the same.

An examination of the record discloses that the case-made contains no copy of the judgment referred to in the petition in error and does not contain the journal entry of the judgment and sentence appealed from.

When an appeal is taken from an alleged judgment of conviction and the transcript of the record or case-made contains no copy of the judgment of conviction, such record or case-made presents no question to this court for its de-i termination, and the appeal will be dismissed for want of jurisdiction. Harjoe v. State, 14 Okla. Cr. 187, 169 Pac. 659.

For the reason stated, the cause is dismissed.