text:
    XENOPHON JONES v. STATE.
    No. A-3458.
    Opinion Filed July 10, 1920.
    (190 Pac. 887.)
    (Syllabus.)
    1. HOMICIDE — Evidence—Clothes of Deceased. On a trial for murder by shooting, whore the plea is self-defense, the clothing worn by decedent at the time he was shot, when identified, is admissible in evidence as tending to show the relative position of decedent and defendant at the time the shots were fired, and for the purpose of showing the location of the wounds.

      2. SAME — Exhibition of Clothes to Jury. On a trial for murder it is not error to permit a witness to exhibit to the jury the clothes worn by decedent at the time he was shot, and to point out and demonstrate how the holes in the garments corresponded with the wounds in the body.
    3. WITNESSES — Cross-Examination—Character Witness. A witness to good character may be asked on cross-examination whether he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove. This is admissible, not for the purpose of establishing the truth of such reports, but to 'test the credi< bility of the witness, and to determine the weight of his evidence. However, such reports, to be admissible, must be confined to a time previous to the commission of the crime charged.
    4 HOMICIDE — -View of Premises — Discretion of Court — Review. Where, in a trial for murder, a view of the place where the offense charged was committed is directed ]>y tlie court upon the request of the county attorney under section 5897, Rev. Laws 19X0, providing that ‘‘when, in the opinion of the court, it is proper that the jury should view the place in which the offense was charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body,” etc., the action of the trial court will not bo reviewed by this court, unless it. is made» to appear that the court acted arbitrarily and abused its discretion, under circumstances which tend reasonably to indicate that the substantial rights of defendant were prejudiced thereby.
    5. TRIAL — Instructions—Sufficiency—Refusal of Requests. The refusal to give requested instructions is not error, where those given fairly and fully present every phase of the case.
    6. HOMICIDE — Manslaughter—Sufficiency of Evidence. In a prosecution for murder, the evidence reviewed, and held amply sufficient to sustain the conviction for manslaughter in the first degree.

      Appeal from District Court, Muskogee County; Chas. G. Watts, Judge.

    Xenophon Jones was convicted of manslanghter in the first degree, and he appeals.
    Affirmed.
    Under an indictment which charged him with the murder of Guy F. McIntyre, in Muskogee county, on or about the 30th day of October, 1917, Xenophon Jones was convicted of manslaughter in the first degree, and sentenced to serve a term of 25 years in the penitentiary. The following is in substance the evidence in the case.
    Dr. F. J. Wilkie'meyer testified:
    That he was attending physician to Guy F. McIntyre, from October 30th until his death on November 8th; that he found an abdominal wound, which entered about an inch above the pubic bone, and a w-o.und on the right leg just below the head of the femur, and in the back just Under the left shoulder there was another gunshot wound; he identified the clothes worn by the deceased when he reached him, and pointed out rents appearing in the clothing which corresponded with the wounds; that the gunshot wound in the abdomen, which punctured the intestines, was the cause of his death.
    R. Y. Edwards testified:
    That “I am connected with the Muskogee Tire Repair Company, doing business at 231 Niorth Fourth street, Muskogee; Guy F. McIntyre was manager. Between 5 and 6 o’clock in the evening of October 30th, defendant, Jones, came to this place to gel; an automobile tire. Guy F. McIntyre was. sitting at a desk in the front room. C. E. Airhart and George Smith, a colored man, were working in the next room. Defendant asked for the tire that he had left there. I said it must be in the next room. I went in there, and defendant followed me. I asked George Smith where the tire was, and he said ‘Here it is.’ I turned around and said, ‘George will get your tire for you.’ I stepped back into the front room. I heard the defendant say he didn’t want that tire fixed that way. Mr. Airhart said: ‘That is the only way it could be fixed and fixed right.’ Defendant said: ‘Of course you would say that. I didn’t tell anybody to fix it that way, and I am not going to pay for it.’ And he asked where the proprietor was, and either Airhart or Smith said: ‘He is in the other room.’ Defendant came back into the front room and, addressing McIntyre, said: T didn’t tell you to fix that tire that way; I didn’t want it fixed that way.’ McIntyre said: T understood you to say you wanted it vulcanized.’ Defendant said: ‘You are a God damn liar; I didn’t say any such thing.’ McIntyre said: ‘You can’t talk that way in here; I will give you your tire and you can get out.’ With that McIntyre got up from the desk and went back into the next room, and defendant followed him. I heard defendant remark to McIntyre that he would talk to him any damn way he pleased, and immediately I heard four shots in rapid succession. I rushed in between McIntyre and defendant,, just as the last shot was fired. McIntyre reached for the table and fell on the floor. McIntyre did not have anything •in either hand, and was about six feet from defendant when he was shot. I said to defendant, ‘Don’t do that; don’t shoot a man that way; it is an awful thing to shoot a man that way;’ and he began to back out. When he got about in the middle of the front room, he turned and ran out the door, and across the street, and got into his automobile. A. colored boy came into the front room with defendant and followed him out. The shooting occurred between 5 :30 and 6 o’clock in .the afternoon on the 30th day of October, 1917. I stepped to the phone and called Dr. Wilkiemeyer and called Mrs. McIntyre.”
    €. E. Airhart testified:
    “I am an employe of the Muskogee Tire Repair Company and was working for this concern on the 30th day of October last; Guy F. McIntyre was manager. Mr. Edwards and George Smith, a negro boy, were working there at the time. I saw defendant enter. I was standing in front of the rack in the second room, sometimes called the middle room. Mr. Edwards came in there with him, and asked George Smith where was his tire. George pointed up to the tire, which was hanging on an arm, and said: ‘Here it is; it is cut down and cemented; it will be out first thing in the morning. Defendant said: T did not want it repaired that way.’ George said: ‘Well, you will have to see the boss about that.’ I told defendant that was the only practical way to repair the tire. Ns said he only wanted a puncture fixed and a boot put on. 1 told him it would not hold that way; it would have to be vulcanized to make it hold; and he said, ‘Of course, you will say that; where is the proprietor?’ I told him, ‘In the front room.’ He walked out. I heard him say, ‘Who is the proprietor here?’ Some one said, T am;’ he said, T didn’t want my tire vulcanized; just wanted the puncture fixed, and a boot put on it;’ and the reply was, ‘We understood you wanted it vulcanized.’ Defendant said, ‘You are a God damn liar; I didn’t want it fixed that way.’ The partition, 7 or 8 feet high, extends half way up to the ceiling, and I could not see over it. As Hr. McIntyre walked in to the second room, he said, ‘You can’t talk to me like that in here; I will get your tire and you can get out.’ Defendant said, ‘I will talk to you as I God damn please;’ he was just inside the door of the second room, and Mr. McIntyre was walking along by the work bench, with his back to defendant. McIntyre stopped and turned partially around, and defendant pulled an automatic pistol from his right hip pocket and fired four shots. McIntyre put his hands on his abdomen and fell to the floor. Defendant held his gun for a minute, and backed out of the room; turned, and ran out and jumped in his car, and drove off. Barnett, the colored boy who came in with him, followed and grabbed the car while it was in motion, and climbed in the back seat. McIntyre was about 8 feet ahead of the defendant when he was shot.”
    George Smith testified:
    “I was working for the Muskogee Tire Repair Company. Xenophon Jones came there that evening to get bis tire, or see about a tire, that he left there to be fixed. I was standing at the end of the work bench repairing a tube. Mr. Airhart was working at the bench. Mr. Edwards came in and asked me where Jones’ tire was, and Xenophon spoke and said, T want to get my tire, George.’ I said, ‘It is all cut down and cemented, and will be out the first thing in the morning.’ He said, T didn’t order anything but the tube vulcanized and the boot put back over the hole.’ I said, T don’t know anything about that; you will have to see the boss.’ The next thing I saw Xenophon was standing facing Mr. McIntyre, and I heard him remark, ‘Ain’t my word as good as yours ?’ I went into the back room, and four shots were fired just as I went in the door. I came back, and saw Mr. McIntyre lying there on his side and holding his stomach; he told me to come and do something for him. Xenophon was backing out. Mr. Edwards was talking to him. I put my coat under Mr. McIntyre’s head. A colored boy named Barnett came in with Xenophon and was waiting for him in the front room.”
    On the part of the defense J. T. Lane testified:
    “I run a barber shop; during the noon hour I went to the Muskogee Tire & Repair Shop, and made an examination on the inside partition of the second room, and found two indentures in the wall, about five feet above the floor, near the jamb of the door. I picked up a piece of Iron from the table and fitted it in these indentures, and it seemed to fit perfectly. Mr. Crump was with me.”
    Charley Kimsey testified:
    “I visited the Muskogee Tire & Repair Shop this morning, and made an examination of the partition wall, and observed a dent there, and a piece of iron that was there; it fitted the dent in the wall. Judge Leahy pointed the dent out to me.”
    J. P. (Creek) Barnett testified:
    “I am a Creek Freedman; my age is 22 years. I went to the tire shop with Xenophon Jones. I heard George Smith say to Xenophon, ‘You will have to go to the front and see the boss.’ Xenophon came back into the front room and asked for the boss. Mr. McIntyre said: ‘It makes not a damn to you who is boss here; what are you raising all of that hell back there for?’ Xenophon said: ‘I was not raising any hell back there; I told George that I ordered my tube vulcanized and not my casing.' Mr. McIntyre says, ‘You are a damn liar; you didn’t tell me any such thing;’ and he jumped up and said, T want you to get that tire, and get out damn quick, before I kick you out.’ Xenophon walked in to the second room, and Mr. McIntyre rushed on through. Xenophon says, ‘Can’t you be a damn liar as well as I; ain’t my word as good as yours;’ and Mr. McIntyre reached under the table and at the same time says, ‘What do you mean by calling me a damn liar,’ and came back and struck at Xenophon with an iron of some kind 214 feet long, and the iron went over his head and hit the wall; at the same time Mr. McIntyre hit Xenophon with his left hand; Xenophon pushed him back, and I heard the shots. This all occurred in 30 seconds; Xenophon turnéd and walked out to his automobile. He says, ‘Come on,’ and I followed and jumped on the running board and he drove home.”
    As a witness in his own behalf Xenophon Jones testified :
    “I live in Muskogee; I will be 17 years old next month. I am on the Creek Freedman roll. Between 12 and 1 o’clock that day I took an inner tube to the repair shop on North Fourth street to be repaired, and left it with the gentleman I later had trouble with; when I had the puncture, I wanted this colored boy George to fix it, and I came there. I told this man I wanted to get this tube repaired, and asked him what time he could get it out. He said ‘About 4 or 5 o’clock.’ I went back there with this colored boy, J. P. (Creek) Barnett. -On the way I stopped at home to get my sweater, and my mother told me to bring the pistol back to the barn. It was my uncle’s 32 automatic pistol. I then went to the Muskogee Tire & Repair shop. George Smith was at the work table in the second room, and I said to him, T want to get my tire, George;’ and he said, ‘It is not ready; it is on the drying rack;’ and he reached up to get it down, and there were two blocks of wood on the inside of the casing, and some kind of sticky substance on the tire, and I said I didn’t want the casing vulcanized; I only wanted the tube fixed, and he said, ‘This is the order we got from the boss; you will have to see the boss.’ I turned around, and went into the office, and said: ‘Which one of you gentlemen is the boss;' and one of the gentlemen sitting at the desk looked at me and said, ‘What the hell difference does it make to you who is the boss?’ and ‘Why are you raising all that hell back there?’ I says, T beg your pardon, I was not raising any hell;’ and he said, ‘You know damn well you wanted that casing fixed.’ I said, ‘No sir; you are mistaken,’ He said, ‘You are a damn liar, and you know damn well you told me you wanted that casing fixed.’ I said, ‘Nb, sir; you are mistaken; ain’t my word as good as yours?’ He said, ‘No, it is not; you are a damn liar, and don’t you say another damn word while you are in here, and you get that tire and get it out before I kick you out.’ When he said that, I stepped inside of the door, and he came by me and started on towards this table; he passed me, cursing and calling me a damn liar, and a damn black son of a bitch; that I knew damn well I wanted that casing fixed, and if I said anything else about my word being good as his he would knock my damn brains out. I said, ‘I hope I don’t have to be all that because you made a mistake in vulcanizing my casing;’ and I said, ‘Can’t you be a damn liar as well as I can?’ and he said, ‘No, you God damn little black son of a bitch;’ and he grabbed something off the table. I said, ‘Don’t you hit me!’ and he rushed onto me and hit at me with it. I dodged it, and it hit the wall over me, and he hit me along my right cheek with his left fist. I shoved him back, and pulled out the pistol, and as I got it out it went off, and he rushed on me again, and I fired three shots as fast as I could fire, and he fell on the floor. I turned around and walked out and got into my car. Barnett was standing on the curb, and I said, ‘Come on, J. C., and get in the car.’ ”
    Johnnie Myers testified:
    “I am a Creek Freedman. Xenophon Jones came to my place the night Mr. McIntyre is said to have been shot, and he had a-bruise about the size of a nickel on his face that evening.”
    Mattie Myers testified:
    “Xenophon Jones came to my place that night about 10 or 11 o’clock, and on the side of his face was a scratch or bruise about the size of a quarter.”
    Thomas W. Leahy testified:

      “I was called in this case the night of the shooting, and went to Johnnie Myers’ house the morning after the shooting, to bring defendant to Muskogee and deliver him over to the sheriff. I observed a bruise on his right cheek, probably about the size of a quarter.”
    • Several witnesses testified that they were acquainted with the general reputation of the deceased as to being a quarrelsome, contentious, and overbearing man, and it was bad. Several witnesses testified that they were acquainted with the general reputation of defendant as to being peaceable, quiet, and law-abiding, and that reputation was good.
    In rebuttal Kelly Brown, J. A. Barbre, and Chas. B. Law testified that at the noon hour they visited the place of business of the Muskogee Tire & Repair Company, and examined the indentations on the partition between the front and middle rooms; that there were two dents, one was more like a scratch, and the other, three or four inches from it, was the depth of the thickness of a sheet of paper; that they placed the piece of iron which was introduced in evidence thereon, and it did not fit the dents. One dent was nearly twice the width of the same, and bhe other was about a quarter of a inch wider.
    Several witnesses testified that they well knew the reputation of the deceased as to being a peaceable, quiet, and law-abiding citizen, and that it was good.

      Thomas W. Leahy, S. M. Rutherford, and W, J. Crump, for plaintiff in error.

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

(after stating the facts as above). Xenophon Jones was indicted in the district court of Muskogee county'for murder, and upon Ms trial the jury returned a verdict finding him guilty of manslaughter in the first degree, leaving the punishment to the court. On March 20, 1918, the court rendered judgment and sentenced him to imprisonment in the penitentiary for a term of 25 years. To reverse the judgment he prosecutes this appeal.

It appears that deceased, Guy F. McIntyre, was a resident of Muskogee; he was a young man with a family, consisting of a wife and two children. Defendant, Jones, a negro boy, lived with his parents in Muskogee. The difficulty which resulted in the tragedy arose between the deceased, who was manager of the Muskogee Tire Repair Company, and defendant, over the repair of an automobile tire. Defendant shot deceased three times with a 32-caliber automatic pistol. One shot took effect in the back, another in the hip, and another took effect in the abdomen, which proved fatal. The theory of the state was that it was an unprovoked killing. Defendant’s evidence suggests the theory of self-defense.

The first assignment of error necessary to notice is that the court erred in permitting the witness Dr. Wilk-iemeyer to testify that the wounds in the body of deceased corresponded to the holes in the clothing of deceased introduced in evidence, and in placing said clothing upon the back of another, and pointing out and demonstrating how the holes in the garments corresponded to the wounds in the body. It is urged that this was demonstrative testimony, and that there was lacking evidence of the size of the deceased in comparison to the size of the person on whose back the clothing was placed.

It is the settled rule in this state that on a trial for murder, where the plea is self-defense, the clothing worn by the deceased at the time of the homicide, and which shows the point of entrance of the bullets, is admissible in evidence, for the purpose of showing the location of the wounds, and to enable the jury to form an estimate of the relative position of the parties when the shots were fired. In the case of Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766, it is held that a coat worn by deceased at the time of the homicide, and which showed the point of entrance of the fatal bullet, was admissible in evidence. In the opinion it is said:

“The coroner, who was also a physician, testified that one bullet entered about six inches below the angle of the scapula, and about four inches to the right of the spine; the other wound was in the buttock. The garments were competent in corroboration of this evidence, and for the purpose of showing exactly what was inexactly stated. Nor is the state required in such cases to stand on the oral testimony of one or two witnesses, without supporting their testimony by demonstrative evidence; nor can the state be precluded from offering such evidence by a general statement, made by the defendant’s attorney in objecting to the evidence, that ‘there has been no dispute raised as to the mortality or location of the wounds.’ ”

And see Burton v. State, 16 Okla. Cr. 602, 185 Pac. 842; Brantley v. State, 15 Okla. Cr. 6, 175 Pac. 51.

The next assignment is:

“Misconduct on the part of P. A. Gavin, special counsel for the state, in the cross-examination of Mrs. J. A. Green, who as a character witness testified to defendant’s good reputation as to being peaceable, quiet, and law-abiding.”

On her cross-examination this witness was asked:

“Question by Mr. Gavin: Well, did you ever discuss about defendant having had a fight up here with a negro in a garage, in which he pulled a gun on him? (Defendant objects as incompetent, irrelevant, and immaterial, and not proper cross-examination.)
“The Court: Sustained.
“By Mr. Gavin: Have you ever heard of that circumstance? (Same objection.)
“The Court: That would not disprove what she has testified to; the specific act does not constitute one’s general reputation.
“Mr. McGinnis: This is to test the knowledge of the witness of the matters about which she offers testimony.
“The Court: I don’t see that it is competent. Objection sustained.”

The question involved has heretofore been decided by this court in Pope v. State, 15 Okla. Cr. 162, 175 Pac. 727. It was there held that:

“A witness to good character may be asked on cross-examination whether he had heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove. This is admissible, not for the purpose of establishing the truth of such reports, but to test the credibility of the witness and to determine the weight of his evidence.”

And see Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271; Russell v. State, 17 Okla. Cr. 167, 194 Pac. 242; Underhill, Crim Ev. par. 82.

We think the cross-examination of this character witness was proper, and that the court erred in favor of defendant in sustaining the objection made.

Another assignment of error is that the court erred in permitting the jury, over the objection and exception of defendant, to visit the scene of the difficulty and examine and view the marks or indentations on the wall, about which testimony had been given. Our Code of Criminal Procedure . (section 5897, Rev. Laws 1910) reads as follows:

“When, in the opinion of the court, it is proper that the jury should view the place in which the offense was charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by a person appointed by the court for that purpose, and the officers must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.”

It appears from the record that in the course of the trial the county attorney requested the court that in the manner prescribed by law the jury be sent to view the place where the offense was committed' and to view the indentations on the partition about which testimony had been offered. Defendant objected, for the reason that; the room where the homicide was committed had been changed since the shooting, which objection was overruled, and exception allowed. The action of the trial court in permitting a trial jury to view the scene of a homicide will not be disturbed by this court, unless it is made to appear that such court acted arbitrarily and abused its discretion, under circumstances which tend reasonably to indicate that the substantial rights of defendant were prejudiced thereby. Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308. It was the privilege of the defendant and his counsel to accompany the jury, and we presume they did so. If they did not, the privilege was waived. We find nothing in the record that tends to show that the court abused its discretion in overruling defendant’s objections. . . ■

Other errors assigned are based on exceptions taken to certain instructions given and to the refusal of the court to give instructions requested. The court, among other instructions, gave the following:

“(13) You are further instructed that evidence has been introduced to the effect that the deceased in his lifetime bore a general reputation as being a man of a quarrelsome, contentious, and overbearing disposition, and that the defendant, prior to the fatal difficulty, bore a general reputation as a peaceful, quiet, and law-abiding man. You are therefore instructed that this evidence is competent and proper, tending to show who was the probable aggressor at the time of the fatal difficulty.”

(Given, and excepted to by defendant. Chas. G. Watts, Judge.)

The court then refused the following instruction, asked by defendant:

“You are instructed that the defendant has introduced proof to the effect that he has always had the reputation of being a peaceable, quiet, respectful, law-abiding boy, and you are instructed that such evidence is proper for your consideration, together with all the other evidence in the case, and should be considered by you in determining the guilt or innocence of the defendant, and as to who was probably the aggressor in the difficulty.”

Thus it appears the requested instruction was substantially embodied in the instruction given, and defendant had- the full benefit of the principle involved. The court, therefore, committed no error in refusing to repeat it. Taken as a whole, the instructions given covered every phase of the case, and were more favorable to defendant than he had any legal right to demand.

One of the grounds of the motion for new trial, and which is assigned as error, is newly discovered evidence to the effect that the mark or indentation on the wall, about which testimony was given, was tampered with after having been examined by defendant’s witnesses, and before it was viewed by the jury. The affidavits filed by defendant in support of his motion for a new trial are to the effect that the indentations were tampered with, in that they had the appearance of having been rubbed over, which indicated a difference in the original depth of one thirty-second of an inch. There is nothing to show that they were tampered with before the verdict in this case was returned, and the motion for new trial was properly overruled.

Upon the merits, the evidence for the state establishes an unprovoked murder, and as to defendant’s testimony in support of the self-defense theory the proof was overwhelmingly the other way. In our view, the jury were exceedingly lenient under the circumstances in fixing the degree of the crime. As shown by the record, defendant has had a fair and impartial trial under the laws of the state.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
      In re M. H. BEAN.
    No. A-3809.
    Opinion Filed July 17, 1920.
    (190 Pac. 1091.)
    (Syllabus.)
    1. HABEAS CORPUS — Right to Bail After Commitment for Capital Offense — Burden of Proof. Upon an application for writ of habeas corpus to he let to bail, after commitment for a capital offense by an examining magistrate, 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 the prosecution.
    2. BAIL — Right to in Capital Case — Evidence. If, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient, to create a reasonable doubt of the petitioner's guilt of a capital offense, bail will be refused.
    3. SAME. Upon this application, the evidence considered, and bail denied.
    Petition by M. H. Bean for writ of habeas corpus to be let to bail.
    Writ denied.

      O. L. Rider, for petitioner.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., and C. F. Gowdy, 'Co. Atty., of Nowata, for respondent.
   DOYLE, P. J.

In this proceeding the petitioner filed in this court on July 7, 1920, his duly verified petition, alleging that he is unlawfully imprisoned in the county jail of Nowata county and deprived of his liberty by the respondent, sheriff of Nowata county; that he has been committed to said jail by an examining magistrate upon a preliminary examination held on the 25th day of October, 1919, on a complaint charging petitioner jointly with one Elmer Deere and one Oscar Sherman with the murder of Fred Avery; that he is not guilty of the crime of murder as charged, and that the proof of his guilt of said charge i.s not evident, nor is the presumption thereof great; that a trial has been had of his codefendant Oscar Sherman on said charge and the jury returned a verdict against the said Oscar Sherman of guilty of manslaughter in the first degree; that by said trial of the said Oscar Sherman it has been established that the evidence relied upon to sustain the said charge of murder against petitioner is not sufficient to make proof of said charge evident nor the presumption thereof great; that at the time of the commission of the crime charged against petitioner- he was under the age of 21 years; that heretofore he made application to the judge of the district court of Nowata county for bail on said charge, and said application was by said court denied.

The undisputed facts as shown by the transcript of the -testimony upon- the trial of petitioner’s codefendant Sherman are that Fred Avery, deceased, was shot in the perpetration of a robbery by petitioner and his code-fendant Sherman. Petitioner and Oscar Sherman each testified that they were present. Petitioner testified that Sherman fired the fatal shot. Sherman testified that petitioner fired the fatal shot. Obviously, the court erred in submitting the issue of manslaughter in the first degree to the jury in the trial of Sherman. A homicide perpetrated without any design to effect death by a person engaged in the commission of a robbery is, under the statute, murder, although the robber did not intend to kill when he fired the fatal shot. See Allen v. State, 16 Okla. Cr. 136, 180 Pac. 564.

The settled rule of this court is that upon an application for bail by a writ of habeas corpus, after commitment for a capital offense by an examining magistrate, the burden is upon petitioner to show facts sufficient to entitle him to bail, when these facts do not appear from the evidence adduced on the part of the prosecution; and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. In re Kerriel, 12 Okla. Cr. 386, 157 Pac. 369, and cases cited. It also appears that petitioner escaped from the county jail pending his trial, and was for some time a fugitive from justice.

Upon the record before us,- and without entering into a discussion of the facts, we deem it sufficient to say that in our opinion petitioner is not entitled to be admitted to bail as a matter of legal right. It is therefore considered and adjudged that the writ be denied and bail refused.

ARMSTRONG and MATSON, JJ., concur.


text:
      Ex parte WILSON SMITH.
    No. A-3739.
    Opinion Filed July 20, 1920.
    (Syllabus.)
    1. PUNISHMENT — Unexecuted Judgment — Rearrest. Where a defendant is tried, convicted, and sentenced to imprisonment, and lias not served bis sentence, and the same is not stayed as provided by law, he may he arrested as on escape and ordered Into custody on the unexecuted judgment.

      2. SAME — Imprisonment. Expiration of time without imprisonment is ini no sense an execration of the sentence, and, where the punishment is imprisonment, the sentence may he satisfied only by serving the imprisonment imposed, unless remitted by. death or legal authority.
    Petition by Wilson Smith for writ of habeas corpus.

    Writ refused.

      Jeff D. McLendon, for petitioner.
    The' Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

In this proceeding petitioner by his counsel, Jeff D. McLendon, presented to this court on April 1, 1920, a petition alleging that he is unlawfully imprisoned in the state penitentiary at McAlester and restrained of his liberty by Fred .Switzer, warden of said institution; that said imprisonment is under and by virtue of a commitment issued on the 20th day of March, 1920, by the court clerk of McGurtain county, which commitment is predicated upon conviction of petitioner and judgment rendered in the district court of McCurtain county on the 22d day of September, 1917, sentencing him to serve a term of two years’ imprisonment in the penitentiary on a charge of embezzlement; that petitioner prosecuted an appeal from said judgment to the Criminal Court of Appeals, and on the 19th day of August, 1919, said conviction was affirmed (see 16 Okla. Cr. 701, 183 Pac. 515) ; that in the opinion the court says that where the record fails to show that the judgment was superseded by the giving of the required super-sedeas bond in the court below, the presumption obtains that the judgment was immediately carried into effect by incarceration in the penitentiary; that there was never any mandate in said cause spread upon the minutes or journal of the district court of MeCurtain county until the 27th day of March, 1920.

The Attorney General filed a general demurrer on the ground that said petition does not state facts sufficient to entitle petitioner to the relief prayed for.

It has been uniformly held by this court that, where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided- by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment, and that expiration of time without imprisonment is in no sense an execution of the sentence. See Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993; Ex parte Eley, 9 Okla. Cr. 76, 130 Pac. 821; Ex parte Riggert, 33 Okla. 303, 125 Pac. 485.

It appearing that the application is insufficient to show that petitioner is entitled to the writ or rule to show cause, the demurrer is sustained, and the writ refused.

ARMSTRONG and MATSON, JJ., concurring.


author: ARMSTRONG, J. PER CURIAM.

text:
    BERT TUCKER v. STATE.
    No. A-3269.
    Opinion Filed Jan. 6, 1920.
    On Rehearing, Aug. 19, 1920.
    (191 Pac. 201.)
    (Syllabus.)
    1. GAMING — Conducting Game — Defensive Evidence — Admissibility. In a trial for conducting a roulette wheel for money, it is not reversible error to exclude offered evidence of rules governing the operation of such gambling games and that the witnesses offered were at times in the place where said wheel was being conducted, and that they had not seen anything tending to show that the defendant was in any wise connected with the operation of said game or interested therein, as such of-ferred evidence did not tend to show any defense to the crime with which the defendant was charged.

      2. SAME — Persons Liable. Any person, whether he be owner, employe, or bystander acting as a matter of accommodation, who conducts a roulette wheel played at for money, or assists in conducting the same, is subject to information and conviction for so doing, whether he acts for compensation or not. (Following Johnson v. State, 10 Olda. Or. 597, 140 Pac. 622.)
    3. APPEAJj AND ERROR — Harmless Error — Instructions. Instructions given and instructions refused do not constitute reversible_ error, unless upon examination of the entire record it appears that the giving or the refusal to give such instructions has probably resulted in a miscarriage of justice or constitutes a violation of a. constitutional or statutory right of a defendant.
    4. TRIAL — Refusal of Instructions on Jury’s Deliberation. It is not reversible error for a trial court to refuse to instruct a jury that they are not required to surrender their honest convictions for the mere purpose of agreeing upon a verdict.

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

    Bert Tucker was convicted of conducting a roulette wheel for money, and appeals.
    Affirmed.

      Bridges & Vertrees, for plaintiff in error.

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

The plaintiff in error, Bert Tucker, hereinafter called defendant, was informed against for conducting a roulette wheel, found guilty, and his punishment fixed at imprisonment in the state penitentiary at Granite, Okla., for a term of 18 months, and to pay a fine of $500. To reverse the judgment rendered, he. prosecutes this appeal.

The. undenied evidence is that at the time and place alleged in the information, in a tent in Jefferson county, a roulette wheel was conducted for money, and that the defendant was present where and when said gambling was being conducted.

Clyde Coy testified: That he knew the defendant and saw him in a tent running a roulette wheel for money. That witness gambled at said wheel. An identified check signed Lahoma Roller Mills, by Clyde Coy, for $206.70, which was given for losses sustained by witness in playing said wheel, was admitted in evidence. That on the 14th day of November, 1917, he had a little money and got a check cashed for $20, went to where said wheel was 'being operated, and lost it; then went to the defendant and told him that he' wanted .some more chips to play the wheel. That he had been to him before, and defendant told one Johnson, the man behind the wheel, to let him have what he wanted, and when the witness got ready to quit the man Johnson figured out what he owed, and witness gave the defendant his personal check for the amount-he owed the house or the game, something near $200. That he next saw the defendant on November 22, 1917. That on November 17, 1917, he came to where the wheel was being operated and brought the said check which had been put in evidence, but defendant was not there, and he took the check back with him. That he had an arrangement with the defendant to keep his personal checks to be taken up in another way, and on said 22d day of November delivered the check in evidence to the defendant, took up his personal check, and defendant gave him the difference, some $10 or $20. That when he quit he was loser about $200. That on the 14th day of November, 1917, the defendant was running the game part of the time, spinning the ball and turning the wheel on the other side of the table from him. That on November 14th, he was where the said wheel was being operated for some four or five hours, and that the defendant during that time was running the wheel about one-third of the time. The defendant might not have stood there an hour, and that the game did not quit when defendant quit operating it. That the table was some five or six feet long, with a curved place sawed out where the operator stands, and on the table was check rack where the money and checks were kept. That the wheel is in the center of .the table, and the table was so fixed that the players could stand at the ends and on the outside of the table. That he did not remember seeing the defendant behind the table handling the money, paying the people who won and taking the chips of those who lost. That he did not know that the rules of the game permitted a player to spin the ball. That he did not know that the player had such privilege. That he had never seen a man who was playing the game spin the ball. That the time defendant was rolling the ball he was not playing the game, and that he never saw anybody spin the ball or roll the roulette wheel except the defendant and the said Johnson.

Thereupon the defendant demurred to the evidence, which the court overruled, and the defendant excepted.

The defendant offered to prove by several witnesses: That it is customary in the game of roulette for any player to .spin the ball, or for any player to call upon a bystander to spin the ball one or a number of times,' and that the dealer must permit the party playing, or the party requested by the player, to spin the ball, “for the purpose of showing the mere fact that the defendant may have on a few occasions spun the ball from among the players or as a player, or at the request of the player, would not be engaging in or conducting a game of roulette.” That the place was known as Bob & Dick’s place, and that the witnesses offered had never, though they had been where said game was played when the defendant was present, seen the defendant conduct said game, or be connected or interested in it.

. The court excluded the said offered evidence, and defendant excepted.

The foregoing being all the evidence in the case, defendant requested the court to instruct the jury to return a verdict of not guilty, which was refused and exception reserved.

The defendant insists that the court committed reversible error in refusing to permit him to introduce the said offered evidence. We are unable to see how the excluded evidence, if admitted, would in any way tend to exculpate the defendant, or in the least contradict the evidence of the state. It was certainly immaterial what the rules of the said game were. If the defendant was only a bystander or spun the ball, or did both as a mere volunteer, he was guilty as charged.

Certainly it was entirely immaterial by what name the gambling tent was known. That the offered witness had been present with the defendant at said gambling place, and had never seen him conduct or be in any way connected or interested in running said gambling game, was not the slightest evidence that the defendant had not conducted said game.

It is next contended that the evidence is insufficient to sustain the conviction had, and hence the court erred in overruling the demurrer to the evidence, and in refusing to direct the jury'to acquit the defendant. We are of the opinion that the evidence is sufficient to support the verdict of the jury, and that the court did not err in refusing to instruct the jury to acquit the defendant.

In Johnson v. State, 10 Okla. Cr. 597, 140 Pac. 622, it is held:

“Any person, whether he be owner, employe, or a bystander, acting as a matter of accommodation, who conducts any .such prohibited game or assists in conducting the same, is subject to indictment and conviction for so doing, whether he acts for compensation or not.’"'

The defendant further complains that the court committed reversible error in refusing to give requested instructions numbered, respectively, 1 and 2. While it is correctly stated by counsel for the defendant that the defendant had the right to have his theory of the defense presented to the jury, this right is predicated upon the fact that there is legal evidence to support such theory. The vice of the requested instruction No. 1 is that the theory therein sought to be presented to the jury is not based upon any evidence, and hence was properly refused. Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629.

Again, the defendant complains that the court committed reversible error in refusing to give requested instruction number 2, which instruction reads:

“As jurors you are instructed that you are not requested to surrender your honest conviction for the purpose of agreeing upon a verdict.”

This requested instruction is not only abstract, but is fully covered by the instruction given the jury that, before they would be justified in finding the defendant guilty, they must find beyond a reasonable doubt from the evidence that he is guilty as charged, and avoids the necessity for giving the refused instruction. And, besides, the refused instruction assumes, without proper basis therefor, that jurors will violate their solemn oath — “to well and 'truly try and true deliverance make and a true verdict render according to the evidence.”

Again, if no reason appears from the record to indicate injury from the failure of the court to give this instruction, a reversal should not follow its refusal.

We have not overlooked People v. Wong Loung, 159 Cal. 520, 114 Pac. 829, cited in defendant’s brief, but cannot assent to the law as announced in said case.

The court did not err in refusing to give requested instruction No. 2.

The motion for a new trial was properly overruled.

The judgment of the trial court is affirmed.

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

On Rehearing.

PER CURIAM.

The defendant, Bert Tucker, since the rendition of the opinion filed January 6, 1920, affirming the judgment of the district court of Jefferson county imposing a fine of $500 and imprisonment for 18 months in the penitentiary in this case, has filed a motion for rehearing.

Upon consideration of the same, and after a due and careful reconsideration of the evidence against the defendant, it is the opinion of the court that, the ends of justice will be best subserved by a modification of the original judgment to provide a fine of $500 and imprisonment in the state penitentiary for one year, instead of 18 months, and the judgment is modified to that extent, and, as so modified, is affirmed.

Mandate forthwith.


author: MATSON, J.

text:
    MARY F. ROE v. STATE.
    No. A-3242.
    Opinion Filed Aug. 28, 1920.
    (191 Pac. 1048.)
    (Syllabus.)
    1. PRIMIANL LAW — Comma! Responsibility — Mental Capacity, ruder subdivision 4 of section 2094. Rev. J,nws 1910, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong as ap--plied to tlie particular act, and to understand the nature and consequences of such act.
    3. SAME — Insane Persons — Instructions. For reasons holding refusal to give certain requested instructions on the subject of insanity not to be reversible error in this case, see body of opinion.
    3. EVIDENCE — Evidence of Motive. Where one of the defenses interposed is that defendant did not commit the crime, evidence' tending to establish a motive on the part of the. defendant to commit the crime is properly admitted.
    4. WITNESSES — Nonexpert Opinions on Insanity of Accused— Prior Statements of Witness. Where a nonexpert witness is permitted, after proper predicate, to express an opinion that defendant is insane, the fact that such witness expressed the same opinion to tlie brother of defendant prior to the commission of the alleged crime is immaterial, and properly excluded, where no effort was made to show that the witness had expressed opinions out of court inconsistent with such testimony.

      Appeal from District Court, Pawnee County; Conn Linn, Judge.

    Mary F. Rioe was convicted of the crime of murder, and she appeals.
    Affirmed.

      William L. McCann, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, A,sst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Pawnee county, wherein the defendant, Mary F. Roe, was informed against and charged with the murder of her husband, Jesse Roe, on the night of April 25, 1917. The trial resulted in a verdict of guilty of murder, and punishment fixed at confinement in the state penitentiary for life. From the judgment rendered in accordance with the verdict, defendant has appealed to this court, and seeks a reversal upon several grounds, which will be hereinafter considered. A short statement of the facts connected with the killing follows:

Mary F. Roe at the time of the killing was in the neighborhood of 35 years of age, and was keeping a rooming house at Drumright, Okla. She had been previously married, when about 19 years of age, to one Vernon Osborne, an oil well driller, and to this union one son was born, Bernard Osborne, who was about 16 years of age at the time of the trial. Vernon Osborne was addicted to hard drinking, and some 5 or 6 years after the marriage the defendant procured a divorce from him and the custody of her son. Some 6 months thereafter Vernon Osborne died of typhoid fever. Defendant never married again, until her marriage to Jesse Roe at Pawnee, Okla., on April 23, 1917. After defendant’s marriage to Osborne, she lived in Ohio, West Virginia, Indiana, and Illinois, and in 1912 came to Drumright, Okla. She lived almost exclusively in localities where oil development was active. Two of her brothers were drilling contractors, and after her divorce from Osborne assisted her materially in a financial way. So far as the record shows, the defendant lived, prior to commission of this alleged homicide, a clean and moral life in a rather rough environment. She was considered industrious, but not a successful business woman. She had worked as a domestic, and at times had kept boarding house camps in and around the oil fields.

It was while engaged in the latter business that she first met the deceased, Jesse Roe, about the year 1914. Roe was considerably older than the defendant, and was not a man of education. During his frequent visits to the defendant, he often got her to transact his business for him. He had furnished her money, and ,she said that she married him for money. Before their marriage, and just after, she went to various banks inquiring as to Roe’s financial condition, his deposits, his checks, and his lands, and made special inquiry about cashing checks, and of her. own authority to sign checks for Roe. Defendant appeared to be ashamed of her marriage with Roe, but executed it for the reason that she had a sick boy that had to be provided for. It was the request of both parties that the marriage be kept a secret. Deceased told that he had procured a farm and was going to move out onto it when married. About the time they moved onto the farm, and 2 or three days before the commission of the homicide, the defendant obtained a new pistol and cartridges for the same, and also got a new trunk and rope for the same. She told a person residing close by that there were rats at their new place, and that she was afraid of rats, and that if he heard a shot fired he need not be alarmed or come to her. .She also told neighbors, before she was married, that she was going away and would be gone about 10 days. Jesse Roe was shot in the head, and by a bullet of the samq size as that of defendant’s pistol. Her pistol had one chamber that had been fired. The killing took place at the farm home, to which they had moved about 2 days previous. The body of the deceased was found in the trunk that defendant had taken out there, and the trunk was tied up with the cord.

After the killing, defendant telephoned for an auto, and after the automobile came blood was seen dripping from the trunk, and, on being asked about it, defendant told the chauffeur that she was carrying some fresh pork to Drumright. On being pressed further, she admitted to the chauffeur that Jesse Roe’s body was in the trunk. She endeavored to persuade the chauffeur, not to disclose that fact, and wanted the chauffeur to tell her where she could find a stream deep enough to cover the trunk, and also said that, if she could have gotten the trunk to Drum-right, she would have had no trouble. She denied killing her husband, but said that he was killed by a man who came to their house after night. She claimed that she had not been well, and was sleeping in the bed in the northwest corner of the west room, and that Roe was sleeping on a cot or pallet in front- of the bed; that she awoke about midnight, hearing Roe and some man quarreling, and that the man was shaking his fist at Roe and saying, “Damn you, you will implicate me, will you?” and that Roe replied, “Ed, damn you,” or “God damn you, I will shoot you,” and reached toward the foot of the bed for a shotgun; that she called out to Roe, “Oh! don’t shoot him;” that the man drew a revolver and fired, hitting Roe in the head. Some bloody bed clothing and partly wiped-up blood spots on the floor in the west room were discovered; also a shotgun, two "revolvers, the tray of the trunk (in which the body of deceased had been pláced), with some female wearing apparel piled on top of it, were found in the west room.

The defendant pleaded insanity, and there was evidence introduced from a number of lay and expert witnesses to the effect that they believed the defendant in-_ sane, the expert witnesses testifying that the defendant is of the type of insane known as dementia praecox of the paranoid type; that she is an hypochondriac, with delusions or hallucinations of pulmonary tuberculosis and cancer; that she also has delusions of persecutions; also delusions that one of her brothers, who had been kind to her, was very unkind to her; and that she had at times theatened to kill this brother. There were no manifestations of violence on the part of the defendant, testified to by any witness, prior to the alleged commission of this homicide by her. On the part of the state, there was some evidence to the effect that the defendant, shortly prior to and shortly after the commission of the homicide, appeared to be rational and in a composed state of mind.

On the question of insanity, the court gave the following instructions, to which proper exceptions were taken:

“In addition to her plea of not guilty, the defendant claims that, if she killed the said deceased, Jesse Roe, said act was not criminal, for the reason that her. mental condition was such, at that time, that she was not responsible for said act, and therefore was excusable.
“Under her plea, of not guilty, she has a right to offer as many defenses as she sees fit, whether such defenses are consistent or inconsistent, and the fact that she may interpose inconsistent defenses raises no presumption against her by reason of any apparent inconsistency.
“You are instructed that the defendant has interposed as one of her defenses in this case the defense of insanity. When that defense is interposed, the burden of proof is upon the defendant, unless the evidence on the part of the state be sufficient for that purpose, to introduce sufficient evidence to raise in your minds a reasonable doubt of her, sanity. It is not required that the defendant shall prove her insanity to the satisfaction of the jury by competent .evidence beyond a reasonable doubt, or by a preponderance of the evidence. It is sufficient if she introduces sufficient evidence to raise in your minds a reasonable doubt of her sanity, and when this is done you are instructed that the burden of proof is upon the state to prove such a state of sanity on the part of the defendant as would make her criminally liable by competent evidence, beyond a reasonable doubt, before you would .be justified in convicting the defendant of the crime charged in the information.
“You are instructed that the law presumes every person to be sane and of sound mind, and able to distinguish right from wrong as applied to any particular act, and to understand the nature and consequences of such act, until a reasonable doubt of his or her sanity is raised by competent evidence, and that it is an essential ingredient of crime that a person, to be guilty of a crime, must have, at the time of its commission, sufficient mental capacity and reason to enable them to distinguish between right and wrong as applied to the particular act that he or she is then about to do. Although one may be in a diseased or unsound condition of mind, brought about by any condition, such as brooding over wrongs done, to her, either real. or imaginary, or produced by any other cause, if at the time they commit a crime they know and understand the nature and character, of such act and its consequences, and at that time know that it is wrong and criminal to commit such an act, and have sufficient mind to apply that knowledge to her own acts, and to know that if she does commit such acts she will do wrong, and subject herself to punishment, then and in that event such diseased or unsound condition of mind is not sufficient to exempt or exonerate her from criminal liability. So in this case, although the jury may believe from the evidence beyond a reasonable doubt that at the time of the commission of the crime charged in the information, if they believe and find she did commit it as charged, still if they further find and believe from the evidence beyond a reasonable doubt that. at the time said-crime was committed the' defendant had sufficient mind and reason to know and distinguish right from wrong, and that if she did commit such crime it would be in violation of the law and subject her to punishment, and to know and realize the consequences of such an act, and had mind sufficient to apply that knowledge to the consequences of her own act, then in that event she cannot escape criminal liability under her plea of insanity, and.the jury should find her guilty as charged in the information and fix her punishment accordingly.
“You are instructed that, if you have a reasonable doubt from the evidence, or lack of evidence, as to whether the defendant or some person other than the defendant committed the homicide charged in the information, then you should give the defendant the benefit of such doubt,- and return a verdict of not guilty.
“And you are further instructed that, if you believe from the evidence in this case beyond a reasonable doubt that the defendant committed the crime in the way and manner as charged in the information, and shall - further believe from the evidence that at the time she did so she was of unsound, mind, sufficient as herein defined to exempt her from criminal liability, by reason of insanity or unsoundness of mind, or the evidence raises a reasonable doubt in your mind as to whether she was sane or insane at the time, then and in that event you should, resolve that doubt in favor of the defendant, and acquit her,
“If you find, from the evidence, beyond a reasonable doubt, that the defendant killed the deceased, Jesse Roe, and you should entertain a reasonable doubt, from the evidence, as to her sanity at the time of the homicide, and you acquit her upon that ground, you should so state in your verdict, and in such case, if you further find it dangerous to the public peace or safety to discharge her, you should also state that finding in your verdict.”

On this question, the defendant requested the court to give the following instructions, which were refused, and proper exceptions taken to such refusal by counsel for defendant :

“A homicide committed by a person in a state of insanity constitutes excusable homicide.
“It is an essential ingredient of crime that a person, to be guilty thereof, must have, at the time of its conamission, sufficient capacity and reason to enable her to distinguish between right and wrong as to the particular act she is then doing. JDvery person is presumed to be sane, or of sound mind, and able to distinguish between right and wrong, as applied to a particular act, and to understand the nature and consequences of such an act, until a reasonable doubt of her sanity is raised by competent evidence. Although one may be in a diseased or unsound condition of mind, brought about by brooding over wrongs to herself, either real or imaginary, or produced by disease or other causes, if, at the time she does an act, she understands the nature and character of such act and its consequences, and at that time knows that it is wrong and criminal, and she had mind sufficient to apply that knowledge to her own case, and to know that, if she does the act, she will do wrong, and be subject to punishment, such diseased or unsound condition of mind is not sufficient to exempt her from responsibility for her said act; but if, at the time she does the act, her mind is in such a diseased and unsound state that for the time being her reason, conscience, and judgment are overthrown, and in committing the said act she does so from an irresistible and uncontrollable impulse, the law excuses her from criminal liability.
“You are instructed that, under the law of this state, the test of criminal responsibility for committing an act, which .is a crime under the law, is the mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequence of such act, or knowing its wrongfulness. The defendant is not criminally responsible, if, by reason of insanity, she did not have the will and the mental power to refrain from the committing of such act; and in this regard you are further instructed that, if evidence is introduced tending to prove that the defendant was insane at the time of the commission of the act charged, then the burden of proving the sanity of the defendant devolves upon the prosecution, and the state is bound to establish her sanity like all other elements of the crime beyond a reasonable doubt. Therefore, if after a full consideration of all of the evidence in the case, you have a reasonable doubt that the defendant, at the time of the commission of the act charged, was mentally incompetent to distinguish between right and wrong, as applied to the act charged, or to understand the nature of the act she was committing, or knowing its wrongfulness, by reason of insanity she had not the will and mental power to refrain from committing such act, then and in that event it is your duty to acquit her.
“You are instructed that, if you believe from the evidence in this case that the defendant was suffering from insanity at the time of the commission of the homicide, or if a reasonable doubt is thereby raised of the defendant’s sanity, it is your-duty to resolve that doubt in favor of the defendant, and acquit her.” .

The giving of the foregoing instructions by the trial court on his own motion and the refusal to give the instructions requested form the basis of the main contention relied up by counsel for defendant as a ground for reversal of this judgment. To state succinctly this contention, it is as follows: The law of insanity in this state is governed by what is known as the new rule, which relieves a person of criminal responsibility if, at the time of the commission of the act, such person although able to distinguish between right and wrong as applied to the act itself is nevertheless excusable on the ground of insanity, if such person had not at the time the will power to refrain from committing the act.

'Counsel for defendant admit that the Legislature may place reasonable safeguards around the defense of insanity, so long as the defense itself is not entirely abolished. This the Legislature of Oklahoma has done. The fourth subdivision of section 2094, Revised Laws 1910, defining those persons capable of committing crime, excepts the following:

“Fourth. Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness.”

The Supreme Court of the territory of Oklahoma in the case of Maas v. Territory, 10 Okla. 714, 63 Pac. 960, 53 L. R. A. 814, in construing the above statutory provision, held:

“One who has sufficient mental capacity to know the wrongfulness of an act which is by law declared to be a crime is responsible and subject to punishment therefor.”

The holding in the Maas Case was subsequently approved by the territorial court in the case of Turner v. Territory, 15 Okla. 557, 82 Pac. 650.

•Counsel for defendant contend, however, that the construction placed upon the foregoing statutory provision by the territorial Supreme Court is evidently incorrect, both from a legal and grammatical standpoint. In support of this contention, counsel assert that the clause, “upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness,” only modifies that part of the section, “persons of unsound mind, including persons temporarily or partially deprived of reason,” and has no relation whatever to “lunatics” or “insane persons.” In other words, before a person of “unsound mind,” who is “temporarily or partially deprived of reason,” may be acquitted on the ground of such unsoundness of mind at the time of the commission of the alleged crime, such person must be incapable of knowing the wrongfulness of the act at the time of its commission, but entirely otherwise as to “lunatics” and “persons permanently insane.”

Counsel for defendant, therefore, requests this court, in construing the above statutory provision, to apply a more stringent rule of proof to persons temporarily insane than to “lunatics” or “persons permanently insane.” This we cannot do. It is apparent to our minds that the Legislature intended, as it had a right to, to attach criminal responsibility to all persons who are capable of knowing the wrongfulness of the act they are charged to have committed. The terms “lunatics” and “insane persons,” incorporated in the above provision, clearly refer to those persons totally deprived of the power of reason, and who would not under any circumstances have mental capacity sufficient to know the wrongfulness of the act. Such persons are relieved of criminal responsibility, and are distinguished from those of temporary or partial unsoundness of mind at the time of the commission of the act — that is, persons possessing a greater degree of mentality than “lunatics” or “persons permanently insane”; but certainly it cannot be with reason contended that the Legislature apprehended that there could be proof of a class of “lunatics” or “persons permanently insane” with sufficient power of reasoning and mental capacity to know the wrongfulness of the act and yet be excusable for its commission, while those only temporarily or partially insane would be required to offer proof to raise a reasonable doubt of their incapability of knowing the wrongfulness of the act. The Legislature intended to fix the same standard as to all persons designated in the statute; otherwise, great confusion would arise in the application of the law as to the defense of insanity, resulting in the miscarriage of justice, the conviction of persons “temporarily insane” under one standard, and the acquittal of “lunatics” and “insane persons” under the same standard. The statement of this proposition carries with it a sufficient denial of its tenableness.

In Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248, in construing section 2094, supra, this court held:

“Under this provision, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences-of such act!”

Again, in the case of Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699, this court in another opinion, speaking through Doyle, P. J., held:

“The true test of criminal responsibility, where the defense of insanity is interposed, is whether the defendant had sufficient reason to know right from wrong.”

To the same effect is the holding in Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548.

These are the later opinions of this court construing the test of criminal responsibility as applied to all classes of persons alleged to have been insane at the time of the commission of the act, and if there is any apparent conflict between these decisions' and the earlier decisions of this court upon the same subject, the later opinions are controlling, and must be held and construed to overrule the doctrine announced or the rule laid down to the contrary, if any, in Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119.

Applying the test formulated by the Legislature in section 2094, supra, to the instructions given by the trial court in this case, we find no reversible error. Nor was it error for the trial court to refuse to give the instructions requested, for the reason that the law applicable to insanity was sufficiently covered in the instructions given and the instructions requested on this subject contained incorrect statements of the law.

An entire volume might be written on the ’aw of insanity. Some states recognize and apply the doctrine of “irresistible impulse,” otherwise sometimes called the “new rule.” Other states follow strictly the English or old rule. The authorities on this subject, therefore, are in irreconcilable conflict. If the irresistible impulse doctrine is to apply in, this state, then the Legislature must amend the statute. Until that time persons charged with crime, who interpose the defense of insanity, must be held criminally responsible for their acts if at the time of their commission they were capable of knowing the wrongfulness of their acts and to understand the nature and consequences of them. A person possessing such a degree of mentality cannot be held exempt from criminal responsibility'in this state merely because of some alleged irresistible impulse on his part to do the act.

The statute of this state does not recognize the doctrine that one may be so possessed with an uncontrollable impulse as to compel him to do what he knows to be wrong and a crime, and yet be relieved from all criminal responsibility. A condition might be conceived of an uncontrollable insane impulse sufficient to relieve one of criminal responsibility under our statute; but this would only arise when the diseased condition of the accused’s mind was such as to destroy the power of the accused to comprehend the nature and consequences .of the particular act, and to know that it was wrong at the time of its commission.

It is next contended that counsel for the state made improper and prejudicial remarks during the closing argument. No objection was made to the remarks of counsel at the time the argument was made nor did counsel for defendant request the court to admonish the jury not to consider the same. . In Collins v. State, 15 Okla. Cr. 96, 175 Pac. 124, it is held:

“Where certain remarks of the county attorney in argument to the jury are not such as are made grounds for reversal by statute, and there was no motion to exclude such remarks from the consideration of the jury, nor any ruling of the trial court adverse to the defendant to which an exception was saved at the time, there is no question presented for this court to consider.”

See, also, Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 826; Johnson v. State, 5 Okla. Cr. 13, 113 Pac. 552; Williams v. State, 4 Okla. Cr. 523, 114 Pac. 1115.

The remarks complained of in this case were not such as are made grounds for reversal by statute. We find no question, therefore, presented under this assignment of er-rer for the court to consider.

It is also contended that the trial court erred in permitting the brother of the deceased to testify concerning the value of a tract of land located in Alaska in which the deceased had a one-thirteenth interest at the time of the homicide. The gist of this contention is that the witness was permitted to express a legal conclusion that the deceased owned a one-thirteenth interest in said alleged estate, without any facts disclosing whether the deceased acquired this interest by devise or descent.

We have carefully examined the transcript of the evidence of the witness John Roe, brother of deceased, relating to this assignment of error, and we are convinced that the rulings of the trial court were not prejudicially erroneous to the defendant, when considered in connection with the various grounds of objection interposed to the questions. This evidence was undoubtedly admitted upon the theory that it tended to prove a motive on the part of the defendant in killing the deceased, and as the defendant interposed the defense that she did not commit the crime this evidence was clearly admissible upon the theory that there was a motive on her part for the killing. Counsel have cited no authorities in the brief to support the contention that the admission of this evidence was erroneous. The objections urged are directed rather to the weight of the evidence than to its admissibility and no error is presented in this assignment sufficiently-prejudicial to authorize the reversal of the judgment.

Another alleged ground of error, relating to the refusal of the trial court to admit certain proffered evidence by one of the witnesses for the defendant, who was a trained nurse and had attended the defendant in connection with a physician some time in the year 1915, and had attempted to call one Charles Burton, a brother of the defendant, by telephone from Drumright to the residence of the said Charles Burton at Cushing, Okla., for the purpose of informing defendant’s brother that she (witness) believed the defendant to be insane at that time and should be placed in an a-sylum, is urged as a ground for reversal.

This evidence was properly excluded. The witness, after having detailed certain acts and conduct of the defendant witnessed by her when nursing the defendant in 1915, was permitted to express the opinion that at that time the defendant was insane. The fact, if true, that said witness attempted to call up the brother of the defendant and inform him of her opinion that the defendant was insane was immaterial. She was permitted to express such an opinion to the jury, and no effort was made to show that the witness at any time had made any statement to any other persons outside of court contrary to the opinion expressed in court, and until such an attempt had been made on the part of the state the evidence offered was wholly immaterial.

■Certain other alleged errors are presented for our • consideration, but are not supported in the briefs filed by counsel representing defendant by the citation of authorities, and apparently are not considered as sufficient grounds to authorize a reversal of this judgment. A careful examination of the record in connection with these additional assignments of error convinces this court that such alleged errors are merely technical, and without substantial merit, and were not such as to deprive the defendant of any substantial right to her prejudice.

Counsel representing the defendant in this court has filed two able and lengthy briefs, fully covering the assignments of error chiefly relied upon for a reversal of this judgment. In addition to the briefs filed an extended, careful, and efficient oral argument was presented. The defendant was ably represented in the trial court, and her rights fully protected in every respect throughout the trial and in this court. However, after a careful consideration of the entire record, this court is clearly convinced that the defendant had a fair and impartial trial, and that her conviction is sustained by the evidence and the law.

It is therefore ordered and adjudged that the judgment of the district court of Pawnee county, that the defendant is guilty of the crime of murder and assessing the punishment at imprisonment in the state penitentiary for life, be and the same is hereby affirmed.

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


text:
    A. B. C. DAVIS v. STATE.
    No. A-3485.
    Opinion Filed Aug. 28, 1920.
    (191 Pac. 1044.)
    (Syllabus.)
    1. RAPE — Elements of “Rape in the First Degree.” Rape in the first degree may be committed upon a female of any age, when accomplished by force and violence overcoming' her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution.
    2. SAME — Insufficiency of Information. An information for rape alleged that the defendant, did make an assault upon and rawish and have sexual intercourse with a certain female under the age of 18 years, of previous chaste character, and not. the wife of the defendant, and against, the will and without the consent of said female. Held, that the information is insufficient to charge rape in the first degree as defined by the fourth subdivision of section 2414, Rev. Laws 1910.
    3. RAPE — Elements of “Rape in the Second Degree.” Carnal knowledge of it female over the ago of 10 years and under the age of 18, of previous chaste and virtuous character, other than the wife of defendant, whether accomplished with or without the consent of such female, is rape in the second degree.
    4. SAME — Sufficiency of Information. An information alleging that the defendant did make an assault upon, and ravish and have sexual intercourse with, a certain female under the age of 18 years, of previous chaste character, and not the wife of defendant, without the consent and against the will of said female, was not fatally defective for failure to allege that the female was “over the age of 16 years.”
    5. SAME — Allegations and Proof — Previous Chaste Character. Under the statute, (second subdivision of section 2414, Rev. Laws) the previous chaste and virtuous character of the prose-cutrix is a material element of the offense, and must be alleged, and the state must prove in tlie first instance that she was of previous chaste and virtuous character.
    6. SAME — Burden of Proof. In a prosecution for statutory rape, where the previous chastity of the female is an essential element of the offense as defined by the statute, it cannot be said that the law presumes that the female,, was not of chaste character when the act was committed, although such chaste character must be alleged, and the burden is on the state to prove beyond a reasonable doubt that she was of previous chaste and virtuous character.
    7. APPEAL AND ERROR — Harmless Error — Instructions on Rape. lii a prosecution for rape as defined by second subdivision of section 2414, Iiev. Laws, an instruction that every female is presumed to be of previous chaste character until the contrary is shown, was harmless error, where the proof of the prosecutrix’s previous chaste character was not contested.
    8. EVIDENCE — Burden of Proof — Alibi. The burden of proof is not shifted by the defense of an alibi, and the defendant is entitled to an acquittal if the evidence raises a reasonable doubt of his presence at the time and place where the crime was committed.
    9. TRIAL — Instructions on Alibi. An instruction to iind the defendant not guilty if the jury believe from the evidence that the defendant was not present when the crime was committed, if it was committed, is erroneous.

      Appeal from District Court, Roger Mills County’, T. P. Clay, Judge.

    A. B. C. Davis was convicted of rape in the second degree, and he appeals.
    Reversed.

      John R. Guyer and Burns & Toney, for plaintiff in er. ror.

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

This appeal is from a judgment of conviction for rape in the second degree and sentence in accordance with the verdict for the term of five years in the penitentiary. The information charged that—

“within the county of Roger Mills, state of Oklahoma, on the 25th day of June, 1916, one A. B. C. Davis, late of the county aforesaid, did then and there unlawfully, intentionally,. feloniously, make an assault in and upon Iva Nettles, and ravish and have sexual intercourse with the said Iva Nettles, a female under the age of eighteen years, of previous chaste character, and not the wife of the said A. B. C. Davis, without the consent of the said Iva Nettles, and against the will of the said Iva Nettles, the said Iva Nettles then and there being under the age of 18 years, contrary to and in violation of the statutes in such case made and provided, and against the peace and dignity of the state.”

A demurrer was duly interposed on the grounds that more than one offense is charged in the information, and that the facts stated do not constitute a public offense. When the motion for new trial was overruled, the defendant thereupon moved in arrest of judgment upon the same grounds. The court overruled the demurrer and the motion in arrest of judgment, and these rulings of the court are assigned as error.

The first contention of the defendant is that the two offenses, rape in the first degree by means of force and statutory rape, are so mingled and included in one count as to make the information duplicitous.

The section of the Penal Code defining rape reads as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“First. Where the female is under the age of sixteen years.
“Second. Where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character.
“Third. Where she is incapable through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.
“Fourth. Where she resists but her resistance is overcome by force and violence.
“Fifth. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.
“Sixth. Where she is prevented from resisting by any intoxicating narcotic, or anesthetic agent, administered by or with the privity of the accused.
“Seventh. Where she is at the time unconscious of the nature of the act and this is known to the accused.
“Eighth. Where she submits under the- belief that the person committing the act is her husband, and this belief is induced by artifice, pretence or concealment practiced by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all cases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape.” Section 2414, Rev. Laws 1910.

The section defining the degree of rape and the punishment reads as follows:

“Rape committed by a male over eighteen years of age upon a female under the age of fourteen years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance is rape in the first degree. In all other cases rape is of the second degree.” Section 2417,' Rev.+Laws 1910.
“Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than fifteen years, in the discretion of the jury or in case the jury fail or refuse to fix the punishment then the same shall be pronounced by the court.” Section 2418, Rev. Laws 1910.
“Rape in the second degree is punishable by imprisonment in the penitentiary not less than one year nor more than fifteen years.” Section 2419, Rev. Laws 1910.

The sufficiency of the information must be tested by these provisions of the Penal Code. Rape may be committed upon a female of any age when accomplished by force and violence overcoming her resistance, and an indictment or information for rape, as defined by the fourth, subdivision of section 2414, should contain a sufficient allegation that the rape was committed by force and violence overcoming the resistance of the female. The allegation in the information in this case that the defendant did “ravish and have sexual intercourse with the said Iva Nettles, * * * without the consent and against the will of the said Iva Nettles,” is insufficient to charge rape in the first degree as defined by the fourth subdivision of section 2414, supra. A charge of rape in the second degree as defined by the second subdivision of section 2414, would be fully sustained by proof of carnal intercourse with a female “over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character,” and this allegation did not extend, limit, or modify the crime charged, and might have been omitted as mere redundance. .

The defendant also contends that the information was fatally defective in that it did not allege that the female was “over the age of sixteen years.”

The information charges that the defendant feloniously did ravish and have sexual intercourse with a certain female under the age of 18 years, of previous chaste and virtuous character, and not the wife of the defendant. Thus it sufficiently negatives the fact that said female was not under the age of 16 years, and must be understood as meaning that she is above that age. Hast v. Territory, 5 Okla. Cr. 162, 114 Pac. 261.

A defendant is sufficiently informed of the nature and cause of the accusation against him if the information contains such a description of the offense charged as will enable him to make his defense and to plead the judgment in bar of any further prosecution for the same offense.

The record shows that when the jury was sworn to try the case the court, on the request of the defendant, required the state to elect whether it would try the defendant on the charge of rape in the first or second degree, and thereupon the state elected to try him on the charge of rape in the second degree.

For the reasons stated, we think the information is not fatally defective, and the demurrer thereto and the motion in arrest of judgment were properly overruled.

The other questions raised by the errors assigned require a brief statement of the facts in evidence. It appears that the prosecutrix at the time said crime is alleged to have been committed was 17 years of age, and would have been 18 on the following 20th.of October, and was 19 years of age at the time of the trial, in May, 1918. She was living with her folks on a farm about four miles from the town of Durham. The defendant was a practicing physician at Durham, and had been their family physician. The prosecutrix testified that in the afternoon of the date alleged he called at her home, and she and her baby sister were the only persons at home at the time; that her father was working in the field, that her brother was away working in the harvest, and her stepmother was at Durham; that the defendant sat down, and while she was combing her hair he got up and came over where she was, and she told him to go away, and he went and looked out the window towards the field, and she went into the other room and tried to lock the door, but he followed her in before she had time to lock it and said, “I just as well give upthat she said she would not, and he pushed her over across the bed, and pulled up her clothes and unbuttoned her drawers, and had sexual intercourse with her; that one of his bands was on her throat at the time; that after she got up he asked her if she was going to tell, and she told him she was; that he said he would kill her' if she did; that he stayed at the house for about an hour; that she continued friendly relations with the defendant, and he was back at the house nearly every week until Christmas, and on that day he came and took her and her little brother to his home for dinner; that she went with him in his car to go to a neighbor’s for milk, and when they were about a mile and a half from his home he stopped the car and pulled up her dress; that she slipped down on the seat, and he was on top of her, when four men in a car passed them and one of the men hallooed; that the defendant at that time did not have intercourse with her; that up to that time she had never told any person that the defendant had intercourse with her; that the only sexual intercourse she ever had with a man was with the defendant at her home, and she did not become pregnant; that the men who passed the car told her father, and when he spoke to her about it she told her father that at that time the defendant only attempted to have sexual intercourse with her, and denied that he had ever had sexual intercourse with her, and then she told her father about the occurrence on June 25th at their home; that she fixed the date by the entries in their store book.

Three witnesses testified that on Christmas day they were on their way to the Nettles place, and saw Dr. Davis, the defendant, and the prosecutrix in a car which was stopped by the side of the road; that she was lying down in the seat, and Dr. Davis was on top of her, apparently in the act of having sexual intercourse; that it was about 1 o’clock p. m. when they passed the car; that they informed the father of the prosecutrix what they had observed.

The defendant, as a witness in his own behalf, testified that he had never had intercourse with the prosecu-trix, and was never at her home at a time when other adult members of the family were hot present. His further testimony tends to prove an alibi. The testimony of several other witnesses proves, or tends to prove, an alibi.

The trial court instructed, among other things, as to reasonable doubt and the presumption of innocence, and also gave the following instruction:

“You are instructed that every female is presumed to be of previous chaste and virtuous character until the contrary is shown.”

On the question whether the presumption of. chastity obtains in a case of this kind and relieves the state of the necessity of bringing forward, in the first instance, evidence of the previous chaste character of the prosecu-trix, the decisions of this court are not in accord.

In the case of Marshall v. Territory, 2 Okla. Cr. 136, 101 Pac. 139, it is said:

“Wherever character is an element of the crime — that is, where the statutory definition of the crime involves chastity, wherein the act constituting the offense must have been concerning a female having previous chaste and virtuous character — the law will not presume such character to exist. The burden is upon the state to establish, beyond a reasonable doubt each material allegation in the indictment, and each material element of the crime charged, one of which is that the female was of previous chaste and virtuous character.”

In the case of Diffey v. State, 10 Okla. Cr. 190, 135 Pac. 942, it is said:

“The law presumes that the female is chaste and virtuous, and this presumption authorizes the jury to assume at the outset that the prosecutrix was chaste and virtuous. If any evidence is introduced tending to show a want of previous chaste and virtuous character, then the state is required to establish the previous, chaste and virtuous character of the prosecutrix beyond a reasonable doubt.”

In the case of Butts v. State, 12 Okla. Cr. 391, 157 Pac. 704, it is said:

“Under the statute the previous chaste character of the prosecutrix in a prosecution for seduction is a material element of the offense, and must be alleged and proved beyond a reasonable doubt, and in this case the court so instructed the jury. The law presumes that every female is chaste, but the presumption in favor of the chastity of the prosecutrix in a seduction case is overcome by the presumption of the innocence of the defendant.”

On this question Mr. Bishop says:

“Where the woman’s previous chaste character is an element in the offense, and it must be alleged, it must also be passed upon by the jury. But,
“Some courts deem the presumption of her chastity sufficient to establish it until evidence appears to the contrary. Others hold that, since also the defendant is presumed to be innocent, and so the two presumptions are in conflict, some evidence of her chastity must be brought forward in the first instance. This conclusion seems better to accord with the legal analogies and reason than the other, while yet ordinarily such evidence can in the nature of things be only slight and circumstantial. If the woman is a witness, she may testify to her previous virtue.” Bishop on Statutory Crimes, par. 648.

Prof. Wigmore says:

“It is sometimes said that there is a presumption of chastity, or of chaste character. But commonly in such cases the result is really determined by the incidence of the first burden of proof.”

In prosecution for sexual crimes, where the previous chastity of the female is an essential element of the offense as defined by the statute, it cannot be said that the law presumes that the female was hot of chaste character when the act was committed, although such chaste character must be alleged, and the burden is on the state to prove beyond a reasonable doubt that the prosecutrix was of previous chaste character.

Under the statute the previous chaste and virtuous character of the prosecutrix in a prosecution for rape, as defined in the second subdivision of section 2414, is a material element of the offense, and must be alleged, and the state must prove in the first instance that she was of previous chaste and virtuous character.

In our opinion this rule is more logical than the rule stated in the case of Diffey v. State, supra. Said instruction was therefore erroneous. But upon the record in this case we do not think that the giving of said instruction was prejudicial. The proof of the prosecutrix’s previous chaste character was uncontested. If there had been an actual contested issue concerning the prosecutrix’s chastity, then there can be no doubt the error would be prejudicial. However, upon the record it clearly appears that the defendant could not have been harmed by the error.

On the question of an alibi the court gave an instruction which reads as follows:

“(19) In this case the defendant interposes as a defense what in law is known as an alibi; that is, if the offense was committed, that the defendant was not at the place at the time of its commission, and therefore was not and could not have been the person who committed the same. Therefore, if you believe and find from the evidence that the crime of rape in the second degree, or assault with intent to rape, was committed on or about the time alleged in the information as hereinbefore instructed, and you further believe from the evidence that the defendant, A. B. C. Davis, was not present at the time and place when the same was committed, if it was committed, then you will find the defendant not guilty.”

The Attorney General concedes that this instruction Is erroneous. The defense was largely in the nature of an alibi, as shown by the testimony of several witnesses, including the defendant. The correct rule is that if the evidence of an alibi produces upon the minds of the jury a reasonable doubt of the defendant’s presence at the time and place where the alleged crime was committed, it would he sufficient to require an acquittal, and the court should have so instructed the jury. The instruction given shifts the burden of proof, and was therefore prejudicial to the substantial rights of the defendant.

For this error the judgment is reversed.

ARMSTRONG and MATSON, JJ., concur.