text:
    HOMER SMITH et al. v. STATE.
    No. A-3654
    Opinion Filed May 7, 1921.
    (197 Pac. 712.)
    (Syllabus.)
    VENUE — Commission of Crime Near County Boundary — Statute—Constitutionality. Section 5613, Revised Laws 1910, in so far as it authorizes a crime to be prosecuted and punished in a county in which the offense was not committed, when the crime was committed within five hundred yards of the boundary line of the county, is unconstitutional and in conflict with section 29, art. 2, of the Constitution.

      Appeal from District Court, of Payne County; Arthur R. Swank, Judge.

    Homer Smith and William Smith were convicted of the crime of assault with intent to do bodily harm, and appeal.
    Reversed.

      John P. Hicham, for plaintiff in error.

      S. P. Freeling, Atty. 'Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Payne county, wherein the plaintiffs in error, Homer Smith and William Smith, hereinafter designated defendants, were convicted of the crime of assault with intent to do bodily harm, and each sentenced to. serve a term of three years’ imprisonment in the state penitentiary.

From the judgment rendered against them on the 23rd of May, 1919, defendants have perfected an appeal to this court, and rely upon several grounds for reversal. In view of the disposition herein made of the cause, it will only-be necessary to consider one of the questions presented.

The prosecution was instituted on the 1st day of May, 1918, by the county attorney of Payne county filing an information in the district court of said county, charging these defendants with having, in said county on the 11th day of March, willfully, unlawfully, feloniously and without justifiable or excusable cause, committed an assault upon the person of one J. B. McClain, with a sharp and dangerous weapon, to wit: a large stone, had and held in the hands of them, the said Homer Smith and said William Smith, and they, said defendants, did then and there unlawfully, willfully and feloniously, and without justifiable or excusable cause, throw, knock down and hold upon the ground the body and head of him, the said J. B. McClain, with said rock, had and held as aforesaid, and did strike, beat, bruise, mangle and otherwise ill-treat the said J. B. McClain, etc.

J. B. McClain, the prosecuting witness, testified that the offense was committed in Creek county, Oklahoma, across the line from Payne county, a distance of approximately 18 feet. The additional undisputed evidénce is also to the effect that this crime, if any, was committed wholly inside the boundaries of Creek county; that this fact was easily ascertainable by the county attorney of Payne county at the time the prosecution was commenced; and that although there was no dispute as to the crime having been committed within the boundaries of Creek county, the prosecuting attorney of Payne county instituted the prosecution in Payne county because of the provisions of section 5613, Bevised Laws 1910, which provides as follows:

“'When a public offense is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county.”

The trial court, in conformity with section 5613, supra, instructed the jury as follows:

“You are further instructed that when a public offense is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county, and if you find from the evidence beyond a reasonable doubt that the defendants or either of them committed the offense charged in the information on the boundary line between the county of Payne and the county of Creek, in the state of Oklahoma, or within five hundred yards on either side of said boundary line, then you are charged that the offense could be prosecuted in either of said counties and a conviction therefor can be had under the law, in Payne county, Oklahoma.”

Objection was made! to the giving of the foregoing instruction at the time it was given, and proper exception saved to the action of the court in giving same.

Section 5613, supra, was, a part of the law of the territory of Oklahoma, in force prior to and at the time of the adoption of the state Constitution. Section 2 of the Schedule to the state Constitution provides:

“All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law.”

Section 20 or article 2 of the state Constitution in part provides:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury, of the county in which the crime- shall have been committed : Provided, that the venue may be changed to some other county of the state on application of the accused, in such manner as may be prescribed by law.”

It is here contended by counsel for defendants that, that portion of section 5613, supra, which permits a criminal prosecution to be instituted in either county when the offense is committed “within five hundred yards” of the boundary line of the counties, is clearly repugnant to the foregoing provision of section 20, article 2, supra, and was not extended in force in the state by section 2 of the Schedule to the Constitution.

As to this proposition of law, the Attorney General has the following to say:

“We do not find that this question has ever been passed upon by this court, and considering its importance, we have given some little study to the same, and made quite an extended search of the authorities. 1 Bishop on Criminal Procedure, section 63, states the rule in this regard to be as follows: '

“Other statutes permit offenses committed within a defined distance from county lines to be prosecuted in either county. This was held not violative of the constitutional guaranty of a trial in the ‘county or district’ where tne offense was committed. But it is commonly deemed contrary to a clause having only the word ‘county.’

“The Supreme Court of West Virginia went into an extended discussion of this question in the case of State v. Lowe, 21 W. Va. 782, and we quote from that case as follows:

“ ‘The twelfth section of chapter 152 of the Code of West Virginia, in so far as it authorizes a crime to be prosecuted and punished in a county in which the offense was not committed, when the crime was committed within one hundred yards of the boundary line of the county, is unconstitutional, null and void, it being in conflict with article 3, section 14, of the Constitution.’

“In this case the Supreme Court of West Virginia have reviewed practically every authority in existence at that time on this question, and clearly pointed out the difference between a constitutional provision guaranteeing a defendant a trial by jury in the county where the crime was committed, and one guaranteeing any such trial by a jury from the county or district in which the crime was committed.

“The Supreme Court of Illinois in the case of Buckrice v. People, 110 Ill. 29, has also passed upon this question as follows:

“ ‘Section 5, division 10, of the Criminal Code, in so far as it authorizes a party to be tried for an offense committed entirely within one county, but one hundred rods from the county line in the adjoining county, is unconstitutional and void. Offenses committed on the county line or so near thereto as that the distance therefrom is unappreciable, may with propriety be regarded,as having been comimitted in either county, and by doing so, no one is deprived of any constitutional right. But whore the entire offense is committed within one county, and at an. appreciable distance from the county line as in this case, at a distance of 70 rods, the party accused cannot be indicted and tried in another county for that offense.’

“The following authorities on statutes guaranteeing a defendant a trial by jury in the county where the crime was committed all hold that a statute similar to section 5618, supra, is unconstitutional and void: Dougan v. State, 30 Ark. 42; Craig v. State, 50 Tenn. 227; State v. Kinchen, (La.) 52 So. 185; In re McDonald, 19 Mo. App. 370.

“In our search we have been unable to find a single court which holds the statute in question is constitutional, where the provisions of the 'Constitution are the same as ours. In the following cases a similar statute was held constitutional, but the Constitution guaranteed a defendant a trial by jury from the county or district in which the crime was committed. Many of these cases rested their decision entirely upon the provision in the Constitutions. Others do not seem to refer to it. State v. Brown (Wis.) 19 N. W. 429; State v. McDonald (Wis.) 85 N. W. 502; Patterson v. State (Ala.) 41 So. 157; State v. Robinson, 14 Minn. 447.

“A number of states have a statute similar to section 5613, supra, and the same is enforced, but such states have no constitutional provision guaranteeing a trial by jury from a county or district where the offense was committed, and the authorities all seem to hold that in the absence of a constitutional restriction a case may be tried in any county.

“It seems to the writer of this brief that the correct rule is stated by the Supreme Court of Illinois, wherein they state that it is proper under constitutional provision^ similar to ours, for the Legislature to provide that where the offense is committed upon the boundary line between two counties, or so close thereto as to make it uncertain in which county it was committed, that in that event the jurisdiction would be in either county,' but we seriously doubt, under our constitutional provision, the authority of the Legislature to provide that a crime committed within live hundred yards of the county line may be tried in another county.”

The court is impelled to the conclusion reached by the Attorney General. Under section 20 of article 2 of the Constitution, a defendant is entitled to a trial by a fair and impartial jury of the county in which the crime was committed, and where it is easily ascertainable that the crime is committed in one county, as it was in this case, the prosecution must be instituted in, the county where the crime was committed. We think the Legislature undoubtedly had authority to provide that where the public offense is committed on the boundary line of two or more counties, or so close thereto as to make it uncertain in which county it was committed, that the jurisdiction would be in either county. This would be a proper safeguard to the state, and would not- deprive a defendant of any constitutional right, because in such instances the crime could with propriety be regarded as having been committed in either county, as held- by the Supreme Court of Illinois, in the case of Buckrice v. People, 110 Ill. 29, supra, but to extend the jurisdiction five hundred yards on either side of the county line is clearly an arbitrary and unreasonable act on the part of the Legislature, because the surveys of the boundaries of the county are so well known that proof of the venue of an offense is ordinarily easily obtained, and Where the offense was not committed on¡ the boundary line of two counties, nor so close thereto as to be doubtful in which county it was committed, the prosecution must be commenced in the county where the undisputed evidence shows the offense was committed. Otherwise, the defendant, by legislative action, could be arbitrarily deprived of the constitutional guarantee afforded him by section 20, article 2, supra.. To hold that jurisdiction may be in either county under such provision where the venue is known to the complaining witness and, therefore, easily ascertainable by the prosecuting officer before the. institution of the prosecution, would in effect grant a change of venue to the state also in contravention of section 20, article 2, supra.

For the reasons stated, the conclusion is reached that the district court of Payne county had no jurisdiction of the offense charged against these defendants, and the judgment is reversed, with instructions to the trial court to dismiss the prosecution.

DOYLE, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    BERT HENDERSON v. STATE.
    No. A-3610
    Opinion Filed May 7, 1921.
    (197 Pac. 720.)
    (Syllabus.)
    1. JUKY — Jury Trial — Preservation of Right. It is tbe duty of courts to enforce a rigid and vigilant observance of tbe provisions of the statutes designed to preserve inviolate the right of trial by jury and the purity of jury trials.

      2. TRIAL — Erroneous Conduct — Judge Going to Jury Room to Repeat Distinctions. Under section 5913, Revised Laws 1910, providing that: “After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the county attorney and the defendant or hisl counsel, or after they have been called” — it is reversible error for the trial judge, upon being called by the jury, to go to the jury room, and in the absence of counsel and the defendant to converse with the jury and again read any of the instructions to them. Such information must be given in conformity with section 5913, or not at all.
    3. INDICTMENT AND INFORMATION — Conviction of Offense not Included — Rape. The information charged defendant with the crime of rape as defined by the second subdivision of section 2414, Revised Laws 1910, upon “a female over the age of 16 years and under the age of IS, and of previous chaste and virtuous character.” The county attorney elected to stand upon an alleged act of. sexual intercourse committed upon said female when she was under the age of 16 years, which would be rape as defined by the first subdivision of section 2414. The trial court instructed the jury in effect that the charge was sufficient to permit proof of the crime defined by said first subdivision. Held, the admission of such evidence as a basis for a conviction, and the giving of instructions to that effect, constituted reversible error; said subdivision 1 defining no lesser degree of the crime of rape than said subdivision 2, nor is the crime as defined by said subdivision 1 necessarily included within the crime defined by said subdivision 2.

      Appeal from District Court, Major County; James B. Gullison, Judge.

    Bert Henderson was convicted of rape, and he appeals.
    Reversed and remanded.

      McKeever & Moore, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Major county, wherein plaintiff in error, Bert Henderson, hereinafter designated defendant, was convicted of the crime of rape, alleged to have been committed in said county, according to the allegations of the information, on or about the 7th day of April, 1918, on one Goldie M. Kelley, an unmarried female person under the age of 18 years and of the age of 16 years past, the said Goldie M. Kelley being then and there a female person of previous chaste and virtuous character, and not the wife of the said Bert Henderson, and sentenced to serve a term of five years’ imprisonment in the state penitentiary. From the judgment rendered against him, an appeal was perfected to this court, and numerous errors are relied upon in the petition in error as grounds for reversal of the judgment.

The Attorney General has filed a confession of error, which is as follows:

“Plaintiff in error was convicted of the crime of rape. One of the errors assigned is that the trial judge and stenographer were present in the jury room when the jury were deliberating upon their verdict. On this point we quote from the record as follows:

“ ‘By the Court: I will admit that the court and the court reporter was in the jury room when the jurors in this case were deliberating upon their verdict, if you wish.

“ ‘By Mr. McKeever: That will do just as well. That will be satisfactory. Let it be shown in the record. Let it be admitted in the record if Mr. Bishop, the county attorney, will agree to that admission. You state it in the record.

“ ‘By the Court: The court here admits that he was called by the jurors trying this case to the jury room on three different occasions. They asked the first time if he remembered certain testimony that was given, and the court informed the jury he had no right to tell them anything of that kind, and refused to do so.

“ ‘¡Then the court was called the second time, and was informed that the jurors were disagreeing as to the testimony of a certain witness, and that if the court would assist them in telling them what was said that they could get through.

“ T again informed them I had no right to tell them w'hat the testimony’ was. Even if I remembered it, and even if I would give it to them, it would be incompetent, irrelevant, and immaterial, and they had no right to take anything from the court, and the court had no right to testify or give his opinion. He was called the third time. ’

“ ‘The jurors wanted the court to read an instruction that was given, which, of course, the court holds he had a right to do, and the law required that he do. I read the instruction very carefully, and called attention to the fact that the attorney made the statement to the jury: “I have read the instructions so much that I almost know them by heart.” It was the old instruction wherein the court instructs the jury that they are the sole judges of the credibility of the witnesses, of the facts, and of the weight of the evidence. I read it very carefully without comment of any importance, and told them it was an old instruction that had been handed down for generations, and before the court was born, and I considered it good and plain, and that I could add nothing more to it. He also requested that he be permitted to withdraw from the jury. I told him I could not permit him to do that. He made the remark to another: “I don’t agree with these gentlemen in everything.” I said: “Don’t tell me what you agree to, sir. That is your business.” Every juror will swear to that. That was the sum and substance of it. I don’t think that the court reporter said a word. (Thereupon the court addressed the court reporter.)

“ ‘Did you read any evidence to the jury while in the jury room, Mr, Eeporter?

“ ‘Yes ; I read some evidence to the jurors while they were in the jury room.

“ 'Well, he can make a statement as to that.

“ ‘By Mr. McKeever: It is further admitted by the state that the court reporter, A. B. Hugos, was also taken to the jury room during the deliberations of the jury in this case, and certain portions of the evidence was called for and read to the jury by the court reporter, and that during the times that the judge of the court was in the jury room, upon the three occasions mentioned, neither the defendant,. Bert Henderson, nor his counsel, were present in the jury room, and that such proceedings were had in the absence of the said defendant, and outside of the court room, but in the jury room.

“ ‘It is further admitted that the facts stated to the judge of the court, in this record, are facts as they occurred.’

“Section 5913, Eevised Laws of Oklahoma 1910, provides how the court may communicate with the jury, and the same is as follows: ‘After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if titey desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county at-rney and the defendant or his counsel, or after the¿ have been called.’

“This court, in the case of Watson v. State, 7 Okla. Cr. 508, 124 Pac. 329, and also in Ridley v. State, 5 Okla. Cr. 522, 115 Pac. 628, has held that it is reversible error for the trial judge to converse with the jury in the jury room while they are considering their verdict.

“We believe that the facts in this case are as strong, or stronger, than the facts in the cases above cited. In addition we are inclined to think that it should be the policy of the law that one convicted of crime should not be required to prove that the presence of the trial judge in the jury room did not prejudice his rights. It being a violation of the law for the judge to be present with the jury while they are considering their verdict, in the interest of justice, it is only proper to hold that such act constitutes prej udicial error, and we are inclined to think that for the error pointed out the judgment of the trial court should be reversed.”

The record supports the allegations of the Attorney General’s confession. This court is of the opinion that the confession of error is well founded in law, and that the same should be sustained, and that the judgment of conviction should be reversed for the reasons given by that' Attorney General.

However, another question is involved in this appeal which is not discussed in the Attorney General’s confession of error, but is ably presented in the brief filed in behalf Of defendant, and was also urged in the oral argument of the cause. It is this: The information charged defendant with the crime of rape, committed upon a female under the age of 18 and over the age of 16 and of previous chaste and virtuous character, alleged to have been committed on or about the 7th day of April, 1918. At the trial, the county attorney elected to stand upon an act of sexual intercourse alleged to have been committed in the month of July, 1916, when the prosecuting witness was under the age of 16 years, and the evidence so disclosed.

Counsel for defendant objected to the county attorney electing to rely upon an act of intercourse prior to the date the prosecutrix became 16 years of age, which objection was overruled by the trial court, and an exception taken to the ruling-. In addition the trial court instructed that the jury was authorized, under the allegations of the information, to find defendant guilty upon proof beyond a reasonable doubt of his guilt of an act of sexual intercourse with the prosecutrix committed prior to her arrival at the age of 16 years, and after she was 14 years of age.

The particular statutes involved are as follows:

Section 2414, Revised Law's 1910, in part defines rape 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 vears and under the age of eighteen, and of previous chaste and virtuous character.”

Sections 5922 and 5928, Revised Laws 1910, in substance, provide that defendant may be convicted of the offense charged, or of any lesser degree thereof, or of any offense necessarily included within the charge.

It follows, therefore, that if an information alleged the crime of rape as defined in the second subdivision, supra, and the same is a higher degree of that crime than that defined' by the first subdivision, or if the crime defined by the second subdivision necessarily includes that defined by the first, there was no error committed by the trial court in admitting the evidence complained -of, nor in giving the instructions objected to.

, The second subdivision of section 2414, supra, defines rape in the second degree; the first subdivision does not define any lesser degree of rape. See section 2417, Revised Laws 1910.

It is evident, therefore, that a conviction upon proof of guilt of the crime as defined by the first subdivision, under. an information alleging the crime as defined by the second subdivision, cannot be sustained on the ground that the first subdivision is a lesser degree of the crime of rape than the second.

Neither do we think that the crime of rape as defined by the second subdivision necessarily includes within its scope the crime as defined by the first subdivision. One necessary allegation of the crime as defined by the second subdivision is that the female must be over the age of 16 years and under the age of 18. Marshall v. Terry, 2 Okla. Cr. 136, 101 Pac. 139. One necessary allegation of the crime as defined by the first subdivision is that the female must be under the age of 16 yea/s. It is apparent that these allegations are wholly inconsistent one with the other, and an allegation that a female is over 16 years of age does not include within its scope, or permit proof, that the' female was under 16 years of age. In either instance, the age of the female is a material ingredient of the offense, and must be alleged and proved, and to that extent time is a material element of the offense, in that the proof must disclose that the offense was committed at a time the prose-cutrix was within the ages designated in the respective subdivisions.

Under section 5739, Revised Laws 1910, the information must be direct and certain: (1) As to the party charged; (2) as to the offense charged; and (3) as to the particular circumstances of the offense charged, when they are necessary to constitute a complete offense.

The information was direct and certain, and charged the offense under the second subdivision of section 2414, supra. The conviction is based upon an election and evidence of a particular act and instructions given under subdivision 1 of section 2414, supra. We think the admission óf this evidence under such circumstances and the giving of the instructions complained of was clearly erroneous, and constituted a fatal variance between the allegations of the information and the proof adduced, the defendant having been-misled to believe, under the allegations of the information, that he was charged with the crime of rape upon a female over the age of 16 years and under 18 years, and of previous chaste and virtuous character, while he was tried and convicted for an act alleged to have been committed upon said female at a time when she was under said age of 16 years, where the question of the prosecutrix’s prévious chaste and virtuous character was not involved. The information, therefore, did not comply with the requirements of the statute as to being direct and certain as to the particular crime charged and the circumstances thereof, if it was intended to charge the offense under the first subdivision of section 2414, su-pra. On the other hand, the information having directly and certainly charged the offense as defined ¡by the second subdivision of section 2414, it was clearly prejudicial to the defendant to permit the state to rely upon and introduce proof of guilt of the offense as defined by the first subdivision thereof.

For reasons stated, the judgment is reversed, and the cause remanded, for further proceedings not inconsistent with this opinion.

DOYLE, P. J., and BESSEY, J., concur.


author: DOYLE, P. J.

text:
    T. J. BRADSHAW v. STATE.
    No. A-3638
    Opinion Filed May 7, 1921.
    (197 Pac. 715.)
    (Syllabus.)
    1. RAPE — Assault with Intent — Evidence. In a prosecution for assault with intent to rape, evidence examined and held sufficient to support the verdict and judgment of conviction.

      2. CONTINUANCE — Absence of Subpoenaed Witness. A motion for a continuance on the ground of the absence o'f a witness who had been subpoenaed was properly refused where the defendant did not ask for an attachment for said witness.
    3. EVIDENCE — Age—Census Enumeration lists. Under article 9. c. 219, Session Laws 1913, providing for the taking of a scholastic census eacii year in eacii school district, and that the report of the enumerator shall be made to the county superintendent of public instruction, such enumeration lists are competent- and admissible on an issue as to the age of a person, if duly authenticated, or by proof that they come from the proper repository.
    4. APPEAL AND ERROR — Review—Fact Findings on Motion for New Trial. The finding of the trial court upon an issue of fact, arising upon affidavits and evidence developed on a motion ' for a new trial, will not be disturbed, where tlio evidence rea.sonably tends to support such finding.
    Appeal from District Court, Bryan County; J. M. Crook, Judge.

    T. J. (Baldy) Bradshaw was convicted of assault with intent to rape, and he appeals.
    Affirmed.

      Robert Crockett, lor pláintiff in error.

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

The plaintiff in error, T. J. (Baldy) Bradshaw, was convicted of assault with intent to rape one Lola Sconce, a female under the age of 16 years, and his punishment assessed at confinement in the county jail for 1 year and a fine of $250. He appeals from the judgment rendered in accordance with the verdict, ánd assigns as error: (1) The overruling of the application for continuance; (2) the rejection of competent testimony; (3) that the verdict is not sustained by the evidence; (4) the overruling of the supplemental motion for a new trial.

The evidence shows that Lola Sconce lived in the town of Platter; that on the date alleged she was at the home of Ruth Willingham, a neighbor girl, and the defendant called there and told her-that her parents intended to send her to the reform school, and that he and Charles Fisher would take the girls to Dallas that night; then he told them to go over to the log cabin on Frank Walden’s place. About 11 o’clock that day Lola Sconce and Ruth Willingham went to the log cabin which was about two miles from town. The defendant visited the log cabin two or three times during the day, and the last time told the girls to meet him and Charles Fisher that night near the school house outside the town; that about dusk they went to the appointed place' and found the defendant and Fisher there with a car, and the defendant told the girls to get into the back seat; that after they passed the town of Mead the Willingham girl changed seats with the defendant at his request; after going about two miles the car was stopped.

Lola Sconce testified:

“When the car stopped the defendant asked me if I would have intercourse with him, and I told him I would not; he got mad and began cursing; he called me a damn whore and almost everything else. I got out of the car; then he got out; Ruth got out next. It was in the timber; there was no house in sight, and it was dark. He took hold of me, put his arm around me, and asked me if I was going to do it with him. I told him no, I was not, and I jerk-' ed loose from him. Ruth had a gun and told him if he took hold of me again she would kill him. IThen he got into the car and said they would not take us back home; that hé would make us walk back. Mr. Fisher said no, he'would take us back, and we got into the car and rode back home; not all the way; we got out near the railroad crossing. They both told us not to tell anything about it.”

She further testified that her age was 15 years.

Ruth Willingham testified:

“My age is 16 years. When the car stopped I saw the defendant put his arms around Lola; she jerked loose from him and got out of the car; then he got out and hugged her again; she jerked loose and he called her a damn Whore. She was leaning against the fence, and he walked up and put him arm around her and tried to pull her away. He was saying something, but I do not know what he said. She was crying. I told him to cut it out and go on. She said, ‘Let me have the gun.’ I said, ‘No; I will not let you have the gun, but if he touches you any more I will kill him,’ and he turned her loose. Mr. Fisher was in the car and he told her to get back into the car and he -Would take her home; the defendant said they ought to make us walk back;” that she knows the defendant is a married man, and that Lola Sconce is not married.

Claude Sconce testified:

“Lola Sconce is my sister. She will be 16 years old next October.”

Jim Kiersey testified:

“I was deputy sheriff for Bryan county. I received a warrant for the defendant on the 17th day of November, and arrested him at Muskogee on the 5th day of December. I would have arrested him sooner, but I could not locate him.”

The defendant, as a witness in his own behalf, testified:

“I did not make any effort at any time to have sexual intercourse with this girl, Lola Sconce, nor did I put my hands on her for the purpose of forcing her to have sexual intercourse with me. I did not at any time solicit or persuade her to have sexual intercourse with me. I was assisting the girls to get away from home at their request. They said that they wanted to go to Mead to catch the train for Dennison. I advised them all the way through to go back home. The girls said, ‘If you ain’t going to drive us we will get out and walk.’ I said, ‘No; you ought to get in and go back to Platter and catch the 10 o’clock train.’ They would not consent to do that, and both got out of the car and walked off down the road 15 or 20 steps. Fisher said, ‘Go down there, Bradshaw, and see if you can get them to come back.’ I went down and said, ‘It is 5 or 6 miles down to Colbert; you can’t possibly imake it.’ They both got mad and they cursed me because we would not drive them on. Fisher turned the car around, and I went out and took hold of Miss Sconce by the arm and got her back into the car, and the Willingham girl got into the seat with Fisher, and we came back. They got out at the roalroad crossing half a mile from Platter.”

Cross-examination:

“When we got back to Platter I went home. The next day I went to Madill; from there I went to Houston; then I went to Panama, Okla., and met my wife there; then I went to Muskogee. My purpose was to visit my people, and my wife concluded to go and visit her people and I was advised by Frank Walton that I had1 better leave Platter.”

Charles Fisher, called and sworn as a witness for the defendant, claimed his privilege and refused to testify, on the ground that his testimony might tend to incriminate him on the charge pending against him, and he was by the court excused from testifying.

When the case was called for trial the defendant filed a motion for continuance on account of the absence of G. W. Sconce, who had been duly subpoenaed, and who, if present, would testify that he said Lola Sconce was his daughter, and was over the age of 16 years at the time of the alleged oifense, which motion was overruled.

It is sufficient to say that the defendant did not ask for an attachment for said witness. If an attachment had' issued and proved unavailing on account of sickness, absence, or other sufficient reason, then a different question would be presented. We do not think the court erred in overruling the motion for continuance, or refusing a new trial' based on this ground.

During the course of the trial counsel for the defendant offered in evidence what he termed “the record of the scholastic report of school district 51 of Bryan county, for the years 1917 and 1919,” which appear to be blanks filled out by said school district “enumerator,” each containing the name of G. W. .Sconce, post office, Platter, and the name of the child, Lola Sconce, date of birth in Exhibit 1, 'October 12,1902, and date of birth in Exhibit 2, October 10, 1902; one is signed by the “enumerator”; in the other the name of the “emunerator” is blank. On objection of the state this evidence was excluded.

Article 9, c. 219, Session Laws of Oklahoma Í913, provides for the taking of a scholastic census each year, upon which the state and county apportionments of public school funds are made, and provides, that the district board shall appoint an “enumerator,” and that the report of the “enumerator” shall be made to the county superintendent, who shall check each name and date of birth and approve the same. Thus under the statute the scholastic census reports are public records in the custody of county superintendents of public instruction. ,

Section 5.115, Rev. Laws, provides:

“The books and records required by law to be kept by any.county judge, county clerk, county treasurer, register ox deeds, clerk of the district court, justice of the peace, police judge or other public officers, may be received in evidence in any court.”

Under the statute these school census enumeration lists were competent and admissible in evidence on the issue of the age of the prosecutrix, if authenticated, or if they were properly proved to be such by evidence showing that they came from the proper repository or custody. 1 Greenleaf on Ev. (16th Ed.) par. 483; Stark. Ev. 315; 9 A. & E. Ency. L. (2d Ed.) p. 883.

Here, however, there was no authentication, and there was no proof that the purported enumeration lists offered came from the proper repository, or custody. The rule is that, where the original document is offered in evidence, it must always be proved to be that which it purports to be, .as by showing that it came from the proper repository or by proof'that it came from the proper custody. The record shows that was not done in this case, and for this rea.son the court did not err in excluding the purported enumeration lists offered by the defendant.

As to the sufficiency of the evidence, it is sufficient to say that the testimony for the state was that the assault was by force and violence, and that the executrix resisted, and the intent with which the assault was committed was a question for the jury to determine.

Finally, it is contended that the court erred in overruling the supplemental motion for new trial, based upon the alleged misconduct of the county attorney in failing to call G. W. Sconce, the father of the prosecutrix, to testify as a witness. Upon the hearing the defendant offered proof tending to show that the witness G. W. Sconce, on the order of the county attorney, was brought to the court house after defendant’s motion for continuance had been overruled, and that this was without the knowledge of the defendant or his attorney. The state offered evidence tending to show that the defendant and his counsel were notified of the presence of the witness G. W. Sconce while the trial was in progress.

In overruling the supplemental motion for a new trial the court stated:

“The court is now under the impression that all parties knew that Mr. Sconce was in attendance before the defendant closed his testimony; that a statement was made that Mr. Sconce was in attendance as a witness.”

As a general rule, the finding of the trial court upon an issue of fact, arising upon affidavits and evidence developed on a motion for a new trial, will not be disturbed, where the evidence reasonably tends to support such findings. We think the court properly overruled the motion.

Having noticed and considered all the assignments of error presented by the defendant’s brief, and upon a careful examination of the entire record, we are of the opinion that the defendant had a fair trial, and that no error was committed by the trial court prejudicial to the substantial rights of the defendant.

The judgment of conviction is therefore affirmed.

MATSON and BESSEY, JJ., concur.


text:
    TOM McLAUGHLIN et al. v. STATE.
    No. A-3574
    Opinion Filed May 7, 1921.
    (197 Pac. 717.)
    (Syllabus.)
    1. EVIDENCE — Corroboration of Accomplice. Where, in a prosecution for conjoint robbery, an accomplice testifies that defendants aided him in the commission of the crime, and the parties robbed identify defendants as having participated in the robbery, the corroboration of the accomplice is sufficient.
    2. EVIDENCE — Other Offenses Incidentally Involved. Evidence material to the issues, and tending to shed light on the guilt of defendants, is not rendered incompetent because it may, incidentally, involve defendants in the commission of a distinct offense.
    3. ROBBERY — Conjoint Robbery — Evidence Sufficient. Evidence examined, and held sufficient to sustain the conviction.

      Appeal from District Court, Okmulgee County; E. M. Carter, Special Judge.

    Tom McLaughlin and Allison Ivey were convicted ox conjoint robbery, and they appeal.
    Affirmed.

      F. F. Nelson and J. P. Evers, for plaintiffs in error.

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

This is an appeal from the district court of Okmulgee county, wherein, on the 23d day of December, 1918, plaintiffs in error, Tom McLaughlin and Allison Ivey, hereinafter designated defendants, were convicted of the crime of conjoint robbery, and sentenced to serve a term of seven years’ imprisonment each in the state penitentiary.

The offense was committed near the town of Dewar on the night of October 28, 1918, about 8:30 o’clock. Clarence Vetters and Glen Wells, young men who lived in the vicinity of Dewar, testified that they were held up and robbed by. three men who held pistols on them at a time when they (Vetters and Wells) were engaged in repairing a puncture to an automobile tire on a public highway in Okmulgee county a short distance from the town of Dewar. Vettefs and Wells testified that these three men, with handkerchiefs-tied over the lower part of their faces, two of them wearing large white hats and the third a cap, approached them with drawn pistols and ordered them to hold up their hands; that Wells immediately complied, but that Vetters continued fixing the punctured automobile tire, when one of the men struck Vetters in the head with a pistol and again ordered him to hold up his hands, after which Vetters complied with the request; that thereupon the three men searched both Wells and Vetters, and took a sum of money, approximately $8, from the person of Vet-ters.

A codefendant, Jack Dodson, who was jointly informed against with these defendants, pleaded guilty, and was sentenced to a term of five years’ imprisonment in the penitentiary. Thereafter he appeared as a witness for the state and testified that he and the defendants McLaughlin and Ivey held up and robbed Vetters and Wells at the time and place and under the circumstances testified to by Vet-ters and Wells; that after the robbery all three defendants came that night to Okmulgee, and there separated, but, before separating, defendant Dodson changed hats with defendant McLaughlin; that after they separated Dodson never saw the two defendants again until they were arrested and placed in jail with him. Dodson also testified that he had become acquainted with the other two defendants in West Tulsa, Okla., and had known them for.about one year ‘prior to the commission of this crime; that the three defendants left West Tulsa, Okla., on a train about 3 o’clock in the afternoon of October 28th, going from there to Sapulpa, from there to Okmulgee, and from Okmulgee to Henryetta, and from Henryetta to Dewar; that they arrived in Henry-etta after dark on the night of October 28th;’ that they left West Tulsa with the intention and purpose of staging a holdup of a store near Dewar,-Okla., and that each of them carried pistols with them, defendants Ivey and McLaughlin having large caliber Colt’s revolvers, while defendant Dodson had a smaller pistol.

After the arrest of defendants McLaughlin and Ivey in Tulsa county, some two or three weeks after the commission of the offense, they were taken to jail at Henry-etta, Okla., and there both of them were positively identified by the witnesses Vetters and Wells as having participated in the robbery. There is also some other evidence in the record substantially to the effect that three persons answering the description of these three defendants were seen in Dewar and the neighborhood thereof on the evening of October- 28th, shortly before the commission of this robbery, but none of the witnesses except Vetters and Wells were able to identify positively any of these defendants but Dodson.

The defense relied upon by each defendant was an alibi; numerous witnesses being introduced in an effort to convince the jury that both of these defendants were at their homes in West Tulsa, Tulsa county, Okla., on the afternoon and the evening of October 28th, 1918, at the time it was testified to by Vetters, Wells, and Dodson that the robbery took place.

It is first contended that, the witness Jake Dodson being an accomplice, there was no sufficient corroboration of his testimony to authorize the conviction.

Section 5884, Revised Laws 1910, provides:

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

In this case the witnesses Vetters and Wells both identified defendants McLaughlin and Ivey as two of the parties who, acting with a third party, held them up and robbed them near the town of Dewar, Okmulgee county, on the 28th of October, 1918. This evidence, if believed by the jury, constituted sufficient corroboration of the accomplice Dodson, as it not only tended to connect these defendants with the commission of the offense, but directly connected them with its commission. The requirements of section 5884, supra, therefore, were more than complied with in this case. The argument" advanced in support of this assignment of error is lodged against the credibility of the witnesses Vetters and Wells rather than against the sufficiency of their evidence as a corroboration of the accomplice Dodson. The credibility of these two witnesses, and the weight to be given their testimony, were matters exclusively for the jury to determine. This court finds the corroborative evidence sufficient to meet the statutory requirements.

It is next contended that the trial court erred in permitting evidence of other independent crimes not connected with the one for which defendants were being tried, to be introduced in evidence over objection and exception of defendants. In support of this assignment, the court is referred in the brief of counsel for defendants to the following evidence elicited from the codefendant, Dodson:

“A. When we held these boys up, I held up the least one. We all had our guns out. I |said, Tut them up/ and when they put them up he didn’t have nothing on him, the one I was holding up, but six-shooter shell, just a shell and bullet in it; and the other fellow would not put them up, and Dick hit him oyer the head with his gun, and he put them up then, and he got money off of him. I don’t know how much he had.

“Q. Was this money in anything? A. In a pocketbook part of it was. He took the pocketbook, and this man they call Vetters asked for the registration card in it. He said, ‘I cannot lose that or I will go to the pen.’ Dick said he would give it back to him, and he went around in front of the car and opened the pocketbook and came back and gave it to him.

“Q. Well, now where did you go from that place? A. Well, we went from there to Spelter City and over on the railroad track and down the track to Henryetta, and when we got down there by the coal chute we changed hats.

“Q. Who did? A. Me and Tom McLaughlin.

“Q. What kind of hats did you all wear that night? A. I had on a big white hat, ITom had on a white hat, and Dick had on a white hat; all three of us had white hats on.

“Q. All white hats? A. Two of us big hats, and the other one small, and we went over by the coal chute, down by Henryetta, and we split up by the ice plant, between there and the depot. I went over there—

“Q. Wait a minute; did you say all three of you had hats on? A. We all three had hats on; Dick had a cap in his pocket, and during the holdup he wore a cap.

“Q. Where did you change hats with Dick Ivey? a. Down by the coal shute with Tom McLaughlin.

“Q. You changed with Tom McLaughlin. A. Yes, sir.

“Q. And what kind of hat did you give McLaughlin ? A. I gave him a big white hat with a little leather band around it, and there was a little burnt place on the rim.

“Q. Where did you get that hat? A. I got that hat at the Union Clothing'Store in Henryetta.

“By Mr. Evers: We object to that question and ans-that hat.

“By the Court: Overruled.

“By Mr. Evers: Exception.

“Q. About when? A, p’our months ago.

“By Mr. Evers: We object to that question and an-fiwer, and ask that it be stricken from the record.

“By the Court: Overruled.

“By Mr. Evers: Exception.

“Q. Have you ever — after you changed hats with him there, did you stay or what did you do? A. We went on down to Henryetta to the ice plant there, or depot and we split up. I went on up town, and they came up later on, and I gót a car-and went out to where some sick folks were out by the pump station and set up the rest of the night.

“Q. Did you ever get your hat back? A. No, sir.

“Q. Who got the hat? A- Tom McLaughlin.

“Q. Is that the hat? (Exhibiting to witness a hat.)

“A. That is the hat.

“Q. Is it the first time you saw that hat since that night? A. It is the first time I ever seen it.

“Q. Could you recognize or know the hat you got from him? A. Yes, sir.

“Q. Is that the hat (exhibitin ga hat to the witness) ? A. That it the hat.

“Q. Are those the hats you and Tom were wearing that night? A. Yes, sir.

“Q. Do you know when these boys went back to Tulsa?

“A. They told me when they came back down.

“By Mr. Evers: We object to what they told him.

“By the Court: Overruled.

“By Mr. Evers: Exception.

“A. They told me that they went back the next morning ; they told me they looked for me next morning in town and could not find me; that they walked down the track and gave up looking for me.'

“Q You and these defendants have been laying In jail some time up there together? A. Well; yes, sir.

“Q. Have you had other talks with them? A. I don’t know as I did.

“Q. Did.you have a talk with them about the hats?

“A. Y'es, sir; about the hats.

“Q. Just tell what was said.

“By Mr. Evers: Objected to -as irrevelant, incompetent, and immaterial.

“By the Court: I think it-is proper; Overruled.

“By Mr. Evers: Exception.

“A. They said for me to not to say nothing about the hats; that they were in a stick-up deal in Tulsa and they got my hat; they said they were in a stick-up deal in Tulsa and — well, they were in it; that the law got my hat' and their guns; for me not to say anything about it.”

Each of the defendants McLaughlin and Ivey denied that thej1" were with Dodson on the occasion of this robbery, that they had exchanged hats with him, and further denied any knowledge of the two large white hats which were afterwards found by the sheriff of 'Tulsa county on the night of November 2, 1918, about midnight, on a public highway near the city of Tulsa, when the sheriff of Tulsa county was investigating an attempted holdup at that time and place.

Under the issue in this case, the finding, on the night of November 2, 1918, of the large white felt hat (commonly called a “cowboy”- hat), which was later identified as the hat worn by the codefendant, Dodson, on the night of this robbery, and which was found near the city where defendants McLaughlin and Ivey lived, was material in that it tended circumstantially to connect at least the defendant McLaughlin with the commission of this crime, and also tended to corroborate the accomplice Dodson, as it strongly indicates the truthfulness of the statement of Dodson that he and defendant McLaughlin exchanged hats on the night of this robbery and shortly thereafter.

It appears from the record that Dodson was arrested in the city of Okmulgee on the day of Saturday, November 2, 1918, and that these hats were not found near the city of Tulsa until the night, of November 2, 1918. Shortly after Dodson was arrested he confessed his connection with the crime, implicating McLaughlin and Ivey in its commission, and telling of the circumstance of the exchange of hats and describing the hat that he (Dodson) wore on that night (¡a large white felt cowboy hat, with a burned place in it). This occurred before Dodson knew of the finding of this hat by the sheriff of Tulsa county, and also before the codefendants, McLaughlin and Ivey, were arrested.

The conversation, therefore, detailed by Dodson with McLaughlin and Ivey, in which they asked him to say nothing about the exchange of the hats, because they were after-wards engaged in an attempted holdup in Tulsa county, and there lost Dodson’s hat, was an admission against interest and tended to show guilty knowledge of this crime, and competent for that reason, although it incidentally referred to the attempted later commission of a similar offense not directly connected with the one for which they were then being tried, as it has repeatedly been held that evidence which is otherwise relevant and material to the issues is not inadmissible, even though it may tend to establish a defendant’s guilt of another distinct crime. In principle the following cases are in point: Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 445; Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088.

In Ruling Case Law, vol. 8, p. 200, speaking on this subject, it is said:

“It is often difficult to determine the degree of relevancy which entitles the prosecution to introduce evidence 'showing the commission of other crimes, but much of the difficulty with reference to such evidence disappears if the evidence is considered strictly upon the ground of its relevancy to the purpose for which it is sought to be introduced, regardless of the fact that it may incidentally show the commission of some other offense. In other words, there ought not to be any more difficulty in deciding the relevancy of such evidence than there is when the circumstance of some other offense appearing is not involved.”

For the reason stated, therefore, the trial court did not err in permitting the admission of this evidence.

Lastly, it is contended that the verdict is not sustained by sufficient evidence.

With this contention the court is unable to agree. The evidence is in direct conflict. As heretofore stated, the evidence of the codefendant, Dodson, and of the witnesses Vet-ters and Wells positively connects these defendants with the commission of this crime, and there are other circumstances tending strongly to the effect that all three of these defendants were in the immediate vicinity of the commission of this crime shortly prior thereto. On the other hand, numerous witnesses, most of whom are relatives and intimate friends of defendants testify that these defendants were in West Tulsa, Okla., at the time the crime was committed .

The weight of the evidence and of the credibility of the witnesses were matters exclusively for the jury’s determination, and it has been repeatedly held by this court that on appeal, if there is any apparently credible evidence from which the jury could reasonably conclude that defendants are guilty as charged, this court will not substitute its judgment for that of the jurors and the trial court, even-though the evidence be in direct conflict. Gunter v. State, 16 Okla. Cr. 476, 184 Pac. 797; Felas v. State, 16 Okla. Cr. 631, 185 Pac. 839; Tittle v. State, 14 Okla. Cr. 562, 174 Pac. 295.

We find in this record sufficient evidence on the part of the state which, if believed, clearly establishes the guilt of each of these defendants. We further find the trial free from any prejudicial error.

Judgment affirmed.

DOYLE, P. J. and BESSEY, J., concur.


author: BESSEY, J..

text:
    WILLARD YODER et al. v. STATE.
    No. A-3259
    Opinion Filed May 9, 1921.
    (197 Pac. 848.)
    (Syllabus.)
    1. WITNESSES — Cross-Examination — Bias and Contradictory Statements. On cross-examination of a witness for the state the defendant may show any bias or special interest the witness may have in the prosecution, as affecting his credibility, or to show that any other witness for the state has made contradictory statements concerning any material fact at issue.
    2. NEW .TRIAL — Affidavit of Witness Confessing to False Testimony. Where an affidavit of a witness is filed after the trial in support of a motion for a new trial, in which the affiant states that the testimony given.by him at the trial was false and untrue; and where the record of his testimony and that of others given at the trial casts a doubt on the verity of such testimony; and where the record discloses that such testimony may have been given under duress or undue influence — affidavits of this character may be considered in deciding a motion for a new trial, along, with all the other facts and circumstances in the case. But in no case should the verdict be disturbed where the question hinges entirely on an ex parte affidavit of this character.
    3. SAME — Case Overruled. The rule announced in the case of Chappell v. State, 0 Olcla. Cr. 39S, 119 Pac. 139, that where a witness wlio testified for the state upon a trial of a ease makes an affidavit, stating that the testimony given by such witness for the state is false, and where the testimony for the state, excluding such admittedly false testimony, is not conclusive of the guilt of the defendant, a new trial should be granted, is overruled and modified to the extent stated in this opinion.

      Appeal from District Court, Grady County; Will F. Linn, Judge.

    Willard Yoder and Ollie Yoder were convicted of larceny of domestic animals, and they appeal.
    Reversed and remanded.

      Bond, Melton & Melton, for plaintiffs in error. y
    . S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J..

On the 2d day of April, 1917, by information filed in the district court of Grady county, piaintilfs in error, Willard Yoder and Ollie Yoder, hereinafter designated defendants, were charged with the larency of domestic animals. On the trial, ending October 17, 1917, a verdict of guilty was rendered against the defendants, fixing their punishment at two years in the state penitentiary, and judgment and sentence were rendered accordingly. From this judgment and! sentence defendants have appealed to this court.

The subj ect-matter of this action, as shown by the 555 pages of record, grew out of the disputed ownership of two red pigs, variously estimated to have weighed at different times from 20 to 40 pounds, and each of the probable value of from $1 to $10. Two neighbors, each owning a large number of hogs, kept them in adjoining pastures prior to the time this dispute arose, and- concerning the ownership of two of these pigs these neighbors have since participated in three or four bitterly contested criminal trials, in addition to a civil suit in re-plevin. . '

Unlike their owners, the pigs in controversy seem to have been of an amiable disposition, and not averse to associating with the other pigs there of like size and character. We quote from the.record:

“Q. What was the action of these six pigs, one to the other, of those two towards the four that was there, when you put them in the pen together? A. When I put those pigs there in the pen they just kind of smelled one another around, and went on off to rooting like they were used to one another.

‘‘Q. Wa's there any fighting between them? A. No fighting at all; no, sir.”

In order to understand the issues affected by the appeal it will be necesary to state briefly the substance of the testimony disclosed in this record. During the year 1916, Walter Kilgore lived on his father’s farm, five! miles northeast of Chickasha, and he and the father, W. S. Kilgore, kept a large number of hogs of various size and character there in a pasture. J, M. Yoder, a brother of the defendants, then lived on an adjoining farm, where there was a hog pasture in which were kept a large number of hogs. These hog pastures were separated by a division fence, concerning the character of which, as to being hog-proof, the evidence is conflicting. It appears that both Kilgore and Jim Yoder had red brood sows, and that during the late summer and early fall each was the owner of some red suckling pigs, Mr. Kilgore kept a red Duroc boar for breeding purposes and this boar had, for a time at least, been kept in a pen on his premises.' Late in.the summer Walter Kilgore went to Texas, where he remained for some weeks, leaving his hogs in charge of a hired man.’ There is testimony to the effect that on several occasions this boar was at large in both pastures, and feeding and ranging in fields adjoining. The testimony indicates that the two pigs in question may have been the offspring of this boar and one of Yoder’s sows, or they may have been the offspring of this boar and one of Kilgore’s sows.

In January, 1917, Jim Yoder bought the Kilgore farm and moved there on February 9th, the same day that Kil-gore vacated the premises. John Kilgore, a cousin of Walter Kilgore, helped Walter move, and claims that after they had moved several loads there were six small red pigs there belonging to Walter, and that he tried to catch them but failed. The next day, when he returned to get them he found but four. That night there was a dance given at these premises by Jim Yoder. Jake Fischer testified that he was at these premises late in the evening before the dance, and that Ollie Yoder, one of the defendants, there stated to him that if he would help catch these pigs they fyrould get away with them, and Jake agreed to go back after the dance and help Ollie move them. That Jake then went to the home of his brother, George Fischer, about 2 miles distant, and told his brother what he had agreed to do, and chat George told him that he was then having trouble enough, and dissuaded him from going back, as he had agreed to do. That on the following morning he went back to the Yoder premises and saw Ollie again, and the latter reprimanded him for not coming back, the night before, and stated that he had got away with two of the pigs without his help. That in March,.about one month later, two red pigs of the kind and character in dispute were found in a pen, in possession of Willard Yoder, the other defendant, about 14 miles distant from the original Kilgore place. That they were identified by Mr Kilgore as two of his pigs, and with the assistance of others he took possession of them while the Yoders were absent from the premises where they were found. Willard Yoder then instituted a suit in replevin to recover them from Kilgore.

J. M. Yoder testified that in the fall of 1916 he sold 48 head of mixed hogs, mostly sh'oats, to his brother Willard, among them three small red pigs. That when these hogs were delivered he decided he did not want to put the small pigs with the others, and so gave them to Pearl Yoder, who happened to be there at the time, and that she later took the smallest one of the three home and sold the other two to Ollie, one of the defendants here. That Ollie later took these two to his brother Willard’s, where they were found by Kilgore and by him taken into possession as before stated.

There was much' conflicting testimony concerning the size, appearance, weight, and ownership of these two pigs. At the first trial in district court in this larceny case the jury failed to agree; at the next trial, October 17, 1917, the jury rendered a verdict of guilty as against both defendants, fixed their punishment at two years in the penitentiary.

There was testimony tending to show that Jake Fischer was not at the Kilgore-Yoder place on the day and at the times claimed by him. It appears that at this time Jake Fischer was himself a defendant in a criminal' action pending in Grady county, and that prior to the time of the dance he had been on the scout and in hiding to evade arrest. It >was the theory of the defendants, and the record gives color to the theory, that Jake Fischer was an interested witness in the instant case, and that he was endeavoring to assist Walter Kilgore and the county attorney in the prosecution of the Yoders, as far as possible, in order to secure immunity or favors in the criminal case pending against him. From the record in this case it appears in a number of places that Fischer was testifying under some unexplained influence or duress. An instance is given as follows:

“Q. I will ask you this question: Are you or are you not afraid to testify in this case? A. Well, yes; I am.

“Q. Why are you afraid to testify in this case? Just state to the jury and the court why you are. A. I don’t know as I am afraid of any one personally.

“Q. What are you afraid of? A. What might come up later on.

“Q. Come up how later on? A. Well, I don’t know whether people would gyp me, or what they would do to me.

“Q. I will ask you if any one — if you know whether there have been any threats made against you if you testify in this case. A. None direct that I know of.

“Q. Have any threats ever been communicated to you? A. Yes, sir.

“Q. From whom? A. Well, a fellow by the name of Gilpatrick.

“Q. And coming from whom? A. Well, he said it came from Yoders, but I didn’t much believe that they said it.

“Q. Well, then, tell the jury why you told me a minute ago that you were afraid to testify. A. Well, I said I wasn’t personally afraid of any one.

“Q. You are friendly with the Yoders, aren’t you, now? A. Not with no one only Jim.

“Q. Jim is a brother of these— A. (interrupting) Yes, and a brother-in-law of mine.

“Q. But you are afraid to give your testimony in this case? A. Well, I will say ‘Yes’ on that question.”

For the purpose of showing the attitude, feeling and interest of the prosecuting witness, Kilgore, and of the witness Fischer against these defendants, the defense sought to show that Kilgore and Fischer were corruptly prosecuting the case. Again quoting the record:

“Mr. Melton: Defendant offers to prove by the witness on the stand that after the preliminary examination in this case Walter Kilgore, the prosecuting witness, met this witness, and stated to this witness that he found his sow, the mother of these pigs, and that he didn’t believe that the Yoder boys had anything to do with it, but that he had started in on this prosecution and wanted this witness to stay with him for the purpose of prosecuting the two defendants here.

“Mr. Simpson: To which we object as incompetent, irrelevant, and immaterial, not proper cross-examination.

“The Court: Sustained, and refuse to permit the defendants to make such proof.

“Mr. Melton: To which the defendants except.”

If such facts existed and such inconsistent statements had been made, it was proper and important testimony that should have been admitted for the consideration of the jury, as affecting the credibility of both these witnesses and the weight to be given their testimony. In the case of Cassady v. State, 18 Okla. Cr. 568, 197 Pac. 171, it was held:

“It is permissible on cross-examination of a witness for the state, to show his malice or unfriendly attitude towards the defendant or any special interest he may have in the prosecution, as affecting his credibility, and this is so even though the subject of injury may be embarrassing or humiliating to the witness so interrogated.”

If on further cross-examination the defendants could have developed from the witness Fischer that he had promised Kilgore “to stay with him” irrespective of the defendants’ guilt, it was a right these defendants had that such testimony should go to the jury, and it was error to exclude such testimony. Henry v. State, 6 Okla. Cr. 430, 119 Pac. 278; Gilbert v. State, 8 Okla. Cr. 543, 128 Pac. 1100, 129 Pac. 671; 40 Cyc. 2654, 2664, notes, and cases cited.

With the possible exception of the evidence of Walter Kilgore, the only direct evidence of a probative nature connecting- the defendants with the crime was circumstantial and inferential, and not inconsistent with the innocence of the defendants. So, then, if the testimony of Jake Fischer is found unworthy of belief, the jury would have had the right to eliminate the testimony of Jake Fischer altogether, and possibly the testimony of Walter Kilgore. In that event under the well-known rule applicable to the probative force to be given circumstantial evidence, that such evidence must be of so conclusive a character as to exclude to a moral certainty every other reasonable hypothesis save that of the defendant’s guilt, the verdict of guilty in this case, according to that test, would not be Supported by sufficient evidence.

If the defendants could have shown to the jury that Walter. Kilgore had made the statement that he had since found the sow, the mother of these pigs, and that he did not believe the Yoder boys had anything to do with it, but that he had started in with this prosecution, and wanted this witness Fischer to stay with him to the end, such testimony would have been material, as affecting the credibility of Walter Kilgore and the possible elimination of his testimony, as well as that of Jake Fischer. Eliminating the testimony of these two witnesses, the state would have had little left to rest upon.

After judgment and sentence the defendants filed their motion for a new trial. This-motion was later amended, urging newly discovered evidence, to the effect that Fischer and Kilgore had made statements to others contradictory to the statements made by them at the trial. This feature of the motion for a new trial was supported by oral testimony and affidavits and in like manner resisted by affidavits and oral testimony on the part of the state. One of these affidavits was made by Fischer, in which he repudiated all the material testimony given by him at the trial. In this affidavit he stated that he was influenced to testify falsely at the trial by threats and intimidation, and under fear of a more vigorous prosecution for disposing of mortgaged property, that he in fact was not even at the Yoder premises the evening preceeding the dance, and that he had no conversation or agreement with Ollie Yoder concerning the pigs in question and knew nothing about the taking of the pigs. Later on Fischer. made a counter affidavit, which was filed by the county attorney in resisting the motion for a new trial, in which Fischer repudiated the statements made in his former affidavit, and stated that his testimony as given at the trial was substantially true and correct. Under such a situation it is fair to presume that Jake Fischer would have continued to make other affidavits and counter affidavits upon request of either party.

The court, in overruling the motion for a new trial, made the following finding:

“The Court is of the opinion that the evidence is this case, excluding the evidence of J. A. (Jake) Fischer, is conclusive of the guilt of the defendants.”

Under the circumstances disclosed by this record, the unimpeached evidence is far from conclusive. Excluding the testimony of Fischer, and considering the possible impeachment of Walter Kilgore, the remaining testimony was for the most part circumstantial and more or less contradictory and opinion evidence as to the identity of the two pigs. At the former trial, without excluding Jake Fischer’s testimony, the jury failed.to agree and on a motion for a new trial ' in the instant case the court should not have anticipated that another jury would without the testimony of Fischer find the defendants guilty, and especially so if this testimony would be, as it should be, submitted with an appropriate instruction on circumstantial evidence.

The affirmative finding- of the court that, excluding the evidence of Fischer, the evidence remaining was conclusive of the guilt of the defendants, was doubtless predicated upon the holding of this court in the case of Chappell v. State, 6 Okla. Cr 398, 119 Pac. 139, wherein the court held:

“Where, subsequent to a conviction, a witness who testified for the state upon the trial of the case makes an affidavit. stating that the testimony given by such witness for the state was false, and where the testimony for the state, excluding such admittedly false testimony, is not conclusive as to the guilt of the defendant, a new trial should be granted.”

We think the rule announced in the Chappell Case, supra, to the effect that where a witness for the state after the trial makes an affidavit stating that the testimony given by him at the trial was false, and for that reason alone a new trial may be granted, unless the remaining testimony is conclusive of the guilt of the defendant, is stating the rule too broadly, and is contrary to the weight of authority. Such an unqualified rule would place a premium upon perjury and the bribery of witnesses. Ordinarily the verdict of a jury should not be set aside because of ex parte affidavits made out of court.

Notwithstanding our disapproval of the broad declaration to the contrary in the Chappell Case, in certain instances, as in this case, where the record of the testimony at the trial casts a doubt on the verity of the testimony, and where the record discloses that the testimony may have been given under duress or undue influence, such affidavits may be considered in deciding a motion for a new trial, along with all the other facts and circumstances in the case. But we think in no case should the verdict be disturbed where the question hinges entirely on such ex parte affidavits. People v. Tallmadge, 114 Cal. 427, 46 Pac. 282; Mann v. State, 44 Tex. 642; People v. McGuire, 2 Hun (N. Y.) 269; U. S. v. Biena, 8 N. M. 99, 42 Pac. 70.

Considering the entire case, including the affidavits of the witness Fischer that he and others had sworn falsely, and including the charges and counter charges urged in the ’motion for a new trial,, and including the admission of tiie witness on the stand that he was afraid to testify, it is our opinion that the guilt of the defendants was left too uncertain, and the character of the evidence against them was too indefinite and unreliable, to justify the court in refusing them a new trial.

For the reasons stated in this opinion, this case is reversed and remanded.

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


author: BESSEY, J.

text:
    ELI THOMAS v. STATE.
    No. A-3898
    Opinion Filed May 10, 1921.
    (197 Pac. 853.)
    (Syllabus.)
    1. HOMICIDE — Voluntary Intoxication — Premeditated Design— Jury Question. Voluntary intoxication is not a defense to a homicide committed with a design to effect death. To determine whether an admitted or proven homicide is murder or manslaughter in the first degree, the voluntary intoxication of the defendant to such a degree as to render him incapable of forming a premeditated design or intent to kill is a question of fact for the jury, guided by appropriate instructions of the court..

      2. SAME — Instructions—Sufficiency. Held in this case that the 1 instructions of the court as applied to the testimony fairly submitted the issue of voluntary intoxication and premeditated design to the jury.
    3. HOMICIDE — Murder—Instructions on Manslaughter and Self-Defense. The evidence in this case shows there had been no quarrel or mutual combat between the parties, and there was no occasion for the court to give further instructions upon the law reducing the offense from murder to manslaughter, or upon the law of self-defense.

      Appeal from District Court, Le Flore County; E. F. Lester, Judge.

      Eli Thomas was convicted of murder and sentenced to death, and he appeals.
    Affirmed.

      Neal & Neal, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

On the 4th day of September, 1920, in the district court of Le Flore county, Okla., Eli Thomas was sentenced to suffer death for the murder of Selma Mayfield, 'and a death warrant was issued on that day directing the execution of the judgment and sentence on November 23,1920. Afterwards execution was stayed by executive order until December 23, 1920. On December 20, 1920, within the time provided by law, the defendant appealed from the judgment and sentence of the trial court by filing herein his petition in error with a duly authenticated transcript of the record of the case below, and execution was further stayed by this court pending this appeal. Upon application of the defendant, plaintiff in error here, he was permitted in due time to file a case-made and attach the same to the transcript of the record on file in this court.

In an advisory opinion rendered to the Governor, under the provisions of section 5969, Rev. Laws 1910, filed for publication October 2, 1920, a narrative history of the proceedings was stated, to which reference is made, and from which it appears that up to that time there had been an observance of all the formalities essential to the taking of human life, and that the conviction and sentence of death was in accordance with the law of the land.

Now that this case is 'before us for judicial determination on appeal, it becomes our duty to review the case as a whole, and in order to better understand the issues raised by the petition in error, in addition to the matters referred to in the opinion of this court to the Governor, a narrative synopsis of the facts, as disclosed by the transcript of the evidence, is given.

The tragedy occurred on the 6th day of August, 1920, at a picnic about four miles west of Calhoun, in Le Flore county. The defendant claimed that he was so under the influence of intoxicating liquor late that afternoon that he did not know what occurred after he mounted his horse and started for home.

Bertha McClain, a witness for the state, testified in substance that .about one-half hour before sundown a crowd of the boys were preparing to leave this picnic ground and that he and Selma Mayfield, the deceased, went over some little distance south of the picnic ground to get their horses. There was a bunch of boys over north of where they were and they rode over that way; Witness was riding some few yards ahead of Mayfield, who was riding one horse and leading another, making him ride a little more slowly. As witness stopped about halfway between the bail ground and the picnic ground, Eli Thomas came riding from the picnic ground, and just as Mayfield rode ahead of him Eli said to Mayfield, “Where in hell are you going?” Mayfield looked back over his shoulder and said, “I am going. to hell if I don’t change my way.” Eli said, “Yes, you G— d — oastard, you haven’t got time to pray because you are on your way.” Eli stopped his horse and dismounted and untied the end of a blue jumper tied to his saddle and turned around like he might be looking for a club or something. Witness thought it was about this time that Mayfield also dismounted. Then Eli stopped and looked up and said, “There is too d-many,”' and turned and went back to the horse and got his gun out of the jumper and went to shooting. Mayfield started to run around the horses, and the defendant shot again, going around the horses after him. Mayfield ran towards the ball ground, and Eli struck out after him, shooting at him. Witness could not be sure which shots hit the deceased, but there were four shots fired, and two of them struck Mayfield. Witness did not know what was said when Mayfield fell, but saw some fellows come over towards them, and one of them jerked the gun away from Eli. Witness did not know of any trouble between deceased and defendant prior to this time.

Jeff Tolbert, a witness for the state, testified in substance that there was a bunch of boys out northwest of the picnic grounds about 50 yards, that Bertha McClain came up that way on horseback, and that right behind him came Selma Mayfield, riding a horse and leading one. Eli Thomas approached, also riding a horse, and asked Selma May-field, “Where in hell are you going?” Mayfield answered, “To hell if I don’t change my ways.” Then Eli said- something like he would not be long about going, and got down off his horse and started like he was going to get a club. Mayfield got down off his horse, and Eli went back to his horse and got a gun out of a jumper tied on to the saddle and started towards the Mayfield boy and shot him just as he went around his horse. Eli followed him around, shooting at him, and when the third shot was fired witness ran off.

Joe Daugherty, a witness for the state, testified that there was a bunch of boys gathered about 75 yards from the stands out there, and that he started to where they were and got within about 35 or 40 feet of where they were. Selma Mayfield and Eli Thomas rode along, and Selma was riding a little faster than Eli, and Eli asked Selma where he was going, and Selma said, “I am going to hell if I don’t change my way.” Eli said, “And ‘by G-I am going to help you along'.” Then the two got down off their horses about the same time, and Eli went to his jumper that was tied on the saddle’and ran his hand in there and took it out, and then turned around and went back and got his gun out of the jumper and shot Selma as he was standing at the horse’s head. Selma started to run around his horse and Eli shot the second shot, and it seemed like he hit the horse, because the horse ran off, and Eli followed him all around and shot the third and fourth shots. Selma ran about 25 or 30 feet before he fell. Some fellow ran up and took the gun away from Eli when he was about 10 feet distant from where Selma fell. At the time Eli began shooting Selma had started to run around his horse.

Roy Nixon, a witness for the state, testified' in substance that this colored boy, Eli Thomas, was coming from /the west, going toward the east. The white boy, Selma Mayfield, was coming facing the north. They crossed, Eli coming right in behind the white boy, and he asked him where he was going, and the white boy said, “Going to hefi if I don’t change.” Eli said, “Yes; you are, and you are going right now.” Then he got off of his horse and made for a club, and the club was too big, and he went back to his horse and got a gun and went to shooting. Eli got off of his horse' first, and Selma got off his horse and went on the other side of the horse. Mayfield began to run after the second shot was fired. Eli took after him and fired two more shots. Burl Hornback’s boy caught Eli and took the gun from him, after he had pursued Mayfield about 50 yards. Mayfield fell down or sat down, and Eli was about 15 feet away when the Hornback boy got the gun.

Eli Thomas, the defendant, testified in his own behalf, substantially as follows: That he was 22 years of age; that he was a married man and lived about a mile and a half from Calhoun; that he was slightly acquainted with Selma Mayfield; knew him when he saw him; that he went to Calhoun between 9 and 10 o’clock the day of the picnic and started drinking over there, where he got hold of some choc and drank it; that he then started for the picnic grounds, and on his way over there he and another boy bought a quart of wild-cat whisky, which they drank; that was about one-half mile from the picnic grounds. Further on and nearer the picnic they met up with a colored fellow who had a keg of choc, and three of them bought three gallons of it and drank all of it. Defendant got into the wagon where the choc was because he could not ride his horse, on account of the way his head was “going around” and because he could not see. .When they got to the picnic ground, they got hold of a 40-cent bottle of lemon extract from the Raleigh medicine man. After they drank that-defendant got out of the wagon where the choc was and got into Tom Mullens’ wagon and lay there a little while. His horse was standing at the back end of this wagon. At this point defendant, testified, “I got out of the Mullens wagon and got on my horse, and that is all I remember until after they arrested me.” Defendant stated that he had had no difficulty at any time with Mayfield and would not have done what he did for anything, that he just tied the gun on the saddle and went to the picnic and had no intention of "hurting anybody, and that he had never been in trouble of any kind before.

On cross-examination the defendant stated that he and Kinley James together drank a gallon of choc at Calhoun; that they bought the quart of whisky from Isam Boyd about a mile from the picnic grounds about 12 o’clock and drank it within a short time after they bought it; that soon after this they met up with Ed Nails and with Will Mills, and two other boys, who had this keg of choc, and that they purchased three gallons of it about 3 o’clock; two of the boys got drunk and got down by the side of the road; it was about 4 o’clock when he got out of the wagon containing the choc and got into Tom Mullens’ wagon; that he stayed there a while and then got on his horse and started home; that he remembered getting out of this wagon and onto his horse, but that was all he remembered; that no one assisted him to get on his horse; that he did not remember seeing Selma Mayfield that day.

Sally Payton, a witness for the defendant, testified that she saw the defendant two or three times that day, at different places on the picnic grounds, and that he was intoxicated, and that the last time she saw him he was shooting.

Tom Mullens, deputy sheriff, a witness for the defendant, testified that he saw the defendant, Eli Thomas, several times that day, and that he did not know whether he had been drinking that day or not: that he heard gunshots about 300 or 400 yards away, and that he immediately started to the place where the gun was fired; that he saw Selma Mayfield pursued by Eli Thomas, who was shooting at him; that Eli followed Selma until they were only a few feet apart, and Selma fell, and that McKinley Hornback took the gun away from Eli, after which witness placed the defendant under arrest. On cross-examination by the state this witness said he asked Eli how he came to do this and he said he did it to save his own life; that Bertha McClain had a gun drawn on him and the other fellow had his hand in his bosom as though he was going to draw a gun.

Mc.^mey tiol-noack, a witness for the defendant, testified that he saw the defendant about 5 o’clock in the afternoon coming from the picnic ground towards -the ball ground; that he was in Ernest Eubanks’ wagon when witness first saw him; and that he afterwards walked to the hall diamond where they were playing. After that witness saw defendant on the picnic ground, and the latter said he was fixing to go home and was then looking for his horse. A little later he was on his horse and stated he was going home. Eli stopped over there where there were some other boys, and this Mayfield boy was coming along, riding one horse and leading another and they met there about the same time. Witness was not near enough to hear what was said, but saw Eli get down off of his horse, and he seemed to be looking for a rock or stick or something, and then he went back to his horse and said, “All three of you. get down while I get my gun.” By this time the witness was pretty close to him and the shooting began. Witness tried to get there to prevent the trouble and finally overtook defendant and reached but and got the gun by the barrel and Eli turned loose of it. Witness did not see Eh drinking that day, but thought that he had been drinking. Witness was-a brother-in-law of Eli Thomas.

George Kinnemore. a witness for the defendant, stated he did not know whether the defendant was drinking that day or not; that he seemed to have been drinking, but witness did not see him drinking; that he just acted “nice” and like he was having a good time like the other boys.

Bertha McClain, recalled in rebuttal for the state, denied that he had a pistol or that he drew a pistol on the defendant that day; that the deceased, at the time he was shot, had the bridle reins of one horse in one hand and with the other hand held the rope by which he was leading the other horse; that witness did not have his. hands in his bosom as though he was going to get a pistol. Right after the difficulty Louie Maybry searched the witness and found no gun.

Louie Maybry, called on the part of the state, testified that Eli stated that Bertha McClain and Selma Mayfield had pistols, trying to shoot him. We quote from the record:

“Q. He said that Bertha McClain and Selma had a pistol trying to shoot him? A. Well, he didn’t call his name — he called Bertha’s name, and he said, ‘the other fellow.’

“The Court: I understand the question of self-defense isn’t interposed.

“Mr. Fowler: It isn’t interposed.

“Mr. McCurtain: I understand he put some witnesses on to the effect that the defendant at the time claimed that this man was trying to shoot him.

“Mr. Fowler: That was, brought out 'by the state.

“The Court: I understand that the defendant didn’t claim that he shot this man in self-defense.

“Mr. Fowler: We do not.

“Mr. McCurtain: I had understood the testimony of the witness Mullens to be that he had Bertha McClain arrested. That testimony was brought out by the state, but I was just simply wanting to meet the testimony that ha at that time claimed that this man was trying to shoot him.”

This is substantially all the testimony that was given in this case.

There were no exceptions saved at any time during the trial to the admission of any testimony.

There were no instructions asked by the defendant, and none given by the court, covering the law of self-defense.

There was no motion for a new trial filed, no motion for an arrest of judgment, and the attorney who tried this cause never took any further steps in the case after the rendition of the verdict of guilty.

Specifications of Error

The plaintiff in error specifies as error apparent in this record the propositions as follows:

(1) The evidence is insufficient to sustain the verdict of the jury and insufficient' to sustain any verdict other than a conviction of manslaughter.

(¡2) The court erred in failing to instruct the jury as to the substantive law of the case, (a) No instructions as to the law of self-defense; (b) No instruction as to the doctrine of mutual combat, reducing the offense from murder to manslaughter.

(3) The record discloses that the plaintiff in erro» was deprived of his right to appeal in this cause by case-made.

The defendant, under the first specification of error, claims that the evidence shows: First, that the defendant was at and prior to the time of the homicide in such a state of intoxication as to render him incapable of taking human life; and, second, if such state of intoxication did not exist, that the defendant was justified in taking the life of the deceased in his own necessary self-defense.

The question of whether the homicide, under the evidence, was murder, or whether, 'by reason of the voluntary intoxication of the defendant to such an extent that he was incapable of forming a premeditated design to kill the deceased, the offense was reduced to manslaughter in the first degree, was fairly submitted to the jury in three separate instructions, which, considered as a whole, correctly stated the law; and it was for the jury, guided by the court’s instructions, to determine from the testimony whether the defendant was in fact so intoxicated that he had no premeditated motive or design to kill the deceased. Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919.

With the exception of the testimony of the deiendant himself, there was no evidence showing that the defendant was intoxicated to such an extent as to render him incapable of forming an intent or design to kill Selma May-field. The defendant is bound by the statements of his own witnesses, and the testimony of these witnesses indicated that he was not so intoxicated. Under the instructions of the court this question was submitted to the jury, and the jury, by its verdict of murder, imposing"the death penalty, evidently found that such a state of intoxication did not exist.

As to the questions of fact relating to intoxication to such an extent as to negative premeditation or design to kill, and the instructions of the court upon that question, the representatives of the Attorney 'General’s office for the state do not agree. After a full and careful consideration of the evidence shown in this record and the instructions of the court upon the question of voluntary intoxication, this court is of the opinion that the verdict of the jury should not be disturbed or the sentence on that account modified.

The defense of self-defense is inconsistent with the defense of intoxication to such an extent as to render one incapable of forming an intent or design to kill. If the defendant was so intoxicated as to be incapable of forming such intent, he would at the same time be incapable of having motives that would cause him to act in self-defense. Under the circumstances disclosed by this record, where there had been no difficulty or ill feeling between the parties and no quarrel or mutual combat, there was no occasion for the court to instruct the jury as to the law of self-defense, or to give further instructions reducing the crime from murder to manslaughter. In the trial below the defendant did not claim self-defense, and he has no right to insist on such defense here. However, if the evidence disclosed any of the element's of self-defense, the verdict being for murder, imposing the death penalty, we would be inclined to consider it, even though the question was not raised in the court below.

The third assignment of error need not be considered, further than to state that, since the defendant’s brief was filed and within the time provided by law, the defendant has been permitted to file his case-made and attach the same to the transcript of the record and petition in error previously filed; so that the defendant’s ease has been considered on both the transcript of the record and the case-made, by which the defendant has been accorded his right of appeal by both methods.

The order in the death warrant fixing the hour of execution between 4 o’clock a. m. and 4 o’clock p. m. of the day set was unauthorized. It was1 the duty of the court, under section 5967, Rev. Laws 1910, as amended by Session Laws of 1913, p. 206i, to appoint the day of execution only. It is for the executive branch of the government, under our laws, to fix the hour. Since the day and hour named in the death warrant have passed, and it is the duty of the executive to fix the hour of punishment, the error of the court in this regard is harmless.

For the reasons stated in this opinion, the judgment of the trial court is affirmed, and the warden of the state penitentiary at McAlester is hereby ordered and directed to carry into effect against this defendant the judgment and sentence of the district court of Le Flore county that he suffer death, said penalty to be executed on the 15th day of July, 1921, in the manner provided by the laws of this state.

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