text:
    JOHN STEELEY v. STATE.
    No. A-3277
    Opinion Filed March 2, 1920.
    (187 Pac. 821.)
    (Syllabus.)
    L. ATTORNEY AND CLIENT — Indictment and Information — Disqualification of County Attorney to Present. Information. An attorney cannot represent conflicting interests or undertake to discharge inconsistent duties, and where an attorney appeared for the defendant on his preliminary in a prosecution for murder, and files a motion for continuance, and then waives a preliminary examination, he is disqualified as county attorney to sign and present an information in the case.
    2. WITNESSES — Disclosure by Defendant of Wife’s Communications to Him. Under section 5882, Rev. Laws 19(10, providing that neither husband nor wife shall in any case be a witness against the other, and that neither “shall in any event on a criminal Mai be permitted to disci ose communications made by one to the other except on a trial of an offense committed by one against the other,” the defendant, in a prosecution for Killing his wife’s paramour, is incompetent as a witness to disclose commftmiea-tions made by his wife to him.
    3. SAME — Disclosure by Third Person. The statute- which prohibits either the husband or wife from testifying to communications made by one to the other has no application to a third person or persons who may overhear communications between them, and such person or persons may testify to communications overheard by (hem between husband and wife.

      4. HOMICIDE — Defenses of Insanity and Provocation — Evidence of Immoral Conduct of Deceased and Defendant’s Wife. Where there is evidence tending to show defendant’s insanity just prior to and at the time of the comlmission of the homicide, it is competent foir defendant to testify concerning statements and admissions made to Mmi toy deceased1 relative to deceased’s immoral conduct with the wife of the defendant, and also of defendant’s personal knowledge of such imSmoral eondiict, as tending to show actuating causes of defendant’s alleged insanity. It is also competent and admissible as tending to show provocation.
    5. TRIAL — Homicide—Duty to Instruct on Degrees. In a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not.

      Appeal from District Court, Delaware County; John H. Pitchford, Judge.

    John Steeley was convicted of murder, and he appeals.
    Reversed, and cause remanded, with directions.

      E. B. Hunt, E. H. Beauchamp, and J. W. Miller, for plaintiff in error.

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

This appeal is from a judgment of conviction for murder; the punishment having been assessed at imprisonment for life at hard labor. The information charges that in Delaware county on the 18th day of April, 1917, John Steeley then and there did kill and murder one Tom Grider by .shooting him with a shotgun and with a pistol. It is signed, “G. W. Goad, County Attorney.”

The first assignment of error is that the court erred in overruling the defendant’s motion to set aside the information.

It appears from the record that upon arraignment the defendant appeared in person and by his attorneys, E. B. Hunt and J. W. Miller, the state by G. W. 'Goad, county attorney, W. W. Hastings, and Williams & Williams, counsel assisting the county attorney. The following proceedings were had: '

“Mr. Goad’: If the court please, I never have had any connection with this case by employment or otherwise, but I acted as an accommodation for Mr. Hunt at the preliminary trial. Mr. Hunt was sick on that day and asked me to file an application for countinuance for him, .for the reason that he was- sick. I never have had any employment of any kind in the case; have never talked to the defendant about the case or ascertained the facts in the case. I filed the application for Mr. Hunt at the preliminary trial. I didn’t appear as counsel for the defendant, and told the court at that time I didn’t represent him, that I merely appeared for Mr. Hunt and presented his application for a continuance for the reason that Mr. Hunt was sick. I want to make that statement to the court and let the court see whether or not that will disqualify me.
“The Court: You were not representing him as counsel? A. No, sir.
“The Court: You had no arrangement about employment or about a fee? A. None whatever.
“The Court: No hope of any ? A. No, sir.
“The Court: And what you did was purely an ac-comm'odation for Mr. Hunt? A. Yes, sir; as an accommodation for Mr. Hunt is all.'
“The Court: That would not disqualify you. You may arraign the defendant.”

Thereupon the county attorney, G. W. Goad, reads the information to the defendant:

“The Court: What do you say, guilty or not guilty?
“Mr. Hunt: If the court please, the defendant files a motion to set aside the information in this case on the following grounds: First, said information is not endorsed, presented, or signed as required by law, in this, that said purported information was not and is not signed, presented, endorsed, or exhibited by the county attorney or Attorney General or any one authorized by law to present informations in this state; second, that the defendant herein has not had a preliminary examination and has not waived the same, but is being prosecuted upon a purported information -without having had a preliminary or waiving the same as required by law; that the defendant i,s being proceeded against without authority of law. Wherefore mo-vant asks that the information be set aside.”

To sustain the motion the defendant was sworn as a witness and testified:

“I was in custody of the officers, and they took me before Mr. Ingram, justice of the peace at Jay, ánd I took a change of venue, and the case was sent to J. L. Johnson, a justice of the peace near Sycamore. On the day the case was set for trial the officers took me before this justice. I had employed Mr. Hunt as my attorney, but he was not present. Mr. Goad was present, and told me Mr. Hunt was sick, and Mr. Goad prepared an affidavit for continuance on the ground that Mr. Hunt was my counsel and was unable to appear for me, and I signed it and was sworn by the justice. 'It was filed, and Mr. Goad made a talk, and the justice said it did not make any difference to him who was defending me, Woodrow Wilson, or who it was, the motion would be overruled. Mr. Goad then asked me what 1 was going to do about it, and I said I did not know what to do, and he said, T would just waive the preliminary.’ I never said anything at all.”

Cross-examination by Mr. Hastings:

“Q. Didn’t you tell the justice of the peace you would waive it? A. No, sir.
“Q. Didn’t Mr. Goad for you? A. Yes, sir; he told him that.”

The duly certified transcript of the committing magistrate as filed in the office of the court clerk was then introduced, and is1 in part as follows :

• “On the 4th day of May, 1917, the case was called for trial, and the defendant appeared in person and by Attorney G. W. Goad. The state announced ready for trial, and defendant filed a motion for continuance on account of the absence of counsel, which was overruled by the court, whereupon the defendant then waived preliminary examination in the district court”’

It is also stipulated, and the fact is admitted, that W. W. Miller, the legally elected and qualified county attorney, was at the time of the trial temporarily absent by reason of having been drafted into the army, and that the county commissioners in regular session found that fact and declared there was a vacancy in the office of county attorney, and thereupon appointed G. W. Goad as county attorney.

“The Court: The motion to set aside the information will be overruled. (To which ruling of the court the defendant excepts.)”

Counsel for the defendant in their brief say:

“N'ow, Mr. Goad either represented Steeley or he had no attorney, and if Mr. Goad did represent Steeley, which he did not, he certainly never waived preliminary examination.” *

In the Attorney General’s brief it is stated:

“The court was wrong in assuming that Mr. Goad represented Mr. Hunt instead of the accused. Mr. Hunt was not on trial. The court, however, we would think, was right in assuming that as a matter of law in this case Mr. Goad was not disqualified to appear on behalf of the state, for one reason at least, that the defendant, by failing to object, in law, released Mr. Goad from his obligation of attorney to client”

—citing among other cases State v. Howard, 118 Mo. 127, 24 S. W. 41, holding that:

“A conviction will not be reversed because an attorney assisted counsel for the prosecution, after having been appointed counsel for defendant at a previous term, where •such attorney neither appeared nor prepared papers in the cause, did not advise with defendant as to its merits, and was excused from further service as counsel for defendant” —and concluding:
“Had the defendant interposed objections to Mr. Goad representing the state by reason of former representation of defendant, following what we think are the best precedents, it would have been reversible error for the court below to have overruled his objections.”

We think that upon the record the objections made sufficiently raised the question, although no exception was reserved to the ruling of the court holding that Mr. Goad was qualified to file the information and prosecute the case as county attorney. This court has held that the office of county attorney is quasi judicial, and a county attorney is disqualified from becoming in any way entangled with private interests or grievances connected with the private practice of the law (McGarrah v. State, 10 Okla. Cr. 21, 133 Pac. 260); that a county attorney who, prior to his election and qualification as such, was counsel for a defendant in a criminal action then pending, is disqualified to appear and prosecute said defendant on behalf of the state (Dodd v. State, 5 Okla. Cr. 513, 115 Pac. 632); that an attorney is employed in his professional capacity when he is voluntarily listening to a client’s preliminary statement; that it is not necessary that any retainer should have been promised, paid, charged, or demanded; and that it makes no difference even though the services are gratuitous (Evans v. State, 5 Okla. Cr. 643, 115 Pac. 809, 34 L. R. A. [N. S.] 577).

In the case of People v. Gerold, 265 Ill. 448, 107 N. E. 165, Ann. Cas. 1916A, 636, it is said:

“So far as we are advised, this court has never been called upon in any criminal case to pass on a question similar to the one here involved, but the identical question has been passed upon many times in other jurisdictions, and in this and other courts the principle involved has received careful consideration. The rule has long been firmly established that an attorney cannot represent conflicting interests or undertake to discharge inconsistent duties. When he has once been retained and received the confidence of a client, he cannot enter the service of those whose interests are adverse to that of his client or take employment in matters so closely related to those of his client or former client as in effect to be a part thereof. Weeks on Attorneys (2d Ed.) §§ 120, 271; 1 Thornton on Attorneys, § 174. This rule is a rigid one, designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties. He should undertake no adverse employment, no matter how honest may be his motive and intentions. Strong v. International Bldg., etc., Union, 183 Ill. 97, 55 N. E. 675, 47 L. R. A. 792. He owes to his client fidelity, secrecy, diligence, and skill, and cannot take a reward from .the other side. He is not, as a general rule, allowed to divulge information and secrets ümparted to him by his client or acquired during their professional relation unless authorized to do so by the client himself. Hatch v. Fogerty, 40 How. Prac. (N. Y.) 492. It is the glory of the legal profession that its fidelity to its clients can be depended upon; that a man may safely go to a lawyer and converse with him upon his rights in litigation with absolute assurance that the lawyer’s tongue is tied from ever discussing it. U. S. v. Costen, 38 Fed. 24. This rule has been so strictly enforced that is has been held that an attorney, on terminating his employment, cannot thereafter act as counsel against his client in the same general matter, even though while acting for his former client he acquired no knowledge which could operate to the client’s disadvantage in the subsequent adverse employment. Pierce v. Palmer, 31 R. I. 432, Ann. Cas. 1912B, 181, 77 Atl. 201, and cases cited in note. If this is the rule in civil cases, the law will not be less strict in criminal proceedings, especially as to the duty in this regard resting upon counsel for the state. Such an officer is acting in a quasi judicial capacity, and he and those associated with him should represent public justice and stand indifferent as between the accused and any private interest. It is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his statutory or legal rights as it is to. prosecute him for the crime with which he may be charged. State v. Osborne, 54 Or. 289, 20 Ann. Cas. 627, 103 Pac. 62. The canons of ethics of the American Bar Association and various state associations in this country are in accord on this subject with the rule just stated. An attorney cannot be permitted to assist in the prosecution in a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of the facts upon which the prosecution is predicated or which are closly interwoven therewith. Wilson v. State, 16 Ind. 392; Com. v. Gibbs, 4 Gray (Mass.) 146. The members of the profession must have the fullest confidence of their clients. If it may be abused, the profession will suffer by the loss of the confidence of the people. The good of the profession, as well as the safety of clients, demands the recognition and enforcement of these rules. State v. Halstead, 73 Iowa, 376, 35 N. W. 457. It is unnecessary that the prosecuting attorney be guilty of an attempt to betray confidence; it is enough if it places him in a position which leaves him open to such charge; and this disqualification may arise by reason of services rendered by him in a civil case as well as in a criminal case. State v. Rocker, 130 Iowa, 239, 106 N. W. 645; 2 Thornton on Attorneys, §§ 693, 700. The administration of the law should be free from all ^temptation and suspicion, so far as human agencies are capable of accomplishing that object, and public policy strongly demands that one who has been employed on one side should not be permitted to appear on the other side. It is not sufficient to say that the law will not permit him to disclose any fact which may have been communicated to him. ‘If he knows the vulnerable points in the case, * * * there are many ways by which these points might be made available * * * besides disclosing them as a witness.’ Gaulden v. State, 11 Ga. 47. ‘The case might easily be put that a most honest man so changing the situation might communicate a fact appearing to him to have no connection with the case,’ and yet which might turn out to be the vital point therein. Cholmodely v. Clinton, 19 Ves. Jr. (Eng.) 261. The authorities last cited also state that, if an attorney knows anything prejudicial to a former client, he ought not to accept employment against him where such prejudicial information can be used against him. Of course, it is no ground for preventing counsel from accepting employment in a case merely that he has knowledge of the facts involved therein. Com. v. King, 8 Gray (Mass.) 501. It is the obtaining of this knowledge from his client as his confidential adviser and attorney that precludes him from accepting such employment.
“ ‘Lest any temptation should exist to violate professional confidence or to make any improper use of the information which an attorney has acquired confidentially, as well as upon principles of public policy, he will not be permitted to be concerned on one side of the proceedings in which he was originally in a different interest, * * * and though discharged many years ago and feeling himself free to swear that he had forgotten the nature and purport of the communications he had received from the .former client, and that they were not confidential, for the court cannot investigate the plus or the minus of the confidence reposed in him without an absolute disclosure of the facts, nor can it calculate how much of these confidential communications are still in the recollection of the attorney, but the mere circumstance of a retainer sufficiently implies the fact of confidential disclosure to whatever extent having been made.’ I Ferguson’s Ir. Pr. 36, 37; In re Cowdery, 69 Cal. 32, 10 Pac. 47, 58 Am. Rep. 545; Hatch v. Fogerty, supra.
“Considering only the affidavit and testimony of Attorney Webb himself, the conclusion is inevitable that he was employed by Gerold in a matter that was very closely interwoven with and related to the same subject-matter that formed a basis for this prosecution, if, indeed, it was not the same identical matter, and that this rule must be invoked against his employment in this cause. No matter if his intentions were of the best, he placed himself in a position to be open to the charge of betraying the professional confidence of his client. The law will not permit this. The trial court should have sustained the motion and refused to permit Webb to assist in the prosecution of this cause.”

Here the undisputed facts are that the defendant had employed' Mr. Hunt as his counsel. Mr. Hunt, being sick, requested Mr. Goad to appear for the defendant and file a motion for continuance on the ground of Mr. Hunt’s sickness, which motion being overruled, Mr. Goad advised the defendant to waive preliminary examination, and in the presence of the defendant, and acting for him, Mr. Goad waived the preliminary examination.

Upon these facts we think that the relation of attorney and client existed between' Mr. Goad and the defendant. The fact that Mr. Goad received no compensation from the defendant, and it does not appear that he obtained any information which might be prejudicial to the defendant, is, we think, immaterial.

Mr. Goad, having appeared for ,the defendant and represented him in the proceedings had upon the preliminary complaint, was disqualified to sign the information as county attorney, and is disqualified to act as prosecuting attorney in the prosecution of the defendant for the crime charged in the original complaint. Mr. Goad being disqualified, the trial court should have appointed some suitable person, as provided for in section 1558, Rev. Laws 1910.

It follows that the trial court erred in holding that Mr. Goad was not disqualified to act as prosecuting attorney in the prosecution of the defendant, and in overruling the motion to set aside the information.

In view of another trial we are asked to pass upon' exceptions taken to the rulings of the court upon evidence offered and rejected. The theory of the prosecution was that the killing was an assassination. It appears that the defendant was born and had lived in that part of the Cherokee Nation all his life, and married the stepdaughter of deceased in 1912; that on the day of the tragedy the deceased, with Henry Rogers and John Rogers, left Leach in a Ford car and drove to Jay. Returning that evening, they stopped where a limb of a tree was laying across the road within two miles of Grider’s home. When the car stopped the defendant stepped from the brush near the roadside and killed Grider with a double-barrel shotgun, firing both barrels, and then shot him with a pistol; death was instantaneous. Insanity was the defense upon which the defendant sought an acquittal of the charge against him.

A number of witnesses testified to intimate acquaintance with the defendant for several years, and to acts, conduct, and declarations of the defendant during the two weeks intervening between the day of his mother’s funeial and the day of the tragedy tending to show that he was not a person of sound mind, and giving as their opinion that the defendant during that time was not rational, and that he was insane.

Counsel for the defendant contend that the court erred in sustaining the state’s objections to the evidence of the defendant as a witness on his own behalf. The record shows that the defendant offered to testify as follows:

“That about three months after he was married to Mame Steeley she told him that she had been false and untrue to him; that her stepfather, Tom Grider, was the father of her daughter, Florence, and not Mr. Fawcett, who was her former husband; that immediately thereafter they separated, and he went to Claremore and wrote a letter to Tom Grider, in which he stated that his wife had told him that he ruined her when she was only 14 years old, and that he ('Grider) was the father of her child; that Grider answered the letter, and denied that he was the father of her child, and denied that he had ruined her, and asked him to come back and Ijve with the girl who was his wife; that he did come back and attempted to live with the wife again, and about a week after his return from Claremore Grider said to him, ‘I will have to admit what you said in the letter to be a fact, but that was a long time before you married Mame, and I think you ought to forgive me and her and go home and live with her, and I will give you my word of honor as a man that I will not molest you and her and will not go about her any more with a view of having intercourse with her,’ that, so far as he knew, Grider kept his promise for approximately two years, at the end of which time Grider got drunk, and he was called by Grid-er’s wife to her home to protect her and the children and to quiet Grider; that night he and his wife slept upstairs, and after they had gone to bed the wife of Tom Grider came to the room where the defendant and his wife were in bed, and told his wife that Mr. Grider wanted to see her down stairs; that she went down stairs and came back crying and told him that Grider had taken hold of her and tried to pull her in the bed with him in the presence of her mother; that was in 1914 or 1915; the next morning he asked Grider about this matter and why he had broken his promise to him to let Marne alone, and Grider told him'that he was drunk and for him not to pay any attention, to it, that he would not do it any more, and Grider promised him that he would not bother her any more; that his wife induced him to move to Tar River, in Ottawa county, stating that she wanted to get away from where Grider was, and after they had moved to Tar River Grider came to Tar River and was with defendant’s wife in’ his absence; that Grider returned three weeks afterwards and proposed that the defendant and his wife move back to Delaware county, and he (Grider) would have the Indian agent or the department at Muskogee remove the restrictions from his wife’s lands, she being a restricted Cherokee Indian; that was in the fall of 1916 or the spring of 1917; that they moved back and were to trade this land for a store that Grid-er claimed to own at Leach; that after they returned Grider and the defendant’s wife made a trip to Muskogee for the purpose, as he was told by Grider, of presenting the matter to the department; that when his wife returned from Muskogee she told him that, instead of consulting the department, they went to the New Katy Hotel.in the city of Muskogee and registered under an assumed name and slept together that night, and that Grider compelled her on that occasion to sleep with him and to have sexual intercourse with him; that was in the latter part of March or the first of April, 1917; that one night, in March, 1917, at a late hour, Tom Grider and the defendant’s wife being away,he drove into the town of Leach in a car and went into the home of defendant, while he was at a neighbor’s house, that he slipped up to a window and looked in, and they were sitting on the bed, and Grider had his arms around her; that the defendant heard Grider leave there that night; got his car about 1 or 2 o’clock; that three weeks prior to the time Grider was killed the defendant was fixing a fence for one of his neighbors, and rode in sooner than he had stated to his wife that he would be back, and got off his horse about 50 yards from the back door of the house and slipped up to the back door and suddenly opened the door, and saw Grider and his wife having sexual intercourse; that she was on the bed and Grider was on top of her; that he walked out to the barn and Grider came out, and he told Grider that he had again sought out his stepdaughter who had been trying to evade him, and that he had again broken his promise to the defendant to let her alone; Grider attempted to deny that they were doing anything wrong; he (defendant) told him he was telling a lie; that he had seen him this time with his own eyes; this was on Thursday; that he did not sleep with his wife, and took her to her mother’s and left her there and went back to his home; that he went to Grider’s house and talked to her, and in that conversation she told him again that Grider compelled her to have sexual intercourse with him, and had threatened to kill her and kill the defendant if he did not stay away from them and let them alone; that on Monday before Tom Grider was killed on Wednesday defendant again talked to Grider about his conduct with the defendant’s wife; she was in town with Grider at that time and near the Leach post office; and when the defendant and Grider were talking and in that conversation Grider told the defendant he had had sexual intercourse with his (defendant’s) wife, saying, ‘N(ow, John, by Ood, that is my woman, and I don’t want you fooling around her any more; I want you to get your junk out of that house over there, and I intend to keep Mame and her things in that housethat in this conversation Grider said that he' was not going to let the defendant and Marne have this store as agreed upon, but that Mame and Mr. Beam were going to run the store, and for the defendant to keep away from the store and keep away from the house he was living in; that in this conversation they talked about 'Grider’s conduct at-the graveside of the defendant’s mother, in which he (defendant), in his presence, asked Marne to get in the buggy and go home with the. defendant, as she had been staying up at Grider’s, and defendant’s wife laid her hands on his shoulder and said, ‘I love you, John, but I can’t live with you, for that old son of a bitch of a stepdaddy of mine, he won’t let me live with you; we could get along if you could keep him off of me.”

The testimony proposed to be given by the defendant as to statements made to him by his wife relative to her relations with deceased as above set forth was incompetent and inadmissible under the provisions of section 5882, Rev. Laws 1910, which provides as follows:

“That neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other.”

■Construing the above section in the case of Tingley v. State, 16 Okla. Cr. 639, 184 Pac. 599, it is said:

“In this case the defendant was charged with the murder of one W. H. Overholser, clearly not a crime against his wife, or one necessarily involving the marital relation. The wife was not charged with any crime at all, and was on trial for no offense. She would not have been a competent witness in this trial against her husband as to any communications made by him concerning his relations with Nell Martin. It is obvious that under the provisions of the foregoing statute he was incompetent also to testify to these alleged communications between him and his wife, and this though the issue of insanity was presented.’"

However, while the defendant under the statute is incompetent to testify to communications between himself and his wife, all the testimony proposed to be given by him was not for that reason incompetent. The testimony offered as to statements made to him by deceased and as to their conversations concerning the latter’s conduct with'the wife of the defendant, and the wrongful and immoral conduct of deceased with the defendant’s wife in his presence was competent and admissible, as tending to show one of the effective or actuating causes of the defendant’s alleged insanity. It was also admissible as tending to show provocation.

The defendant offered to prove by the witness Alice Riddling that she was called from Wagoner to her father’s home near Leach on April 2, 1917, to attend the funeral of her mother; that she was at the funeral with her brother, John Steeley, the defendant, and Marne Steeley, his wife, was there also, and just before they started from the grave witness asked Marne to come and go home with her and the defendant, and Marne Steeley put her hand on her husband’s shoulder and said, “John, I love you, but that son of a bitch of a stepfather of mine won’t lét us live together;” that the defendant looked very much disturbed and pale, but said nothing.

We think this evidence is competent and admissible. The statute which prohibits either the husband or wife from testifying to communications made by one to the other has no application to a third person or persons who may overhear communications between them, and such person or persons may testify to communications overheard by them between husband and wife.

Other rulings of the court rejecting the testimony of three or four witnesses for the defendant are argued at some length in his brief. As this testimony was auxiliary to and connected with the testimony offered and herein discussed, we do not think it is necessary to consider the same.

The instructions given by the court did not include the law of manslaughter in the first degree. Considering the testimony herein held to have been improperly rejected, and the other evidence in the case, we are inclined to think that on another trial the issue of manslaughter in the first degree should be submitted to the jury. We understand the law to be well settled that the unlawful taking of human life, when done purposely, is murder, unless there is sufficient provocation, and the provocation must be a sufficient one to arouse anger and passon to a degree that prevents all premeditation and deliberation.

Bishop says:

“To determine whether or not the conduct of the person killed was a provocation reducing the homicide to manslaughter, the test is, not whether what he did is indictable, but whether the law deems it calculated to excite passions beyond control. * * * Adultery is not an indictable offense; yet of all the provocations which can excite man to madness the law recognizes it as the highest and strongest.”
“If, in a particular case, there has been passion, but it was ended when the homicide occurred, it cannot reduce the killing to a lower degree.” 2 Bishop’s New Crim. Law, §§ 710, 711.

Where there is time for deliberation, and where there is a purpose to kill, deliberately conceived and executed, the law refuses to mitigate the offense, and holds it to be murder, and where the defendant claimed that he shot deceased because the latter had debauched defendant’s wife, and had taken her from the defendant, and was at the time of the homicide living in open adultery with her, even though the jury might believe this evidence, it would not justify the defendant in lying in wait to shoot deceased.

On this question the evidence in the case is conflicting. The law is merciful where a sudden passion arising from an adequate provocation impels a man to take human life, and then the offense is manslaughter in the first degree only, and not murder, but in order to reduce the offense to this degree the reason of the defendant must at the time of the act be disturbed or obscured by passion to an extent that prevents premeditation and deliberation, and in cases of that kind, where the defendant is smarting under a provocation so recent and strong that he cannot be considered as being at the time capable of deliberation, the offense may be reduced to manslaughter in the first degree, and the question is for the jury to determine.

The law is well settled that in a prosecution for murder the court should submat the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove shoüld be submitted to the jury, whether it be requested on the part' of the defendant or not. Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622.

There is no need of considering the other assignments of error. They present questions that do not inhere in the case and can scarcely again arise.

Because the county attorney was disqualified to sign and present the information, the judgment is reversed, and the cause remanded, with direction to sustain the motion to set aside the information, and for further proceedings in accordance with the views herein expressed as shall be required by law. The warden of the penitentiary will deliver the defendant to the sheriff of Delaware county, who will receive and keep him in his custody until discharged therefrom by due course of law.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    G. W. DAVIS et al. v. STATE.
    No. A-3149
    Opinion Filed March 6, 1920.
    (187 Pac. 818.)
    (Syllabus.)
    ■INTOXICATING' LIQUORS — Unlawful Possession — Sufficiency of Evidence. The evidence considered, and found sufficient to sustain the conviction of G. W. Davis, and insufficient to sustain the conviction of Mrs. G. W. Davis.

      Appeal from. County Court, Comanche County: R. J. Ray, Judge.

    G. W. Davis and Mrs. G. W. Davis were convicted of violating the prohibitory liquor laws, and they appeal.

      Affirmed as to defendant G. W. Davis, and reversed and remanded as to defendant Mrs. G. W. Davis.

      J. A. Diffendaffer, for plaintiffs in error.

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

The plaintiffs in error, G. W. Davis and Mrs. G. W. Davis, hereinafter called defendants, were informed against jointly for having in their possession whisky and beer with the intent to barter, sell, and give a,way the same, each convicted, and each sentenced to imprisonment in the-county jail of -Comanche county for a period of 30 days and each to pay a fine in the sum of $100. To reverse the judgments rendered on the verdict the defendants jointly prosecute this appeal.

The material evidence is that the defendants are man and wife and reside in their home in Lawton, Comanche county; that the said home had the reputation of being a place where whisky and beer were kept for sale; that the defendant G. W. Davis had a United States license as a retail liquor dealer; that the sheriff of Comanche county, accompanied by his deputy, on the 7th day of April, 1917, went to the home of the defendants with a search warrant, and in one of the rooms found Mrs. G. W. Dávis and three men, one of whom had a glass of whisky in his hand, which on demand he gave to the sheriff; that Mrs. Davis knocked the glass out of the sheriff’s hand and threatened to shoot him; that there was a pitcher of water and a little whiskey on the table; that in one of the vacant rooms of the house, the door of which was locked, but the windows open, were-one or two cases of empty bottles and some whisky bottles, quarts and pints; that a search of the house resulted in finding three quarts of beer which Mrs. Davis admitted belonged to her, and testified that on the 5th day of January she had an operation performed at the Southwest Hospital, and after having been discharged from the hospital Dr. Gooch prescribed beer, which she drank as a medicine; that she had only three bottles of beer; that they were not concealed, and were for the purpose of being used by her as a medicine; that she had never sold any beer or whisky, and that when the men came to the house they asked for Mr. Davis; that she told them he was not in, but she expected him at any time; that Mr. Hafley, one of the three men who were in the house at the time, asked if Mr. Davis had anything to drink, and that she told him if he had it was in the sideboard; that she supposed Mr. Hafley got it; that she had nothing whatever to do with the whisky or any part of it that the men had; that she did not sell it or give it to them; and that she had no connection whatever with the whisky.

The evidence on the part of the state also showed that when the officers approached the house they saw G. W. Davis come out of the house and throw an empty whisky bottle into one of the vacant rooms of the house and disappear.

Upon the close of the evidence each of the defendants separately requested the court to instruct the jury to acquit each of the defendants, which the court refused to do, and each of the defendants separately excepted.

The defendants excepted to several paragraphs of the court’s instructions to the jury, which paragraphs of said instructions we deem unnecessary to set out.

The defendant G. W. Davis did not testify in his own behalf.

As Mrs. G. W. Davis was in her home, of which her husband was, of course, in control, and as there was no evidence of the possession of intoxicating liquor on her part further than that she had three bottles of beer, which were not concealed, and which were had in accord with the direction of her physician, and were being used by her as a medicine, we are of the opinion that the evidence is insufficient to sustain the conviction of the defendant Mrs. G. W. Davis, and that the court erred in refusing to instruct the jury to acquit her. It, therefore, is not necessary to consider her further in connection with the case.

The defendant G. W. Davis earnestly insists that- the court committed reversible error in admission of the evidence that G. W. Davis had a United States internal license as a retail liquor dealer, but certainly the court did not err in admitting the same as evidence affecting him.

We have carefully considered the paragraphs of the instructions given to the jury of which the defendant G. W. Davis complains, and, considering the said instructions as a whole, which we must do, we are of the opinion that the attack upon said paragraphs of the instructions is without merit.

It is further insisted that the evidence is insufficient to sustain the conviction of the defendant G. W. Davis. With this contention we cannot agree. The evidence is not disputed that the home of the Davises had the reputation of being a place where intoxicating liquors were sold, that G. W. Davis had a United States license as a retail liquor dealer, that a large quantity of empty whisky bottles were found on his premises, and that whisky was in the act of being drunk by another in his house at the time the same was raided, and that when the officers came the defendant fled, which we think certainly sufficient upon which to base the verdict of the jury as to G. W. Davis and the court did not err in refusing to instruct the jury to acquit him.

The judgment of the trial court as to Mrs. G. W. Davis is reversed, and the judgment of the trial court as tcrG. W. Davis is affirmed.

DOYLE, P. J., and MATSON, J„ concur.


author: MATSON, J.

text:
    G. M. CLEMENS v. STATE.
    No. A-3166.
    Opinion Filed Dec. 20, 1919.
    Rehearing Denied March 13, 1920.
    (187 Pac. 1100.)
    (Syllabus.)
    1, ARSON — Information—Sufficiency, An information, charging that “G-. M. O. did willfully, unlawfully, maliciously and feloni-ously, and in the nighttime, burn a certain dwelling, to wit (here follows a description and location of the dwelling, with allegations as to. ownership by one W. J. S., and occupancy thereof toy the said G. M. O. as a dwelling) with the willful, unlawful, malicious and felonious .intent of said Gt. M. C. to destroy the same with fire,” sufficiently charges the burning of said building to have been done with intent to destroy the same with fire.
    2. ARSON — Essentials of Crime — Ownership of Building. One may be guilty of arson in the second degree as to the willful and malicious burning of a building owned by another and occupied solely by himself, by reason of section 2603, Rev. Laws 1910, providing: “To constitute arson it is not necessary that another person than the accused should have had ownership in the building set on fire. It is sufficient that at the time of burning another person was rightfully in possession of, or was actually occupying, such building, or any part thereof.” Said section, when construed in connection with section 2598, Revised Laws 1910, providing, “Arson is the willful and malicious burning of a building with intent to destroy it,” clearly implies that the ownership by a peirson other than the defendant is sufficient.
    3. SAME — Information—Instructions—(Variance. Section 2604, (Revised Laws 1910, provides: “An omission to designate, or error in designating in indictment for arson, the owner or occupant of a building, shall not prejudice the proceedings thereupon, if it appears that upon the whole description given of the building it is sufficiently identified to enable the prisoner to prepare his defense.” The information charged the ownership of the building in one WL J. S., while the evidence tended to show that the daughter of the said W. J. S. was the actual owner of the building. The building alleged to have been burned by the defendant was sufficiently identified in the information, without reference to ownership. In instructing the jury, the court submitted the question of whether or not the information sufficiently identified the building to enable defendant to prepare his defense, although the allegation of ownership was erroneous, as a question of fact for the jury. Held, the error, if any, was favorable to the defendant, in that the court should have instructed as a matter of law in this case that the variance between the allegation of ownership and the proof adduced was immaterial.

      Appeal from District Court, Jackson County; Frank Mathews, Judge.

    G. M. Clemens was convicted of arson in the second degree, and he appeals.
    Affirmed.

      Pruiett, Sniggs & Patterspn, for plaintiff in error.

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

On January 29, 1917, an information was filed in the district court of Jackson county, charging the defendant, G. M. 'Clemens, with the crime of arson in the first degree. On the following day, the county attorney amended the information to charge only arson in the second degree, and the defendant filed a demurrer to the amended information, which was by the court overruled, to which action the defendant saved an exception.

The defendant was put on trial before a jury, and a verdict returned finding him guilty of arson in the second degree, and assessing his,.punishment at imprisonment for five years in the state penitentiary. Motions for a new trial and in arrest of judgment were presented, overruled, and exceptions taken. On the 14th of May, 1917, defendant was sentenced in accordance with the verdict, and thereafter perfected an appeal to this court.

First, it is contended that the trial court erred in overruling the demurrer to the amended information.'

Section 2598, Revised Laws 1910, defines “arson” as follows:

“Arson is the willful and malicious burning of a building with intent to destroy it.”

Section 2608, Revised Laws 1910, provides:

“To constitute arson it is not necessary that another person than the accused should have had ownership in the building set on fire. It is sufficient that at the time of burning another person was rightfully in possession of, or was actually occupying, such building, or any part thereof.”

The charging part of the information is as follows:

“That on the 25th of September, 1916, and anterior to the filing of this information, the said G. M. Clemens, then and there being, did then and there willfully, unlawfully, maliciously and feloniously, and in the nighttime, burn a certain building, to wit, a certain dwelling located on lot No. 1 in block Njo. 73‘, in Crain’s First addition to the city of Al-tus, Jackson county, Okla., said building being then and there the property of one W. J. Shelton, and being then and there used and occupied by the said G. M. Clemens as a dwelling, with the willful, unlawfull, malicious, and felonious intent of him, the said G. M. Clemens, to destroy the same with fire.”

In this connection, it is first contended that the allegation of the malicious and felonious intent of the defendant to destroy the building with fire relates only to the use and occupancy of the building by him, and that it is not charged in the information that the defendant burned the building with intent to destroy it.

The court thinks this contention untenable and wholly devoid of merit. The information charges that the defendant unlawfully, wilfully, and maliciously burned the said building. Then follows a recital that the building was owned by another, although occupied by the defendant at the time. The subsequent allegation of the defendant’s malicious and felonious intent to destroy it by fire clearly relates back to the act of burning the building. Such a construction would be that given to the allegations of the information by a person of common understanding, as the use of fire is the only means employed with which to burn anything. We deem the information sufficiently direct and certain in this respect to apprise the defendant of the particular offense charged against him.

Further, it is contended that the court erred in overruling the demurrer to the information for the reason that the acts alleged to have been done by the defendant, irrespective of the question of intent, do not constitute arson under the laws of this state. To state the contention of the counsel for defendant succinctly, it is this: That the statutes of this state defining “arson” are merely a codification of the common law upon that subject, and that the offense is one against the habitation rather than against property rights, and the information, alleging that the defendant was the occupant of the building at the time of its burning, renders the same insufficient to charge the crime of arson, as it was known at common law.

If the statutes of this state on the subject of arson were merely a codification of the common law on that subject, perhaps the contention of defendant’s counsel would be correct ; but we cannot concur with the assertion that the Legislature of this state, in enacting the statutes upon the subject of arson, merely intended to define the offense as it was known at common law. Counsel contend that section 2603, supra, clearly indicates the contrary view, and in support of this contention rely upon the case of People v. De Winton, 113 Cal. 403, 45 Pac. 708, 33 L. R. A. 374, 54 Am. St. Rep. 357.

The De Winton case is not in print, as that was a prosecution against a person for burning his own house, and the Supreme Court of California there held:

“A man is not guilty of arson in burning his own house, unless it or some part of it was in the possession of another, under Penal Code, § 447, defining ‘arson’ as the willful and malicious burning of a building with intent to destroy it, and section 452, declaring that it is not necessary that a person other than the accused should have had ownership in the building, but it is sufficient that another was rightfully in possession of or actually occupying the building or any part thereof.”

The statutes of California and the statutes of Oklahoma on the subject of arson, in so far as they affect the question here presented, are identical. Section 2603, supra, indicates an intention upon the part of the Legislature to make the burning of a building a crime, although at the time owned by the accused. In that section, the last sentence in the section clearly relates to the burning of buildings owned by the accused, in which instance it is sufficient at the time of burning another person was rightfully in possession of, or was actually occupying, such building, or any part thereof. By clear implication, section 2603, considered in connection with section 2598, makes it arson to burn the building of another, although occupied at the time solely by the accused.

This view is adopted by the Supreme Court of California in the case of People v. Abrams, 174 Cal. 172, 162 Pac. 395. The fourth paragraph of the syllabus in that case, construing sections of their statutes identical with those here involved, is as follows:

“One may be guilty of arson as to a building owned by another and occupied solely by himself, in view of Penal Code, § 452, providing that to constitute arson it is not necessary that a person other than the accused should own the building, since this section clearly implies that ownership by a person other than defendant is sufficient.”

In the body of the opinion, it is said:

“We find no substantial merit in the other objections raised by motion to set aside the information and by the demurrer to the information. As to the particular objection founded on the claim that a tenant cannot be guilty of arson, under our statutes, as to a building owned by another, and occupied solely by himself, we concur in the views expressed by the learned District 'Court of Appeals, and adopt the same as a part of this opinion. They are as follows:
“ ‘Although the information stated that the defendants occupied the building and were tenants therein, the further fact was alleged that the building was the property of Smith. “To constitute arson it is not necessary that a person other than the accused should have had ownership in the building set on fire. It is sufficient that at the time of the burning another person was rightfully in possession of, or was actually occupying such building, or any part thereof.” Pen. Code § 452. The foregoing section clearly implies that ownership of the building by a person other than the defendant is sufficient, although it is declared to be not necessary. In People v. Handley, 100 Cal. 370, 34 Pac. 853, it was held that the defendant was properly convicted of arson in burning a house occupied by him as tenant of another who was the owner thereof. People v. Myers, 20 Cal. 76, and People v. De Winton, 113 Cal. 403, 45 Pac. 708, 33 L. R. A. 374, 54 Am. St. Rep. 357, are decisions which do not, in our opinion, support the proposition of appellant that under the allegations of ownership and tenancy, as stated, there is no sufficient charge that the defendants were guilty of the crime of arson.’ ”

See, also, Lipschitz v. People, 25 Colo. 267, 53 Pac. 1111; People v. Simpson, 50 Cal. 304.

The conclusion is reached, therefore, that the information in this case is sufficient to charge the crime of arson in the second degree, as defined by the statutes of this state.

It is also contended that the trial court erred in giving the following instruction:

“The defendant is charged in the information filed herein with the offense of burning a certain building alleged to be the property of W. J. Shelton, and the evidence introduced in this case on the part of the state tends to prove that the burned building at the time of the burning was the property of the daughter of the said W. J. Shelton, and in this connection you are charged that the variance is immaterial if you believe from the evidence beyond a reas- • onable doubt that it appears from the evidence herein that a sufficient description of the burned building was set out in the information to sufficiently identify it so as to enable the defendant to prepare his defense herein.”

The information charged the ownership of the building alleged to have been burned by the defendant in one W. J. Shelton, while the evidence tended to show that the daughter of the said W. J. Shelton was the actual owner of the building.

The instruction given.accords with section 2604, Revised Laws 1910, which provides:

An omission to designate, or error in designating in indictment for arson, the owner or occupant of a building, shall not prejudice the proceedings thereupon, if it appears that upon the whole description given of the building it is sufficiently identified to enable the prisoner to prepare his defense.”

Counsel for defendant complain that said instruction submits the question of whether or not the information sufficiently identified the building as a question of fact to the jury, when the court should have instructed the jury as a matter of law whether or not the description of the building contained in the information was sufficient to identify it within the meaning of the foregoing statute. Submitting this issue to the jury was favorable to the defendant, as the information sufficiently identifies the building alleged to be burned without reference to the allegation of ownership. The court should have instructed that the variance between the allegation of ownership and the proof was immaterial in this case.

Further, it is contended that the court erred in the admission of certain exhibits in evidence, over the objection and excepton of defendant’s counsel, for the reason that such exhibits were not properly identified as belonging to the defendant. This court is convinced from an examination of the record, that such exhibits were sufficiently connected with the defendant to permit their introduction in evidence, and that this assignment of error is without merit.

Finding no error sufficient to reverse this judgment for any of the reasons contended for, it is the opinion of this court that the judgment should be affirmed, and it is so ordered.

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


author: DOYiLE, P. J.

text:
    J. E. ERNST v. STATE.
    No. A-3322
    Opinion Filed March 9, 1920.
    (187 Pac. 930.)
    (Syllabus.)
    APPEAL AND ERROR, — Dismissal—(Acceptance of Pardon. When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed.

      Appeal from, District Court, Jackson County; ' ' Thomas A. Edwards, Assigned Judge.

    J. E. Ernst was convicted of a violation of the banking laws, and he appeals.
    Appeal dismissed, and cause remanded.

      Everett Petry, for plaintiff iff error.

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

Plaintiff in error, J. E. Ernst, was convicted of a violation of section 15, c. 22, Session Laws 1918. The information in substance charges that as president of the 'Citizens’ Bank of Headrick he made a certain report to the Bank Commissioner as to the financial condition of said bank, and that he willfully, unlawfully, falsely, and fraudulently made a certain statement and entry in said report, which was then and there known by him to be false and untrue, and by said false and fraudulent statement and entry in said report then and there so made by him he unlawfully, fraudulently, and feloniously intended to deceive the Bank Commissioner.. The sentence was for confinement in the penitentiary for one year and a fine of $100 and costs. He appealed by filing in this court on April 20, 1918, a petition in error with case-made.

This is a companion case to that of Ernst v. State, 16 Okla. Cr. 507, 184 Pac. 793. While his appeal was pending and awaiting decision before this court, the Attorney General filed a motion to dismiss the appeal pending in this case for the reason that a parole was granted in the case, as shown by the attached statement of Joe S. Morris, Secretary of State, in part as follows:

“On the 19th day of January, 1920, J. E. Ernst was issued a parole by J. B. A. Robertson, Governor of the state of Oklahoma. The same was filed in the office of the Secretary of State on the 22d day of January, 1920.” „

The uniform holding of this court is that when a parole is granted by the Governor and accepted by the plaintiff in error, and the matter is judicially called to the attention of this court pending the determination of an appeal, the appeal will bé dismissed.

It follows that the motion to dismiss the appeal is well founded. It is therefore considered and adjudged that the appeal herein be dismissed, and the cause remanded to the district court of Jackson county.

ARMSTRONG and MATSON JJ., concur.


text:
    JOHN MILLER v. STATE.
    No. A-3263.
    Opinion Filed March 15, 1920.
    (187 Pac. 1098.)
    (Syllabus.)
    HUSBAND AND WIFE — Abandonment of Wife and Child — Conviction —Abatement of Prosecution — Property Settlement in Subsequent Divorce Case. Plea in abatement overruled. For reasons bolding sarnie not well taken, see body of opinion.

      Appeal from County Court, Noble County; A. Duff Tillery, Judge.

    John L. Miller was convicted of the unlawful abandonment of his wife and child, and he appeals.
    Plea in abatement overruled.

      Cress & St. Clair, for plaintiff in error.
    The Attorney General, for the Stn+o
   MATSON, J.

This is an appeal from the county court of Noble county, wherein the plaintiff in error was convicted of violating section 1, c. 149, Session Laws of Oklahoma 1915, which provides:

“That every person who shall without good cause abandon his wife and neglect and refuse to maintain and provide for her, and who shall abandon his or her minor child or children under the age of twelve years, in destitute or necessitous circumstances, and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail, or at hard labor on the public roads of the county "not less than one month nor more than twelve months, or by both such fine and imprisonment; and should a fine be imposed it may be directed by the court to be paid, in whole or in part, to the wife, or to the guardian or custodian of the minor child or children, provided that before the trial (with the consent of the defendant), or after conviction, instead of imposing the punishment hereinbefore provided, or in addition thereto, the court in its discretion having regard to the circumstances and financial ability of the defendant, shall have the power to pass an order, which shall be subject to change by it from time to time as the circumstances may require, directing the defendant to pay a certain sum weekly for one year to the wife, guardian or custodian of the minor child or children, and to release the defendant from the custody, on probation, for the space of one year upon his or her entering into a recognizance, with or without surety, in such sums as the court may direct. The conditions of the recognizance shall be such that if the defendant shall make his or her personal appearance in court whenever ordered to do so within a year, and shall further comply with the terms of the order, then the recognizance shall be void, otherwise in full force, and effect. If the court be satisfied by information and due proof, under oath, that at any time during the year the defendant has violated the terms of such order, it may forthwith proceed with the trial of the defendant under the original indictment, or sentence him or her under the original conviction, as the case may be. In a case of forfeiture of a recognizance and enforcement thereof by execution the sum recovered may, in the discretion of the court, be paid in whole or in part to the wife, guardian or custodian of the minor child or children.”

After a trial in said court, the jury returned a Verdict of guilty, and assessed his punishment at a fine of $500. The trial court, in rendering judgment, ordered that the $500 fine, when paid by the plaintiff in error, be immediately paid to Mrs. Farrie Miller, wife of the plaintiff in error, for the use and benefit of her and her two minor children under the age of 12 years, and the trial court made a further order that the plaintiff in error pay to his said wife a weekly sum of $12.50 for a period of one year from the date of judgment for the support of his said wife and said minor children, and required that plaintiff in error enter into a recognizance with two or more good and sufficient sureties, conditioned that the said plaintiff in error make his personal appearance in court whenever ordered to do so within one year, and. further to comply with the terms of the judgment and order.

The plaintiff in error prayed and took an appeal from said judgment rendered against him in the county court of Noble county, and such appeal was lodged in this court on the 22d day of February, 1918. On the 4th day of August, 1919, the plaintiff in error, through his attorneys, filed the following motion for this court to abate and dismiss this cause with prejudice :

“In the Criminal Court of Appeals of the State of Oklahoma.
“John L. Miller, plaintiff in error, v. State of Oklahoma, Defendant in Error.
No. A-8263.
“Plea in Abatement.
“Comes now John L. Miller, plaintiff in error, and for plea in abatement in the above-styled cause gives the court to know and be informed that since the trial of the above-styled cause in the lower court Farrie Miller, the wife of the plaintiff in error, filed her petition for divorce in the district court of Kay county, state of Oklahoma, to which petition the defendant duly answered, and issues were duly joined and a trial had on the 8th day of July, 1919, and all differences for the support of the minor children, support of said Farrie Miller, suit money, attorney’s fees, and costs were mutually settled by the parties, and paid in full, and by a judgment of the district court of Kay county said settlement so made between the two parties was duly confirmed and all costs were settled, as claimed. The said court finding that said settlement was fair, just, and equitable; a certified copy of the journal entry of judgment in said case being hereto attached and made a part of this plea, the same as if herein in full set out, and said Farrie Miller was granted a divorce from the said John L. Miller in said proceedings.
“Said plaintiff in error further alleges that said district court of Kay county had jurisdiction of the parties before it, and jurisdiction of the subject-matter, and the right and power to settle all rights and controversies, and that said court has by its judgment settled and satisfied all claims of the said Farrie Miller and the said minor children that are or might be involved in the case pending on appeal before this court, which said case was brought in Noble county, state of Oklahoma, and that for said reasons this case so pending in the Criminal Court of Appeals should be dismissed with prejudice.
“Wherefore said plaintiff in error prays that this court make an appropriate order dismissing said proceedings and case with prejudice, and for such other and further relief as may be just and equitable.”
“In the District Court of Kay County, State of Oklahoma.
“Farrie Miller, Plaintiff v. John L. Miller, Defendant
“Journal Entry.
“And now on this 8th day of July, A. D'. 1919, the above cause came on to be heard, ,jand the plaintiff appears in person and by her attorneys, Johnston & Robinson, and the defendant, John L. Miller, appearing by his attorneys, Cress & St. Clair. Thereupon the plaintiff introduces her evidence and rests.
“The plaintiff and defendant exhibit to the court a property settlement and agreement, showing that they had mutually settled all property rights, all questions of alimony, suit money, and support of children, which stipulation was signed by the plaintiff and defendant personally, and reads as follows, to wit (omitting caption) :
“ ‘Comes now plaintiff and defendant and in full settlement of all alimony, suit money, attorney fees, costs, and support of the minor children of plaintiff and defendant, the said defendant pays unto the attorney for plaintiff the sum of one thousand ($1,000.00) dollars, receipt of which is hereby acknowledged.
“ ‘It is further stipulated and agreed that the custody of the minor children of plaintiff and defendant,- Wilson J. and Rosena Grace, be, and hereby are, given to the plaintiff, and the defendant is to have the privilege of visiting said children at reasonable times and occasions, and said children are to have the privilege of visiting him at reasonable times and occasions when they grow older. And each of the parties and their immediate relatives shall treat the other with due consideration and courtesy and refrain from in any manner interferring or molesting the other.
“‘(Signed) Farrie Miller,
“ ‘John L. Miller/
“The court, being fully advised in the premises, finds that the allegations of the plaintiff’s petition are true, and that the plaintiff is entitled to a divorce from the defendant, and that the bonds of matrimony existing between the plaintiff and defendant should be dissolved.
“The court further finds that the settlement is fair, just, and reasonable, and should be in all things confirmed.
“It is therefore considered, ordered, adjudged and decreed by the court that the plaintiff and defendant be, and they hereby are, each granted an absolute divorce from the other.
“It is further ordered, adjudged, and decreed that the stipulation of settlement of the property rights be, and the .same is hereby, in all things confirmed.
“It is further ordered, adjudged, and decreed that the defendant, John L. Miller has made full and complete settlement of all claims of the plaintiff against him for suit money, costs, attorney’s fees, and support of minor children, Wilson J. and Rosena Grace Miller, and that a full and complete settlement was had between the parties in said case of all claims of one against the other, and that each of said parties is divested of any interest in the property of the other, or that may be acquired by the other hereafter.
“It is further ordered, adjudged, and decreed that the custody of the minor children of plaintiff and defendant, Wilson J. and Rosena Grace, be and the same are hereby given to the plaintiff, and the defendant is to have the privilege of visiting .said children at reasonable times and occasions, and said children are to have the privilege of visiting him at reasonable times and occasions, as they grow older.
“It is further ordered, adjudged, and decreed that each of the parties and their immediate relatives shall treat the other -with due consideration and courtesy and refrain from in any manner interfering or molesting the other.
“It is further ordered that this decree shall not become final until six months from this date.
“J. W. Bird, Judge.”

The foregoing journal entry of judgment is properly certified by the court clerk of Kay county.

The substance of the foregoing plea in abatement and request that this court dismiss with prejudice this prosecution against the plaintiff in error is that in a subsequent action for divorce instituted by the wife of the plaintiff in error against him a judgment and decree was entered settling between the parties all property rights and full provision made for the support of the wife and minor children, for the benefit of whom the fine was imposed in this case.

The plea in abatement is not well taken. The judgment rendered in the action for divorce between the plaintiff in error and his wife did not have the legal effect to satisfy and thereby abate a judgment previously rendered against him in a criminal prosecution for willfully abandoning, his said wife and child, from which an appeal had been taken by plaintiff in error. The judgment appealed from in this case is in the nature of a punishment ■ for acts alleged to have been committed by the plaintiff in error prior to the institution of the divorce action, and defined to be criminal under chapter 149, Session Laws 1915, swpra. An appeal having been taken from said judgment and properly lodged in this court, the jurisdiction of this court became full and complete to determine the validity of the judgment rendered in said cause, and the judgment so rendered could not be attacked or set aside even by a decree of the trial court itself, until the plaintiff in error had dismissed his appeal and the cause had been remanded to the trial court, much less in a subsequent civil proceeding where the issues involved and rights of the parties were entirely different.

To hold the judgment rendered in the divorce proceeding which is pleaded by plaintiff in error, to be sufficient to avoid the penalty imposed and to abate the judgment rendered in this case, would completely destroy the sovereign, power of the state to punish its criminals. This court is without power to grant the relief prayed for on the grounds stated.

The plea in abatement is overruled.

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