text:
    HOWARD WELBORN v. STATE.
    No. A-9653.
    Aug. 7, 1940.
    (105 P. 2d 187.)

      Purman Wilson and W. G. Long, both of Purcell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

In the information in this case, filed in the district court of Coal county, Howard Welborn was. charged with the crime of murder, alleged to have been committed in said county on or about the 7th day of June, lOSS, by then and there unlawfully, and feloniously, without authority of law and with a premeditated design to take the life of Stella Thomas, by shooting said Stella Thomas with a 38-caliber Colt pistol, thereby inflicting upon the body of the said Stella Thomas, certain mortal wounds, of which mortal wounds so inflicted she, the said. Stella Thomas, did die.

Upon his trial the jury by their verdict found him guilty of manslaughter in the first degree, and fixed his punishment at 20 years’ imprisonment in the state penitentiary.

Motion for new trial was duly filed. On November 21, 1938, the court overruled said motion and rendered judgment in accordance with the verdict. To reverse the judgment an appeal was taken by filing in this court on May 20, 1939, a petition in error with case-made.

Of the several assignments of error only two are argued:

First, that the court erred in submitting to the jury the issue of manslaughter in the first degree;

Second, that the jury were allowed to separate while deliberating upon their verdict.

Upon the trial the defendant admitted the commission of the homicide, but claimed that the deceased was accidentally shot while they were engaged in a scuffle for possession of a pistol.

Counsel for appellant in their brief say:

“The defendant in this case, according to the evidence of the state, was either guilty of murder and should have been given the extreme penalty or life imprisonment in the penitentiary or acquitted upon his plea of accident, that the homicide was excusable.”

The theory of the state is that the manner of this killing shows that it was a willful, deliberate and premeditated murder.

In order to better understand the questions presented, it will be necessary to give a brief statement of the facts disclosed by tbe evidence, and also to quote excerpts from the testimony of certain witnesses for the state and on behalf of the defendant.

It appears that the homicide was committed between 10 and 11 o’clock on the morning of June 7, 1938; that the scene of the homicide was about two' and one-half miles north of Cairo; Coal county.

O. C. McMillan, undersheriiff, testified that he had known the defendant all his life, and arrested him June 7th in front of John Ward’s house, about a mile from Cairo. His mother, Mrs. Welborn, had called him and said she wanted him to take charge of Howard; that he had shot a girl; that he asked Howard wka,t he had done and he said he had shot a girl and gave him the gun. State’s exhibit “A”, a 38 Colt pistol, Avas introduced and identified as the gun he took from the defendant. It had been shot three times; that on their Avay to town he asked Howard hoAV it happened and he said this girl tried to take the gun away from him and she was shot in the scuffle. That afternoon he went to the scene of the shooting; the Thompson house sets back west of the road, something like 190 steps; when he got to the mailbox the first thing he noticed Avas a spot of blood, three steps north of the mailbox, and he found about eleven steps down the path to the house where blood was and the grass was all mashed down, and he noticed right close to' the mailbox that a horse had stood and tromped, and that the horse went north.

Dr. J. J. Hipes testified that he had practiced medicine at Coalgate for tAvelve years; was called on June 7th to the Mowdy settlement and went to the home of Mr. Thompson ; there he found a dead woman. Upon examination he found a gunshot wound in the back of her head, about three-fourths of an inch below the crown, and another gunshot wound in the small of the hack, which went through and came out about three-fourths of an inch left of the navel.

W. P. Powers testified that he was an undertaker and was called to the Thompson home, north of Cairo; there found the body of Mrs. .Stella Thomas, and conducted the funeral; that he examined the body and found no powder burns on the body, or on her clothes.

Lola Brown testified she knew Howard Welborn; that around the hour of 10 that morning she saw him pass Jim Howdy’s house, going south; he was riding a brown horse, and stopped at the mailbox; she heard three shots, and then she saw Howard run and jump on the horse and lope off.

Bessie Thompson testified that she lived in the Mowdy schoolhouse settlement, and was in her home that morning, and .Stella. Thomas, her sister, was there with her when the defendant, Howard Welborn, came to the house and spoke to them. Stella was sewing. Howard went to the kitchen to get a drink, came back and asked Stella why she was not there Sunday. She said he was drinking. Stella looked at him and he looked at her. She said she would be back in a few minutes, and they went down towards the hog pen. Then Stella and Howard came back, going in the direction of the mailbox. Then she heard three shots, two' right together. Then she went to the window, and heard Stella screaming. She ran down to- the mailbox and found .Stella lying there on her left side. She picked her up and saw that she was almost gone, and ran out to the road. When she got back Henry Baker was there, and then her brother and John Mowdy came, and they took Stella to the house; she was not quite dead, but died when laid on the bed.

John Mowdy testified that he lived a quarter of a mile south of the Thompson home; that morning about 10:30 he was down in the field planting corn, about 200 yards from the mailbox; when he heard the shooting he went to where Stella was, and then went home.

He further testified that he had a conversation with the defendant Sunday prior to Tuesday, June 7th, in the back-yard at Jim Mowdy’s; the defendant asked him for a cigarette, and said that he was going to see his girl and take her to the singing; he came back in about 30 minutes, asked for another cigarette, and said he would not bother him any more that day; that he and his girl had fallen out, and he was through, and if there was any making up she would have to come to him; that he had been going with Stella for two1 years, and had given her a little money and a pig and had protected her all he could. The defendant was drinking that day.

For the defendant:

Mrs. Josie Welborn, the defendant’s mother, testified that she lives 15 miles northeast of Coalgate, on the other side of the Mowdy schoolhouse; that she is a widow; that her husband was killed in Coal county about 20 years ago; at that time she was living where she lives now, managing her farm; has two married daughters living and two sons dead ; that Howard lived most of the time with her, and on his place nearby; that he has been married and divorced; that she had known Stella Thomas all her life; that Stella visited her home there often, and often rode to town with them; that she knew Stella’s husband, and advised Stella to go back to him, that it would be better for the baby, that it was not for the old folks to raise the child. .Stella sometimes said she would, another time said she would not; that she had not seen anything in life and was going to see some of it. That she heard Howard tell Stella on several occasions to go back to Ambrose, that he was a good kid. That on Saturday afternoon, before the shooting on Tuesday, Howard left the place on horseback and did not return until Sunday night between 8 and 9 o’clock. That on Sunday morning he told that he had pawned his gun, and she told him he ought to be ashamed. It was his dead brother Clyde’s gun, that she had bought and given to Clyde, and she was keeping the gun there as a keepsake, because it belonged to Clyde; that she called Howard on Tuesday morning, and after he fed the horses he got on his horse and went west. The next time she saw him that day she was sitting on the porch and saw him coming in the side gate, running the horse. He said, “Mamma, get your things on, let’s go to town, Stella is shot.” She said, “My God, how did it happen?” He said, “She was trying to take my gun away from me and I would not let her have it.” “He said it was an accident, and for me to get my things on and get a doctor. When we got to John Ward’s place we stopped,” and she called Olin McMillan and told him to' take charge of Howard, and to take the gun. Howard gave him the gun and got in his car. That the gun introduced in evidence looks like her gun.

Several witnesses testified that they knew the defendant’s reputation as a peaceable and law-abiding citizen in the community which he lived, and that reputation was good.

As a witness in his own behalf the defendant testified that he was married in 1923, and lived with his wife until 1926, when they were divorced; that he had known Stella Thomas all of her life; that he had often gone with Stella, and with her sister Bessie; that the two' girls lived with their parents, Mr. and Mrs. Thompson, and Stella’s child lived with them. That on Tuesday morning he went to Albert Keener’s to get his gun that he had given to Mr. Keener the Saturday nigbt before; Mrs. Keener was in the garden and Mr. Keener and his father were ¡fixing, a fence; he asked Mm Keener if he could get his gun, that he wanted to get it and get back to work. She said, “Yes,” and went in the house and brought out the gun, shells and scabbard. He loaded the gun and stuck it under his belt, got on his horse and rode to the Thompson home, tied his horse to the ¡fence near the mailbox, and walked down to the house. Stella and Bessie and the little child were in the house; Bessie said she had bought a pig and Avanted him to see it, and he walked out with Stella to the pigpen, then came back through the yard; Stella asked him if the postman had come; he said not at that time, and she said she would go' with him that far, and they walked along the path going to the mailbox. Stella asked him for some money to leave Avith; he told her he did not have the money, that he would have to make a trip to' town on Saturday, and she said, “The old man will be back before then and it would be too late.” That she bumped into him and wanted to take the gun from him, and wanted him to leave the gun there for her to' keep to protect herself. He told her that she did not need it, and pushed her back and started to go1 through the three-wire fence when she grabbed the gun, and was pulling and trying to1 get it loose; that at that time he weighed 110 pounds with a heavy pair of spurs on, and Stella weighed 132 pounds; that she got the gun out of his pants, and he had hold of the gun too ; they went down, and as they fell the gun fired and fell by their side; he picked it up; it was jammed in the scabbard ; he attempted to get it loose and it fired again. He could see that she was shot and was hurt and he got on his horse and rode home to' get his mother’s car; there he told his mother about the accident, and there was no time to lose to get a doctor there. They drove on until they met Mr. McMillan and stopped; his mother told the officer as he has testified. He then came on with the officer and has been in jail since that time; that he did not kill Stella Thomas.

Counsel in their brief state:

“We are not unmindful of the fact that this court in a number of cases has stated and held where an instruction is given on manslaughter in the first degree, and the evidence show that the defendant was either guilty of murder or nothing; that it is harmless error of which the defendant, as plaintiff in error here, cannot complain. But, we think that this position is unsound and untenable and not justified by the best reasoning and the weight of authority.”

In support of this contention counsel cite James v. State, 14 Okla. Cr. 204, 169 P. 1127; Leseney v. State, 13 Okla. Cr. 247, 163 P. 956, and cases cited in Taylor v. State, 44 Okla. Cr. 58, 278 P. 1117.

In the case of James v. State, supra, this court held:

“On a. trial for murder where the evidence, however slight, would warrant the jury in returning a verdict for manslaughter in the first degree, it is the duty of the trial court to instruct the jury on the law of manslaughter in the first degree.”

The Code of Criminal Procedure provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” Section 3097, 22 Okla. St. Ann. § 916.

By numerous decisions of this court the rule is well settled that, on a tidal for murder, if the evidence demands a conviction of a higher degree of homicide, and does not warrant an acquittal, the defendant is not entitled to a new trial on the ground that, under the instructions so permitting, the jury found him guilty of a lower degree. Lytton v. State, 12 Okla. Cr. 204, 153 P. 620; Irby v. State, 18 Okla. Cr. 671, 197 P. 526; Harper v. State, 20 Okla. Cr. 43, 200 P. 879; Inman v. State, 22 Okla. Cr. 161, 210 P. 742; Calloway v. State, 38 Okla. Cr. 418, 262 P. 696; Seabolt v. State, 59 Okla. Cr. 1, 57 P. 2d 278.

In the case of Wilmoth v. State, 20 Okla. Cr. 453, 203 P. 1055, 21 A.L.R. 590, this court held:

“In a prosecution for murder when the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and the facts make the crime murder, it is an error in the defendant’s favor, of which he has no cause to complain.”

In Taylor v. State, 44 Okla. Cr. 58, 278 P. 1117, this court held:

“In a prosecution for murder when the court submits the issue and the jury findis the defendant guilty of manslaughter in the first degree, although under the law and the facts the crime is murder, yet, if defendant is convicted of a lower degree of homicide than that shown by the evidence, no prejudice could have resulted to' him, and this court will not reverse a conviction because of such error.”

“Manslaughter in the first degree” is defined as follows :

“1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.” Section 2223, O.S. 1931, 21 Okla. .St. Ann. § 711.

The testimony of the defendant shows that he was carrying a pistol, in violation of the statutes making it a misdemeanor, when he fired the fatal shots. Sections 2589, 2590, 2592, 21 Okla. St. Ann. §§ 1277, 1278, 1280.

It is the province of the jury, if the defendant is found guilty, to determine and fix the degree by their verdict, and where the jury in a homicide case finds the defendant guilty of a lower degree, where the law and facts make it murder, it is an error in favor of the defendant of which he cannot complain. Juries frequently render just such verdicts, and this can only be accounted for upon the theory that the verdict was the result of a compromise oif opinion. Fisk v. State, 62 Okla. Cr. 305, 71 P. 2d 499.

As we view the evidence in this case, the homicide was a deliberate cold-blooded assassination. The previous preparation, and the physical facts, resist and absolutely repel the theory of accidental homicide. Upon his own testimony the defendant is guilty of manslaughter in the first degree.

The court’s instructions are a model set, fully and correctly covering every phase of the law presented by the issues raised.

In support of the remaining assignment appellant contends that the court erred in overruling his motion for a new trial on the ground that the jury were allowed to separate while deliberating on their verdict.

As bearing on this ground the record shows that the only testimony taken was that oif the bailiff, Earnest Tol-lis, who testified that after the submission of the case, the jury were taken to the jury room, on the fourth floor of the courthouse, by him; that during their deliberation three jurors at their request were taken to the toilet on the third floor, and the remaining jurors were left locked up in the jury room, that these jurors did not converse among themselves about the case nor did any person converse with or speak to them while coming from or1 going back to the jury room.

This court has had occasion many times to construe section 3081, Code of Criminal Procedure, 22 Okla. St. Ann. § 857.

This court has uniformly held that on proof of a violation of this section by permitting the jury to separate after retiring for deliberation, tbe defendant is entitled to tbe presumption that such separation bas been prejudicial, and tbe burden of proof is on the state to show that no injury could have resulted therefrom to tbe defendant. Wilcox v. State, 69 Okla. Cr. 1, 99 P. 2d 531.

In tbe case of Lemke v. State, 56 Okla. Cr. 1, 32 P. 2d 331, 334, a conviction of murder and sentence off death, it is said:

“The division of a jury by placing them in different sleeping quarters is not a separation. A mere temporary separation for a purpose as the use of a toilet or tbe use of a telephone or kindred reasons is not within the meaning of the law forbidding a separation of the jury. Elkins v. State, 29 Okla. Cr. 175, 233 P. 491; Forester v. State, 36 Okla. Cr. 111, 252 P. 861.”

In 16 C. J. p. 1077, sec. 2530, it is said:

“While the separation of the jury is defined to be the departure of one or more jurors from their fellows, or all of the jurors departing from each other, not every withdrawal olf a juror from the immediate presence of his fellows constitutes such a separation as will affect the verdict. The rule that the jury must be kept together does not apply, even in capital cases, to temporary separation of one or more jurors from the others in cases of necessity, where the separating jurors are in charge or in sight of an officer and are not allowed to communicate with other persons.”

Obviously, this assignment is wholly without merit.

Our conclusion is that the defendant had a fair and impartial trial, with every right accorded to him that the law justifies or requires.

The judgment of the district court of Coal county herein must therefore be affirmed.

It is so ordered.

JONES, J., concurs. BAREFOOT, J., absent.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    RAY COLE v. STATE.
    No. A-9695.
    Aug. 7, 1940.
    (104 P. 2d 981.)
    A. L. Commons, of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charged that in Ottawa county, on the 19th day of March, 1939, Ray Cole did “commit the crime of exceeding the speed limit in the manner and form as follows, to wit: Said defendant then and there being did then and there willfully and unlawfully move a truck of a weight less than twenty thousand pounds upon a public highway, to wit: United States Highway No. 66, from a point on said highway about one and one-ha] f miles northeast of the town of Afton, Ottawa county, Oklahoma, to another point on said highway about two miles northeast oif the town of Afton, Ottawa county, Oklahoma, at a rate of speed in excess of 35 miles per hour, contrary to” etc.

On the trial the jury returned a verdict as follows:

“We the jury, impaneled and sworn in the above entitled cause, do- upon our oaths find the defendant guilty as charged in the information, and fix his punishment at a fine of |25.
“Recommend that fine be remanded.”

Motion for new trial was duly filed, presented and overruled. Exception reserved.

The errors assigned are substantially that the evidence is insufficient to uphold the judgment of conviction; and that “The verdict shows on its face that the jury did not intend to penalize the defendant, but merely as a reprimand.”

In our opinion the verdict of the jury is not uncertain. It fixed the defendant’s punishment, and the clause in it is merely a recommendation that the fine be remitted. It is in no sense a part of the verdict. It was improper to make this recommendation in the verdict, but it does not affect the validity of the verdict, and was not prejudicial ho defendant. Estes v. State, 35 Okla. Cr. 335, 250 P. 809.

The main question presented by the record for review is, Does the evidence sufficiently support the verdict?

The testimony of E. A. Eaton, the only witness called by the state, is substantially as- follows:

“I am a state highway patrolman, operating out of Miami. On the 19th day of March, 1939, I saw the defendant east of Afton, on IT. S. Highway No-. 66, driving a truck Avhich in my judgment would weigh less than 20,000 pounds, I was driving a patrol car, a Ford V8. In my judgment the defendant was driving at a speed of 60 miles an hour; I pulled up beside him, sounded my horn and motioned to him to pull over and stop, but he did not stop until he drove over the overpass; a woman and two1 children were in the car with him; he said it was his wife and children, I took him into' custody and we came on to' the sheriffs office in Miami; I called a justice of the peace In the meantime the defendant called Mr. Commons, and he came down and took care off the matter for him.”

On cross-examination he stated:

“I was behind him, coming from Afton, the defendant’s car was a 1935 make, I think it was a Chevrolet. I talked to the defendant in the presence of his brother and Sam Hudson; the defendant asked me what he was going to do with the woman and children.”

Asked if in that conversation “you said you didn’t give a damn”? State’s objection sustained.

“I passed another truck in the rear off the defendant’s; it was on Sunday afternoon. Otis Cole, a man supposed to be his brother, said he always thought the highway patrolmen were courteous.”

Asked iff he said he would take his black-jack and take his coat off and would whip this fellow. He answered, “No, sir.”

“That just before he got ready to leave Mr. Cole said I had used abusive language. I did not. I did not talk to him abusively, but he wanted to' argue a lot, but I did lose a little patience.”

The state rested and the defendant interposed a demurrer on the ground that the evidence is insufficient to support the allegations in the information. Demurrer overruled. Exception allowed.

Eay Cole as a witness in his own behalf testified:

“I have lived in Ottawa county since 1898. Orville Cole and Otis Cole are my brothers; I was arrested Sunday about two o’clock in the aifternoon. I bad a driver’s license and in tbe test the Highway Department instructed me not to stop on an overpass. I have never been convicted of any crime, I have been driving a truck and automobile about 15 years. That day I was driving a 1935 V8 Ford truck. I was helping my brother move from Fairland to Afton; Mrs. Sam Hudson and her two daughters were in the truck with me; Sam Hudson was riding with my brother in the Chevrolet truck close behind. I was about one third on the overpass when I heard the officer blowing; I motioned to' him that I would go and park down at the foot of the overpass, and I did. The first remarks he made was that I was driving too fast and reckless. Asked Avhy I had not stopped when he signaled me, I told him I didn’t think I was driving too fast, and that I was not supposed to stop on the overpass. He asked ifor my driver’s license, and took the tag number and checked the lights. My brother Otis came up and said he didn’t think I was going too fast. The patrolman would not listen and told me to1 go on to Miami. He even offered to fight. I told him I didn’t want a fight, and said, T am ready to go,’ and when I left he and my brother were talking.”

On cross-examination he stated he had been driving the truck a. year and a half. It was a second-hand truck, owned by Mr. Gaines; that he was going about 35 miles an hour ; that it was impossible for this truck to go 40 or 50 miles an hour, that would tear it up, and it tore up once while driving 15 miles an hour, since then the rings have stuck on the pistons. It didn’t have a speedometer.

Sam Hudson testified:

“I have lived south and east of Fairland about two1 miles (from Fairland, for 11 years; Otis Cole, Ray’s brother, came after me that morning to help Ray move; my wife and daughters were in the truck with Ray Cole. We were driving about 30 miles per hour when they passed us; I never saw the officer until we got to the south side of the overpass, about 100 yards. I did not hear him give Ray any signal until on" the north side of the overpass. When they got oil level ground where Eay stopped. His brother, Otis, and I were behind him and we stopped. The officer went up to Ray and told him he wanted him to go to Miami; Ray said, ‘What will I do with this woman and! children in my care?’ The officer said: ‘I don’t give a damn what you do with this woman and two children.’ Right then my oldest girl got to crying; she is a very nervous girl and I told my wife to try to keep her still. Finally I told them to go with Otis; Mr. Eaton said he would take his coat off and go to it with any one of them, and told! Ray to' go on to Miami. Mr. Eaton had a gun on, but he didn’t offer to use the pistol.”

Mrs. Sam Hudson testified:

“We were helping Otis Cole to move from Fairland to Afton, Ray Cole was helping; coming back to Fairland I was riding with Ray Cole and my daughters were with me. Just as we started on the overpass Mr. Eaton hollered and said to stop; Ray Cole stopped when he got over the overpass. There the patrolman said that Ray would have to go to Miami. Ray said: ‘What am I going to do with the woman and these children’? and the patrolman said: ‘I don’t give a damn what you do with them,’ and said he would fight any of them, and my little girl got excited and started crying; I got in the car with Otis Cole and my husband, and we came on to' Fairland.”

Otis Cole testified:

“I have lived for years around Fairland, I was moving to Afton that day; brother Ray and iSam Hudson helped me to move; coming back from Afton Sam Hudson was with me in my cap; Sam’s wife and baby gMs wm with Bay; I was driving my car when Ray passed me; I slowed up SO' he would pass, I wanted him in front; I saw Mr. Eaton drive up to the other truck; we passed the overpass; my brother stopped on the other side. We got out; Ray told: him he didn’t stop on the overpass, that he was following instructions given him when they gave him his test for a driver’s license. Mr Eaton seemed mad, and he thought Ray was getting back at him; he said he didn’t want any one to get back at him; Ray said, ‘What should I do?’ He said go to1 Miami; Ray asked Mm about tbe children and he said, ‘I don’t give a damn what you do with them.’ ”

On cross-examination he stated Ray’s truck at the time the officer signaled him to stop was just a good driver’s distance ahead:

“I was driving between 30 and 35 miles an hour when Ray passed me, I wanted him in ¡front because his truck was in bad condition, it was an old truck, and he had been having trouble with it. When they stopped I was putting up the argument that the patrolmen had always been my friends, and I thought this man was out of his place. He said he didn’t give a damn what happened to this woman and two' children, and he said he would pull off his coat and would go to it with either of us; I was just telling, him that the patrolmen had been my friends and always trying to. help me, and I didn’t think we were going at a high rate of speed.”

Howard M. Scott testified:

“I live at Fairland, I am county superintendent of public instruction, I have known Ray Cole about 28 years, I know his general reputation in that community around Fairland for truth and veracity and it is good.”

Thereupon it was stipulated by and between the respective counsel that J. S. Campbell, a merchant of Fair-land and a member of the county excise board, if he took the witness stand, would testify that the general reputation of the defendant, Ray Cole, as to truth and veracity in that community was good.

In rebuttal, E. A. Eaton, recalled, testified:

“I first noticed Ray Cole pull out and pass, and I had to wait for an opportunity to catch him, I had to pass another Cole truck before I got him. I did not use any such language as these witnesses testified to.”

At the close of the testimony the defendant moved the court to instruct the jury to return a verdict df not guilty, which was overruled. Exception reserved.

The prosecution in this case was based on that part of section 12, chapter 113, Session Laws 1933, 47 Okla. St. Ann. § 95, which reads:

“No track, track-tractor with semi-trailer attached, or trailer, shall travel or be moved upon any public highway, when the weight of any such vehicle or vehicle and load is 20,000 pounds or less, at a rate of speed in excess of thirty-five (35) miles per hour.”

While it is well settled that a verdict will not be disturbed for insufficiency of the evidence, when there is evidence from which the jury may reasonably or logically draw the conclusion oif the defendant’s guilt, the converse rale is also well settled, that, where there is no evidence to support a verdict, or where it is of such a weak and inconclusive character that a conclusion of guilt may not reasonably be drawn from it, or there is a failure to .prove some essential matter to establish the offense charged, it is the duty of the court to set aside such verdict as contrary to law and to the evidence. Jefferson v. State, 31 Okla. Cr. 44, 236 P. 914; Daft v. State, 56 Okla. Cr. 449, 42 P. 2d 146; White v. State, 13 Okla. Cr. 76, 162 P. 232.

Aifter careful consideration of the testimony in this case, it is our opinion that the court erred in overruling the defendant’s motion to set aside the verdict upon the ground that the same was contrary to the law and the evidence.

It will be observed that the only witness on the part of the state merely testified, “In my judgment the defendant was driving at a speed of 60 miles an hour.”

At most this was merely opinion evidence, and no facts were stated by the witness upon which to base this opinion.

The defendant testified that he had been driving a truck about 15 years, and that he was only going about 35 miles an hour; that it was impossible for this old truck to go 40 miles an hour, and the defendant is corroborated by the testimony olf three other witnesses. However, upon the failure of the state to prove the material elements of the offense charged, the defendant’s demurrer to the evidence should have been sustained.

It is elementary that evidence on the part of the state should be of such character as to overcome the prima facie presumption of innocence. If the evidence raises a mere supposition, or, admitting all that it tends to prove, the defendant’s guilt is left doubtful, or dependent upon mere supposition, surmise or suspicion, the court should advise the jury to- acquit the defendant. Upon the whole case it is apparent that this prosecution was without merit.

For the reason stated, the judgment is reversed and the cause remanded to the county court of Ottawa county with direction to¡ dismiss.

JONEiS, J., concurs. BABEFOOT, J., absent.


text:
    DOUG McAFEE v. STATE.
    No. A-9657.
    Aug. 7, 1940.
    (104 P. 2d 979.)

      Emmons Arrington, ¡of Shawnee, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charged that in Pottawatomie county, on the 20th day of November, 1937, Doug McAfee and Harry Bell did unlawfully transport four pints off whisky from a place unknown in said county to the 500 block, N. Philadelphia street, in the city of Shawnee.

Upon the trial the jury returned two verdicts, one finding the defendant Harry Bell not guilty, the other finding the defendant Doug McAfee guilty and fixing his punishment at confinement in the county jail for 30 days and a Ifine of $100, “and recommended the 30 days he suspended.”

Judgment was rendered on the verdict February 14, 1939. The appeal was lodged in this court May 23, 1939.

The only assignment of error urged is that the verdict ¡of the jury is contrary to the law and the evidence.

The state to sustain the charge called two witnesses. George Southgate, deputy sheriff, testified that on the date alleged he was driving his car, in company with Frank Bryant, on North Union street, city of Shawnee, and met a green Chevrolet coupe, driven by the defendant McAfee; that defendant Bell was in the car with him. They had a search warrant for this green coupe, so they turned around and took after the coupe. He noticed a package with whisky in it lying on the side of the street; stopped his car. Mr. Bryant jumped out, and he drove on, overtook the green coupe and arrested the defendants, then took them back to where he left Mr. Bryant.

Frank Bryant, deputy sheriff, testified that he was with Officer Southgate, going north on Union street, when they met the defendants, and, having a search warrant for the defendant’s car, they turned around and followed the car; after going a few blocks, something was thrown from the car. Southgate stopped, he jumped out, and picked it up. It was three pints of taxpaid whisky wrapped up, and a pint that had been broken; that he could not say which one of the defendants threw it from their car.

The state rested; the defendants interposed a general demurrer to the evidence, which was overruled.

Harry Bell, as a witness in his own behalf, testified that on the day of his arrest he had been at Buz McGee’s pigstand on North Kickapoo, Doug McAfee Avas with him; about 4 o’clock in the afternoon they started home in Mc-Afee’s car and were arrested on Highland street by Officer iSouthgate. He put us in his car and drove around on Union street and picked up Frank Bryant, who had three bottles; that he could not SAvear what it was that was in them; that he did not throw anything out of the car; that he was a married man Avith a wife and tAvo children, 15 and 10, going to school. Had never been convicted of any offense.

Doug McAfee testified that he was driving his own car and Harry Bell was Avith him; that between 4 and 5 o’clock they left the pigstand to drive home, and were arrested by Officers Southgate and Bryant and taken to the county jail; that they searched his car and their person, but did not ifind any whisky. He then drove back with them in his car, and they met Frank Bryant, who had two or three bottles of whisky in his hand; that he never saw those bottles of whisky before; that there Avas nothing thro-Avn ¡from his car while the officers were following, them; that he had been convicted for the unlawful possession of whisky in 1937, and had not violated the liquor law since that time.

The state’s, case was made by direct and circumstantial evidence. As a witness in his own behalf, the appellant denied transporting the whisky. Obviously, the jury were satisfied of his guilt, notwithstanding his testmony to the contrary.

It is the exclusive province of the jury to pass upon the credibility of witnesses, and the weight of their testimony, and when, as in this case, there is substantial evidence to support their finding, this court will not interfere.

The judgment of the lower court is accordingly affirmed.

JONES, J., concurs. BAKEFOOT, J., absent.


text:
    JOHN KUHN et al. v. STATE.
    N. A-9586.
    Aug. 14, 1940.
    (104 P. 2d 1010.)

      E. Moore, of Coalgate, and W. E. Utterback, of Durant, for plaintiffs in error.
    No brief for tbe State.
   DOYLE, P. J.

Tbe plaintiffs in error were jointly charged, tried and convicted in tbe county court of Coal county, under an information wbicb charged that in said county on tbe 22nd day of December, 1937, they did have in their possession certain intoxicating liquor with tbe unlawful intent to sell tbe same, and in accordance with tbe verdicts of the jury John Kuhn was sentenced to serve 30 days in tbe county jail and to pay a fine of $100, and Lee Oldham was sentenced to serve 30 days in tbe county jail and to pay a fine of $50.

To reverse tbe judgments they appealed.

Numerous errors are assigned, but tbe only question that need be considered is whether tbe justice of tbe peace had jurisdiction to issue tbe search warrant in tbe execution o!f wbicb tbe whisky in question was seized.

On July 21, 1938, tbe defendants filed a motion to suppress tbe evidence, wbicb may be summarized as follows:

That tbe evidence upon wbicb said information is ■based was obtained by a search of tbe defendants’ premises without authority of law and was in violation of section 30 of tbe Bill of Bights, Okla. St. Ann. Const., guaranteeing tbe security olf tbe people in their right to1 be exempt in their persons, bouses, papers, and effects from unreasonable search and seizure, and neither of said defendants waived bis constitutional rights or consented to tbe search of said premises by said officers; that no affidavit was made upon which tbe purported search warrant was based, and said purported warrant was therefore void, said purported search warrant was issued without complaint or affidavit as required by law, and the search and seizure so made was therefore unlawful and unreasonable.

On July 25, 1938, said motion to suppress the evidence and dismiss the cause was heard by the court.

The purported affidavit and search warrant were identified and introduced in evidence.

In support of the motion to- suppress, E. Pritchard, called as a witness, testified as follows:

“Q. Did you hold any office in Coal county on December 22, 1937? A. Yes, sir. Justice of the Peace. Q. Did you issue a search warrant on the 22nd day of December 1937, which I now hand you? A. I have got my name signed to it? Q. You issued that? A. Yes, sir.
“Q. I now hand you a document, defendant’s Exhibit 2, and ask you to state to- the court what that is? A. Affidavit for search warrant. Q. When was that presented to you and by whom? A. It was presented to me, — I would not be right sure, whether' it would be the sheriff or the county attorney. I would not be positive which one. Q. When that was presented to you, was Mrs. Nell Brothers present? A. No, I think not. Q. Was she present at any other time before you that day? A. I don’t believe — not to malee any complaint. She was present and wanted to- know where the county attorney was? Q. Just asked for the attorney? But you issued this search warrant, which is marked ‘Defendant’s Exhibit 1’? Did Mrs. Nell Brothers swear to- that affidavit before you? A. No-, she did not. Q. Did she appear before you at all with that affidavit? A. Not to- my knowledge. Q. Is that the only affidavit, or purported affidavit, which you had, upon which you issued the search warrant? A. I don’t know of any more. Q. You issued the search warrant when Mr. Balch, the county attorney, or Mr. Clark, sheriff, gave you this document, without seeing Mrs. Brothers, and without her having sworn to it before you? A. I believe that is right.”

Walter Clark, the sheriff who served the search warrant, testified as follows:

“Q. I hand you document marked ‘Defendant’s Exhibit 1’ and ask yon to state when yon first saw that document, and where, on the 22nd day o!f December, 1937? A. In my office. Q. Who gave it to- you? A. The county attorney, Mr. Balch. Q. Did you serve that search warrant? A. I did. Q. In what manner did you serve it? A. I went to Johnnie Kuhn’s place, and went in and told him I had a search warrant for his place and handed him a copy, and proceeded to search. Q. I believe it is located on lots 1, 2, 3, 4, 5, block 106 in the city of Coalgate, on the right side of U. S. Highway No. 75 going south in the city of Coalgate after you cross the railroad; is that the description of it? A. Yes, sir. Q. Whatever liquors of any kind or character you found in there were 'found by you, operating under and executing the search warrant which you now hold, and which is now in evidence as ‘Defendant’s Exhibit 1?’ A. Yes, sir. Q. That was your authority for making the search? A. Yes, sir, it was. Q. You had no other authority? A. No: Q. You have not made any search under any other search warrant of these premises after that time? A. No. Q. Who was with you when you made that search? A. C. C. West and O. C. McMillan. Q. Is that the only search you have made of Johnnie Kuhn’s premises in Coalgate with these parties accompanying you in the last twelve months? A. That is the only search that was made.”

Cross-Examination.

By Mr. Balch:

“Q. At the time this search warrant you testified to here was delivered to you by the county attorney, the justice of the peace signature was not on it at that time? A. No, sir. Q. It was you who ascertained the whereabouts of the justice of the peace and obtained his signature? A. Yes, sir. Q. Did you know that Mrs. Brothers — you had a conversation with her, did you not? A. We had when she was in the office and talked to Mr. McMillan, and she said she wanted to get a search warrant. Objection overruled. A. I told her she would have to see the county attorney to make the affidavit, and she left my office and went to his office. The Court: Motion, to suppress the evidence will be overruled. Mr. Utterback: Exception. ”

The purported affidavit introduced as “Exhibit 2” entitled: “In Justice Court,” recites: “I, Mrs. Nell Brothers, do solemnly swear that certain intoxicating liquors, to wit: Whisky and or beer are now being kept and stored in”. Then describing the premises and continuing with allegations of possession with unlawful intent to sell the same and verified as follows:

“Mrs. Nell Brothers. Subscribed and sworn before me this 22nd day of December, 1987. E. Pritchard, J. of P.
“Endorsed: No. 813 in justice court. Piled.19....”.

The search warrant issued thereon is signed: “Witness my hand this 22nd day of December, 1937. E. Prit-chard, Justice of the Peace. Coalgate district, Coal County, Oklahoma.”

The officer’s return thereon reads : “Received this writ on the 22nd day olf December, 1937, and executed the same on said day by searching premises within described and found the following described liquor” Describing 16 pints of whisky. Signed: “Walter Clark, Sheriff.”

Upon the record before us and the undisputed facts in evidence there was no complaint or affidavit made upon oath or affirmation as required by section 30 of the Bill of Rights. Const, art. 2. sec. 30.

Under provisions of state and federal Constitutions against unreasonable searches and seizures, it is uniformly held that a search warrant must conform strictly to the constitutional and statutory provisions for its issuance, and no presumptions of regularity are to be invoked in aid of process under which an officer obeying its command undertakes to justify.

Booth v. State, 67 Okla. Cr. 413, 94 P. 2d 846.

The Code of Criminal Procedure provides:

“The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.” Section 3224, 22 Okla. St. Ann. § 1224.

The Code defines an affidavit as follows:

“An affidavit is a written declaration, under oath, made without notice to the adverse party.” Section 289, O.S. 1931, 12 Okla. St. Ann. § 422.

In Bowdry v. State, 60 Okla. Cr. 46, 61 P. 2d 31, it is held a search warrant was void if issued without an oath or affirmation as required by law, and see Ford v. State, 34 Okla. Cr. 185, 246 P. 909.

In the case of Uhlenhake v. State, 58 Okla. Cr. 248, 52 P. 2d 117, 120, this court said:

“Where a justice of the peace has acquired jurisdiction, the only competent evidence of the proceedings had is the record required by law to be made, and the record is conclusive as against any parol attack in a collateral proceeding attempting to« impeach it. Ex parte Walton, 2 Okla. Cr. 437, 101 P. 1034.”

In issuing a search warrant the statute requires the evidence of probable cause to be made a permanent record in the form of a verified complaint or an affidavit.

“The complaint or affidavit and the search warrant should be matters of public record in the office of the justice of the peace who issued the search warrant.”

In Harrington v. State, 66 Okla. Cr. 310, 91 P. 2d 787, this court held:

“Though the judgment of a justice of the peace, who has jurisdiction, cannot be assailed collaterally on account off mere irregularities in the proceedings, subsequent to acquiring jurisdiction, the jurisdiction, to be complete, so as to preclude collateral attack, must exist both as to- the subject matter and as to the parties.”

In the opinion it is said:

“Our conclusion is that, under the provisions of statute and the foregoing authorities, the verification of the complaint, and the issuance of the search warrant thereon was a matter of jurisdiction, and not of procedure, and where the record is silent, as in this case, jurisdiction will not be conclusively presumed, and evidence showing or tending to' show want of jurisdiction should have been admitted.”

The United States Supreme Court, in the case of Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 263, 65 L. Ed. 647, elaborately discusses the rights of the people guaranteed to them by the Fourth and Fifth Amendments to the Federal Constitution of the United States. In its opinion, written by Mr. Justice Clark, the court said:

“It would not be possible to add to the emphasis with which the the framers off our Constitution and this court in Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, in Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319 [24 A.L.R. 1426]) have declared the importance to political liberty and bo the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is: That such rights are declared to be indispensable to the Tull enjoyment of personal security, personal liberty and private property’; that.they are to be regarded as of the very essence of constitutional liberty; and that the guaranty off them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers.”

The constitutional provisions relied upon by the defendants are as follows:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.” Const, art. 2, sec. 21.
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.” Const, art. 2, sec. 30.

Section 21 corresponds in substance with article 5, and section 30 is identical with article 1, respectively, of the amendments to the Constitution of the United States.

In the present case, the evidence in support olf the motion to suppress, which is undisputed, shows that no affidavit or complaint properly authenticated by the oath of the person making the complaint was on file with the justice of the peace at the time he signed the search warrant. Said justice of the peace testifed that the purported affidavit was not signed or verified before him, and that said aiffiant, Mrs. Nell Brothers, did not appear before him with said affidavit; that the same was given to him by the sheriff or county attorney, he would not be positive which one.

The sheriff testified that the search warrant was given to him by the county attorney; that the signature of the justice of the peace was not on it at the time, and he had said justice sign it.

It thus appears that no complaint, properly verified, or affidavit as required by law was ever presented to said justice of the peace.

Our conclusion is that upon the record and the proof offered in support of the motion to suppress the evidence, the entire proceedings, before the justice of the peace who signed the search warrant, were a nullity.

It follows that the defendants’ motion to suppress the evidence should have been sustained.

The verdicts and judgments of conviction having no competent evidence to' support the same, the judgments of the county court of Coal county herein must be reversed, and the cause remanded, with direction to' dismiss. It is so ordered.

JONES, J., concurs. BAREFOOT, J., absent.


text:
    Ex parte RAYMOND HASTINGS.
    No. A-9907.
    Aug. 28, 1940.
    (105 P. 2d 270.)
    Forrest Powell, of Edmond, for petitioner.
   DOYLE, P. J.

Petitioner, Raymond Hastings, filed in this court on July 26, 1940, his petition for writ of habeas corpus, wherein he alleged that he was. unlawfully imprisoned and restrained of Ms liberty by George Goff, sheriff of Oklahoma county, and in which he prayed for a writ of habeas corpus, to be directed to said sheriff; that the cause of said restraint is a commitment issued by Guy Bigham, justice of the peace for Edmond city district, Oklahoma county, and alleges that the said justice of the peace was without jurisdiction to issue commitment for the following reasons:

That the complaint upon which the warrant issued was verified by E. N. Kelley, and was not submitted to the county attorney or drawn by him, and was not endorsed by him as by law required prior to the issuance of a warrant, and the complaining witness did not file a bond, conditioned to pay all costs, as provided by law. Sec. 3362, St. 1931, 39 Okla. St. Ann. § 528'.

That petitioner is a minor and did whatever was required of him, but at no time admissed or entered a plea of guilty as now shown by the record in the case; that he was deprived of his constitutional rights of a fair trial by the acts oif the said justice of the peace, and being ignorant of his rights did not know that the proceedings were void by reason of no legal charge or complaint having been filed against him.

On the presentation of said petition, a rule to show cause was duly entered and issued, returnable August 28, 1940, and petitioner was ordered enlarged upon his own recognizance.

In Newton v. State, 14 Okla. Cr. 226, 170 P. 270, 272, construing section 3362, supra, it is said:

“It provides a method whereby a private citizen may institute a criminal prosecution by a verified complaint, but if said complaint is not submitted to the county attorney with a statement of the facts that can be proven, and if it does not receive bis indorsement that he has examined the facts and recommends that a warrant shall issue, then the prosecuting witness is required to put up a bond for costs as a deterrent against malicious or unwarranted prosecutions. In this way prosecutions by duly verified complaint in the name of and by the authority of the state are secured.”

No1 return or response has ever been made to the rule to show cause.

Section 689, St. 1931, 12 Okla. St. Ann. § 1338, requires that the sheriff or other person to whom the writ directed shall make immediate return thereof, and if such officer neglect or refuse to malee return, after due service, or shall refuse or neglect to obey the writ by producing the party named therein, and no sufficient excuse is shown for such neglect or refusal, the court shall enforce obedience by attachment.

Section 690, 12 Okla. St. Ann. § 1339, provides that the return must be signed and verified by the person making it, who shall state:

First. The authority or cause of restraint of the party in his custody.

Second. If the authority be in writing, he shall return a copy and produce the original on the hearing.

Third. If he has had the party in his custody or under his restraint, and has transferred him to another, he shall state to whom, the time, place and cause of the transfer*.

Section 691, 12 Okla. St. Ann. § 1340, provides that the petitioner may except to the sufficiency of or controvert the return, or any part thereof, with other provisions not necessary to here mention.

Section 692, 12 Okla. St. Ann. § 1341, is tO' the effect that upon the issues joined the court or judge shall proceed in a summary way to bear and determine the cause, and if no legal cause be shown for the restraint, or for a continuance thereof, shall discharge the petitioner.

The petition, duly verified, on its face shows that petitioner, Raymond Hastings, on the date thereof was illegally restrained of his liberty, and as the sheriff in whose custody he was restrained has failed to make any return or offer an excuse for failure so to do, the petitioner should be discharged. While this court has ample power to enforce obedience to its order by attachment, and require that the sheriff shall make return to the writ, we are not required to do so, but may proceed in a summary way to determine the cause upon the verified and undenied petition. Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758; Ex parte Pruitt, 31 Okla. Cr. 294, 238 P. 501.

From a consideration off the petition and numerous exhibits attached thereto, it is obvious that the petitioner was on the date complained of unlawfully restrained of his liberty and should be discharged, and it is so ordered.

BAREFOOT and JONES, JJ., concur.


author: JONES, J.

text:
    ROGER W. CUNNINGHAM v. STATE.
    No. A-9796.
    Aug. 28, 1940.
    (105 P. 2d 264.)

      Herbert K. Hyde, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

The defendant, Roger W. Cunningham, was charged in the district court of Oklahoma county with the offense of murder, was tried, convicted and sentenced to death by electrocution in the state penitentiary, and has appealed.

This case was submitted to this court on the case-made with petition in error attached. No appearance was made at the time the cause was set for oral argument by either the state or the defendant, and no briefs have been filed.

The only deifense interposed in the trial of said case was the defense of insanity. The defendant contends in his petition in error before this court that the punishment is excessive and should be modified by a reduction to a sentence of life imprisonment in the state penitentiary.

The undisputed facts established by the prosecution were that the defendant Roger W. Cunningham had married the deceased, Eudora Cunningham, in 1935. At the time of their marriage, she was a school teacher; and he was employed as an assistant instructor in the Central High School at Oklahoma City and also a night job at the Biltmore Hotel. Later he secured a job as an inspector for the Federal Housing Administration in connection with the loans which were being made on newly built houses in Oklahoma City and vicinity. He was acting as such inspector at the time df the tragedy herein.

The stepfather and mother of the deceased were Mr. and Mrs. Joel P. Stokes, who were partners in the Stokes Realty Company. They had been instrumental in the development of the Twin Hills addition near Oklahoma City and had built their own home in that addition. During the time the Stokes Realty Company was building the various houses in this addition, the defendant was employed by them in connection with this work. He made out reports, kept the time cards on the employees, and checked the material used in the construction of the houses in said addition.

During tbis time, tbe defendant and bis wife (tbe deceased) built a borne adjoining tbe borne of tbe Stokes at an approximate cost of $18,000. Practically all of tbe money necessary for tbe construction oif tbis borne was borrowed from a loan company, and payments on tbis loan were to be made monthly by tbe defendant.

In December, 1938, tbe defendant, without ever having previously discussed tbe matter with bis wife, told her that be bad been to see Clarence Black, an attorney in Oklahoma City, and arranged to get a divorce. That be wanted her to go to' tbis attorney and sign a waiver so that a divorce could be had. Tbe wife at that time went over to her mother’s and informed her of tbe defendant’s proposal; and Mrs. Stokes, tbe mother, talked to' tbe defendant to try to learn tbe trouble. He refused to' tell her why be ¡felt that be and the deceased should be divorced.

Tbe mother testified that she asked tbe defendant if Eudora bad done anything or had refused to' do anything to cause him to want to' divorce her. She further testified:

“He said that she hadn’t done anything, and that there wasn’t anything. That he just thought that we would all be better off and happier; she would be happier, be would be happier, and we would be happier. He would-n’t talk very much and was reluctant to discuss it; and I argued about it and tried to get him to tell me; and be finally said, well, be wouldn’t make any promises; be did-n’t know, and that be would know in a short time whether be wanted to go on; and with that, be left and went on upstairs.”

Eudora Cunningham was last seen alive by her parents on Sunday afternoon, March 5, 1939. On tbe evening of Monday, March 6, 1939, Eudora Cunningham disappeared. Tbe next morning, tbe defendant called the principal of tbe Poster iSchool in Oklahoma City, where tbe deceased wprked as a librarian, and told him that she bad been called to Illinois on account of illness in her family and that she would probably be gone a week.

The Stokes Realty Company had a personal injury case set for hearing before the Industrial Commission on Tuesday, March 7th, in which case the defendant was a necessary witness. About 10 o’clock a. m. on Tuesday, March 7th, the defendant went to a lawyer’s office in Oklahoma City and discussed the testimony to be given by him in said case. That afternoon he testified as a witness before an inspector for the Industrial Commission. After this case was concluded, he told the parents of his wife for the first time that Eudora was not at home. He told her parents that he met his wife after school on Monday, ate dinner and then he took her to the Criterion Theater, and he went to' his office to' work. That after the show he met her and drove home. That when they arrived at home, she went upstairs and was packing her bags and said she had made up her mind that it was too embarrassing to stay there where her parents were, for them to' have to take her back and forth to school and furnish her with meals, and that she had decided to go to California. That she packed three bags of her clothes, and he took her to the Sante Fe Station and let her out, and that he took her bags out of the car and set them down for her. That he then drove down to a parking place in front off the King-kade Hotel; that he sat there a few minutes and then drove back to where he had left Eudora, but that she was not there. That he looked around on Grand avenue and Reno street and under the underpass, and was unable to' find her, and that he had gone on home. After telling this story, the defendant represented to the parents that he was making every effort to locate his wife; that he had talked to different taxi-drivers and railroad and bus men and others in an endeavor to' find some one who had seen her.

The defendant continued bis work for the F. H. A. that week, going to Lawton on Wednesday to make an inspection. While at Lawton he called the Stokeses and inquired as to whether they had heard from the deceased. Mrs. Stokes went to the bank where Eudora deposited her money and found that the defendant had just cashed a check for $50, dated March 6th, and which was signed by the deceased, which left her a balance of only $40 in the bank. That no other money had been withdrawn. On Thursday the defendant and Mrs. Stokes had lunch together, and that afternoon he took her on a tour of inspection that he had to' make.

Things continued in much this manner !for several days, with the defendant insisting that the parents would hear from their daughter. At the request of the defendant, the officers had not yet been notified of the disappearance; but the parents had made a thorough check of everything they knew to ascertain her whereabouts and had called many of her relatives in distant places.

Later, while the defendant was gone ¡from home, Mrs. Stokes obtained a passkey and went over to his house and went up in the attic where the deceased stored her bags and her clothes to see what had been taken. She discovered at that time only the footprints of a man in the dust-covered floor of the attic and found that many pf the dresses and articles of clothing which her daughter would have taken if she were going on a trip had not been moved. On Wednesday, March 15th, Mrs. Stokes went to' the county attorney’s office and outlined the circumstances oif the disappearance of her daughter. The next day, the defendant came with Mr. and Mrs. iStokes to' the county attorney’s office and repeated practically the same story there that he had related to the parents about the disappearance of his wife.

On March 18th, Mrs. Stokes received a telegram from Los Angeles, Cal.: “Am getting along fine Hope yon are too Tell Roger love. Endora.”

After the receipt oif this telegram, an investigation was made which disclosed that it was sent from Los Angeles, Cal., by one Monty Dillingham. Dillingham had sent the telegram in response to a letter which he had received from the defendant, which reads as follows: “Spike:

“Please send this straight, just as fast as you can get to a Postal or Western Union sub-station * * * where you are not known. Destroy this letter and keep this to yourself. I will explain it all to you someday.
“Please — please—do this for me.
“Roger-
“Keep the change — if any.
“I sure hope things are looking better for you and that you have a chance to make it out there. You may have to find a spot !for me. Do not tell Harry or Stormy.
“Rog.”

After these facts were discovered, the defendant was taken into custody on March 20th. The defendant still maintained that he knew nothing more about the disappearance of the deceased than he had related, but that he had had the telegram sent to ease the minds of the Stokeses until Eudora could return.

In connection with the duties of the defendant as an inspector for the P. H. A., he had occasion to inspect some houses which were being built at the time of the homicide in the 3600 block on West Eleventh street. A sewer ditch had been dug about the 1st of March through the 3600 block, east and west, between Eleventh and Park streets. In the investigation by the officers of the defendant’s actions prior to his wife’s disappearance, it was learned that he had been seen looking at this sewer ditch on tbe Friday prior to bis wife’s disappearance on Monday evening. Tbe evidence showed that tbe company constructing tbe sewer line bad filled tbe sewer ditcb with tbe exception of a short distance around tbe manholes on Monday, March 5th, and they bad completed tbe filling of tbe ditcb on Tuesday morning, March 7th.

Tbe officers spent some time probing in this ditcb with long, steel rods, but bad been unable to' find tbe body. On tbe night of March 24, 1939, tbe officers related to tbe defendant all of their findings; and at that time, the defendant took a piece of paper and pencil, and drew a map of tbe area where tbe sewer ditcb had been constructed, and marked tbe place on tbe map where he told them tbe body o!f tbe deceased would be found. At tbe bottom of tbe map, be wrote tbe following: “Take her bo Street and Draper’s.” After be bad showed tbe officers this diagram, be wrote out in bis own bandwriting a confession of the murder, which reads as follows:

“March 24, 1939
“Monday night March 6th, 1939, about 7:30 p. m. I strangled my wife Eudora and buried her in a partially filled sewer ditcb in the 3600 west, between 11th Street and Park Place. May G-od have mercy on my soul.
“After this I drove to tbe Post Office Bldg, and stayed till 11:00 and then I went home and packed three traveling bags with her clothes and took them to tbe south end of tbe May Ave. bridge and threw them off on tbe west side of tbe squatter shacks — then I drove home.
“Roger W. Cunningham
“I make tbe above statement of my own free will. No threats have been made against me and no promises made to me.
“Witnesses “Roger W. Cunningham
“Lewis R. Morris
“George Goff
“Claude Tyler”

After this confession was made, the officers excavated the ditch at the point described in the map and found the body of the deceased. The scarf was still around her neck; and the evidence showed that she had been choked to death. The clothing contained in the three hags which the defendant had thrown off near the river at the south end of the May avenue bridge was recovered from the occupants of a squatter camp at that location.

The defense introduced evidence to show that the defendant was a graduate of Central High School of Oklahoma City. That while he was a student in the high school, his conduct and actions seemed peculiar; that he was 515th among the 525 graduating, students in 1923. He attended the University of Oklahoma; and while a student there in 1924, contracted a case of syphilis. That he took treatment for this disease in 1924 and 1925 from Doctor Ben Cooley of Norman. He left school there and later enrolled in school in Kansas. He continued to take treatments for this disease, and was pronounced cured in 1927. He married at that time and divorced his wife about a year and a half later. The defendant’s father was a prominent physician in Oklahoma City. In 1932, the syphilis reappeared in the defendant, and he was sent to the State Hospital at Norman for treatment as a private patient under the name of C. Rogers. He received treatments at that institution at various times from 1932 to the early part of 1935. At one time he spent six months there as a patient, receiving treatment. After the disease was apparently arrested in the early part of 1935, the defendant married the deceased, Eudora Stokes. No' further treatments were taken by the defendant after his marriage to Eudora so far as the record discloses.

The evidence shows that during a part of the time that the defendant was a patient at the .State Hospital, be attended school at the University at the same time. The defendant introduced Dr. James A. Willie as an expert psychiatrist, who testified, in response tO' a hypothetical question submitted by the attorney for the defendant, that in his opinion the defendant was insane at the time he killed his wife. To refute this, the state introduced the testimony of Dr. George L. Boreeky, who testified that he had taJken a Wassermann test o!f the defendant after he was placed in jail and that the test was negative and that he had had the defendant under observation since the 29th of March, and that in his opinion the defendant was sane at the time of the trial and at the time of the homicide on March 6th.

These two> doctors were the only expert witnesses who testified concerning, their opinion of the sanity of the defendant. Other medical testimony was introduced concerning the effect of the disease oif syphilis on the human mind. This proof was to the effect that about 15 per cent, of all the people who contract the disease of syphilis become affected in their central nervous system. That when the disease got in the central nervous system it could be arrested but never cured. The defendant received treatment and injections in his spinal ¡fluid for this disease, and also was given the malarial treatment at the State Hospital. The proof shows that the defendant had the disease in his central nervous system during the time of his treatment in 1932 and 1933. After June 7, 1933, the tests that were taken of his blood and spinal fluid for syphilis were negative.

Lay witnesses connected with the F. H. A. testified that the defendant appeared sane in his work with them, and that subsequent to1 the homicide he continued to make his written reports concerning the construction of various houses which, came under his supervision the same as if nothing had happened.

The testimony showed that on the Friday (following the homicide on Monday, the defendant had a party of men at his home where they played poker all night.

A person cannot but conclude from an examination of this record that the defendant was wholly without emotion. But the evidence does not fairly permit any other conclusion than that the homicide was the willful, deliberate and premeditated act of a person who understood the nature and consequences of his act.

We have held that the test of criminal responsibility for committing an act which is declared to' be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act. Alberty v. State, 10 Okla. Cr. 616, 140 P. 1025, 52 L.R.A. (N.S.) 248.

The defense of insanity, at best, presents a question of fact for the jury; and when they have settled that question without passion or prejudice in accordance with the evidence and the instructions of the court, it is not the province of this court to disturb the verdict of the jury. The instructions covering the theory of insanity were as favorable to the defendant as the law permitted; and it is not contended that the court committed any error in this regard.

Unquestionably, the disease which had afflicted the defendant had a demoralizing effect on him. But to this court there is nothing in the record to show that he did not know right from wrong at the time of the homicide. All of his movements, both before and after the homicide, showed that he fully understood what he was doing and tbe effect of bis acts if bis guilt was learned. Tbe manner in wbicb he planned tbe death, even to the minutest details, together with tbe stories be manufactured bo cover bis wife’s disappearance, all indicate to this court that be bad gotten tired of this young girl, and being wholly without emotion, chose to put her to death by strangulation. That be thought by burying her body many feet underground in the sewer ditch that she would never be discovered ; and accordingly, he would never be punished for his crime.

It is very unfortunate that something has broken loose in this young man’s moral fiber to cause the commission of this offense. The Legislature in its wisdom has provided for the imposition of the extreme penalty in certain classes of cases at the discretion of the jury. Every guaranty afforded a defendant accused of crime has been accorded the defendant. Every precaution was taken to see that he was given a fair and impartial trial. Counsel for defendant has pointed out nothing to this court that he contends was error in the proceedings during the trial of said cause; and after a very careful examination of the entire record, we have found none.

Our Code of Criminal Procedure, section 3204, O. S. 1931, 22 Okla. St. Ann. § 1066, provides:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial. * * *”

We have held that by this provision, this court is vested with the power to' modify a judgment when such a course would be in the furtherance of justice and merited by the evidence. Fritz v. State, 8 Okla. Cr. 342, 128 P. 170; Anthony v. State, 12 Okla. Cr. 494, 159 P. 934; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464; Chambers v. State, 16 Okla. Cr. 238, 182 P. 714; McConnell v. State, 18 Okla. Cr. 688, 197 P. 521; Young v. State, 19 Okla. Cr. 363, 200 P. 260; Phillips v. State, 27 Okla. Cr. 108, 225 P. 180.

This young man comes from a good family. Evidently he has many friends who have heavy hearts because of this tragedy. The law regards human life as the most sacred of all interests committed to its protection; and no more solemn duty can be imposed upon the courts than the duty of protecting, and the duty off taking, human life.

We have given this case that careful consideration which its importance and its solemn consequences to the defendant demand. We cannot find anything in the record that might mitigate the offense or justify this court in the due administration of justice in interfering with the verdict of the jury and modifying the same to life imprisonment. The judgment is accordingly affirmed.

The time originally appointed for the execution of the defendant Roger W. Cunningham having passed pending this appeal, it is ordered, adjudged and decreed by this court that the judgment and sentence of the district court of Oklahoma county be carried out by the electrocution of the defendant Roger W. Cunningham by the warden oil the state penitentiary, at McAlester, Okla., on Friday, the 15th day of November, 1940.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    FRANK ALLEN v. STATE.
    No. A-9729.
    Sept. 4, 1940.
    (105 P. 2d 450.)

      Wilson & Wilson, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Hugh Conway, Co. Atty., and Luther A. Wells, Asst. Co. Atty., both of Enid, for defendant in error.
   JONES, J.

The defendant Frank Allen was charged in the district court of Garfield county with the offense of murder, was tried, convicted of manslaughter in the first degree, sentenced to 30 years and one day in the state penitentiary, and appeals.

The proof on behalf of the state shows that the defendant and the deceased, Jess Allen, were brothers who lived in the city of Enid at the time of the killing. Jess Allen lived with his wife, Elodie, and one ,Skeet McClellan at 401 East Willow street, while the defendant lived with his wife and three stepchildren a block away at 501 East Willow street. There were no houses or buildings between these two residences.

The deceased, Jess Allen, had been engaged in the wholesale liquor business in Enid for several years. The defendant being out of employment in Houston, Tex., was solicited by the deceased to come to Enid and help him in his illicit liquor traffic. This occurred several months before the killing.

At the time the defendant came to Enid, he was the owner of a 1930 model Ford coupe automobile. A few weeks after his arrival in Enid arrangements were made for the trade-in of this coupe on a new 1938 model Ford automobile. The cash difference between the values of the two cars was apparently paid by the deceased, but the title to the automobile was taken in the name of the defendant, Frank Allen. As quite some little time was spent in the oral argument of this cause on the question as to who actually .owned this automobile, we deem it proper to state that, in view of the facts surrounding the homicide, it appears immaterial as to- who the actual owner of this automobile was. But for the purpose pf this opinion, we are adopting the contention of the defendant that he was the sole owner of said automobile.

The killing occurred at the home of Jess Allen on September 6, 1938, during the noon hour. A few days before that time, the defendant and Sheet McClellan were transporting a load of whisky from Illinois to Enid and were caught by the officers at Claremore, Okla. The defendant took the full responsibility for having the whisky, and McClellan was released. Later, the defendant accused McClellan of framing him SO' that he would be caught by the officers at Claremore, and a bitter enmity between the two arose. The defendant, some weeks previous to that time, had also' had some harsh words with Elodie Allen, wife of the deceased. An enmity existed between them, which lasted up to the time of the homicide. She had been married before her marriage with Jess Allen; and prior to her marriage to Jess Allen, she had lived with him as man and wife and as a joint partner in the whisky business.

On the iSunday prior to the homicide on the following Tuesday, the defendant, together with the deceased and Skeet McClellan, was transporting some whisky. An argument between the defendant and McClellan arose; the automobile was stopped; these two1 gentlemen got out of the automobile and proceeded to engage in a ¡fist fight. Jess Allen then got out of the automobile with a tire tool and struck the defendant several times with this weapon, causing severe bruises and some lacerations on the arms and body of the defendant. After he was struck by the deceased with the tire tool, the deceased, Jess Allen, and McClellan drove off and left the defendant wounded and bleeding in the road. He was picked up by a passerby and taken to the hospital where his wounds were dressed. The defendant spent a large part of his time on Monday trying to procure a gun, stating to the people he contacted that “he had never had a [fair break in a fight.” Finally, he bought a twelve-gauge pump shotgun from a pawnshop and secured five shotgun shells at a hardware store.

The deceased had possession of the automobile in controversy ; and the defendant on Monday sought unsuccessfully to find the automobile and take it into his custody.

The proof shows that on Tuesday morning, the day of the fatal shooting, an automobile salesman drove up to the home of Jess Allen. The defendant was seen a Ifew minutes later coming from his home across the vacant lots towards the Jess Allen home. He was armed with the twelve-gauge shotgun. When the defendant got up close to the home of the deceased, he turned and went back to his own residence. In his trial, the defendant stated that he had taken his shotgun and started over that way to shoot a stray cat; but the theory of the state, which seems reasonable in the light of what happened a short time later, was that the defendant thought the automobile salesman driving into the yard was Jess Allen returning to his home and that when he got close enough to see that it was not Jess Allen and not his automobile, he returned to his own home. A short time after this occurrence, J ess Allen and his wife drove up in the automobile in controversy, parked the same about three Ifeet from the rear door of the deceased’s house and went into the house. In the house at that time were Mr. and Mrs. Harlan McClellan, Sheet McClellan, and Mr. and Mrs. Jess Allen.

In a few minutes the defendant came by in an automobile, traveling with one Ray Parsons. He still had his twelve-gauge pump shotgun with him; and when he saw the automobile parked at the rear of the J ess Allen house, he asked Ray Parsons to stop his ear, and the defendant got out and went over and got into the Ford automobile. About that time, Jess Allen came out of the back door of his house and got into the automobile on the left side. Jess Allen was unarmed. There appears to be some little dispute as to just what occurred inside the automobile; but it appears that the two brothers started an argument, and suddenly both of them got out olf the automobile, Jess Allen getting out on the left-hand side of the automobile and Frank Allen getting out on the right-hand side. Both men walked back towards the rear of the automobile. At that time, Frank Allen fired the first shot. This shot apparently tore off the thumb ¡of Jess Allen’s left hand; but the most of the shot entered the porch.

Across the street If rom the Jess Allen house was a barbecue stand, known as Charles Barbecue Stand. As this shooting happened about 12:30 p. m., there were several disinterested people eating at the barbecue stand, who looked across the street when the first shot was fired. Their testimony, in substance, was that they looked up after the first shot was fired and saw Jess and Frank Allen standing to the rear of Jess Allen’s house; that Jess Allen was just close to the back end of the Ford automobile, near the southeast corner of the car, and Frank Allen was about 20 or 25 feet west of Jess Allen; that they saw Frank Allen fire two more shots at Jess Allen; that after the second shot was fired, Frank Allen picked up a brick and threw it at Jess Allen. That after the third shot was fired Frank Allen walked across the street to' the barbecue stand and called the sheriff’s office and told them to> come and get him.

The evidence further shows that at about the time the altercation started, Jess Allen yelled tor Sheet McClellan, and Skeet ran out on the screened-in back porch and fired at the defendant with a .410 gauge shotgun. This charge tore a small hole in the screen, and pieces of the screen and two1 or three of the pellets struck the defendant in the face, causing only slight injury.

The officers arrived in a few minutes, took Frank Allen into custody, and made an investigation of the premises where the shooting occurred. They found a large pool of blood near the southwest corner of the Ford automobile and a trail otf blood leading from that pool into- the house where Jess Allen had gone. The officers found a small, closed pocketknife near the pool of blood in the yard of Jess Allen. They searched the house and found only the .410 gauge shotgun. Jess Allen was taken to the hospital, where he died two days later.

It was the theory of the defendant that he was carrying the shotgun around with him to- shoot stray cats and for his own protection; that he had a right to his automobile and attempted to secure possession of it in a peaceful manner; that when he got into the automobile, Jess Allen ran out of the house with an open knife and slashed at the defendant with the same and stated that he was going to cut his head off; that the defendant then got out of the automobile and started to leave; that the deceased grabbed hold of the shotgun with his left hand, and the defendant discharged the same, tearing oiff the thumb of the deceased; that the shots which killed the deceased were fired by Skeet McClellan who* had a twelve gauge gun instead of a .410 gauge shotgun. That the deceased got in the line of fire between the defendant and Skeet McClellan. This theory will be discussed under one of the assignments of error hereinafter considered.

For a reversal of this case, the defendant makes three assignments of error:

1. That one Craig Campbell acted as a juror in the trial o!f said case, and was, at the time of said hearing, wholly disqualified as a juror for the reason that he was at said time a deputy sheriff, which fact was wholly unknown to the said Frank Allen or his counsel.

2. That the court erred in refusing to admit into evidence a certain twelve-gauge shotgun with which the defendant claimed another party other than the defendant shot the deceased, Jess Allen, and inflicted the mortal wound.

3. That the evidence is insufficient to support the verdict.

In support oif the first proposition, the defendant cites the cases of Reeson v. State, 41 Okla. Cr. 297, 272 P. 1033, and Carr. v. State, 65 Okla. Cr. 201, 84 P. 2d 42.

The voir dire examination of the juror is set forth at length in the case-made. Nowhere in the examination does it appear that he was asked the question as to whether or not he was a deputy sheriff. He was a resident of the city olf Enid, and, according to the record, well know to both the county attorney and the attorneys for the defendant. No challenge for cause was made against this juror, and he was accepted as a juror by both the state and the defendant.

After the verdict had been rendered and subsequent to the overruling of the motion for a new trial, the defendant filed a supplemental motion for a new trial, alleging that Craig Campbell who had sat on the jury had' in his possession during said time a written appointment as a deputy sheriff of Garfield county; that such fact was not known to the defendant and his attorneys and was not discovered until after the hearing on the motion for the new trial; that by reason of that fact the said juror was disqualified to sit on the said jury, and the verdict so rendered was prejudicial and wholly null and void.

In support of this motion, the defendant introduced the testimony of Dudley Branom, the sheriff of Garfield county, who testified that he became the sheriff of Garfield county on January 3, 1939; that shortly thereafter he issued what is termed a special commission to the jurjor, Craig Campbell; that he was not one of the regular deputies employed by him, and the commission card which he gave him was different from the regular commission issued ho his salaried deputies. That the card was issued as an identification or courtesy card; and the said Craig, Campbell was not authorized to make any regular arrest or serve any papers out of the sheriff’s office. That Campbell did not take an oath of office nor make a bond. That he had issued approximately 35 or 40 of these special commissions to his friends in the county.

Under section 805, O. S. 1931, as amended by the Session Laws df 1937, chap. 4, sec. 1, p. 2, 38 Okla. St. Ann. § 10, sheriffs, and deputy sheriffs, along with other persons therein enumerated, are disqualified from performing jury service. When this jury was impaneled the trial judge read this statute as to disqualifications of jurors to them; and it is evident from the action of the trial court in this case that iif it had been called to his attention that the juror Campbell was a deputy sheriff by virtue of this special commission issued to him, he would have been excused from the jury panel.

This case is different in principle from the cases relied upon by the defendant in his brief. In both of those cases, the deputy sheriffs who sat on the jury were actively engaged in law enforcement and had been for many years.

The Eeeson Case was a liquor case; and during the trial of said case, the juror Day conferred with the sheriff concerning certain other liquor cases; and he was instructed to arrest a man in connection with a prosecution then pending. The defendant was given the maximum punishment provided by law, and it was plain to be seen that the juror purposely withheld the fact that he was a deputy sheriff ifrom the defendant and his counsel in order to get on the jury to- convict the defendant.

In Carr v. State, supra, cited by the defendant, the juror Grover Leonard testified that he had been a deputy sheriff for more than 20 years and actively engaged in law enforcement. That decision was a well-considered opinion by Judge Doyle, and set forth the correct rule of law. It was clear ifrom the evidence in that case that the verdict was prejudicial.

This court doubts very much if the juror Craig, Campbell is such a deputy sheriff as is contemplated by the statute pn disqualification. The statutes prescribe the procedure which must be followed by the sheriff in the appointment of his deputies. The appointment must be in writing, filed with the county clerk, and approved by the board of county commissioners. None of that was done in this case. .Section 7852, O. S. 1931, as amended by Session Laws o!f 1935, chap. 35, art-. 17, p. 178, 19 Okla. St. Ann. § 541; section 7848, O. S. 1931, 19 Okla. St. Ann. § 545; section 7631, O. S. 1931, 19 Okla. St. Ann. § 548.

All of the officers who testified in this case were officers under the preceding sheriff’s administration. Mason Hart was the sheriff of Garlfield county at the time of the homicide on September 6,1938. Dudley Branom succeeded him as sheriff on January 3, 1939. Neither the sheriff who gave the juror Campbell the courtesy card nor his deputies were witnesses in the case.

The right to challenge any juror for any particular cause is a statutory right and may be waived by the defendant or his counsel. Queenan v. Territory, 11 Okla. 261, 71 P. 218, 61 L. R. A. 324, affirmed on appeal to United States Supreme Court, 190 U. S. 548, 23 S. Ct. 762, 47 L. Ed. 1175.

It is supposed in the voir dire examination counsel for defendant will go thoroughly into the qualifications of the jurors; and if it develops that any of the jurors are disqualified by reason of any statutory ground, that a challenge for cause will be made and sustained.

It was stated by this court in the case of Cooper v. State, 27 Okla. Cr. 278, 226 P. 1066:

“It is the duty of the defendant to question the jurors on their voir dire as to their qualifications; and if he fails to do so, he waives any objections on that point, even though the disqualification is unknown to him until after the rendition of the verdict.”

In David v. State, 14 Okla. Cr. 535, 179 P. 48, and in Tinney v. State, 19 Okla. Cr. 126, 201 P. 819, this court held the disqualification of the juror was waived by withholding and raising it as an objection after the verdict, since such a practice is not consistent with good faith and fair dealing, which should characterize the administration of justice.

In view of the fact that the jury only gave punishment for manslaughter in the first degree when, under the facts, they could just as easily have rendered a verdict for murder, this court cannot see how the rights of the defendant were prejudiced because of the fact that Campbell sat as a juror in said cause.

We hold that in this particular instance, where the disqualification of the juror is raised for the first time after the verdict is rendered and judgment pronounced, the granting or refusing of the defendant’s supplemental motion for a new trial because of alleged disqualification of the juror Campbell was a matter addressed to the sound discretion of the trial court; and, under the record herein, we find no abuse of such discretion.

The practice of sheriffs over the state in giving these honorary commissions, in view of the statute on disqualifications of jurors, is a practice that should be stopped. If they are intended merely as courtesy cards, they should be worded as courtesy cards and no confusion would be caused in the trial courts or on appeal to this court by reason of the raising of this question.

This court recently had called to its attention the courtesy cards issued by the sheriff of Oklahoma county. This card grants all the privileges which are intended by the sheriff the holders of said cards should have and does not present the question that they are deputy sheriffs. For the convenience of the sheriffs of this state, who dO' not have a form of courtesy card, but have been issuing, a so-called special deputy sheriff’s commission, we are herewith printing, one of those cards in the hope that the sheriffs of Oklahoma in their effort to1 appease the political faithful who helped them get elected to office will use these or similar courtesy cards instead of attempting to commission their friends as deputy sheriffs:

“Sheriff’s Office
(State Seal) Oklahoma County
State of Oklahoma 100
Know All Men By These Presents:
That I: George Goff, Sheriff, Repose Special Confidence in the Honesty, Integrity and Good Citizenship of John Doe
Any Courtesy Extended Will be Appreciated
Given Under My Hand
This 5th day of January 1940
(Signed) George Goiff
Sheriff”'

The second contention of the defendant, that the court erred in refusing to admit in evidence a certain twelve-gauge shotgun which belonged to one Garrett Dittmer, is wholly without merit. The proof shows that the deceased had secured the twelve-gauge shotgun from Garrett Ditt-mer several weeks previous to the homicide. But the evidence of every witness who testified concerning said gun is to the fact that it was delivered back to Dittmer on Saturday, August 27th, about ten days prior to' the homicide. Not one witness anywhere, even by inference, states that the twelve-gauge gun was there at the house at the time the shooting occurred. Oif course, it was necessary to the defense of the defendant to show that Skeet McClellan had a twelve-gauge shotgun in his hands instead of the .410 gauge shotgun because of the large number 0*1 shotgun pellets which were found in the body of the deceased. But they have failed to offer any proof to sustain this fact. The defendant issued a subpoena duces tecum to' Garrett Dittmer, requiring him to produce the shotgun in the courtroom. Dittmer obeyed the subpoena, and the gun was brought into the courtroom. He was interrogated about the same in the presence of the jury. Dittmer’s testimony was to the effect that the gun was at his house at the time the shooting occurred and not at Jess Allen’s. The jury thoroughly understood the contention of the defendant; and for all practical purposes the shotgun was in evidence because it was viewed by the jury as the witness Dittmer showed the same on the witness stand. Not even one witness, including the defendant himself, placed the twelve-gauge shotgun at the scene of the homicide.

As to the third contention of the defendant, that the evidence is insufficient to support the verdict, we do not deem it necessary to discuss, as a review of the evidence shows that the jury would have been amply justified in returning a verdict of guilty of murder. Under the testimony of the doctor, the deceased had been shot at least twice, either of which wounds would have been fatal. This explodes the theory of the defendant that Jess Allen was killed by the one shot fired by Sheet McClellan. The defendant voluntarily went on the premises of the deceased armed with a deadly weapon. Under the defendant’s own testimony, he went farther than was necessary to his own self-defense against any real or apparent assault from Jess Allen.

The record has been carefully examined; the instructions thoroughly covered every phase of the case, including the theories of the defense advanced by the defendant, and we find no material error therein. The judgment of the district court of Garfield county, accordingly, is affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.