text:
    VAN PADEN v. STATE.

      No. A-2521.
    Opinion Filed July 7, 1917.
    (165 Pac. 1155.)
    1. HOMICIDE — Dying Declaration — Admissibility. When all the facts and circumstances disclosed by the record establish the fact that a dying declaration was made at a time when deceased realized that death was impending, it is entitled to 'be admitted in evidence.
    2. APPEAL AND ERROR — Reversal—Instructions. A judgment of conviction will not be reversed by 'this court on account of inaccuracies in the instructions, when it clearly appears that no hai m did result or could have resulted to the accused by reason thereof.

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

    Van Paden was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      J. I. Coursey and S. A. Horton, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Van Paden was tried in the district court of Cherokee county in February, 1915, on an information charging him with the murder of W. P. Sword, and convicted of manslaughter in the first degree. His punishment was fixed by the jury at imprisonment in the state penitentiary for a term of 18 years.

The following is a fair resume of the testimony:

G. W. McGowan, on behalf of the state, says that he is' 40 years old,. and lives at Park Hill, Cherokee county, Okla., about 300 yards southwest of Johnson’s store; that he knew the deceased, W. P. Sword, in his lifetime; that he saw him at Johnson’s store on the night of December 22d, and when he got to him' he said he was shot; that he assisted in carrying him home; that C. W. Johnson was the only one at the store when he got there; Sword was sitting up on the porch, his feet hanging off; that it was a cold night; that he was about 175 yards away when the shots were fired; that Leslie Peace arrived immediately after he reached the scene.

A. A. Beard testified that he was a practicing physician located at Park Hill, in Cherokee county;' that he knew W. P. Sword and was called to attend him at Johnson’s store on the night of December 22d; that it was cold and damp at the store, and deceased was carried home before he gave him treatment; that an examination disclosed a gunshot wound in the body and one in the thigh; the,bullet which entered the thigh carné out, the other one did not; that he probed the wound for an hour or more, but could not locate the bullet; that it had entered the abdominal cavity and was sufficient to and did produce death; that this bullet entered about two inches above the hip bone and about two inches toward the median line on the left side; that he- attended the patient again the following morning in company with Dr. Duckworth, and again about 12 o’clock; that he informed the deceased that he did not know how serious his wounds were; that he had not been able to trace the bullet.

J. F. Duckworth testified that he was a practicing physician residing at Tahlequah; that he was called to attend W. P. Sword on the 23d day of December (he described the wounds just as did Dr. Beard); that judging from the wounds, the parties changed positions during the shooting; that the wound in the bowels entered the abdominal cavity and was sufficient to produce death.

Claud Sword testified that he was a son of the deceased and lived about 100 yards south of Johnson’s store in Park Hill; that he had been hauling wood and got home about 5 o’clock; that he and his father went to the store; that he took some groceries home and went back after others, and was returning the second time with his father when they met Van Paden and Jim and Tom Miller; that his father asked Paden to pay what he owed his boys for cutting wood; that Paden replied that he would pay them when he got damned good and ready, and shot his father twice; that he went after Mr. Johnson, who had gone home, and when they returned to the store his father had climbed upon the porch and was sitting down; that he went for a doctor then, and when he got back his father was lying on the porch, and the neighbors carried him home; that he was 16 years old and had never been a witness before; that as he ran for Mr. Johnson he looked back, and his father was standing where he was shot; that Paden and the Millers were met near the house of J. S. Smith; that his father had a gallon of syrup in his right hand when he was shot; that two shots were fired; that his father did nothing to Paden except to ask- him to pay the debt.

G. W. Johnson, for the state, testified: 1'hat he was a merchant and lived at Park Hill, Okla., about 80 yards south of J. S. Smith; that he knew W. P. Sword and saw him in the store on the night of December 22d; that Sword left the store about 6:30 and went away with some merchandise; that deceased’s boy ran to his house and told him that his father was shot and wanted him to come,' and that he went and found him sitting on the porch at his store; that he ran up to him, and said, “What is the matter, Mr. Sword? Are you hurt very bad?”; that deceased replied, “Yes, I am killed”; that he unbuttoned deceased’s clothes and laid him down on the porch, and as soon as other neighbors gathered in they carried him home on a cot; that deceased said he asked Van Paden what he was going to do about paying his boys, and Paden said he could not do it right then and shot him; that this statement was made a very short time after the shooting; that he did not find out where the wounds entered the body until they, reached the home of the deceased; that he searched his clothes and found no arms of any kind; that the overcoat worn by the deceased was buttoned up, and his dress coat was also buttoned up.

J. S. Smith testified that he lived at Park Hill, and that he knew G. W. Johnson and lived about 80 feet from him; that he knew W. P. Sword during his lifetime; that about dark on December 22d he heard two shots close together, and at once opened the door, and some persons ran past the house going north; that he did not see, but heard them; that the moon was shining some; that in a few minutes Mr. Sword’s boy came and told him that his father was shot, and he went down in front of Johnson’s store and found the deceased; that Sword was in a bad condition, and Johnson was holding him up, and his head was hanging limp; that he put his knees against the back of deceased and held him up and told Johnson to gO' and phone the officers, and Mr. McGowan came; that deceased then fainted away, and seemed not to be breathing, and Mr. Peace felt his pulse and thought he was dead; that witness also thought Sword was dead, but after considerable struggling he rallied and was carried home; that witness had not at this time heard how the difficulty arose; that early the next morning, before anybody passed, he examined the tracks where the tragedy occurred and found no blood.

Luther Jones, for the state, testified: That he was cashier of the bank at Park Hill, and that he knew the deceased in his lifetime, and saw him on December 22d, and was at' his house when he gave the dying statement which was taken in his presence and identified by him; that Mr. Peace wrote it down at his request; that they asked questions, and Peace wrote the answers and then read them; that this was about 11 o’clock at night; that some of the older men in the community wanted witness to go down and take the statement, and they asked deceased if he wanted to make a statement, and he said he did, and would give it to them if he could; that he was suffering great pain, and at times said he could not stand it; that Mr. Peace and Mr. Latta were present when the statement was made and signed.

Mrs. Sword testified that she was the wife of deceased and lived at Park Hill on December 22d; that the deceased went to town about 4 o’clock, and got some groceries and did not come back until he was brought back fatally wounded; that he had on an overcoat and a brown suit; that his clothes had been kept by her and were in the same condition at the time she was giving her testimony as they were in when deceased was killed; that deceased lived until the next day until 2 or 3 o’clock; that the clothing was examined by a number of neighbors at the time of the homicide; that her husband never carried arms, and was not armed on the night of December 22d when he was shot.

Mrs. Nettie C. Smith, for the state, testified that she lived at Park Hill and knew the deceased during his lifetime; that she went to the window on hearing two shots, looked out, and saw' a man running towards Johnson’s store; that she then saw two parties running past her window and out of sight;'that she saw them coming down first; and then they turned and went back, and she did not see them do anything when they went back, and when they came by they were running towards town; that on going back they just walked, and after they turned they ran; that she got to the window as quick as she could after, hearing the shots; that it was only two or three steps.

The dying statement of the deceased was also introduced in evidence, objected to by the defense, and admitted by the court. It is as follows:

“Park Hill, Okla. 12 — 22—1914.
“The affidavit of W. P. Sword taken at his residence in Park Hill, Okla.
“The affidavit of W. P. Sword, states that he had been up in town and had started home and met Van Paden between J. S. Smith’s residence and Johnson’s store, and I asked him when he was going to pay my boys for that wood cutting, and he said I will pay it when I get ready, then he stepped back and got his gun and began shooting at me. I did not attempt to hurt him in any way. I had my arms full of groceries. The first shot he hit me I was facing him and when he shot me I wheeled and he shot me in the leg from behind me. He then ran off up the road. I then staggered on down the road to Johnson’s store and lay down on the porch, until I was removed home by my neighbors. I had never had any trouble with Paden heretofore. It was so dark I could not see the pistol with which he shot me.
his
“W. P. X Sword. mark
“Witness to mark: Lester Peace.
“Attest: T. F. Latta, Witness to attest.
“Subscribed and sworn to before me a notary public, in and for said county of Cherokee and State of Oklahoma, this 22d day of December, 1914. .
“[Seal.] L. H. Jones, Notary Public.
“Commission expires Feb. 7, 1917.”

On behalf of the defendant, Jim Miller was first called, and testified: That he lived at Park Hill with his grandfather, Jeff Paden, and that Van Paden was his uncle. That he was present at the trouble on December 22d. That he and his brother Tom and his Uncle Van Paden had started to the show. That near Johnson’s store they met Sword and passed him about the southeast corner of Mr. Smith’s garden; and that Sword called his Uncle Van Paden and asked him when in the hell he was going to pay the kids for cutting wood; and that his Uncle Van said, “I have told them all along I was going to pay them,” and then he asked when in the hell was that going to be, and his Uncle Van said when he sold his cotton, and then Sword says, “By God, when is that going to be?” And his Uncle Van said, “When I get ready.” That then Sword hit him with his fist, knocked him down, and his hat fell off; that he fell to his knees, and Sword stepped towards him, and his Uncle Van shot him twice, and he walked off; that when Sword struck his Uncle Van, Claud ran off. That his brother and he were standing north of Paden at that time, and after the shooting they did not run, but just walked up the road; that he did not see anybody as he passed Mr. Smith’s house. That it was a dark, cold night, and no moon. That there was a little snow on the ground. That his uncle was still on his knees when he fired the shot that killed deceased. That he thought deceased struck Paden on the right side of the head. That none of them went back to the place where Sword was after the shooting. That. Sword had something in his hand, but he did not know what it was.

Tom Miller, who said he was 13 years old, testified almost verbatim to the facts detailed by Jim Miller.

Van Paden, in his own behalf, testified: That the boys of the deceased came to him and asked to cut wood, and he let them have the job. That, after they had completed the job, he looked it over, and the wood was cut and ricked up in such a manner that he could not use it. That he finally told them he would pay them for it as soon as he could sell some cotton. That he brought in his cotton the day before the killing and had it under the shed that night, but had not sold it. That he was going to town with the Miller boys, and he met the deceased' and did not recognize him until after they had passed each other. That, when they got about five steps apart, deceased called to him, and he walked back, and deceased came on, meeting him. That deceased had a bundle of something in his right hand. That deceased asked him if he did not think it was about time to pay the kids for the wood. That he replied that he had told them the night before that he was going to pay them as soon as he sold his cotton. That the deceased then asked, “When in the hell are you going to do it?” That he said when he sold his cotton, and then deceased demanded, when in the hell would that be, and he said when he got ready. — “Sword then struck me with his left hand on the shoulder, and I fell east.” — That as he was getting up, he saw Sword coming at him again, and he began to shoot. That he had his pistol in his overcoat pocket; that he shot twice, as fast as he could. That after it was over, he walked back and got his hat and went away, walking fast up the road. That at the time of the shooting, he knew of other trouble and difficulties Sword had had. That he had trouble with one man named Whitaker, and with Roland Ross, and with Earnest Ferrell. — Had seen Ferrell the next day after the difficulty. His hand was bound up. He said his leg was hurt and he was limping, and he was in a pretty critical condition; his face was skinned in a very ugly manner, and he had his hand in a sling; heard Ferrell talk about it the next day. Deceased said that if the Ross boy had not knocked him off he would have killed Ferrell, and he said if ever he got to the Ross boy he would “stomp the liver” out of him. He said he would “show these people around here some things.” Ferrell was about 21 years old, and the Ross boy was about 18. — That he regarded deceased as a turbulent man, and shot him because he knew he was in the habit of knocking people down. That deceased was a large man, and he knew that he would have had no show in a fight with deceased, and that his only recourse was foul means. That he shot deceased because he thought deceased was coming on him with his feet. That he had a gun belonging to. Wat Duncan. That he had borrowed it to serve as a special officer in August. That he had a special deputyship for one day. That Duncan had asked him for the pistol two of three times. That he had heard several people, among them Fulton Goodrich and John Carlisle, say that Sword was a dangerous-man. , That there was snow on the ground that night. That he was cool and collected in the difficulty and never saw a man that he was afraid of. That he fired with his left hand, and then walked back to get his hat. That when he fired he was- about three feet from deceased on his hands and knees. That deceased’s boy was standing by him when his father struck the blow prior to the shots being fired. That he next saw the boy going around towards Johnson’s store. That deceased had had some trouble with John Whitaker over wood the boys had cut for him. That he was not in the least mad when he met Sword. That J. S. Smith’s house was about 30 steps from where the shooting occurred. That the deceased was six feet tall and weighed 200 pounds, and that he weighed 135 pounds.

John Collins, for the defense, testified: That he heard deceased talk the day after he had the trouble with Red Ferrell, and that he was also mad at the Ross boy for hitting him with a rock the night before, and said he was going to “stomp the guts” out of these boys, and that he just wanted to “learn the boys in this country something.” That he heard the deceased say that the defendant had not paid his children for the wood they had cut for-him; that it was about time he was doing it; that he was going to whip the water out of him if he did not do it right away. That he was living on Mr. Paden’s place. That their last conversation was in December. That he .saw the difficulty between the deceased and the Ferrell boy, and was present when John Whitaker came along. Deceased had a reputation as being a dangerous man. That Tie was at Sword’s house when his son Claud came in and .said they were fighting down there, and — “I told Sword to go down there, and I went with him, about 100 yards from .his house, and he knocked the Ferrell boy down and .stomped him. The Ross boy is the son of Mrs. Ross, who has testified. He made the statement to me that he had .heard Bob Looney say that the deceased was a bad man.”

Earnest Ferrell said that he saw Van Paden the day after he had the difficulty, but did not show Paden his .hand or leg.

Roland Ross said that he saw the difficulty between ■Sword and Ferrell, and that he knocked Sword off.of him.

W. E. Duncan testified that Sword’s character was bad; that he was regarded- as a dangerous man; that he, Duncan, had loaned Paden a pistol to arrest a man as an •officer; that he had asked him for it several different times, and had not gotten it; that he is a distant relative and friend of Paden’s.

Will Ivans, Lester Lissen, and R. W. King testified that Sword was a dangerous man.

Ira Treet, in rebuttal, on behalf of the state, testified that he knew deceased; that his character as a law-abiding citizen was good. '

Witness G. W. Johnson testified that the deceased just slapped the Ferrell boy, and that the boy was out the next day playing baseball; that Whitaker had accused deceased of stealing coal, and he was about to slap Whitaker’s jaws; that he never heard of him having any difficulty with anybody else; that Whitaker talked to him. about his trouble himself; that he ran a pool hall.

George Coke, Mark Wain, and J. R. Jones, and T. F. Latta, postmaster, and Price Matthis, merchant, all testified that the deceased’s character as a law-abiding citizen was good. There are only two errors of consequence insisted upon.

The first is that the court erred in admitting the dying declaration of the deceased. This contention is based upon the proposition that proof on behalf of the state fails to disclose the fact that the deceased realized that death was impending at the time the statement was made. This question has been decided contrary to the plaintiff in error’s contention. In the case of Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030, we said:

“It is essential to the admissibility of dying declarations, and is a preliminary fact to be proved by the prosecution, that they were made under a sense of impending* death. This may be made to appear from what the injured person said, or where, from the nature and extent of his injuries it is evident that he must have known that he could not survive. It is sufficient if it satisfactorily appears that they were made-under the sense of impending death, whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical attendants, stated to him, or from other circumstances of the cases, such as the length of time elapsing between the making of the declaration and his death, and the fact that the declarant was so weak that he could not sign his name and so affixed his mark, all of which are resorted to, in order to ascertain the state of declarant’s mind.”

The facts in the case under consideration show clearly that deceased realized that death was near; he so stated when he was first approached, and immediately thereafter he fainted, revived after a hard struggle, and was carried home. It is clearly apparent that while suffering great pain deceased made the statement from time to time as his condition would permit, until it was concluded. There is no doubt that the dying declaration was made at a time when the deceased realized that death was near, and was entitled to be admitted in evidence. See Addington v. State, 8 Okla. Cr. 712, 130 Pac. 311; Mulkey v. State, 5 Okla. Cr. 78, 113 Pac. 532. In the Mulkey Case the deceased said, “Oh, my God! I am killed.” The court held that the dying declaration was properly admitted. See, also, Nelson v. State, 3 Okla. Cr. 473, 106 Pac. 647; Hawkins v. U. S., 3 Okla; Cr. 656, 108 Pac. 561; Blair v. State, 4 Okla. Cr. 365, 111 Pac. 1003; Smith v. State, 5 Okla. Cr. 289, 114 Pac. 350; Offitt v. State, 5 Okla. Cr. 55, 113 Pac. 554.

The next assignment of error is based upon the proposition that the court’s instruction on self-defense was erroneous. That instruction is as follows:

“You are further instructed, as a matter of law, that the bare fear of an assault upon the defendant .by the deceased would not justify the. defendant in killing the deceased; nor will the mere fear of the defendant that the deceased was about to commit an assault upon him (the defendant) amounting to a felony justify the defendant in killing the deceased unless the defendant, as a reasonable man, believed from all the circumstances as they appeared to him at the time, that he was in imminent danger of an assault being made upon him by the deceased, and from which apprehended assault he had reasonable cause to believe, and he did honestly believe, that he would lose his life thereby or suffer great bodily harm from such apprehended assault, as viewed from the standpoint of the defendant as a reasonable man. If you believe and find from the evidence that the defendant committed the homicide through mere fear of an assault from the deceased, and such fear was not founded upon reasonable apprehension of danger, from all the circusmtances in the case, then, and in that event, the plea of self-defense will not avail, and you should find the defendant guilty, under the instructions herein given.”

There was no exception saved to this instruction. The principal argument against the same is based upon the proposition that the instruction required the defendant, as a reasonable man, to believe from all the circumstances as they appeared to him, at the time, etc., before he would be entitled to act. The burden of complaint is against requiring the jury to find the defendant, as a reasonable man, to believe, etc. Under the facts and circumstances discussed by the record in this case, there is absolutely no prejudice in this provision in the instruction. The defense was not that of lunacy, intoxication, or incapacity.. The plaintiff in error testified that he was cool and collected during the fatal difficulty and never saw a man in his life that he was afraid of. Upon his own statement of the circumstances and of the immediate facts, he is guilty of manslaughter in the first degree and he offered no defense whatever to a charge of that character.

Other errors assigned and argued in the brief are based upon theoretical propositions pertaining to the law of murder. The jury convicted of manslaughter in the firs.t degree, and only errors which are calculated to affect the substantial rights of the plaintiff in error in connection with the crime of which he was convicted will be considered. As an abstract proposition, some of the criticisms of the instruction under certain circumstances would be entitled to consideration if the conviction had been for murder instead of manslaughter.

Finding no substantial error in the record, the judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    S. WILCOX v. STATE.
    No. A-3055.
    Opinion Filed July 10, 1917.
    (167 Pac. 74.)
    1. INDICTMENT AND INFORMATION — Language of Statute-Elements of Offense. Tbe information must contain a statement of the acts constituting the offense, and it is not sufficient to charge the offense in the words of the statute, when the particular circumstances of the offense charged are necessary to constitute a complete offense.
    2. SAME — Sufficiency of Information — Motion to Arrest. The information charged that defendant “then and there willfully, unlawfully, knowingly, feloniously, and without justifiable and excusable cause, and with the intent then and there on the part of him the said S. W. to do great bodily harm to another, to wit, tbe said T. S., with a dangerous weapon, to wit, a 'claw hammer, contrary to,” etc. Held, that the information was insufficient to charge defendant with assault with a dangerous weapon with intent to do bodily harm, as against the motion in arrest of judgment.
    3. ASSAULT AND BATTERY — “Dangerous Weapon” — Claw Hammer. A claw hammer cannot be said as a matter of law to be a “dangerous weapon” without reference to the manner of its use.

      Appeal from District Court, Paivnee County; Chas. B. Wilson, Jr., Assigned Judge.

    S. Wilcox was convicted of assault with a dangerous weapon, and he appeals.
    Reversed.

      F. C. Shoemaker and Prentiss E. Rowe, for plaintiff in error.

      S.- P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen. (R. S. Cole, of counsel), for the State.
   DOYLE, P. J.

This appeal is from a judgment of the district court of Pawnee county, rendered on the 25th day of May, 1917, upon a verdict convicting the defendant of the crime of assault with a dangerous weapon with intent to do bodily harm, and assessing his punishment at imprisonment in the penitentiary for the period of one year and one day.

Before judgment a motion for new trial was duly filed and overruled. Thereupon the defendant filed a motion in arrest of judgment on the ground:

“That the information purporting to charge the defendant with an assault with a dangerous weapon does not state an offense of which the district court has jurisdiction.”

■ From the judgment rendered in pursuance of the verdict, the defendant appealed by filing in this court on June 16, 1917, a petition in error with transcript of the record attached. The only error assigned is that the information failed to state the facts which are essential to constitute the offense intended to be charged. Penal Code, section 2344, Rev. Laws 1910.

The information, omitting merely formal parts, is in the following language:

“That on the 21st day of September, A. D. 1917, in said county of Pawnee and State of Oklahoma, one S. Wilcox, a person then and there being, did then and there willfully, unlawfully, feloniously commit the crime of assault with a dangerous weapon by then and there willfully, unlawfully, knowingly, and feloniously, and without justifiable and excusable cause, and with the intent then and there on the part of him, the said S. Wilcox, to do great bodily harm to another, to wit, T. U. Salmon, commit an as-, sault upon the person of another, to wit, the said T. U. Salmon with a dangerous weapon, to wit, a claw hammer, contrary to,” etc.

The record shows that the sufficiency of the information was first raised by motion in arrest of judgment, which was duly filed, by the court overruled, and exception allowed.

While, as a general rule, it is sufficient to charge a statutory offense in the language, of the statute, there are exceptions to the rule. The information must contain a statement of the acts constituting the offense, and if the statutory words are not sufficient, it must be expanded beyond them.

“The criminal nature and degree of the offense must' ‘appear in allegation,’ also the particular facts and circumstances which render the defendant guilty of that offense.” (1 Bishop’s Crim. Proc. par. 625.)

The use of a dangerous weapon is what distinguishes the crime of an assault with a dangerous weapon with intent to do bodily harm from a simple assault. A dangerous weapon is one likely to produce death or great bodily injury by the use made of it, or perhaps it is more accurately described as a weapon which in the manner it is used or attempted to be used endangers life or inflicts great bodily harm. A claw hammer is not per se a dangerous weapon, and especially is it not a dangerous weapon when considered without reference to its use, and a weapon cannot be said as a matter of law to be dangerous without reference to the manner of its use. Bourbonnais v. State, 7 Okla. Cr. 717, 122 Pac. 1131.

In the case of Moody v. State, 11 Okla. Cr. 471, 148 Pac. 1055, it was held that:

“An information which intends to charge the offense of assault with a sharp and dangerous weapon with intent to do bodily harm should plead facts which, if conceded, would be sufficient to sustain a judgment of conviction.”

In the opinion it is said:

“The charging part of the indictment was, according to the contention of counsel for plaintiff in error, too indefinite in that it did not describe the plank and designate in what manner it was used; it being their contention that a plank is not per se a deadly weapon; that, not being per se a deadly weapon, the county attorney was required to plead facts sufficient to show the character of the plank and the manner in which it was used, and that the facts so pleaded must show that the instrument used was of the character set out in the statute and used in such manner as to be reasonably, calculated to produce serious bodily injury.”

We are of opinion that the facts stated in the information are insufficient to charge the crime of assault with a dangerous weapon with intent to do bodily harm, and the information does not allege facts showing that the district court of Pawnee county had jurisdiction. It follows that the motion in arrest of judgment should have been sustained.

The judgment of the district court is therefore reversed.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
      Ex parte S. WILCOX.
    No. A-3032.
    Opinion Filed July 11, 1917.
    (166 Pac. 75.)

      Ex parte application by S. Wilcox for writ of habeas corpus to C. D. Webber, Sheriff of Pawnee County.
    Writ denied.

      F. C. Shoemaker and Prentiss E. Roioe, for .petitioner.
    P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen. (R. S. Cole, of counsel), for the State.
   PER CURIAM.

This is an application for writ of habeas corpus to release the petitioner, S. Wilcox, from the custody of C. D. Webber, sheriff of Pawnee County. It is alleged that there was filed in the district court of Pawnee county an information purporting to charge this, petitioner with the offense of an assault with a dangerous weapon, that said information does not allege facts sufficient to charge a felony, and the district court of Pawnee county was without jurisdiction to try this petitioner, and that his conviction and the judgment tendered under and .by virtue of said information is void. The question • presented has been passed upon by this .court .on the appeal of said petitioner from the judgment rendered. Wilcox v. State, ante, p. 599, 166 Pac. 74. The application for the writ is therefore denied.


author: ARMSTRONG, J.

text:
    T. J. ESTES v. STATE.
    No. A-2583.
    Opinion Filed July 14, 1917.
    (166 Pac. 77.)
    1. INTOXICATING LIQUORS — Prohibitory Law — Nature of “Intoxicating Liquor.” “Intoxicating liquor,” as this phrase is used in the prohibitory liquor statutes of this state, is an alcoholic liquor, and in order to come under the ban of the law such liquor must either contain more than one-half of 1 per cent, of alcohol, or a sufficient quantity of it in a liquor or compound, capable of being used as a beverage, to intoxicate a human being.
    2. SAME — Unlawful Sale — Evidence. In the trial of a person on an information which 'charges -the sale of intoxicating liquor, the proof should establish the fact that such liquor is intoxicating, in addition to other necessary facts; otherwise a judgment of conviction cannot stand.

      Appeal from County Court, Bryan County; J. L. Rappolee, Judge.

    T. J. Estes was convicted of violating the prohibitory law, and appeals.
    Reversed.

      Utterbaek & MacDonald, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, T. J. Estes, was convicted in the county court of Bryan county on a charge of selling intoxicating liquor, and appeals to this court for a reversal of the judgment.

The information first filed charged the plaintiff in error with the sale of a certain liquor or compound known as Vina Vita to one Dave Le Flore, and that the liquor or compound was capable of being used as a beverage, and contained more than one-half of 1 per cent, of alcohol, measured by volume.

An amended information was filed which charged the sale of five quarts of intoxicating liquor or compound commonly known as Vina Vita to Dave Le Flore.

It will be noted that in the former information the charge was based upon the liquor being capable of use as a beverage, and upon it containing more than one-half of 1 per cent, of alcohol. In the latter the information simply charges the sale of intoxicating liquor. '

The testimony offered by the state was from one witness, Dave Le Flore, the party to whom the sale was made. He testified that he lived three miles southeast of Bennington, in Bryan county; that he had known T. J. Estes for eight or nine years; that in December, 1913, he bought some patent medicine from him known as Vina Vita; that three bottles were purchased by him and two bottles by another party for him; that he drank two and a half bottles*of the five; that they were all labeled alike; that he did not drink anything else that day, and that these two and a half bottles made him dizzy; made him crazy; that he had been drunk a good many times; that he did not know how long he stayed in town after drinking the contents of the bottles; that the town marshal told him he had better go home; that he was 25 years old, and did not know how many times he had been drunk; that he had been drunk sometimes every two or three weeks, and sometimes not so often, and sometimes a little more often; that he had not been drinking any whisky upon the date in question nor upon the night before. Bill Madell and Bill Purcell drank some of the liquor contained in the bottles. Witness denied having any whisky, but admitted that he telephoned Madell he had • whisky, but says that he called the concoction purchased from defendant whisky; that he was not drinking nor drunk, when he bought these bottles; that this Vina Vita made-him sick, and that he vomited after he got home.; that, he could not describe the feeling and sickness.

At the close of this testimony a demurrer to the evidence was interposed, and the defendant requested the-court to advise the jury to return a verdict of not guilty.. The demurrer was overruled, and the request denied,, whereupon the defendant introduced Bill Madell, who testified that he knew Dave Le Flore and was with him several times during the day he purchased the Vina Vita from the Estes drug store; that Bill Purcell was also-with him;' that Dave Le Flore was drunk that morning came in drunk from his home; .that he telephoned witness. the night before that he would bring some whisky, but did not bring it; that the next morning after the sale is alleged to have been made he saw the prosecuting witness,, and he had about á half a quart of whisky, and was drinking it before, he purchased the Vina Vita. Witness testified that he had drunk Vina Vita, and that it would not. make him drunk, but that it would make him sick if he-drank enough of it; that he could not drink very much, of it.

John Smith testified on behalf of the defendant that", he knew the prosecuting witness, Dave Le Flore, and was. with him on the morning that the sale is alleged to have-been made, and that he was drinking before he got to-town.

Bill Purcell, who was introduced in rebuttal by the-state, testified that he drank some of the Vina Vita in question, and in response to the question, “What effect, if any,„ <d:d it have on you?” he answered, “Sick and dizzy about the head.”

A number of assignments of error are urged in the brief. A discussion of one, howeyer, will dispose of this ■controversy. That is based upon the proposition that the state has failed to make a ease sufficient to warrant! a -conviction.

It will be remembered that the amended information •charged the defendant with the sale of intoxicating liquor or compound. In order to sustain the information the words “or compound” will be treated as surplusage. The information therefore charges the sale of intoxicating liquor, and the proof shows that the same was a compound, which is also a liquor, commonly kept in drug ; stores over the state and commonly sold as a proprietary medicine.

Dr. W. G. Short, a public drug and food inspector, testified., that the concoction was a proprietary medicine, ■ and was commonly sold in drug stores throughout the .'State of Oklahoma; that it was not intoxicating.

The proof on behalf of the state does not establish that this liquor is intoxicating liquor, nor that it was an intoxicating compound as to that matter. The most that is established is that five bottles of the stuff were sold, three to Dave Le Flore and two to Bill Purcell, and that : it made Le Flore sick and dizzy and made Purcell sick • and dizzy. Neither of them says that it made him drunk.

There are a great many compounds used for treating ills of the human race which will render a person sick ■or dizzy if too much of the same is taken, but will not . intoxicate him in the sense that he will become inebriated. ‘ The intoxication contemplated by the statute is an aleo-holic one, and a liquor, in order to come under the ban of the law, must contain more than one-half of 1 per cent, alcohol, or a sufficient quantity of it in a liquor or compound capable of being used as a beverage, to intoxicate a human being. Otherwise the prohibitory liquor statute is not applicable. In this case, after filing the amended information, the state should have proved that the liquor was intoxicating or should have dismissed the prosecution. Having failed to prove that the liquor was intoxicating or that it contained more than one-half of 1 per cent, alcohol, the prosecution failed. The judgment should have been an acquittal instead of a. conviction.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

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


text:
    FRANK TELICO v. STATE.
    No. A-2740.
    Opinion Filed July 14, 1917.
    (166 Pac. 76.)
    INTOXICATING LIQUORS — Unlawful Possession — Evidence. The unloading by a public drayman of a barrel of whiskey on a vacant lot is not sufficient proof, against the owner of the lot, of the unlawful possession with intent to sell whisky, to warrant a conviction of the owner of such lot, in the absence of proof that the whisky belonged to him, or that acts of ownership were exercised by him over the. whisky.

      Appeal from County Court, Pittsburg County; S. F. Brown, Judge.

    Frank Telico was convicted of violating the prohibitory law, and appeals.
    Reversed.

      W. N. Redwine and H. A. Moles, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Frank Telico was convicted in the county court of Pittsburg county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and appeals to this court for a reversal of the judgment.

On the 16th day of March, 1915, two barrels of intoxicating liquor were unloaded at the station at Hailey-ville in Pittsburg county and draymen loaded it oh two separate wagons; one of the wagons went east and the other west. One barrel was unloaded near, a little shack located on a lot belonging to the plaintiff ifi error. A deputy sheriff followed the wagon which unloaded the barrel on the vacant lot referred to, and walked up before the drayman left and said, “What have you got?” The drayman, whose name was Dunham, replied, “I don’t know.” The officer knocked the head of the barrel in and again said, “What is it?” The drayman said, “I don’t know.” He reached into the barrel and pulled out a bottle branded, “I. W. Harper Whisky.” Telico was present, and the officer asked him what he was doing with this whisky. Telico replied that he didn’t know, and denied having anything to do with it or knowing anything about why it was there. The drayman denied that the whisky was his, and denied knowing to whom it belonged.

A. C. Johnson testified that he lived at Haileyville and was an officer at the time the arrest was made; that there were several Italians living near where the whisky was unloaded; that Telico is also an Italian; that he had known him a long time, and he was considered a good citizen, and that he never heard of his being arrested before.

W. E. Ruth testified that he was in the transfer business; that his company hauled the whisky in question; that he did not know who had it done; that a man by the name of T. W. Jones paid for the drayage; that Telico had the reputation of being a law-abiding citizen.

Telico testified in his own behalf that he did not have the whisky in his possession, and did not know anything about it; that he first saw it sitting near the steps of a barn or shack on a lot belonging to him, but did not see it delivered there, and did not know it was going to be delivered there; that he was standing looking at it when the officer asked him about the property on which the barrel was sitting, and he told him it was his, but that he had nothing to do with the whisky; that people drive over the lot to get to the adjoining property; that it is an open lot and has no fence around it; that he had given nobody permission to unload whisky there, and had nothing whatever to do with it.

A number of assignments of error were argued orally and are urged in the brief. We find it necessary, however, to discuss only one; that is, that the judgment of conviction is contrary to the evidence.

It appears from a reading of the entire record that the barrel of whisky was unloaded on a lot owned by- the plaintiff in error. There is no proof to indicate that he ordered the whisky or had anything to do with it or that he knew it was going to be delivered or unloaded on his vacant lot.’ He was not in possession of the same any more than was any one else. He never exercised any act of ownership or control. The state failed to show by the records of the express company or the freight records of the railroad company that the whisky was shipped to him. No proof of any kind was offered in this connection. It was not only within the power of the state to produce evidence of this character if such was the fact, but it was its duty to do so. The plaintiff in error appears to be a reputable, law-abiding citizen, and gives a straightforward account of his presence on the occasion the whisky was found.

The judgment of conviction is contrary to the evidence. If, as a matter of fact, this plaintiff in error ordered the whisky and it was shipped to him, the records of the express company or of the railroad company will so show. No hardship can result to the state by a reversal of the judgment. Unless plaintiff in error can be connected with the transaction by proof stronger than the mere fact that the whisky was found on a vacant lot belonging to him, a retrial would not be warranted.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

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


text:
    R. P. FORD v. STATE.
    No. A-2748.
    Opinion Filed July 14, 1917.
    (166 Pac. 75.)
    1. VENUE — Burglary. Burglary committed by breaking and entering a railroad car is completed when the breaking and entry is accomplished, and the venue lies in the county within which the Mine was accomplished.

      2. SAME. A person who luyales and enters a railroad car at Duke, in Jackson county, cannot be prosecuted for the crime in an original proceeding in Harmon county. The prosecutiou in this case should have been instituted and carried on in the district court of Jackson county.

      Appeal from District Court, Harmon County; F. B. Swank, Assigned Judge.

    R. P. Ford was convicted of burglary, and appeals.
    Reversed.

      P. K. Morrill, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

R. P. Ford, the plaintiff in error, was convicted in the district court of Harmon county on a charge of burglary, and from the judgment imposed has appealed to this court for reversal.

A number of errors are assigned and argued in the brief, only one of which will be discussed. This is based upon the contention that the venue of the crime, if committed, lay in Jackson county, and not Harmon county.

The undisputed, proof shows that the plaintiff in error entered a railroad car containing merchandise, at Duke, in Jackson county, Okla., and that the car was one of a number in a train operated on the Wichita Falls & Northwestern Railroad between Altus, Okla., and Wellston, Tex.; that the train did not stop between Duke in Jackson county and Gould in Harmon county; that .while the train was in motion, and when nearing Gould, a brakeman discovered the plaintiff in error throwing merchandise out of the car door; thát he was drunk at the time.

It appears from the testimony of the plaintiff in error himself that he got in the car at Duke; that he had been put off of a passenger train there drunk, and was trying to get back home.

The crime of burglary was complete at the time the burglarious breaking and entering of the car was accomplished. The proof clearly shows that this occurred in Jackson county. The venue, therefore, for a prosecution for burglary would lie in Jackson county, and not Harmon county. It is clear from the record that the merchandise was thrown out of the car in Harmon county, but the plaintiff in error is not charged with the.larceny of this property.

The prosecution having been instituted and carried on in Harmon county, and- the crime having been committed, if committed at all, in Jackson county, the prosecution must fail on the ground that the district court of Harmon county had no jurisdiction.

The judgment is reversed, and the cause remanded.-

DOYLE, P. J., and MATSON, J„ concur.


author: MATSON, J.

text:
      Ex parte ED HAND.
    No. A-3044.
    Opinion Filed July 14, 1917.
    (164 Pac. 449.)
    1. JUSTICES OF THE PEACE — Election—Towns. Incorporated towns of less than 1,500 inhabitants are entitled to elect one justice of the peace; said justice of the peace haw jurisdiction to sit as an examining and committing magistrate in felony cases for offenses committed within the county where such town is located.
    2. SAME — Officers—Be Facto Officers. A person in undisputed possession of the office of justice of the peace and exercising the functions properly belonging thereto under color of title to such office is a tie facto justice of the peace, and his official acts are binding on the public and third persons.

      Ex parte application by'Ed Hand, for writ of habeas corpus directed to the Sheriff of Dewey County.
    Writ denied.

      Milton Clark, for petitioner.

      W. J. O’Hara, Co. Atty., S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for respondent.
   MATSON, J.

Petitioner demands that he be discharged from the custody of the sheriff of Dewey county, Okla., by whom he is being held pursuant to a judgment of the district court of Dewey county, in which court he was convicted of the crime of conducting a gambling game and sentenced to one year’s confinement in the state reformatory at Granite, Okla., and to pay a fine of $500. The grounds stated in his petition are that a pretended preliminary hearing in said case was had before one G. W. Leighnor, who was at that time assuming to act as justice of the peace for the town of Seiling, Dewey county, Okla., but petitioner alleges that the town of Seiling, being an incorporated town of less than 1,500 inhabitants, has no such office as that of justice of the peace; therefore that no valid preliminary examination was had of this petitioner whereby the district court obtained jurisdiction to try said cause and render judgment therein. Also because, if there is such an office as town justice of the peace in towns of less than 1,500 inhabitants in this state, no valid appointment of the said G. W. Leighnor was made, the petitioner alleging that the said G. W. Leighnor was appointed to the office of justice of the peace by the board of trustees of said town, and riot by the board of county commissioners of the county.

At the inception of statehood by section 18, art. 7, of the Constitution the office of justice of the peace was created, and jurisdiction conferred upon such magistrates to examine and commit in all felony cases. Section 2, art. 18, Constitution provides:

“Every municipal corporation now existing within this state shall continue with all of its present rights a,nd powers until otherwise provided by law, and shall always have the additional rights and powers conferred by this Constitution.”

By section 2 of the Schedule to the Constitution all laws in force in the -Territory of Oklahoma at the time of the admission of the state into the Union, not repugnant to the Constitution nor locally inapplicable, were extended in force in the State of Oklahoma until they expired by their own limitation or were altered or repealed by law. The Territory of Oklahoma had provided for the election of justices of the peace by incorporated towns, whose jurisdiction was to hear and determine all offenses against the ordinances of the town for which said justice was elected, and also concurrent jurisdiction with all other justices in all civil cases and in all criminal cases for offenses against the laws of the state committed within the county where such town was situated. Section 721, Rev. Laws 1910. Other justices of the peace under the territorial law were elected by townships, each municipal township at that time being entitled to elect two justices of the peace. Article 1, c. 80, Statutes 1893'. Under the territorial statute cities were designated townships for the purpose of electing justices of the peace. These territorial statutes were each extended in force in the state. In 1908 the Legislature of this state by article 1-, c. 47, Session Laws 1908, abolished the election of justices of the peace by townships, and in their place and stead substituted the election of justices of the peace by districts, providing, in substance, that the board of county commissioners should divide the county into at least six justices of the peace districts, or more as such board might deem expedient, providing that not more than one justice of the peace and one constable for each precinct should be provided. • Said act also provided that all cities of 2,500 inhabitants or less should constitute a separate justice of the peace district and elect one justice of the peace and one constable, and in all cities of more than 2,500 inhabitants two justices of the peace should be elected, and in all. cities of more than 25,000 inhabitants an additional justice of the peace should be elected for each 10,000 inhabitants, or fractional part thereof in excess of 25,000; also that incorporated towns of more than 1,500 inhabitants should constitute a justice of the peace district and elect one justice of the peace. Said act of 1908 specifically repealed that part of chapter 80 of the Statutes of 1893 providing for the election of justices .of the peace and constables in townships. It made, however, no reference to, nor did it specifically repeal, any territorial act providing for the election of justices of the peace in incorporated towns of less than 1,500 inhabitants. The territorial act providing for the election of justices of the peace by towns, therefore, if repealed, was repealed by implication- only, and such repeals are not favored.

There was no more conflict between the territorial net providing for the election of justices of the peace in incorporated towns and the act of 1908 providing for the election of other justices of the peace by districts than there was between the old territorial acts providing for the election of certain justices of the peace by towns and others by the townships. It is our opinion that- both nets, that of 1908 and the territorial act providing for the election of justices of the peace by each' incorporated town, may stand; that they are not in conflict with each ether; that it was clearly not the legislative intent to do ■away with the office of justice of the peace elected by "towns of less than 1,500 inhabitants by the enactment of article 1, c. 47, of the Session Laws of 1908. To so hold would deprive each such incorporated town of its only judicial officer who has jurisdiction to try offenses against "the ordinances of such towns, and would render such corporations powerless to carry into effect the powers granted to them by the statutes of this state. The fact that it is provided by section 8172, Rev. Laws 1910, that in the organization of municipal townships no city or incorporated town of more than 1,500 inhabitants shall be included within the corporate limits of any township floes not conflict with this holding. While incorporated towns of less than 1,500 inhabitants form an integral part of our township government, and, as was held by the Supreme Court of this state in Byers v. Dunham, 50 Okla. 266, 150 Pac. 1049, are subject to be taxed for the support of township government, yet they nevertheless form a corporate entity separate from the township, with certain delegated powers within their respective boundaries, just the "same as cities, towns, and townships are an integral part of the county, but still possess as corporate entities powers separate and distinct from the county government.

Our statutes provide for the election of one justice of the peace by each incorpofated town. ' Chapter 136, Sess. Laws 1911. Said act and chapter (amending article 2, c. 16, p. 262, Sess. Laws 1909, and chapter 92, Sess. Laws 1910), amount to a legislative construction of the 1908 act (article l,.c. 47, supra) and indicate clearly that the election of justices of the peace by towns of less than 1,500 inhabitants was not intended to be abolished by the act of 1908.

It is unnecessary to determine in this proceeding whether or not an appointment to a vacancy in the office of justice of the peace elected iri towns of less than 1,500 inhabitants is to be made by the board of trustees of the town or by the board of county commissioners. G. W. Leighnor is admitted to be in undisputed possession of such office and its records and he exercises the functions belonging to it under color of title. The state has not questioned his title to^ the office as a de facto justice of the peace, and his official acts, were binding on the public and third persons.

. Writ denied.

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


text:
    CHARLES SMITH v. STATE.
    No. 2262.
    Opinion Filed July 21, 1917.
    (166 Pac. 463.)
    1. COUNTIES — Actions by and Against — Statute. The right óf a county to sue and be sued is purely statutory, and the mode prescribed by statute for prosecuting such action must be strictly followed.

      2. SAME — Action by County. Where it is provided by statute that the action shall be instituted in the “name of the county,” reference must be made to section 1500, Rev. Laws 1910, which provides that the name by which a county shall sue shall be “Board of County Commissioners of the County of-.”
    3. COUNTIES — County Officers — Suspension—Temporary Appointment. Where an accusation is presented to the district court for the removal of a certain county officer upon statutory grounds and asking that such officer be suspended pending the determination of such proceedings, the presiding judge of such court may suspend the accused from exercising the functions of his office, and the board of commissioners may temporarily fill the office by appointment.
    4. CLERKS OF COURTS — Suspension — Temporary Appointee — Powers. Where, pursuant to the suspension of the clerk of the district court made in compliance with sections 5605 and 5606, Rev. Laws 1910, a temporary vacancy exists in such office, the board of county commissioners may fill such vacancy by appointment. and the person so appointed, after having duly qualified, may perform all the duties of the office of clerk of the district court required .by the statutes of this state during the pendency of such suspension.
    5. INDICTMENT AND INFORMATION — Language »f Statute^- . Embezzlement. An indictment for embezzlement by a public officer which sets out the acts and facts constituting the embezzlement in the language of the statute, or substantially so, is sufficient.
    6. APPEAL AND ERROR — Reversal—Refusal of Instructions. Where the testimony of the defendant amounts virtually to a plea of guilty, this court will not reverse a judgment of conviction for failure to give requested instructions unless the action of the trial court deprives the defendant of some constitutional or statutory right, and from an examination of the entire record it clearly appears that there has been a miscarriage of justice.

      Appeal from, District Court, Wagoner County; Fred P. Branson, Judge.

    Charles Smith was convicted of embezzlement, and sentenced to 18 months’ imprisonment in the penitentiary, and he appeals.
    Affirmed.

      Sponsler & Graves, for plaintiff in error.

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

It is first contended that the trial court erred in overruling' the defendant’s motion to set aside the indictment. This contention is grounded upon the claim that one C. M. Bryant, who, in conjunction with the sheriff, assisted in drawing the list of names from the jury box, from which list the grand jury was impaneled which returned the indictment in this case, was not the duly qualified clerk of the district court at the time, and had no authority to act in that capacity. The record shows that the said C. M. Bryant assisted in drawing the grand jury and performed the services' required by the clerk under section 3692, Rev. Laws 1910. Counsel for defendant contend that at the time this grand jury was drawn one Harry Blake was the duly elected and qualified clerk of the district court of Wagoner county, and that neither he nor any of his deputies assisted in the drawing. The record does not support the contention.

The record shows that on the 12th day of May, 1913, an accusation charging the said Blake with willful and habitual neglect of the duties of the office of clerk of the said district court and charging other grounds for removal was filed in the district court of Wagoner county by the county attorney of said county asking the' removal of said Blake from such office and for his temporary suspension therefrom in pursuance of a resolution of the board of county commissioners of said county (which appears of record), and that on said date the presiding judge of the court in open court made an order suspending the said Blake from the office of clerk of the district court of that county pending such investigation. Immediately after this order of suspension was made the board of county commissioners of said county appointed the said C. M. Bryant temporarily to fill the vacancy caused by the suspension of Blake, and said Bryant duly qualified and took possession of such office, and was so acting at the time this grand jury was drawn. At that time there had been no revocation of the order suspending Blake, neither had the proceedings for his removal been terminated. Section 5605, Rev. Laws 1910, provides:

“The board of county commissioners may, in the case of any county or township officer, present such accusation and bring an action in the name of the county for the removal of such officer, and .the district court shall have exclusive jurisdiction thereof; but if any county commissioner is the party charged, then the county judge and county treasurer shall present such accusation and bring the action. The proceedings, in actions brought under the provisions of this section shall, except as provided in the two next succeeding sections, be as is provided in the preceding sections of this article.”

Section 5606, Id., provides:

“When the complaint for removal is filed, if, in addition to the matter charged as ground for removal, the complaint shall also pray that the officer charged be suspended from office pending the investigation, the judge of the court may, if sufficient cause appear from the charge or from the testimony, or affidavits then presented, order the suspension of the accused from the functions of his office until the determination of the matter. If the order of suspension be made and the court be then in session, the accused shall be entitled to a trial within ten days, if he demands it. If the court be not in session, then the accused shall be entitled to a trial on the first day of the next term. The accused shall have the right to change of judge or to a change of venue, on application to the court, or to the judge if the court be not in session, on making the showing required to change the venue in a criminal case, and if the application be allowed the matter shall be sent for trial to the nearest adjoining county, and in which the objections stated as grounds * * * do not exist, and trial shall be there had at the. earliest possible date. But one such change shall be allowed. The accused shall be entitled to continuance, as in other cases. If the accused be not suspended from his office, then the complainant may have & continuance, as in other criminal cases. If a suspension take place, the board of county commissioners may temporarily fill the office by appointment, but if the officer suspended be a county commissioner, then the vacancy -shall be filled as in other cases of vacancy in that office.”

That such proceedings authorized the district judge to suspend the accused from the office was decided by the Supreme Court of this state in Maben v. Rosser et al., 24 Okla. 588, 102 Pac. 674.

But counsel base their contention that the act of the district judge in making an order of suspension, of Blake was void on the proposition that no proper petition was filed praying for the removal of Blake. Without entering into a discussion of whether or not a collateral attack upon the suspension of Blake and the appointment of Bryant may be made in this proceeding, suffice it to say that the position of counsel is untenable. It is based upon the contention that there was no proper party plaintiff in the removal proceeding; the contention being that, section 5605, supra, having provided that “the board of county commissioners may, in the case of any county or township officer, present such accusation and bring an action in the name of the county for the removal of such officer,” etc., it was necessary that the action for removal be styled “Wagoner County, Okla., v. Harry Blake,” and not “Board of County Commissioners, of Wagoner County, Okla.,” as was done. But again counsel are confronted with' another adverse decision of the Supreme Court of this state. In Muskogee County, Okla., v. Lanning and Roberts, 51 Okla. —, 151 Pac. 1054, it is held:

“It is provided by statute that the name in which a county shall sue or be sued shall be the ‘Board of County Commissioners of the County of -.’
“The right of a county to sue and be sued is purely statutory, and the mode prescribed by statute for prosecuting such action must be strictly followed.”

In the body of the opinion it is said:

“A motion to dismiss the appeal is presented on the ground that the plaintiff in error is without right to maintain this appeal, and also for wjant of proper parties plaintiff in error. ‘Muskogee County, Okla.,’ is the plaintiff in error. The question raised by the motion is whether or not the appeal can be prosecuted in that name; in other words, in what name may a county sue and be sued. Section 320, Williams’ Okla. Const., provides that each county in this state now or hereafter organized ‘shall be a body politic and corporate.’ Article .1, c. 16, sec. 1497, Rev. Laws 1910, provides: ‘Each organized county within the state shall be a body corporate and politic and as such shall be empowered for the following purposes: First. To sue and be sued. * * * ’ Section 1500 of this chapter prescribes the corporate name of the county and in what name it may sue and he sued, as follows: ‘In all suits or proceedings by or against a county, the name in which a county shall sue or be sued shall be, “Board of County Commissioners of the County of -* * * ’
• “At common law a county could neither sue nor be sued. It is only by virtue of statutory or constitutional authority that an action may be maintained either by or against it. A suit by or against a county must be in its corporate name; that is, the name prescribed in the statute or Constitution by which it may sue or be sued. 11 Cyc. P. & P. 607; Board of County Commissioners of Phillips County v. Churning, 4 Colo. App. 321, 35 Pac. 918; Arnett v. Board of County Commissioners of Decatur County, 75 Ga. 782; County of Rock Island v. Steele, 31 Ill. 543; Wild v. Board of Supervisors of the County of Columbia, 9 How. Prac. (N. Y.) 315; Board of Commissioners of Sweetwater County v. Young, 3 Wyo. 684, 29 Pac. 1002.”

We have given more space in this opinion to a decision of the question raised by counsel than the merit of the contention deserved. The trial court did not err in overruling the motion to .set aside the indictment.

It is next contended that the indictment is insufficient. The indictment set out the acts and facts constituting the embezzlement substantially in the language of the statute. This was sufficient. People v. Ward, 134 Cal. 301, 66 Pac. 372; People v. Gordon, 133 Cal. 328, 65 Pac. 747, 85 Am. St. Rep. 174; People v. Page, 116 Cal. 386, 48 Pac. 326. The charging part of the indictment is very similar in its allegations to that set out in the opinion of this court in Ellington v. State, 7 Okla. Cr. 255. 123 Pac. 186. We deem its allegations sufficient to meet the requirements of our statutes.

It is next contended that the court erred in overruling the defendant’s motion for new trial on the ground that the verdict of the jury is contrary to the evidence. The brief of counsel for plaintiff in error sets out a synopsis of the testimony of the various witnesses and concludes with the statement:

“Therefore we respectfully submit that the record of the evidence in this case shows a material insufficiency to support the verdict.”

Nowhere do counsel point out wherein this evidence is insufficient, but leave it to this court to search for lack of proof. We have examined the transcript of the evidence carefully. There is- no failure to prove any of the material allegations of the indictment. The evidence is sufficient to sustain the judgment.

It is also contended that the court erred in refusing to give certain instructions requested by. the defendant. These instructions related to the questions of the intent of the defendant in embezzling the funds charged in the indictment to have been embezzled by him. The proof showed, both on the part of the state and by the virtual admission of the defendant when a witness, that certain funds had come into his hands by virtue of his office as undersheriff of Wagoner county; that these funds had been fraudulently and. unlawfully .converted by the defendant to his own use in the face of a specific statute requiring him to turn the same.into the treasury of that county. Where such a state of facts is shown to exist, the law itself supplies the fraudulent intent. State v. Duerksen, 8 Okla. Cr. 601, 129 Pac. 881, 52 L. R. A. (N. S.) 1013.

The instructions of the court fully covered the law of the case, and where the defendant takes the witness stand and testifies to a state of facts which virtually amounts to a plea of guilty, this court will not reverse a judgment of conviction on the ground of refusal to give requested instructions or because of inaccuracy in the instructions given, unless by such action the trial court deprived the defendant of some constitutional or statutory-right to his substantial prejudice. There was no miscarriage of justice in this case.

Should a retrial of this case be ordered, no honest.. or intelligent jury could arrive at a verdict different from, that here reached.

As was said by this court in State v. Duerksen, supra:

“This court declines to approve a rule which places a premium on crookedness. The indiscreet handling of money by those who, by reason of a confidential relationship, come into possession of funds of another and appropriate the same to their own use, is not to be tolerated, and the guilty permitted to escape punishment. A man who appropriates to his own use the funds of another received in a trust capacity is no less a thief under the law than one who in the nighttime purloins his money or-other personal property and sells the same for his own. benefit. Such conduct is to be condemned rather than, condoned.”

The judgment of the trial court is affirmed.

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


text:
    ALVA SIGHTS v. STATE.
    No .A-2559.
    Opinion Filed July 21, 1917.
    (166 Pac. 459.)
    1. WITNESSES — Cross-Examination—Antecedents. It is permissble on cross-examination to inquire into tbe antecedents of a witness by showing bis occupation, vocation, or maimer of living, as a general rule. This character of examination, however, is permissible only when the facts- sought to be elicited are pertinent to the issue, or have some material relation thereto.
    .2. HOMICIDE — Assault with Intent to Kill — Instruction—Rights as Against Trespasser. When the crime of assault with intent to kill is charged, and the proof discloses the fact that the difficulty occurred upon the premises occupied by the defendant, and that the prosecuting witness was a trespasser creating a disturbance, the trial court should give in his general charge a proper instruction explaining to the jury how far the person charged might lawfully go in ejecting the trespasser, under the circumstances disclosed, before he would become the aggressor under the law or lose the right of self-defense, and fix in a clear and positive manner the responsibility of the' accused, based upon his intent at the time of engaging in the controversy, as well as at the time of the alleged assault.
    3. TRIAL — Argument—Cross-Examination. Unfair argument on the part of'the prosecuting attorney, and the asking of questions in cross-examination" calculated to prejudice the defendant, should not lie indulged in. Fairness in the conduct of a criminal trial is absolutely essential to the proper administration of justice.

      Appeal from District Court, Custer County; T. A. Edwards, Judge.

    Alva Sights was convicted of assault with intent to "kill, and he appeals.
    Reversed.

      Jas. M. Shackelford and A. J. Welch, for plaintiff In error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Alva Sights, was convicted in the district court of Custer county 'on a charge of assault with intent to kill, and his' punishment fixed at two years’ imprisonment in the state, penitentiary.

The information charges Sights jointly with Ed Haggerty and H. B. Webber with assault with intent to-kill Joe Sturgis, in Clinton, Custer county, Okla., on January 23, 1915. Severance was asked, and Alva Sights, was placed on trial.

The evidence discloses the following facts: A number of persons were drinking around a livery barn belonging to Webber on the date of the shooting. During the afternoon several of these parties, including Alva Sights, became intoxicated. The prosecuting witness went, to the barn of Webber and was ordered away. Some-words .were passed and a shot was fired by Webber. Prosecuting witness, Sturgis, left the place, but came-back about 8 or 9 o’clock and renewed the' quarrel. It. seems that he had asked Webber for money which had. been, refused him, but that Webber had loaned John. Dunn some money. Upon Sturgis’ return to the barn, the second time Webber asked Ed Haggerty, who is also-charged with this crime, to go out and keep him away, saying that he did not want any trouble. It seems that: Sights and Webber were partners in buying and selling-cattle, and used the office at the livery stable for their-office in the other business. Haggerty was unable to-persuade Sturgis to leave, and Webber, asked Sights to-go out and assist in getting him to go away, saying that he did not want to have any trouble and that if he came-in there would probably be trouble. Sights went out and walked up to the parties and asked Sturgis to go away.. A quarrel ensued between him and Sturgis. Sturgis said, that he was unarmed and made no demonstration towards-Sights. Sights and two or three other' witnesses who were present say that he was armed, and that he was, in the act of drawing a pistol from his pocket whejn Sights reached over and jerked a pistol off the person of Haggerty and fired. A pistol was picked' up by witness Dunn where Sturgis fell. The shot entered over the right hip and penetrated the body, coming out on the left side. The surgeon testified that the wound was a dangerous one, and that the condition of prosecuting witness was serious for several days; that an operation disclosed that the bullet had penetrated the bowels and that severe internal hemorrhages had occurred. The evidence further discloses that Ed Dunn operated a livery barn near by; that Sturgis was working for or “hanging out” around the Dunn barn; that there had been ill feeling between the parties for some time. The case of the state is not as strong as it might be.

The witnesses for defendant made a strong case of self-defense. On the question of guilt, however, the finding of the jury would be final if the issue had been properly submitted.

There are only three assignments of error that require discussion.

The first is based upon the proposition that the court erred in refusing counsel the right to impeach the prosecuting, witness by examining into his antecedents, his business, and his associates. In this connection the record shows the following: . :

“Q. Joe, hów long have you lived in Clinton? A. Something like ten years; have been here ever since the town started. Q. What have you been doing for a livelihood? By the County Attorney: Objected to as immaterial. By the Court: Sustained: ' By Counsel for Defendant: Save the exception. Q. Joe, this is not the first trouble you have been into with folks around Clinton is it? By the County'Attorney: Objected to as immaterial and improper cross-examination. By the Court: Sustained. By Counsel for Defendant: Save the exception. Q. Some time within the last three years you were convicted of pointing a gun at some fellows down there, wasn’t you? By County Attorney: Wait a minute; we object to that as improper cross-examination an,d immaterial. By the Court: Sustained. By Counsel for the Defendant: Save the exception. Q. Did you work around the bus barn? A. At what time? Q. Well, any time within the last two or three years? A. Yes, sir. Q. During that time you drank a good deal of whisky, didn’t you? By County Attorney: Objected to as immaterial and improper cross-examination. By the Court: Sustained. By Counsel for Defendant: Exceptions. Q. Didn’t you, during that time very frequently .visit that family of niggers across the street from the bus barn, didn’t you? By County Attorney: Objected to as immaterial. By the Court: ■ Yes; that is wholly immaterial; don’t pursue that line if that is all you haveYn view. By Counsel for Defendant: A man’s conduct is always material. By the Court: Well, I will sustain the objection. By Counsel for Defendant: Well, I don’t want to transgress the court’s ruling, but we have a line of questions we want to ask, and if the court doesn’t want it to go to the jury, I ask to exclude the jury for that purpose. By the Court: Well, I am going to exclude that line- of testimony, and you have made your record sufficiently along that line. By Counsel for Defendant (Mr. Welch) : Do you care to look at authorities on it? By the Court: No, I believe I know what the law is on that. By .Counsel for Defendant (Mr. Shackelford) : If your honor please, I want to ask him some questions about his associations and his general conduct with his associates. By Counsel for Defendant (Mr. Welch) : Our authority for it, your honor, is a recent holding of the Criminal Court of Appeals. By the Court: I know what the holding is. I am excluding that line of testimony you are pursuing now. By Counsel for Defendant: Exceptions. Q. During the year or so before this shooting occurred wasn’t you the common associate of bootleggers and prostitutes in and around Clinton? By the County Attorney: Wait a minute; don’t answer; objected to as immaterial. By the Court: That line is immaterial, Mr. Shackelford; don’t pursue it any further. You have made your record along that line if there is anything in it for you. By Mr. Shackel-ford: Exceptions to the ruling of the court. Now, without putting it in the record, will the court give me an opportunity at some time during the course of the trial when it is convenient to ask him some further questions along that line, for the purpose of going into the record? I don’t care about taking time in the presence of the jury. By the Court: If you have anything further to ask him now that is material, you may do it; we wiljl take the other up at the proper time. Q. Who was the woman that was living at your house, Joe, at the time this shooting occurred? By County Attorney: Objected to as immaterial. By the Court: Sustained. By Counsel for defendant: Save the exceptions. Q. Don!t you. know that woman’s name? By the County Attorney: Objected to as immaterial. By the Court: Overruled. Answer ‘Yes’ or ‘No’ if you know. A. No, sir.”

It is contended by counsel for plaintiff in error that, under the doctrine announced by this court in Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, the examination they proposed was a proper one, and that it was reversible error for the court to refuse them an opportunity to go thoroughly into these propositions on cross-examination. In the brief counsel argue that they were entitled to inquire into the private acts and conduct of the witness without limitation. In addition to the Slater Case they cite and quote from Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544; Crawford v. Ferguson, 5 Okla. Cr. 377, 115 Pac. 278, 45 L. R. A. (N. S.) 519; Terry v. State, 7 Okla. Cr. 430, 122 Pac. 559; Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831.

An examination of the Slater Gase, however, discloses the fact that the question there determined by this court was the jright of counsel to ask a witness whether or not he had been arrested on any criminal charge. The court said that this question should not be asked, but that counsel could ask if witness had ever been convicted of a felony or any other crime involving moral turpitude. Certain paragraphs in the opinion, however, contain the following:

“But it is attempted to justify the admission of this class of evidence upon the ground that it is always permissible to inquire into the antecedents of a witness, by showing his occupation, social connections, manner of living, and such matters. While we approve the principles referred to, we deny its application to the class of evidence now under consideration. The presumption of law is that every person, to a large extent, has the right and power of selecting his occupation,. social connections, and manner of living. Being matters largely of his own choice, they indicate his true character, and he is therefore responsible for them, and they may be inquired into for the purpose of affecting his credibility; but those reasons do not apply to indictments, arrests, or imprisonment before conviction, for the obvious reason that they are not matters of choice, but are involuntary, so far as the witness is concerned.”

This doctrine was reiterated in the other cases cited.

These cases, on account of the fact that no limitation was placed upon what was said by the court, have been'more or less misleading to .trial courts, county attorneys, and members of the bar. - In neither of the cases in which these discussions have arisen was the direct proposition here involved an issue. The doctrine announced is sound when confined' to proper limits, but would be disastrous to the orderly administration of justice when given a broad and unlimited application.

In Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622, the principle involved in this discussion was directly raised and passed- upon by this court. In that case, among other things, it is said:

“It -was competent for the prosecution to cross-examine the witness as to her antecedents, vocation, character, and past conduct, and thus impair her credibility. This line of inquiry became important because, the court having permitted the witness to testify ¿s to the conduct of the deceased towards her, all of the circumstances surrounding the case justified a full cross-examination as to her past conduct and character, and as to the past conduct and character of the witness May Baser, who was her associate in conducting said rooming house. There is no better method of sifting the conscience and testing the veracity and credibility of the witness than by cross-examination, and a witness can also be cross-examined as to specific acts tending to discredit her, when such facts are relevant to the issue.”

A careful reading of the Cannon Case and the authorities cited point the way to the correct determination of this proposition. Counsel attempt to give the Slater Case and other cases relied on a construction or application which is entirely too broad and which was never intended. This character of examination is permissible only when the facts desired are pertinent to the issue on trial before the court, and not otherwise. A rule that would permit the promiscuous and unlimited examination of a witness as to specific private conduct regardless of the relationship of the matter inquired about to the issue joined would result in unreasonable confusion and the clouding of the real issues in every lawsuit that is brought to trial.- The law never contemplated this, and the opinions of this court have never gone so far. The examinations referred to in all the cases considered by this court contemplate an inquiry into those acts, associates, and particular conduct of the witness which have some pertinency to the controversy being heard, and which are calculated to shed light on the truth of' the problem rather than to becloud it.

In Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132, this proposition, being directly raised, was .discussed fully, and the authorities reviewed at length. Among other' things, it is said:

“The next assignment is that the court erred in admitting the testimony of Ruth Brady, upon her cross-examination, and in permitting the state to introduce in evidence a post card photograph of Ruth Brady and the defendant upon the cross-examination of said witness. Ruth, as a witness for the defendant, had testified that in February, 1912, she went to her home and had a conversation with the prosecutrix, and asked her who she thought her baby boy favored, and the prosecutrix said ‘that she didn’t know, but that she had a pretty good idea’; that she then asked her who was the father of her child, and that ‘she said she didn’t know who the father • of her child was.’ On cross-examination she stated that the defendant was her sweetheart. The state procured a photograph taken by Jack Kendrick, another witness for the defendant, and extended it to the witness; her further examination, taien from the transcript, being as follows: ‘Q. Whose picture is that? A. It’s ours; Tom and me. Q. Yourself and Tom? A. Yes; don’t it look like us? Q. This shows Tom and you, and Tom has got his hands upon your leg, and your dress pulled up, and his hands up there on your knee, hasn’t he? (Objection that the same is not proper cross-examination. Overruled, and exception allowed.) Q. He has got his hands up there on your legs? A. Yes, sir. Q. You was out riding with Tom and permitted him to do you that way? A. Yes, sir. Q. That is a true picture of you and Tom? A. Yes, sir.’ She further stated that the picture was taken by Jack Kendrick about three months before; that she left Hobart, her home, with the defendant,, and went to see the prosecutrix at Davison, because she just wanted to see if the baby favored Tom. The argument is made that: ‘A person having their picture taken in possibly an immodest way, as this picture represents, could have nothing to do with the truth or untruthfulness of what such person may testify to upon the witness stand upon a matter disconnected with such act. And the admission of such testimony, and the exhibit of said indecent picture as evidence, as was allowed in this case, answered no fairly useful purpose on the trial. It only tended to embarrass the witness by exposing any act done by her in the infirmity of human nature, amid the temptations that beset life, and the obvious purpose and the undoubted effect of such course of examination in this case were to degrade and injure the witness in the estimation of the jury or injuriously affect their verdict against the defendant.’
“The evidence, if. inadmissible, was, beyond doubt, highly prejudicial to the defendant. On the other hand, the evidence of the witness Ruth Brady, if believed, was very damaging to the state.
“It is well settled that in a criminal case a witness on cross-examination may be questioned as to his relations and feelings of friendliness or hostility towards the defendant.
“In Underhill on Crim. Ev., sec. 221, it is said: Questions put to the witness for the purpose of ascertaining his relations, business, social, or otherwise, with the accused and his state of mind, whether hostile or friendly towards him, are unobjectionable.’
“In Holly v. Commonwealth (Ky.), 36 S. W. 532, a woman was introduced as a witness for the defendant. It was held that it was not error, for the purpose' of showing her interest and probable bias, to allow her to testify on cross-examination that she and the defendant had been living together without being married.
“In Smith v. State, 143 Ind. 685, 42 N. E. 913, it was held that the state, on the cross-examination of a female who was a witness for the accused, could show her relations with him, as showing bias in his favor on the part of the witness..
“In Martin v. State, 125 Ala. 64, 28 South. 92, it was held that a witness for the defendant could be asked on cross-examination if she did not sustain illicit relations with the defendant.
“In Sexton v. State, 48 Tex. Cr. R. 497, 88. S. W. 348, a witness was permitted to be asked on cross-examination if she had not lived in adultery with defendant for five or six years. She answered in the affirmative. This was held to be proper'cross-examination. The court says: ‘It was relevant' for the purpose of showing her bias and friendship and close relationship to the appellant, and her interest in testifying in his behalf, and consequently as touching her credibility.’
“In State v. McGahay, 3 N. D. 293, 55 N. W. 753, a witness for the defendant, over his objection, was permitted to be cross-examined at length as to her relations to and criminal intercourse with the defendant. The court says: ‘The able counsel does not contend that it was impropér to ask the witness on cross-examination as to her criminal relations with men generally as affecting her credit, but urges that such object could be equallv well attained without specifically naming McGahey, and that the necessary effect of so naming him must have been to prejudice the jury against him. Admitting counsel’s conclusion, we. are still of opinion that the line of cross-examination was proper. The state has the right to show the relations existiitg between the witness and the party at whose instance, and presumably in whose interest, she was testifying. It had the right to expose to the jury every motive and desire of the witness that might naturally and reasonably be supposed to produce that bias that would affect the character of her testimony.’
“The doctrine that a witness may be' cross-examined as to matters going to credibility may be well regarded as an exception to the rule that cross-examination is to be confined to matters touched on in the examination in chief, and the limits - within which either party may cross-examine upon, matters not strictly relevant, but which affect the credibility of the witness, is largely within the discretion of the trial court, but the privilege of degradng a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guarded and allowed only upon the exercise of sound judicial discretion, and then only to affect the credibility of the witness.
“The witness Ruth Brady testified on her cross-examination that she was the sweetheart of the defendant. Here we have a very powerful motive for testimony in his behalf. She identified and admitted the photograph which shows that witness, in the presence of a third person, permitted the defendant to take indecent liberties with her person. We think the entire evidence upon the cross-examination, including the photograph, was properly admitted, as showing the nature of the relations existing between the witness and the defendant, and that their relations were such as would create a bias on the part of the witness that might reasonably be supposed to affect her credibility, and the fact that such evidence would probably prejudice the defendant in the minds of the jury did not affect its admissibility.”

The authorities cited and the discussion in the Cas-tleberry Case indicate the reasonable bounds within which this character of ■ examination should be confined. The trial court should be careful to limit the same to-proper channels in order that the real issues in the case-may not be overshadowed by immaterial and cumbersome-examinations. The facts sought to be elicited should have some material relation to the controversy or shed some probative light on the relations of the parties. The only questions asked which were entitled to be answered in the examination complained of were contained in the questions relative to the conviction of the witness and what he had been doing for a livelihood, as tending to affect his credibility. The witness should have been, allowed to answer the same by the court; otherwise the trial court appears to have followed the law.

The second proposition is based upon the fact that the court failed to give any instruction outlining to the jury the rights of the plaintiff in error to remonstrate with prosecuting witness, Sturgis, in an effort to get him to leave the premises, but left it for the jury to determine without any proper instruction whether the plaintiff in error provoked the difficulty or was the aggressor in the controversy. It is clear from the facts that Stur-gis was a trespasser on the premises; that plaintiff in error was lawfully there and maintained a place of business there.- It therefore became necessary for the court to define to the jury the exact rights of the plaintiff in error. A number of requested instructions called the court’s specific attention to this fact. The jury should have been told, therefore, in a properly worded instruction, that if they found that the plaintiff in error maintained an office and place of business in the livery barn, then and in that event he was in a place Where he had a right to be, and that, if he walked out to where the prosecuting witness stood and ordered him to leave the premises, he was acting within his rights, and could not be held criminally liable unless the acts complained of were committed by him with the intent of provoking a difficulty to give him an excuse for taking the life of Sturgis. The prosecuting witness being a trespasser on the premises and at the time creating a disturbance, the plaintiff in error had a right to demand that he leave the same and desist in his boisterous and disturbing conduct. So, if a controversy arose and a fight ensued, which resulted in the shooting of the witness Sturgis, it became vital for this issue to be properly explained and submitted to the jury. The opinions of this court covering this question clearly define the duty of the court in this re■spect. ’

In Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923, this question was directly raised and determined. Among other things, it is said:

“We believe, under the evidence as shown by the transcript, the court should have further instructed the jury in regard to defendant’s right to defend against an unlawful trespass or intrusion upon the premises of the defendant; otherwise the jury might be disposed to regard his act of going to the place armed, and requesting the prosecutor to leave the premises, as placing him in the attitude of a wrongdoer; and, if his testimony is to be believed in this respect, he acted within his rights in the protection of his premises and his person.
“Section 233, Wilson’s Rev. & Ann. St. 1903, provides : ‘To use or * * * . attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases: * * * Third. When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession: provided the force or violence used is not more than sufficient to prevent such offense.’
“* . * * The defendant had a right to go where, the parties were intruding upon his premises and ask them to leave; and, if they did not accede to his request, he had a legal right to expel them as trespassers therefrom, provided that in so doing he did not use more force or violence than was reasonably necessary to effect that purpose. The defendant testified that he carried the shotgun for his own protection, and not for the purpose of expelling the trespassers. He says he did this because the prosecuting witness, Wiebe, had the reputation of being a quarrelsome and dangerous man. Wiebe admits that he made a threatening demonstration, and that Mr. Pulían stopped him, and that defendant, then holding the gun by the barrel, drew it back as if to strike him as he was advancing upon him. Against this attempted assault the defendant had the right to defend his person, independent of the right of defense of his property. ■ We are of the opinion that under all the circumstances of the case an instruction embodying the views hereinbefore expressed should have been given to the jury.”

The doctrine controlling this class of cases is fully discussed in the case of Swan v. State, ante, p. 546, 165 Pac. 627. In that case it is said:

“The proof in this case discloses the fact that this homicide occurred upon • the premises of the plaintiff -in error; that the deceased was a trespasser in his pasture and driving stock into the same unlawfully; that the plaintiff in error had a right to be where he was; and that under the particular circumstances had a right to remonstrate with the deceased for turning the herd of cattle into his premsies. It was vital to his defense that the jury be instructed properly on this proposition. To use the broad language of the court and leave out all question of the intent would practically be saying to the jury that, if the plaintiff in error, by word or act, started the harsh conversation shown, he had lost his right of self-defense. There can be no question but that the plaintiff in error had a right to complain of Hodge for turning the cattle in on him and for being on the premises himself. This controversy began with just such complaint having been made, and the rapid exchange of bitter remarks which followed merged into the homicide. It therefore was necessary for the court to put the burden of this instruction upon the intent of the accused at the time and to protect him with a proper instruction explaining to the jury how far he might lawfully-go under the circumstances before losing the right of self-defense.”

See, also, the authorities cited in the opinion.

The third and last assignment of error is based upon the alleged misconduct of the county attorney in the cross-examination of witnesses and in the argument of the case to the jury. Among other things complained of in the argument, the following is set forth:

“The defendant and his witnesses are a bunch of drunken outlaws from Clinton.” “There is not the slightest defense, but the same was deliberate perjury.” “Defendant had the opportunity and he and the witnesses have framed up a defense.” “The defendant had the opportunity and framed up with the witnesses for the state.”

The court admonished counsel to confine his argument to proper channels and called the attention of the jury to the fact that his closing instructions to. them defined the proper limits for argument of counsel. The record does not disclose the entire argument of counsel, and a reading of the same does not disclose the facts upon which the county attorney could properly base the suggestion his remarks indicated. The remarks were wholly improper, and no good purpose could be served by this character of argument. The county attorney has no right to say or insinuate in an argument to the jury that the defendant on trial has been guilty of bribing the witnesses for the state, or framing up a perjured defense with them, unless the facts developed at the trial have clearly disclosed such a condition, and in this case the record does not disclose that situation. It is of doubtful practice to engage in this character of argument, even though it develops that perjury was committed, and that reprehensible conduct on the part of the defendant has in fact occurred. Counsel may have had facts within his knowledge not disclosed by the record which prompted him to make these remarks, • but in law, even if such was the case, the remarks would be unwarranted.

The judgment is reversed, and the cause ■ remanded, with directions to grant a new trial.

DOYLE, P. J„ and MATSON, J., concur.