author: BESSEY, J.

text:
    DOSS SMITH v. STATE.
    No. A-3586.
    Opinion Filed Dec. 19, 1921.
    (202 Pac. 519.)
    (Syllabus.)
    1. Homicide — Instruction on Manslaughter Proper Where Evidence of Motive, Aggression, and Self-Defense Conflicting. In a homicide case, where the evidence touching on motive, aggression, and justifiable acts of self-defense are conflicting, the giving of an ■ instruction on manslaughter in the first degree is proper.
    2. Trial — Instructions as a Whole — Instruction as to Use of Reasonable Means to Avoid Taking of Human Life Held Proper. An instruction to the effect that an accused who was threatened with danger to his life should use all reasonable means to avoid taking human life, except that, under the circumstances here, he is not bound to retreat, considered in connection with other instructions given, held not error. .
    Appeal from District Court, Greer County; T. P. Clay, Judge.
    Doss Smith was convicted of manslaughter in the first degree and sentenced to serve a term of 15 years’ imprisonment in the penitentiary, and he appeals.
    Affirmed.
    Garrett & Thacker and H. Milton Thacker, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Pul-ton, Asst. Attys. Gen., for the State.
   BESSEY, J.

Doss Smith, plaintiff in error, in this opinion referred to as the defendant, by information filed in the district court of Greer county on August 28, 1918, was charged with the murder of Herman Wilfong on August 19, 1918. At the trial, on January 22, 1919, the jury rendered a verdict finding the defendant guilty of manslaughter in the.first degree, •without fixing the punishment. On the 26th of January, 1919, the court rendered judgment upon the verdict, sentencing the defendant.to confinement in the penitentiary at Granite for a term of 15 years. Prom this judgment and sentence the defendant has appealed to this court.

It appears that before and at the time of this homieide the -defendant lived about 12 miles east of Mangum; that he was a man about 44 years of age; living on a farm with his family; that the deceased, Herman Wilfong, lived with his uncle, G. N. Hunt, on an adjoining farm; that Mrs. Lulu Gilham owned and resided upon another farm just across the road from the premises of the defendant; that the defendant at one time had '.been employed by Mrs. Gilham and had raised one or more crops on the Gilham premises, and that Mrs. Gilham had permitted the defendant to take, keep, and nse one of her horses on his own premises; that some time prior to the homicide Mrs. Gilham dispensed with the services of the defendant and employed Herman Wilfong, the deceased, and that, growing out of these and other circumstances, Mrs. Gilham and the defendant became estranged and were not on friendly terms; that Herman Wilfong became involved in their affairs, causing ill feeling between the defendant and the deceased; and that on one occasion they had a mutual physical encounter, growing out of these disputes. There was some conflicting testimony tending to show that the deceased had threatened the life of the defendant, and also some testimony tending to show that the defendant had made threats towards the deceased.

Testimony on the part of the state was to the effect that the deceased had been employed to help thresh some grain in another neighborhood and had returned home on the evening before the tragedy; that on the morning of the tragedy he and his cousin, Oliver Hunt, after they had eaten their breakfast, were walking along the road adjoining the defendant’s field; that it was their purpose and intention to, go into a pasture nearby to get some horses that were there feeding; that after they crossed a creek and a bend in the road they first saw the defendant in his field, near the fence along the roadside, but that they did not know who he was; that they proceeded to a point nearly opposite where the defendant was, and that they then recognized the defendant standing there with a revolver leveled at them as they approached; that the defendant said, “Oliver, get out of the way; I’m going to shoot;” and that Oliver replied, “Mr. Smith, we are not going to harm you;” that the defendant again said, “Get out of the'way, Oliver; I’m going to shoot;” that both Oliver Hunt and the deceased then ran and the defendant fired four shots in rapid succession, one of which penetrated the body of Herman Wilfong, from which wound "he afterwards died.

The testimony of the defendant, who took the stand in his own behalf, was to the effect that he had gone to a place near the bridge on the public road to see about a water gap, .and that he had gone a little distance, from the ereek and was standing pulling the heads off of some Johnson grass when he .first noticed the deceased and Oliver Hunt approaching ;• that they were walking side by side, and when they got within about 20 steps of the defendant the deceased put his right hand in his pocket and kept looking at the defendant'; that when they got up to within 10 steps of the defendant they checked up and stopped, and that the deceased was trying to pull his hand out of his pocket; that he threw his left hand around and was trying to assist in getting his other hand out of his pocket; that the defendant, by reason of the prior threats, believing, that his life was in danger, fired four ■shots from a Colt’s automatic pistol; that after he ceased firing the deceased walked away and lay down a little distance from there. There was no proof offered showing that the deceased was armed. Other witnesses for the defendant testified to facts tending to show.that the deceased and his companion, ‘Oliver Hunt, knew that the defendant was at the side of the road near the water gap, and that they went to where he was with the intention of provoking a quarrel.

There are 23 assignments of error set out in the defendant's petition in error, but the defendant in his brief has condensed these assignments into 3 propositions, as follows: (1) 'That the court erred in submitting to the jury an issue of manslaughter in the first degree. (2) Error of the court in the admission and the rejection of testimony. (3) Error of the court in giving instruction No. 16, relative to the plea of self- • defense.

It is contended by tbe defendant that under the evidence he was either guilty of murder or should have been acquitted on the ground of self-defense, and that the submission of an instruction on manslaughter in the first degree was error, under the holdings of this court in the casé of Leseney v. State, 13 Okla. Cr. 247, 163 Pac. 956. In the first place, we do not so interpret the evidence in this case. The evidence touching upon motive, aggression, and justifiable acts of self-defense' was conflicting, fully justifying the submission of an instruction on manslaughter in the first degree. Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879.

Even if it were conceded that the evidence tended to indicate that the defendant should have been found guilty of murder or acquitted on the ground of self-defense, this court has since refused to follow the rule laid down in the case of Leseney v. State, supra, but upon this question has followed the rule announced in the case of Irby v. State, 18 Okla. Cr. 464, 197 Pac. 526, and cases therein cited.

It is next contended that the court erred in the admission and the rejection of testimony. We have read all of the testimony in this record, and feel that this assignment does not call for any extended treatment. The record nowhere shows,that any of the testimony excluded, or any of the ‘ testimony admitted over the objections of the defendant, deprived the defendant of any substantial right; in this regard there was, in our judgment, no prejudicial error.

The defendant next urges that the italicized portion of instruction No. 16 is erroneous and prejudicial, as follows:

“In this connection you are told that self-defense under the law is a defensive -and not an offensive act, and for a person to avail himself of a plea of self-defense in order to justify a killing it must reasonably appear to him at the time he fired the fatal shot, if you find that he did so fire it, that the act upon the piart of the deceased, by which the defendant seeks to justify the killing, was such an act as made it reasonably appear to him at the time that he was in danger, either of losing his life or of'great personal injury being done to him, and it is the duty of- a person threatened with danger to his life or of great personal injury, being done him to usd at the time all reasonable means apparent to- him, under the circumstances, to avoid such changer before talcing human life, except that he is not bound to retreat to avoid such necessity of killing, provided he is in a place where he has a right to be and has done no act upon his part to bring about the attack, or threatened attack, if any, by the deceased.”

This instruction must be considered along with instruction No. 14, which treats of the amount or degree of force necessary and apparently sufficient that may be used by the defendant to repel threatened danger, viewed from the standpoint of the person threatened; and also in connection with instruction No. 15, which stated that the defendant had a right to use such force as under the circumstances reasonably appeared to him necessary to repel the attack and avoid injury to himself; and with instruction No. 17, which directs the jury to view the circumstances from the defendant’s standpoint, as they reasonably appeared to him. Considering together all of the instructions referred to relating to the defense of self-defense, we think the law on this subject was fairly submitted to the jury.

The judgment of the trial court is affirmed.

DOYLE, P. J„ and MATSON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    C. I. SHERMAN v. STATE.
    No. A-3595.
    Opinion Filed Dec. 20, 1921.
    (202 Pac. 521.)
    (Syllabus.)
    1. Trial — Instructions Germane to- Evidence. The instructions given should be germane to the evidence introduced, eliminating abstract questions of law not raised by the evidence.

      2. Homicide — Instruction on Manslaughter Warranted Where Evidence Conflicts as to Motive and Aggression. Where the accused is charged with murder and the evidence indicative of motive, aggression, and provoking the difficulty, on the part of the accused as well as on the part of the deceased, is conflicting, an instruction on the law of manslaughter in the first degree is proper.
    3. Homicide — Instructions—“Serious Bodily Harm?’ and “Great Bodily Injury" Used Interchangeably. The use of the expressions "serious bodily harm” and “great bodily injury” interchangeably ip the several instructions given held not error.
    4. Homicide — Right To Instruction on Strength, Weight and Physical Condition of Parties. WTiere no issue of law is involved, the accused cannot, as a matter of right, demand an instruction that the jury may take into consideration the relative strength, weight, and physical condition of the deceased and the defendant at the time of the homicide. This the jury may do as a matter of course. It was, however, a question of fact and not of law, under the circumstances here.
    5. Trial — Instructions on Weight of Evidence. Trial courts should abstain from giving instructions that might be construed as a comment upon the weight or importance of any particular evidence.
    6. Evidence — Res Gestae — Self-Serving Declaration. A self-serving declaration made by the defendant some minutes after the homicide in the presence of a police ¡ officer who had oome to arrest the defendant, was not a part of the res gestae, and the defendant’s statement so made was properly excluded from the jury.
    7. Evidence — Exclusion of Card of Federal'Officer Indicative of Defendant’s Physical Disability Proper. The exclusion of a card said to have been issued by some officer of the United States, indicative of physical disabilities of the defendant and his rejection for military service, was proper, where there was no showing when, by whom, or by what authority such card Was issued, and no offer was made showing its contents or relevancy.
    8. Appeal and Error — Record—Errors riot Predicated on Matters of Record. Errors not predicated on matters appearing in the record are not properly before this court for consideration.
    Appeal from District Court, Carter County; Thos. W. Champion, Judge.
    C. I. Sherman was convicted of manslaughter in the first degree, and sentenced to four years in the state penitentiary, and he appeals.
    Affirmed.

      Rutherford Brett, J. H. Mathers, and Chas. E. Moore, for plaintiff in error. •
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   BESSEY, J.

The plaintiff in error, C. I. Sherman, designated herein as the defendant, by information filed in the district eourt of Carter county, was charged with murder by feloniously causing the death of Sam Dow on the 24th day of March, 1918, in the city of Ardmore. At the trial a verdict was rendered on February 7,1919, finding the defendant guilty of manslaughter in the first degree and assessing his punishment at confinement in the state penitentiary for a period of four years. From the judgment rendered on the verdict the defendant appeals to this court.

The testimony shows that the defendant and- the deceased, Sam Dow, and his wife for a long time prior to the homicide were close friends, and that the defendant, for a period of two years prior to the tragedy, was a traveling salesman, and when not out on the road made his home with the deceased and his wife at Ardmore; that the defendant returned from a business trip on Friday preceding the Sunday on which the homicide took place. There is testimony to the effect that: On Saturday night the deceased had been drinking heavily, and was much under the influence of liquor, and that the defendant remained with him, driving about town and visiting different places, for the purpose of getting him into condition to go home. That shortly after midnight they went to the Dow home, where Mrs. Dow was waiting for them; that presently the deceased suggested that they go back down town, and that the defendant refused to go. At that time a brother of the deceased was in bed in an upper room, and, hearing a noise or commotion.downstairs, awoke. That the defendant and the deceased began to quarrel, and the wife of the deceased called to the brother upstairs, who came down in response to the call.

As to what took place from this point thereafter the testimony of the wife of the deceased and the testimony of the brother are sharply in conflict. The testimony of the wife was to the effect: That the deceased was intoxicated and in a quarrelsome state of mind, and that when the defendant refused to return to town with him the deceased pulled the defendant off of the couch on which he was lying, and assaulted him with a piano stool; that she and the brother separated the two, and that the brother and the defendant started upstairs to retire, when the deceased again assaulted the defendant with the piano stool. The deceased dropped the piano stool, and threw his arm around the defendant’s neck. That at this time the defendant had an opened traveling bag in his hand, and that the defendant reached into the bag and procured his pistol, and in the scuffle fired three shots at the deceased in rapid succession. One of the shots penetrated the neck of the deceased, causing almost instant death. The testimony of the brother of the deceased was to the effect that the defendant and the deceased were quarreling, and were grappling when he came downstairs; that he separated them, and told the defendant to go upstairs to bed, where he belonged; that, instead of doing so, the defendant went to his traveling bag and got out his pistol, and shot and killed his brother, the deceased, after the quarrel had ended, and while the deceased was making no effort to renew the assault.

The testimony shows that the deceased and his brother were large, strong men, in good health, and that the defendant was much smaller physically, and in poor health; that prior to this difficulty they had been the best of friends, and no ill feeling had existed between them. There is some testimony tending to show discrepancies between the testimony, of the wife of the deceased at the preliminary examination and the testimony given by her at the trial, the latter being more favorable to the defendant. The wife explains these discrepancies by stating that her testimony given at the preliminary hearing was given under fear and duress of her brother-in-law.

Numerous assignments of error are set out in the petition in error, but the defendant in his brief condenses these into four propositions, namely:

(1) That the evidence is insufficient to support or sustain the verdict.

(2\ Erroneous instructions given by the court, and error of the court in refusing to give requested instructions.

(3) The exclusion of competent evidence.

(4) Prejudicial error arising out of misconduct of the county attorney.

It has been repeatedly held by this court that where there is any substantial evidence supporting a verdict this court will not inquire into a preponderance of the evidence and disturb a verdict of a jury because it might seem that the jury made a mistake in weighing the evidence or upon the consideration or credibility of witnesses. Had the jury believed the testimony of the defendant and the testimony of the wife of the deceased they would have been justified in rendering a verdict of acquittal on the ground of self-defense; on the other hand, if the jury disbelieved their testimony or material parts thereof, and did believe that the brother of the deceased testified truthfully, the'verdict of the jury as rendered was justified.

The defendant complains that the instructions given by the court limited the jury’s determination of the issues to three'questions only: Was the defendant guilty of murder, and if not, was he guilty of manslaughter in the first degree, or was the homicide justifiable on the ground of self-defense? The instructions given should always be such as will inform the jury of an¡d elucidate the law applicable to the evidence introduced. Under the testimony here the jury were bound to find that the defendant was guilty of either murder or manslaughter in the first degree, or to acquit him on the ground of self-defense; and the instructions given were proper under the evidence adduced in this ease. Mendenhall v. State, 18 Okla. Cr. 441, 196 Pac. 736; Thornsberry v. State, 8 Okla. Cr. 88, 126 Pac. 590.

Complaint is made that the court used the word' “great” in several of the instructions, instead of the word “serious,” in connection with the expression “serious bodily harm” or “serious personal injury,” and that by stressing the word “great” in these instructions the court conveyed to the minds of the jurors that the defendant could not act in his own self-defense against “serious” bodily harm, merely. We think there is no merit to this contention; a reading of the instructions discloses that the words “great” and “serious” are used interchangeably, and that the instructions as a whole fairly state the right of the defendant to defend himself against actual or apparent bodily harm.

It is urged also that the court erred in refusing to in some manner instruct the jury in substance as stated in the concluding language of defendant’s requested instruction No. 5, which was refused by the court, namely:

“You have the right, in this connection, to consider the relative- strength, weight and physical condition of the deceased and the defendant at the time of the homicide. ’ ’

There was no error in the failure of the court to give such a specific instruction. The testimony is undisputed that there was a marked difference between the strength, weight, and physical condition of the defendant and the deceased, and this téstimony raised an issue of fact for the jury, and was doubtless considered by them, along with all the other circumstances in the ease. The court did instruct the jury fully and fairly upon the right of the defendant to defend himself against death or serious bodily harm, real or apparent, as appeared from the evidence. The accused, as a matter of fight, may not demand an instruction touching upon every feature of the evidence in all of its details, not involving issues of law. Indeed, the court should abstain from giving an instruction that might be construed as a comment upon the weight or importance of any particular evidence. Roddie v. State, 19 Okla. Cr. 63, 198 Pac. 342.

It is next urged that the court erred in taking from the consideration of the jury the testimony of witness Segler, a deputy sheriff who arrested defendant, relating to the defendant’s statement made in the presence of this witness a few minutes after the shooting. Defendant contends that this statement was a part of the res gestae, and that he was entitled to have it go to the jury as tending to show his state of mind at the time of the killing. This was a self-serving declaration made by the defendant some minutes after the homicide, after the brother of the deceased had telephoned to the officers and the witness, had arrived at the scene of the tragedy, the time being variously fixed by different witnesses at from 5 to 15 minutes after the fatal shot was fired. The court, in the first instance permitted this testimony to go to the jury, but after-wards withdrew it and instructed the jury not to consider it. In our opinion, this was proper under the circumstances. There had been a sufficient cooling time after the tragedy, and to us it seems clear that this declaration was a self-serving declaration concerning a past and closed event, and no part of the res gestae. Pope v. State, 15 Okla. Cr. 162, 175 Pac. 727; Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157; 10 R. C. L. 979, and eases there cited.

It is also urged that the court erred in refusing to admit the evidence offered by the defendant of a card issued to him by some branch of the War Department, showing that he was physically incapacitated for military service. Prior to this offer the defendant had testified that he weighed about 125 pounds, that he was in poor health and had been sick with lung trouble, and that he had also suffered with rheumatism for a long period of time. There was no showing when this card was issued or by whom or by what authority it was issued, nor any offer showing its specific contents, or whether or not it was admissible or relevant, and no proper predicate was laid for its introduction. In any event, the testimony of the defendant himself, which was not refuted or denied, and the appearance of the defendant on the stand, in our opinion, was sufficient to apprise the jury of his real physical condition, and we hold that there was no prejudicial error in sustaining an objection to the introduction of this card.

In this connection, when objecting to the introduction of this card, the county attorney stated, “We are not prosecuting him for being a slacker.” The defendant promptly objected to this statement in the presence of the jury, as being prejudicial and unfair to the defendant. The court sustained the objection, and admonished the jury to pay no attention to the side remarks of the attorneys, and informed the jury that such remarks constituted no part of the evidence in the ease, and should not be considered by them. We think this remark of the county attorney was improper and ill-advised, and merited the mild rebuke given by the court. Since the court admonished the jury to pay no attention to it, and since the testimony preceding this incident tended to show that the defendant was not a slacker, we hold that under the circumstances the remark of the county attorney did not amount to prejudicial error.

Complaint is further made that the county attorney, in his closing argument to the jury, branded the defendant as a “murderer, a. seducer, a defiler of home.” The arguments of counsel in this ease were not made a part of the record, and are not therefore before this court for consideration.

For the reasons stated in this opinion the judgment of the trial court is affirmed.

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


author: MATSON, J.

text:
    WILLIS TUGGLE v. STATE.
    No. A-3658.
    Opinion Filed Dec. 24, 1921.
    (209 Pac. 187.)
    (Syllabus.)
    1. Appeal and Error — Conviction—Sufficiency of Evidence. A judgment of conviction will not "be set aside solely upon the ground of insufficient evidence if there is any credible evidence in the record which, if believed, will support the judgment.
    2. Jury — Opinion of Juror Which Will Yield Not' Disqualification. The trial court’s refusal to sustain a challenge to a juror for cause will not be disturbed by the appellate court where it appears from the examination of such juror that he had formed an opinion solely from hearsay and newspaper ‘ reports, and upon examination stated that his opinion would readily yield to the evidence, and that he was positive he could disregard the opinion and be governed by the evidence and the instructions of the court.
    3. Homicide — Evidence—Defendant’s Threats to Shoiwi Malice. Record examined, and held, motion to strike certain evidence not well taken.
    4. Appeal and Error — Harmless Error — Admission of Evidence in Rebuttal. For reasons holding the admission of certain evidence in rebuttal not sufficiently prejudicial to require a reversal of the judgment, see body of opinion.
    Appeal from District Court, Sequoyah County; E. B. Arnold, Judge.

      Willis Tuggle was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    Frye & Frye and McCombs & McCombs, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and- E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Sequoyah county, wherein Willis Tuggle, plaintiff in error, hereinafter referred to as defendant, was on the 19th day of May, 1919, convicted of the crime of manslaughter in the first degree, and his punishment assessed by the court at a term of 25 years’ imprisonment in the state penitentiary át McAlester.

Defendant killed one Joe Williams on the 8th day of April, 1919. The killing occurred where the defendant was repairing a rail fence between his premises and those of the deceased. Williams, at a point where said fence joined the public highway about three-quarters of a mile north of the town of Brent, in Sequoyah county. Williams and a young man by the name of Jesse Jackson were traveling along the highway in the afternoon of that day on their way to Brent and came to the place where Tuggle was working on his fence. A dispute arose between Tuggle and the deceased concerning the line on which Tuggle was building the fence, which dispute led to some argument between the parties, the deceased finally calling the defendant a God damned liar. Whereupon, according to the state’s evidence, the defendant fired four shots from his automatic pistol into the body of the deceased, at a time when the deceased was leaning on the fence with his arms folded in front of him. The evidence on the part of the defendant and his 11 year old son, who was present at the time, is to the effect that the deceased called him a God damned s-of a b-, and at the sanie time reached back as though to pull a weapon from his pocket, and the defendant told him not to do that, but, the deceased continuing to make an effort as if to draw a weapon, the defendant, to use his own language, “started his gun to working.” According to the testimony of the attending physicians, who made an examination of the body of the deceased after he was removed to his home, there were five bullet holes in his body, three of them in his left, breast in the neighborhood of the heart, which were necessarily fatal, one in his right arm and one in his left arm.

After the shooting the defendant ran away and remained a fugitive until the third day following, when he voluntarily surrendered himself to the sheriff. There is evidence on tin-part of the defendant that the deceased was drinking at the time of the killing, and' also evidence to the effect that the de ■ ceased had the reputation of being a dangerous and quarrelsome man when under the influence of intoxicants. The evidence is conflicting as to whether the defendant was intoxicated at the time of the killing. Some of the witnesses who saw him just before the time of the killing said they could not tell whether he was intoxicated or not. There is also some evidence to the effect that the deceased’s general reputation as a peaceable and law-abiding citizen was good, and there is also some rebuttal evidence to the effect that the defendant’s general reputation as a peaceable and law-abiding citizen was good.

It is contended that the evidence is insufficient to sustain the judgment. The evidence is to some extent conflicting. However, the evidence on the part of the state indicates that the defendant shot the deceased at a time when the deceased was leaning upon the fence with his arms folded, making no effort in any way to kill the defendant, or to inflict serious bodily injury upon him. . According to an eyewitness, the defendant shot the deceased as soon as the deceased had applied a vile epithet to .the defendant. Under such circumstances the lulling was clearly not justifiable, and the state’s evidence, if believed, is amply sufficient to support the verdict and judgment. This court has repeatedly held that- the- judgment of conviction will not be set aside solely upon the ground of insufficient evidence if there is any credible evidence in the record which, if believed, will support the judgment.

It is next contended that the trial, court erred in overruling the defendant’s challenge for cause to certain jurors on the ground of having formed and expressed an opinion as to the guilt or innocence of the defendant.

We have carefully examined the record in respect to this assignment. Whatever opinion the jurors had was formed from hearsay, and the reading of newspaper reports of the tragedy. Upon examination these jurors stated that their opinions would readily yield to the evidence, and that they could give the defendant a fair and. impartial trial, and would be governed by the evidence and the instructions of the court. The trial court did not abuse its discretion in overruling such challenge. Littrell v. State, 21 Okla. Cr. — , 209 Pac. 184; Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719; Pope v. State. 15 Okla. Cr. 162, 175 Pac. 727; Smith v. State, 14 Okla. Cr. 250, 174 Pac. 1107.

• It is .next contended that the court erred in permitting' Mrs. Wilburn to testify in rebuttal relative to threats made by the defendant, for the reasons that the answers made by the witness were not responsive to the questions asked, and further that said testimony was inadmissible because no proper predicate was made for its admission by first propounding to the defendant the question as to whether or not he had, to such witness, made any such threats.

This assignment of error is without merit. The record discloses not only that the proper predicate was made for the admission of Mrs. Wilburn’s testimony in rebuttal, but also that the evidence was admitted without objection upon the defendant’s part. The defendant having interposed as a defense self-defense, it became competent to interrogate him upon the question of his having made threats against the deceased. This evidence would have been admissible in chief to show malice and ill will on the part of defendant against deceased.

The only objection made to this evidence by counsel for the defendant was by motion to strike the same on the ground that the answers were not responsive to the questions. The motion was not well taken, as the answers were not only responsive to the questions, but were material to the issues.

Lastly, it is contended that the trial court erred in allowing the state in rebuttal to repeat certain evidence which had theretofore been introduced in chief.

It appears that the witness Marshall Shackelford testified in chief for the state that he was plowing some ground approximately one-quarter of a mile from the scene of the killing; that he heard the shots fired, and looked in the direction of the shooting, and saw Jess Jackson, who was a witness for the state, running south on the public road away from the scene of the killing, and at the same time he noticed the defendant and his son running east from the scene of the killing in the direction of defendant’s home; that he continued to notice Jackson, and that Jackson ran quite a distance south, and then turned around and ran back north again to within 20 or 30 yards of the place where the killing occurred, and then turned around and ran south and came down to the point where the witness Shackelford was plowing. The defendant, as a witness in his own behalf, testified that he noticed Jackson return, after running south, to the body of the deceased and stoop over the same. In rebuttal for the state the witness Shackelford was recalled, and the court permitted the state to ask Mm tMs question (after an examination of the record as to what the witness had testified to in chief on this subject), “Did you ever see him (Jackson) go back to the body; did he go back to the body?” to which the witness answered, “No, sir.” On cross-examination counsel for the defendant asked the witness, “Could you see the body from where you were?” to which the witness answered, “No, sir.”

This is the evidence complained of, and, wMle we think it was largely cumulative, and a repetition of what had been introduced in cMef, it is apparent that it was not sufficiently prejudicial, even if improperly admitted, to require a reversal of this judgment.

We are convinced, after a careful examination of the entire record, that the defendant had a1 fair and impartial trial.

The judgment is affirmed.

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


author: DOYLE, P. J.

text:
    CHARLEY WALKER v. STATE.
    No. A-3956.
    Opinion Filed Dec. 20, 1921.
    (202 Pac. 799.)
    (Syllabus.)
    Homicide — Murder—Insufficiency of Evidence to Warrant Death Penalty. In a prosecution for murder, evidence reviewed and held sufficient to sustain a verdict convicting the defendant of murder, but insufficient under the facts and circumstances of the case to justify the death penalty, and the judgment and sentence of death is modified to imprisonment for life at hard labor.
    Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
    Charley Walker was convicted of murder and sentenced to death, and he appeals.
    Modified and affirmed.

      . J. W. Crow and Lewis Morris, for plaintiff in error.
    ' S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction in the district court of Pittsburg county, rendered February 1, 1920, in pursuance of a verdict finding the defendant guilty of murder and assessing his punishment at death. The information in substance charged that in said county on or about the 30th day of July, 1920, the defendant, Charley Walker, did kill and murder one C. L. Harkins, by striking, stabbing, ¿nd cutting the said Harkins with a certain sharp instrument, the exact nature of which is unknown.

On the 3d day of January, 1921, the defendant was put upon his trial, which resulted in a disagreement of the jury, and a mistrial was ordered by the court. On the 26th day of January, the defendant was again put upon his trial. The jury returned their verdict on the 28th day of January, 1921, with the result above stated.

The errors assigned are as follows:

That the verdict is contrary to law, and to the evidence; that the punishment assessed by the verdict and judgment is excessive, and was prompted by prejudice and passion, and was unwarranted by the law and the evidence.

The evidence shows that C. L. Harkins, the deceased, and the defendant, Charley Walker, were both convicts. The killing occurred at the prison brick plant, which is located not far from the penitentiary.

The defendant, a negro, was screening sand. He went to the tóolhouse and asked for and received a hammer. He then went into a stock car standing in the brickyard. The deceased came along a runway that passed through the car pushing a wheelbarrow, and the affray which resulted in his death started in the car.

W. C. Tidwell testified:

“I went over the runway through the car to get some lumber, about 3 o ’clock. The defendant was sitting on some brick in the end of the car. I got some lumber and came back through the runway, and he was still sitting there. I threw the lumber down where I was building another runway. I heard a noise and saw some brick fall. I turned and the defendant had Doe Harkins around the neck and shoulders and Doc was dragging him towards me. Then I heard two shots in quick succession and the defendant turned Doc loose. As he passed me he had a knife in his hand, and was trying to put it up his; sleeve. I did not see them when they first came out of the ear.”

Cross-examined, he stated that he had served several terms in the penitentiary, one for highway robbery, one for horse stealing, two for burglary, one for bank robbery, and one for assault with intent to kill, and is now serving a term for manslaughter.

J. B. McCullough testified:

“I am an inmate of the Oklahoma state prison. I take care of the tools at the brick plant. I saw the defendant standing by a pile of brick and he went into this car. Doe Harkins, came along pushing a wheelbarrow along the runway through this car. The defendant motioned to him, and he set the wheelbarrow down and went back to where the defendant was. When he got back there he threw up his left hand. The defendant struck at him with something; I do not know what it was. It was a stock car, and I saw them through the slatting. I could not see which one struck first. Doc was between me and the defendant. Doc wheeled around and the defendant came out with him, holding him by the back of the neck somewhere. They came down the runway and ran against a pile of' brick. Doe caught the defendant’s arm and told him not to kill him, the defendant said, ‘ Turn my arm loose. ’ They scuffled a little bit and he turned Doe loose. They were coming towards me, and the defendant stabbed Doc twice right over the heart. He staggered over towards the kiln. Just then Mr. Williams fired a shot. They were about 17 feet from where I was standing when the gun fired. I heard Doc say: ‘Don’t kill me. I will give it to you, Charley. Don’t murder me.’ I ran and got Mr. Mayfield. Doc had walked about 40 feet from where I left them. Mr. Mayfield asked Doc if he was hurt. Doc said: ‘I am killed. Charley did it.’ He only lived three or four minutes. ’ ’

J. L. Williams testified:

“I am a guard in the penitentiary. I was in the Northwest tower at the brick plant that afternoon and saw the defendant enter the car. In a few minutes Harkins entered the car. The scuffle started in the car, and I saw the defendant come out with his arm around Harkins’ neck, stabbing at him. Harkins was hollering, and I took a couple of shots at the defendant.”

Joe Jackson testified:

“1 am serving a term for forgery. That evening, after Doe Harkins was killed, the defendant was put in a eelk I asked him, ‘Did you kill him?’ and his reply was; ‘He won’t try to bully anybody else any more,’ and I asked him then what was the trouble. He said that he had won $1.85 off Doe Harkins and cashed out, and that Doe would not pay him but one dollar, and he told Doc, ‘If you do not pay me the 85 cents you won’t play any more poker in this world.’ ”

On cross-examination he stated that he had also served a a term in the Kansas penitentiary.

Wyatt Peavy testified:

“I am serving a term for highway robbery. I was present when this knife was found at the brick plant. It was stuck in the ground. Calloway Miller picked it up and threw it over the fence. I saw the defendant have this knife about three weeks before the killing.”

The foregoing is the material testimony upon which the-verdict and judgment were based.

As a witness in his own behalf the defendant testified:

“My age is 25. I was born in Oklahoma City, on California street, right back of the Baptist church. My mother' died in 1905. After that I lived there with my grandmother. I was about 15 years old when I was first sent to prison at Me-Alester. My time was short. - When I got out, I went to El Reno, and in two or three months I was back again for burglary. I stayed at MeAlester about a year. Then I was transferred to Granite. There I had a fight and was convicted for assault with, intent to kill and got eight years for it. I was sent to MeAlester and I am serving the term. I played poker in Doe Harkins’ game, and I won and cashed out one day after dinner. He payed me some but would not pay me the rest. I was screening sand to put on the brick, and I broke my screen. I came back with this hammer that I got from Cap. McCullough. I got a piece of wood to fix the screen. I stopped in the car and knocked the heels off my shoes. I was bending the tacks back when Doc Harkins came in and set his wheelbarrow down. He asked me what was that crack I had been making about him. I told him,‘Nothing.’ He said, ‘You need not think because you are in here for cutting one man you have got me bluffed,’ and I said, ‘I am in here for cutting a man, and you are here for raping a 14 year old girl, and I never done anything like that.’ Then he made for me and struck at me with this knife, and' I hit at him with the hammer and the handle came off. I grabbed him and scuffled with him two or three minutes and got that knife away from him and tried to defend myself. We fought each other coming out of this car. They said I done all the fighting, but he hit me and hurt me the same as he was hurt. We fought out on the runway there, and Mr. Williams shot, so I went around the kiln. Mr. Mayfield came, and I was put in solitary. The knife they say I done the killing with was not the knife. ■ I stuck the knife down by a piece of steel that holds up the fan. In my other trial one day at noon they asked me if I could get the knife that I done the fighting with, and I told them, ‘Yes,’ and Mr. Jedlicka, assistant warden, took me over there and I got it.”

The rule repeatedly 'announced by this court is that it has no power to reverse a judgment of conviction upon the ground that the verdict is not sustained by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from partiality, passion, or prejudice.

It follows that this court will not weigh the sufficiency of the evidence to sustain the conviction, but will consider all the evidence to ascertain whether a conviction is founded on substantial evidénce.

The defendant contends that the evidence is insufficient to show a premeditated design or intention to kill.

The rule is well settled that if from all the facts and circumstances attending the killing the jury can reasonably and satisfactorily infer the existence of the premeditated design or intention to kill, they will be warranted in so doing.

One who intentionally uses upon the body of another, at some vital part, a deadly weapon, will in the absence of qualifying facts be presumed to intend the death, which is the prob-. able and ordinary consequence of such act.

The charge of the court submitted the issues of murder, manslaughter in the first degree, and of self-defense, and fully and fairly covered the law of the case.

Upon the testimony of the defendant and the witnesses for the state the jury could have acquitted, or could have found him guilty of manslaughter in the first degree; but it was their exclusive province to pass upon and decide the credibility and weight to be given to their testimony.

Considering the character of the wounds and the other facts in the case, we are of opinion that the evidence was sufficient to sustain the conviction for murder.

The serious question presented by the record in this case is the sufficiency of the evidence to justify the infliction of the death penalty. In a prosecution for murder, the law of our state in its great humanity allows the jury, after they have first determined the question of guilt, to assess the punishment, which may be death or imprisonment for life at their discretion' (section 2319, Rev. Laws), and even after the jury say that the defendant should suffer death, this court, in furtherance of justice, has the power to modify the judgment to imprisonment for life (section 6003, Rev. Laws). Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170. On the appeal from a capital conviction,. the duty devolves on this court to examine-with the greatest of care the whole record in favor of life, and review the case upon the merits to determine whether justice requires a modification of the judgment to imprisonment for life. Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613; Chambers v. State, 16 Okla. Cr. 238, 182 Pac. 714; Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548.

Carefully considering the whole testimony in this ease, we are unwilling to lend the sanction of our approval to the infliction of the death penalty, because in our opinion the testimony is-insufficient-to justify the extreme penalty of the law, and for this' reason we think the jury abused its discretion in assessing the death penalty. While the evidence for the state tends to show that the killing was deliberate, the undisputed facts are that the killing occurred in a fight over a gambling game. The records of this court show that the deceased was a vicious and desperate criminal. See Ex parte C. L. Harkins, 7 Okla. Cr. 464, 124 Pac. 931, C. L. Harkins v. State, 14 Okla. Cr. 440, 172 Pac. 469.

In State v. Young, 19 Okla. Cr. 363, 200 Pac. 260, it is said:

“This was not a lying in wait assassination, or1 a homicide committed in the commission of a felony. The dispute arose over wages due from the deceased, a white man, to the defendant, a negro. Both were armed, and the negro killed the white man. The prejudices that are engendered in eases of this kind among our race is a matter of common knowledge, and this may have influenced the jury to assess the extreme penalty. A capital conviction should be above suspicion of any partiality, passion, or prejudice. ’ ’

Our conclusion is that the punishment assessed by the jury is excessive and that justice requires a modification of the judgment and sentence of death to that of imprisonment in the penitentiary for life at hard labor.

The judgment of the district eourt of Pittsburg county herein is so modified; as thus modified, the judgment is affirmed.

MATSON and BESSEY, JJ., eonenr.


text:
    LEONARD MARLOW v. STATE.
    No. A-3696.
    Opinion Filed Jan. 7, 1922.
    (202 Pac. 1048.)
    (Syllabus.)
    1. Evidence — Rape—Other Acts Admissible for Purpose of Corroboration. Where the state elects to rely for conviction on a certain specific act of sexual intercourse between the prosecutrix and defendant, other acts of illicit intercourse between said parties, continuing from said act up until a short time prior to the commencement of the prosecution, are competent to show the intimate relation and familiarity between the parties, and as corroborative of the ultimate fact sought to be proven.
    2. Witnesses — Cross-Examination—Right to Explain Testimony. Where counsel for the defendant on cross-examination of the prosecuting witness ask her concerning certain acts of sexual intercourse with other persons, it is permissible that the prosecuting witness be allowed to explain the circumstances under which such other acts of intercourse took place, although such evidence could have been excluded in the first instance.
    3. Trial — Instructions—Necessity for Specific Request for Further Instructions. For an- instruction held to have been sufficient to ' safeguard the substantial rights of the defendant and to prevent his conviction upon evidence of any alleged act of sexual intercourse between him and the prosecuting witness except the act upon which the state elected to convict, see body of opinion.
    Appeal from District Court, Bryan County; George S. March, Judge.
    Leonard Marlow was convicted of the crime of rape in the second degree, and appeals.
    Affirmed.
    Plaintiff in error, hereinafter referred to as defendant, was charged by information in the district court of Bryan county with the crime of rape in the second degree, alleged to have been committed on one Beulah Blankenship, a female under the age of 16 years and not the wife of said Leonard Marlow. The defendant was convicted and sentenced to serve a term of 4 years’ imprisonment in the state penitentiary.
    Defendant reached the age of 18 years in January, 1918. The act of intercourse upon which the state relied for conviction was alleged to have been committed on the 5th day of April, 1918. According to the state’s witnesses'the prosecuting witness, Beulah Blankenship, became 16 years of age on the 13th day of April, 1918.
    The prosecuting witness, Beulah Blankenship, testified: That she lived in the country, and first met the defendant in the fall of 1916 at a neighbor’s house, where a community singing was taking place. That the defendant commenced to keep company with her, beginning on Easter Sunday, which was March 31,1918, and continued his attentions until in the spring of 1919. That on said Easter Sunday the defendant, with others, accompanied her from a neighbor’s residence part of the way home, and at that time made an engagement with her to meet her “out at the big gate north of our house; the gate that goes into our pasture.” That witness first told the defendant that she was afraid to meet him out there, and that defendant then insisted, and said that he was going to be there, and witness then told him, “Well, I guess I will.” Witness then testified that pursuant to such agreement she did meet the defendant out there at about 10 o’clock after her parents had gone to bed. That she and the defendant then went over and sat down in a wagon that was there close to the gate. That defendant hugged and kissed her, and asked her. if she would not be good to him and let him; and witness said, “No.” And defendant said, “There’s no harm in it,” and threw his arms around her and tried to get her to let him, and witness told him, “No.” And defendant then asked if she would not the next time that she met him, and witness told him that she did not know; that she might. That on the night they separated about 12 o ’clock and defendant did not have intercourse with her, but that they made arrangements to meet on the Friday night, the 5th of April, 1918, at the same place. Witness further testified that she did meet defendant at the gate on Friday night and that they walked off a piece down into the pasture and sat down about 100 yards from the gate, and the defendant asked her if she would not let him, and she told him she “did not want to.” And he said. “There would be no harm,” and she said, “Yes; there would.” And he said, “If he got her into a bad shape, he would take and marry her,” and then she gave up and let him. Witness then said that defendant tried to have intercourse with her, but could not do it for the reason that he hurt her; that his private parts penetrated her private parts, but just a little; that they only tried it that one time, and then made an engagement to meet again at the same place on Sunday night, April 7th. Witness then testified that defendant met her again on the following Sunday night, but did not do much, because it hurt her private parts, although he penetrated her just a little; that they made two effort's on that night; that the penetration was a little more the second time than the first, and a- little more the third time than the second; that they made arrangements to meet again on the next Wednesday night, April 10th, and defendant tried three times that night, and succeeded in penetrating to the full extent one time that night; that thereafter witness and the defendant would meet on an average of twice a week and have sexual intercourse; that witness met the defendant on Saturday night, April 13th, which was her birthday and had intercourse with him at that time; that she and the defendant quit meeting or going together or having any improper relations on Sunday night, February 3, 1919; that at that time the witness was in a family way; that she became pregnant in September, 1918; that she told defendant about it; that defendant did not talk to her much about it, but acted like he did not believe it; that defendant asked her when was the last time her sickness was on, and witness told him; that witness asked him.what he was “going to do about it,” and defendant said he “couldn’t do nothing”; that a baby was born to her on the 6th day of June, 1919, and that defendant was the father of the baby.
    On cross-examination, after having been interrogated to considerable length concerning the ages and dates of birth of her brothers and sisters to the number of 12, prosecuting witness testified, in part, substantially as follows: That her first meeting with Leonard Marlow was about Christmas, 1916. That he first started to go with her in the fall of 1917. That her father would not permit her to go with boys at that time. That she had been to her sister’s house, and that boys would come there to see her. That L. J. Allen had met her at her sister’s house. That no boys ever came up there after they went to bed. That she had been meeting with boys for some time before she met Leonard Marlow. That Leonard Marlow never eame to her house to see her. That on some occasions she would meet him at the home of his sister-in-law. That the first time she ever met defendant in the pasture was. on Wednesday night after Easter Sunday. That they had been together several times before that. That she would go to church, and he would come back with her. That she had also met him at parties a good many times. That defendant had talked to her before this Wednesday night about marrying her, and she had promised to marry him, but had never-told anybody about it. That she was 15 at the time she had promised to marry him. With reference to what occurred on-the Friday night after Easter Sunday, 1918, in the pasture, witness said that defendant kind of tore her up that night; that he hurt her; that there was blood and “his old stuff” on her clothes. Further in this connection the witness was asked the following questions and made the following answers:
    . “Q. Now, I will ask you if you didn’t state in the examining trial'in this case that he tried just once that night hnd didn’t succeed in getting it in, and didn’t get it in that night? A. Well, he didn’t all the way, but it hurt me; he got it far enough to hurt me.
    “Q. Didn’t you state that he didn’t get it in on that night, on the examining trial? A. I said that he didn’t get it in all the way, but got it in far enough to hurt me.
    “Q. Didn’t you state on the examining trial that he didn’t get it in that night? A. I don’t remember whether I did or* not.
    “Q. How is that? A. I don’t remember.
    “Q. Now you say that there was blood on your clothes, do you? A. Yes, sir; because after I studied about it, I remember now.
    “Q. Didn’t you study on your examining trial? A. I; didn’t know whether there was blood on my clothes.

      “Q. Didn’t you make that statement on the examining trial? A..Yes, sir; but I had not been studying about it, and I didn’t remember whether I did or not.
    “Q. Who did you talk to about this since the examining trial? A. Nobody but my folks.
    “Q. Anybody else? A. No, sir.
    “Q. Did you talk to these lawyers any? A. That is all, and to the lawyers, Mr. Phillips and Mr. (witness is interrupted by counsel)—
    “Q. Didn’t they tell you that-it was necessary that you testify that he did get it into you some that night? A. No, sir; they didn’t tell me.
    “Q. You thought about it since the examining trial? A. Yes, sir.
    “Q. They said that you had some blood on your clothes? • A. Yes, sir.”
    And further in the cross-examination the following occurred:
    “Q. I will ask you — you said that this baby was born in June? A.-The 6th.
    “Q. The 6th of June? A. Yes, sir.
    ‘‘Q. In 1919? A. Yes, sir.
    "Q. During the fall of 1918 you were having intercourse with other men, weren’t you? A. Yes, sir — no sir; yes, sir.
    “Q. You had intercourse with Jerry Watley? A. Yes, sir.
    “Q. And Ode Watley? A. Yes. sir.
    “Q. Did you have intercourse with the Boyngton boy? A. No, sir.
    “Q. Isn’t it a fact that along about February — I will ask you if in June, 1918, you didn’t have a conversation with Minnie Marlow at her home in this county in which you were discussing the conduct of girls, their conduct with boys, in which you stated that you didn’t think it was wrong to have intercourse with.boys, and if she didn’t remark it was wrong, and also that you were liable to get into trouble, and you at that time. made the statement that, if you got caught, that you were going to lay it off on Leonard?
    “Mr. Phillips: We object to that, as being incompetent, irrelevant, and immaterial.
    “ The Court: Overruled.
    “A. No, sir: I didn’t tell her; I didn't make any statement to Minnie Marlow.
    “Q. You didn’t make that statement, in substance, to her? A. No, sir; I did not.
    “Q. Now, didn’t you also state to her that you was going to do that, that you was going to lay it off on Leonard, because you liked him, and that they had told you that he would have to marry you if you laid it off on him? A. No, sir.
    “Q. No such conversation? A. No, sir; I did not.
    “Q. Now, Miss Blankenship, isn’t it a fact that after you got in a family way and your parents discovered the matter, that you then fixed the time of this intercourse with the defendant that you had, or claimed to have had, with him, just before your birthday for the purpose of getting under the age of 16? A. No, sir; I didn’t.”
    On redirect examination the following occurred:
    “ Q. Who all besides this defendant did you have intercourse with in the fall of 1918 ? A. Sir?
    “Q. Who was it you said besides this defendant that you had intercourse with in the fall of 1918? A. Jerry Watley.
    “Q. Was that before or after you had told the defendant, Leonard Marlow, that you was in a family way? A. It was after I told him.
    “Q. State the circumstances — how many times did you have intercourse with Jerry Watley? A. Just one time.

      “Q. All right. State the circumstances.
    “Mr. Cochran: Objected to because it is incompetent, irrelevant, and immaterial.
    “The Court: It is cross-examination; I will permit it.
    “Mr. Cochran: The purpose of that, your honor, in proving it, was to show that, the presence of this baby, we have a right to show that, and probably account for this baby. We are not permitted to go into the facts and details. It will raise an issue that will throw no light upon this other matter. We showed that it happened, the time that it happened. That is the purpose of the examination. If you go into the details of it, it will raise a collateral issue.
    “The Court: Well, my opinion was that it was not permissible to ask the question, but you asked the question, and they have a right to cross-examine on it.
    “Mr. Cochran: We object to it because it is incompetent, irrelevant, and immaterial.
    “The Court: Overruled; go ahead.
    “Mr. Cochran: Exception.
    “Q. State the circumstances under which you did, and where it happened. A. Out west of the house, west of. our house.
    “Q. West of your house? A. Yes, sir.
    “Q. In the daytime or night? A. Night.
    “Q. Had you met with anybody there that night? A. Nobody only Leonard Marlow.
    “Q. I didn’t understand. A. Leonard was the only one, and Jerry Watley (counsel interrupts the witness)—
    “Q. Did you meet Leonard before or after you met this Watley man? A. Before.
    “Q. What was Leonard Marlow doing? A. Before he came up?

      “Q. Yes, or at the time he came up? A. Well, he had had intercourse with me.
    “Q. What was it you said? A. I said that he had had •intercourse with me.
    “Q. Who? A. Leonard Marlow.
    “Q. Then what time, with reference to that, did you see the Watley man, or what time did he come up? A. Just after 'he had gotten through.
    “Q. Just after who got through? A. Mr. Marlow, Leonard Marlow.
    ‘ ‘ Q. What position were you all in when Mr. Watley came up? A. We was lying down on the ground.
    “Q. What time of the night was that? A. I don’t know what time of the night it was then.
    “Q. How long had you been out there? A. Well, not so -very long; just a little while.
    “Q. What did Mr. Watley say when he came up there?
    “Mr. Cochran: We object to that because it is incompet.ent, irrelevant, and immaterial.
    “The Court: Objection overruled.
    “Mr. Cochran: Exception.
    “Q. Answer the question. A. He said, ‘Now I have -caught you; if you don’t do me the same, I will tell on you;’ .and he caught me by fhe hand and held me.
    “Q. What did the defendant, Leonard Marlow, say? A. 'He just — he acted like it scared him.
    “Q. What did he say? A. The first word he said, ‘Well, who is that?’
    “Q. Then what did he say? A. Jerry he caught me, and Leonard Marlow got up and walked off.

      “Q. Did Leonard Marlow say anything? A. No; I was trying to get away, and he said I would just have to let him.
    “Q. Who said that? A. Leonard said it.
    “Q. Who? A. Leonard said if I didn’t we would be caught.
    “Q. Where did Marlow go? A. He walked off; I don’t know where.
    “Q. Did you see Marlow any more that night? A. Yes, sir.
    “Q. When? A. After Jerry got through, he got up and walked away.
    “Q. Did Marlow then come back? A. Yes, sir.
    “Q. Then what was it you all did? A. We went — we just talked a little while, and I went to the house.
    “Q. Who else was that that you had intercourse with? A. Ode Watley.”
    And the witness further testified to an identical occurrence with Ode Watley about the 1st of February, 1919; and, further, the witness testified that she had never had any intercourse with the Watley boys prior to April, 1918, and that Leonard Marlow was the first person that had ever had sexual intercourse with her.
    Mollie Blankenship testified that she was the mother of Beulah Blankenship, and that Beulah Blankenship was bom on the 13th day of April, 1902, and was 16 years of age on the! 13th day of April, 1918. On cross-examination this witness testified that she had a son who was born on August 6, 1901. With reference to her other children witness testified as follows: George, born May 22, 1905; Lewis John, born August 6,1901; Sidney Pearl, born April 2, 1899; Ivy, a son, born November 13, 1897; daughter, Pety May, June 21, 1896; son, ‘Thomas Lee, born July 15, 1895; daughter, Mary Ann, born December 23,1893; daughter, Mattie Elta, born August 8,1891. Witness further testified that she was basing these dates on her independent recollections, but that they had a book with entries in it, made by her husband, which was supposed to give the correct dates of birth of the various children. Whereupon the following occurred:
    "Q. Have you gone over with any of these lawyers what those ages are since you have been here, when these children were born? A. No, sir; I have been telling them just what I told you.
    ' ‘ Q. They went over the matter with you before you testified? A. Yes, sir.
    "Q. Did you see this book? A. No, sir.
    "Q. You were with your husband when the entries were made in that book, weren’t you? A. Why, yes, sir; I was with him.
    "Q. They were correctly entered in it? A. He done the writing.
    "Q. Were they correctly entered at that time? A. Yes, :sir.
    "Q. The entries on that book are correct? A. They were; .yes, sir.
    "Q. They were correctly entered in it? A. Yes, sir.
    "Mr. Cochran: We would like to have that book.
    "Mr. Hatchett: Kris not a book; it is a kind of a slip.
    "Mr. Cochran: They had a book of some sort; I don’t know what condition it is in now.
    "Mr. Stinson: This is the book, Mr. Cochran (handing ■counsel a book).
    "Q. Now, this is the birth record of your family, that you have been telling about? A. Well, I think so.

      “Q. Is that? A. Yes, sir.
    “Q. Is that you husband’s handwriting or yours? A. That is his.
    “Mr. Cochran: We ask that that be identified as Defendant’s Exhibit No. 1.
    “The Court: What part?
    “Mr. Cochran: The entire sheet.
    “The Court: This sheet or that sheet?
    “Mr. Cochran: This.
    “The Court: Let him identify the sheet. If both of these are marked exhibits, make it separately.
    “Mr. Cochran: We offer them in evidence.
    “The Court: Let’s get one at a time.
    “Mr. Cochran: All; mark this Exhibit No. 1.
    “Q. Now, you claim that record there was copied from this sheet which I hand you, identified as defendant’s Exhibit No. 2; is that true? A. Yes, sir.
    “Mr .Cochran: We now offer in evidence Exhibits Nos. 1 and 2,”
    . “The same were thereupon received in evidence, and are in the words and figures following, to wit:
    “Exhibit No. 1: ‘Births of M. T. B. and M. C. Blankenship. Married July 29, 1888; Lorenner Blankenship, born Aug. 4, 1889. Mollie Ethel Blankenship, born August 8. 1891. Myrtle Anne Blankenship, December 23, 1892. Tommy Lee Blankenship, July 15, 1894. Dedie May Blankenship, June 21, 1896. Ivery Blankenship, November 13, 1898. Sidne Pearl Blankenship, April 2, 1899. Luiss John Blankenship, August 6, 1901. Buler Bell Blankenship, April 13, 1902. Truitt Blankenship, May 22, 1905. One boy baby born December 28, 1907, died October 13, 1907. Reva Lester Blankenship, March 16, 1908. Vera Blankenship, Nov. 8,1910, Died August 21, 1910. Velería Blankenship, March 30, 1911. Fay Wanetta Blankenship born Ang. 12, 1914. Birth Rekord of W. T. B. and M. C. Blankenship. W. P. Blankenship, Oct. 4, 1865. M. H. Blankenship Feb, 23, 1872.’
    "Exhibit No. 2: ‘¥. T. Blankenship, October 4 day, M. C. Blankinship February 23 day. 1889 L. R. Blankinship August 4 day. Mollie Eathel, 1891 Blankenship, born August, 1892. ■Myrtle Ann, born Dee. 1894, Tommy Le Blankinship. 1896 Dediemay Blankinship born, 1898 Ive Blankinship born, 1899 Sidney Blankinship born, 1901 Lewis John Blankinship born, 1902, Bular Bell Blankinship born, 1905, born, 1907, 1908, 1910.’
    "Q. When was this sheet here torn? A. I don’t, know; it just been worn off by being old.
    “Q. When was this sheet here prepared? A. I don’t know.
    "Q. Isn’t it a fact that this sheet was prepared in your home during 1918? A. No, sir.
    ■ "Q. And that this sheet here was mutilated in that way at that time? A. No, sir.
    "Q. That is not a fact? A. No, sir.
    "Q. You mean to tell the jury that you haven’t seen these dates since you have been here at the trial? A. Not that book.
    "Q. Have you seen any other document with these dates in, or any other sheets? A. No, sir; I haven’t seen any.
    "Q. I will ask you if you didn’t make the statement in the presence of Mrs. Susie Watley and Annie Marlow at Mr. Wat-ley’s house in 1918 that Beulah was 16 years of age at that time, and would be 17 in April, 1918. A. I don’t remember nothing about it.
    "Q. You don’t remember making any such statement? A. No, sir; I don’t.
    "Q. You remember being over at their house about that time? A. Yes, sir.

      “Q. Bo' you remember talking about Beulah’s age at that time? A. No, sir; I don’t. ,
    “Q. You don’t remember about it? A. No, sir.
    “Mr. Coehran: That is all.”
    The witness further testified that a Mrs.' Sims was present when Beulah was born, and that Beulah was born in Texas on Ed Marshall’s farm, and that Lewis Watkins was the doctor who waited on her at the time of Beulah’s birth.
    Mary Sims, as a witness for the state, testified that she was 40 years old; that she knows Beulah Blankenship; that she was present at the time Beulah was born, and that she was born on April 13, 1902; that at the time of Beulah’s birth witness was living about 200 yards from the Blankenships. On cross-examination the witness testified that she was present when George Blankenship was born; that he was born a year or two after Beulah, but that she could not remember the date of his birth exactly, but that she thought it was in May, and her best recollections was that it was along about the 22nd of May; that her recollection had been refreshed concerning these dates since she had been subpoenaed as a witness in the case.
    The state also introduced a calendar for the year 1918, which disclosed that the 5th day of April, 1918, was on Friday.
    The defendant thereupon introduced J. A. Shirley as a witness, who testified:
    That he was an attorney at law,' and attended the examining trial of Leonard Marlow, and that on that occasion the prosecuting witness testified that the first time Leonard Mar-low tried to have intercourse with her was on Wednesday night after Easter; “that he did not do anything, and that he was with her again on Sunday night (I think she said) and tried it again. And then on the next Wednesday night she met him out there, and was out there about two hours, and he tried it a little, but she would not let him, as it was hurting, or something, and he did not do, any thing. Then on the next Saturday night she said she had intercourse with him. That was the second Saturday night after Easter Sunday. ’ ’
    On cross-examination this witness testified that he was there to represent the three Watley boys, that the prosecuting witness did testify that the defendant was with her on Easter Sunday, and that he made a date to meet her out there on the following Wednesday night. Witness did not remember that she had said he tried it but once that night, and said that he did not have intercourse, but he tried to; that he would not be sure whether she said they met on the next Friday 'night or not, but thinks she did say she met him on that night, and that he tried to have intercourse with her; and the best the witness remembers she said it hurt, and he could not do it; that the witness understood that when he tried to put his privates in hers that it hurt, and that is the reason that he could not do it. And, “Anyhow, I just asked her some more questions: asked her that if she meant by that that he got it in a little, and she said that it might have been, but she said, she still held out, that he didn’t do anything until Sunday night, or Saturday night.” Then on the next Sunday night, which was the third time, he tried to have intercourse with her again, and the best the witness remembered she said that at that time she did not let him at all. She would not let him try it because she was sore. Then on the next Wednesday night he tried it again, and she said he did not do it then for the same reason given before; that he could not; that it hurt her, and she made him quit. And witness believed on the Friday night following was when she said that he accomplished it fully. That they had intercourse at that time. On redirect examination the witness said that the day that he accomplished the act fully was on her sixteenth birthday, but he don’t remember the day of the week.
    C. B. Cochran, one of the attorneys for the defendant, testified substantially as follows: That he was present at the examining trial, and heard Beulah Blankenship testify. That he made notes of her testimony, partly in shorthand and partly in longhand. That witness testified that defendant tried to have intercourse with her on Friday night after Easter Sunday, and again on the following Sunday night twice, and on the following Wednesday night, and that on neither of those occasions did he get it in, and that on Saturday night, that was the second Saturday night after Easter Sunday, that was the first time he did get it in. That the witness asked her at that time in specific language, referring to the Friday night immediately after Easter Sunday, “Did he get it in at all on that occasion?” and she said, “He tried to, but did not.” And witness then proceeded to ask her through each occasion that he was with her, and she answered as before stated, .and further said, “I did not know there was any. blood on my clothes. ” On cross-examination witness testified that he did not take down all of her testimony; that she said that on Wednesday night after Easter he tried to get her to have intercourse with him, and she did not want to, and he did not make any promises as to what he would do if she would, and that on the Friday night following, and each of the other occasions that he met her after the first Wednesday night after Easter Sunday, that they got into position to have intercourse, and on direct examination she stated that it hurt her, and that on cross-examination stated that they did not succeed because they did not either of them know just exactly how to manage it; that the fifth time they attempted it, which was on the second Saturday night after Easter Sunday, 1918, was the first time that he succeeded in accomplishing the full act of sexual intercourse.

      Leonard Marlow, defendant, testified that he was 18 years old on the 12th day of January, 1918. That he first met Beulah Blankenship along about Christmas, 1916. That he never was out with her at the gate or in the pasture at their place or at his brother’s place during April, 1918. That he never had sexual intercourse with her at that time. The first time he ever had sexual intercourse with her was in the fall of 1918. That they were coming from church, and she told him that if he would wait out there she would come out, and they would go down into the pasture and have a time, and he asked her if she was not afraid1'of the old folks and she said, “No,” she “had met boys out there before;” and he asked her who they were, and she said “L. J. Allen and that Boyngton boy,” and that there “was somebody with him.” She did not tell witness who. After L. J. Allen had gone to the army she said that if she knew where he was she would go to him. That was several months after witness had first had intercourse with her. It was along in the fall or winter of 1918. Witness denied ever being engaged to marry Beulah Blankenship. Witness denied that Beulah Blankenship had ever told him that she was in a family way. Witness said that he had asked her if there was anything the matter with her, and she said there was not. Witness denied that he had ever told Beulah Blankenship that she had better let Jerry Watley have intercourse with her at the time Jerry came up to where they were. On cross-examination, with reference to the time when the Watley boy came out to the pasture where they were, defendant testified that he had had intercourse with the prosecuting witness that night, and that they were sitting down talking, and that Watley came up and said, “What are you all doing?” and threw his coat down and said, “You step off.” And defendant stepped off and stayed about five minutes, and Watley walked away and defendant came back and sat and talked with the prosecuting witness about 30 minutes and told her he had ¿o go. That this was about 11:30 at night. Then the following occurred:
    “Q. Was that after she had become pregnant? A. Yes, sir.
    “Q. She was already pregnant at that time? A. That is what — you mean that she was already in a family way?
    “Q. Yes, sure. A. I don’t know; she never did acknowledge to me that she was.
    “Q. You stated just now that was after she had become pregnant, didn’t you? You know what ‘pregnant’ means, don’t you? A. Yes, sir.
    “Q. You have known the Watleys for about 3 years? A. Yes, sir.
    “Q; Where did they live from there? A. Who?
    “Q. The Watleys? A. Which way, did they live from her home?
    “Q. From this place where he came up on you? A. He lived northeast.
    “Q. About how far? A. About half a mile.
    . “Q. You never had told him that, you was going to meet her out there that night? A. No, sir; I didn’t tell him.
    “Q. You never told him that you was meeting her out there at all, did you? A. No, sir.
    “Q. How far did you live from her? A. I lived nearly a mile.
    “Q. Do you know how he come to come up on you that night? A. No.
    “Q. You don’t know? A. No.
    “Q. Did you ever ask him? A. No, sir; I never asked him.

      - ■ Defendant further testified that it might have bsen the latter part of August or first of September, 1918, that he started to go with Beulah Blankenship. He admitted, however, that he was with her on Easter Sunday, 1918, but said he was only with her a short time on the way home from church, and that several other people were with him, all walking together; that he did not meet her, as she testified, on the occasions immediately after Easter; that he knows the Allen boy when he sees him, but he did not know where he was at that time; that she told him that she thought he had gone to the army, and that he had been away about 2 years. (As the trial occurred in October, 1919, this would put the Allen boy out of that country some time about the fall of 1917.) With reference to the time the defendant was with the prosecuting witness in the fall of 1918, at which time she said he had intercourse with her, he became considerably confused on cross-examination both as to the occasions and places where he met her and the months in which these occurrences happened. He said that he never solicited her to have intercourse with him, but that she voluntarily told him to wait out there for her, and that they would have a good time, without any solicitation on his part; and also voluntarily told him that she had been meeting other boys that way; that he never told the prosecuting witness that he loved her, nor never made love to her in any way, nor never promised to marry her, nor had never hugged and kissed her, nor had ever attempted to hug and kiss her before she asked him to wait for her; that on the first occasion when they did have intercourse they only did it once, and had no trouble with it; that was in September, 1918; that he is pretty sure that the baby is not his baby because he used a protection on all occasions except once or twice.
    Minnie Marlow testified substantially as follows: That she is a sister-in-law of the defendant, and had known Beulah Blankenship 7 or 8 years; had gone to school with her; and that Beulah always claimed to be just a little younger than the witness, and that witness was then 19 years old. She did not know exactly what Beulah’s age was. That she claimed her birthday was in April. That in March, 1918, at the home of Mrs. Susan Watley, she heard Mrs. Blankenship (Beulah’s mother), state that Beulah was 16 years old, and would be 17 next month. That in June, 1918, she had a conversation with Beulah Blankenship in which they were discussing improper conduct of girls, and Beulah stated that she did not think that there was any harm to have a good time with boys; that if she got into any trouble that she liked Leonard Marlow, and she was going to claim that he had gotten her into the trouble, because she understood that that would require him to marry her.
    On cross-examination the following occurred :
    “Q. Go ahead and tell all the conversation that you had with Beulah on that occasion. A. She was just talking about whether it was nice for girls to do that way.
    “Q. Talking about what? A. Whether it was nice for girls to aet that way.
    “Q. Let’s have what was said?
    “The Court: Tell us the exact words she used to you, whether it is vulgar or not. Go ahead, tell the exact words.
    “Witness: She was talking and she asked me if it was nice for girls to act like she was acting, and I told her no; that it was not.
    “Q. Had she told you how she was acting? A. No, sir.
    “Q. She hadn’t told you? A. No.
    “Q. All right? A. I said the way she had acted; she asked me was it nice for girls to aet the way that she had acted, and I told her no, that it was not; I didn’t think so; and she said she thought it was; if anything ever happened to her, that she would lay it off on Leonard Marlow.'
    “Q. Why did she say that she would lay it off on Leonard Marlow? • A. I don’t know; I didn’t ask her.
    “Q. She said it was because she like him? A. Yes, sir.
    “Q. She said, she asked you if you thought it was nice for girls to act like she had acted? A. No, sir; she didn’t say that.
    “Q. Well, what was it she did say? A. I told you that she said she asked me was it nice for girls to act the way that she was acting.
    “Q. The way she had been acting? A. No, sir; she was acting now.
    “Q. She asked you if you thought it was nice for girls to act the way she was acting or going to act? A. No, sir, she didn’t.
    “Q. Tell us what she did say. A. Well, I told you what she said.
    “Q. Those are her exact words, ‘Do you think it is nice for girls to act the way I have acted?’ A. No, sir; no, sir; she didn’t say that.
    “Q. What did she say? A. Well, I told you.
    “Q. Tell it again. Use the exact words that she said to you.
    “The Court: Tell it again.
    “Mr. Coehr-an: Go on and tell it again; tell all leading up to it.
    ‘ ‘ The Court: Tell us the exact words that she said to you.
    “Witness: She was just talking, and asked me was it niee for girls to act wrong, and I told her no.
    “Q. Is that what she said, for girls to act wrong? A. To do wrong.

      “Q. To do wrong? A. Yes, sir.
    “Q. That is what she said now, you say? A. (No answer.)”
    This witness further testified as follows:
    ”Q. That was in June, 1918? A. Yes, sir.
    “Q. Marlow had been going with her at that time, had he? A. I don’t know.
    “Q. They was sweethearts then, I believe? A. I don’t know; I don’t remember when he went with her.
    ”Q. She mentioned Leonard to you in that conversation? A. Yes, sir.
    “Q. Now, you want us to know that you didn’t know whether Leonard was going with her at that time; is that right? A. I don’t remember whether he was or not.
    “Q. Do you remember that he was not? A. Sir?
    “Q. Do you remember that he was not? A. I don’t know.
    “Q. When was it he commenced going with her? A. Well, I don’t know.
    “Q. How far did you live from Leonard? A. I lived a long ways from him.
    "Q. How far? A. Fifteen or 16 miles.
    “Q. Did you live that far from him then? A. About half a mile.
    “Q. How close did you live to this girl, Beulah? A. About a quarter of a mile.
    “Q. You say that you don’t know whether he was going with her then or not; is that right? A. I say that I don’t remember whether he was. I think — I don’t know whether he was or not.
    “Q. Do you remember when he did commence going with her? A. (No answer.)

      ‘ ‘ The Court: Take your handkerchief out of your mouth, lady.

      “Q. Do you? A.'Well, different times.
    “Q. Do you remember the occasion, what year it was? What year did he commence going with her? A. (No answer.)
    "Q. He didn’t commence going with her until September, 1918, did he? A. I don’t know.
    “Q. You don’t know? A. No sir.”
    Redirect examination:
    “Q. Did you ever see her going with him? A. I saw her follow around after him.
    “Q. Did you ever see them out, go anywhere together, or see them in crowds occasionally? A. I seen them go to preaching over there one time.
    "Q. Just, one time? A. Yes, sir.”
    Recross-examination:
    “Q. You have seen her following around after him, have you? A. Yes, sir;.I have seen her running along after him.
    “Q. Where did you see them running to? A. He was there at the house, and she was following him around.
    ”Q. He was at your house, and she was following him around? A. Yes, sir.
    ”Q. He was trying to' get away from her? A. Yes, sir.
    “Q. She was following around after him. A. Yes, sir.
    ‘„‘Q. .That was in the daytime or nighttime? A. Day time.
    “Q. Nineteen hundred and nineteen? A. Nineteen hundred and eighteen.
    “Q. What time of the year was it? A. Well, I don’t remember just what month.

      “Q. Fall, spring, summer, or winter, Christmas season, New Year’s or Thanksgiving, or when? A.' (No answer.)
    ‘ ‘ Q. How many times did you ever see her tagging around alter him?
    “The Court: Let her answer the other question — what /time of the year it was.'
    “Witness: It was in June or July.
    “The Court: June or July of last year? Witness: Yes, sir.
    “Q. June or July, 1918? A. Yes, sir.”
    Mrs. Susie Watley, as a witness for the defendant, testified that Mrs. Blankenship was at her house, and they were talking about the ages of the Blankenship children, and Mrs. Blankenship said that Beulah was 1.6 years of age and would be 17 in the following April. Witness did not fix the exact date of this conversation. On cross-examination the witness testified as follows:
    “Q. Are you the wife of Jerry Watley? A. Yes, sir; I am.
    “Q. You still live together? A. Yes, sir; we still live together.- ■
    “Q. How long have you known Mrs. Blankenship? A. Five years.
    “Q. You don’t know how old Beulah Blankenship is, do you? A. Only what they told me; that is what I know.
    “Q. Who told you? A. Mrs. Blankenship and Beulah both. They both told me her age; yes, sir.
    “Q. Mrs. Blankenship told you that she would be 17 her next birthday? A. Yes, sir.
    “Q. When did this conversation occur? A. It occurred in March of last year.

      “Q. At your house? A. Yes, sir; at my house.
    “Q. What were you doing in March? A. I don't know.
    “Q. What day in March? A. I don’t know; I don’t remember what day.
    “Q. Who else was present? A. Minnie Marlow was there —well, the home folks. I don’t remember whether any of the rest of them was at our house besides Minnie at the time she was there, or not.
    “Q. You knew that Beulah’s birthday was April 13th, didn’t you? A. That is what they told me. I didn’t know.
    “Q. You hadn’t known before that time? A. No, sir.
    “Q. She told you that Beulah was 16 and would be 17 her next birthday? A. Yes, sir.
    “Q. She said she would be 17 on the 13th day of April, 1918, didn’t she; ealled it out that way? A. She said she would be 17 years old the 13th day of April, 1918.
    “Q. I thought you said awhile ago that she said she would be 17 her next birthday? A. Her next birthday.
    “Q. Now, what did she say? A. She said just what I said she did!
    “Q. Which one of those statements did she make? A. She said she would be 17 years old her next birthday.
    “Q. She didn’t say then that she would be 17 on the 13th day of April, 1918? A. No, sir; she didn’t make that statement.
    “Q. She didn’t say that? A. I didn’t say that. You told me to say that.
    “Q. No, I didn’t tell you to say anything. I didn’t know what you was going to say. A. I am telling all I know.
    In rebuttal for. the state Beulah Blankenship testified substantially as follows: She denied running around after Leonard Marlow at Minnie Marlowe’s house as testified to by Minnie Marlow; also denied any conversation with the defendant in which she had ever told defendant that she had been out with L. J. Allen and the Boyngton boy, and that if she knew where Allen was she would go to him. She also denied first approaching the subject of sexual intercourse with the defendant.
    McPherren & Cochran, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above.) It is first contended that the trial court, erred in admitting over the objection of the defendant evidence of acts of sexual intercourse between the prosecuting witness and the defendant committed subsequent to the alleged acts relied upon for a conviction.

T-he state elected to rely upon an elleged act of sexual intercourse committed on the 5th day of April, 1918, and the prosecuting witness was permitted to testify that she and the defendant indulged in, under similar circumstances, frequent acts of intercourse at short intervals continuously from the date of the act relied upon up until the 3d day of February, 1919, and it is the evidence of the subsequent acts that is here complained of.

The decisions that evidence of acts of sexual intercourse, in a prosecution for statutory rape, committed prior to the act relied upon, is admissible, áre practically unanimous. As to evidence of subsequent acts* the authorities are divided, but the trend of modern authority is to, the effect that such evidence! is admissible for the same reasons given in the decisions admitting evidence of prior acts. The extent to which such testimony may be admitted must be determined by the trial court in the exercise of a sound discretion, and the evidence must have a legitimate tendency to show a lewd and adulterous disposition between the parties and must reasonably indicate the continuity of such lascivious disposition. Within such proper limitations such evidence has the same tendency, in our opinion, as evidence of prior similar acts to establish the guilty relations between the parties, the existence of a sexual passion between them, as corroborative of the ultimate fact sought to be proven; that is, the act of sexual intercourse relied upon for a conviction. Such has been the former holding of this court on this question, and we see no reason to divert therefrom at this time. Morris v State, 9 Okla. Cr. 241, 131 Pac. 731; Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668; Taylor v. State, 14 Okla. Cr. 400, 171 Pac. 739.

It is also contended that the trial court erred in admitting testimony to show that subsequent to the offense for which the defendant was prosecuted the prosecuting witness became pregnant and gave birth to a child. The prosecuting witness testified that she and defendant quit meeting on February 3, 1919; that they had intercourse on that occasion, and that she was in a family way; that a baby was born to her on June 6, 1919, and that defendant was the father of the baby; that she did not become pregnant until in September, 1918. All this evidence was admitted over the objection and exception of defendant’s counsel. We think that this evidence was competent as corroborative of the intimate relations existing and continuing between the parties. The weight of the evidence was for the jury.

It is also contended that the trial court erred in permitting the prosecuting witness to explain the particulars under which certain acts of intercourse with other persons occurred. In this connection it must he noted that the defendant testified that he never commenced to have sexual intercourse with the-prosecuting witness until in the latter part of August or the first of September, 1918. That was after the time, as the evidence discloses, that the prosecuting witness had reached the age of 16 years, and the defendant could not be convicted of statutory rape upon a female over the age of 16 years and under the age of 18 unless such female was of previous chaste and virtuous character. Having admitted his sexual relations with the prosecuting witness after she had reached the age of 16 years, the defendant, for the purpose of showing that he was not guilty of any offense under the law, asked the prosecuting witness on cross-examination if she had not committed acts of sexual intercourse with two other young men along about September, 1918, and the prosecuting witness replied that she had. On redirect examination the state sought to show the circumstances under which these other acts of intercourse were committed by the prosecuting witness, and the defendant objected thereto, which objection was overruled and exception taken. And the prosecuting witness was then permitted to explain that she and the defendant were in the pasture near her home about 100 yards from the highway between 11 and 12 o’clock at night; that she had had sexual intercourse with the defendant, and about the time the act was finished the other boy, who was a friend of the defendant, appeared upon the scene without any knowledge on her part, and remarked, “I have caught you, and you must do the same with me that you do with him;” and the defendant told her to “do. it, or else they would be caught;” and that it. was under such circumstances and at the defendant’s solicitation and request that she had sexual intercourse with two other parties, who were brothers. While this evidence was immaterial and irrelevant either for the purpose of establishing the guilt or innocence of the defendant of the particular act of sexual intercourse alleged to have been committed with the prosecuting witness on the 5th day of April, 1918, still it was a matter that was brought out in the cross-examination of the prosecuting witness by defendant’s counsel. After having elicited this particular evidence for the purpose of besmirching the character of the prosecuting witness, the defendant will not be heard to complain in this court of the action of the trial court in permitting the prosecuting witness to explain her conduct on such occasion.

It is also contended that the trial court erred in failing to instruct the jury specifically as to the purpose for which evidence of .subsequent acts of intercourse were admissible. No request was ma.de for any such, instruction. The trial court gave an instruction as follows:

“You are instructed that the state has elected to stand upon the. occurrence of April 5, 1918 ■; and, unless you believe beyond a reasonable doubt that at that date the said Beulah Blankenship was under 16 years of age, and believe further that on that occasion the defendant succeeded in penetrating the private parts of said Beulah Blankenship, you should acquit' him,. But in this connection you are instructed that sexual- penetration, howéver slight, is sufficient to meet the requirements of the law as to penetration. ”

In the absence of any request for a more specific instruction on the subject, we believe the foregoing instruction to have been sufficient to safeguard the substantial rights of the defendant, and did prevent his conviction upon evidence of any alleged act of sexual intercourse between him and the prosecuting witness, except the act alleged to have occurred on April 5, 1918.

The judgment is affirmed.

DOY1LE, P. J., and BESSEY, J., coneur.