text:
    CECIL JACKSON v. STATE.
    No. A-10577.
    April 23, 1947.
    (179 P. 2d 924.)

      J. M. Springer, of Nowata, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Cecil Jackson, was charged by information of the crime of murder. It was alleged that in Cushing, Payne county, Okla., on February 6,1944, with premeditated design to effect the death of Houston Tyner, the said Cecil Jackson did shoot Houston Tyner in the body with a .38 pistol and inflict upon him mortal wounds from which he did linger and die. At the trial the defendant, Cecil Jackson, was convicted of second degree manslaughter by the jury and sentenced to four (4) years in the penitentiary. From that judgment and sentence, this appeal was perfected.

The defendant, in his brief, argues the following assignments of error, to wit:

1. The court erred in its admission of illegal, unlawful and incompetent evidence which was highly prejudicial and prevented the defendant from having a fair and impartial trial.

2. The court erred by excluding competent, relevant and material evidence from the consideration of the jury.

3. The court erred in its instructions to the jury and particularly in its instruction on manslaughter in the first degree and manslaughter in the second degree, to which the defendant at the time excepted and still excepts.

4. The verdict of the jury, and judgment and sentence of the court are not supported by the evidence.

We shall consider the assignments in the following order: The fourth, first, second, and third.

In considering the fourth assignment, we must carefully examine the entire record. There are sharp conflicts in the testimony offered by the state and for the defendant. In this connection, in a long line of decisions this court has held, “where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts.” A few of the more recent cases so holding are: Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638; Landon v. State, 82 Okla. Cr. 336, 166 P. 2d 781; Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389; Drennan v. State, 69 Okla. Cr. 348, 102 P. 2d 952. The function of the Criminal Court of Appeals is limited to ascertaining whether there is a basis, in the evidence, on which the jury can reasonably conclude that the defendant is guilty as charged. Roberts v. State, 82 Okla. Cr. 75, 166 P. 2d 111. In light of these principles, the first question is: “Upon what facts did the jury base their conclusion as to the guilt of the defendant?” The second question: “Was the evidence sufficient?”

Some things appear quite clear from the record. The defendant, Cecil Jackson, and Ms wife, Mamie Jackson, were living at the Plaza Hotel in Cushing. Allen Macklin and Pearl Nobles were also living at the Plaza. Houston Tyner, deceased, the victim in this case, and his wife and two small boys were likewise living at the Plaza Hotel.

The defendant came in from work about 4:30 p. m., February 5,1944. He ate no evening meal. About 6:30 p.m. he and his wife, Mamie Jackson, were joined in their room by Pearl Nobles and Allen Macklin for a little social whis-ky drinking. Apparently Allen Macklin furnished the whisky. They continued the party until about 8:30 p. m. ivhen they decided to go to a place known as Grubb’s Corner. Here they purchased at least two (2) quarts of beer and did some more drinking. Jackson, his wife Mamie, and Macklin testified there was no whisky drunk at Grubb’s, but Pearl Nobles testified that there was about one-fourth (%) of a pint of whisky drunk at Grubb’s Corner. She said she saw Macklin drink some whisky and Jackson drink beer. While Jackson and Macklin continued drinking, Mamie Jackson and Pearl Nobles went back into the Grubb’s living quarters. Whether the defendant and Mack-lin drank any more whisky at Grubb’s is a matter of logical inference to be drawn by the jury. There is substantial evidence they had it at that point and that one of them took a drink of whisky. It is not unreasonable to conclude, in light of other testimony, that Jackson was drunk; that they both did drink some more whisky at Grubb’s Corner.

Mrs. Tyner testified that when she first saw Jackson that night he was drunk and continued that way up to and after the shooting. In this she was corroborated by the night sergeant of police, John Coy, who booked the defendant in at the jail about 2:30 or 3:00 a.m. after the killing. He said that Cecil Jackson was drunk; so drunk his tongue was thick and he didn’t form his sentences as he would when sober. Mrs. Tyner was further corroborated by the Chief of Police of Cushing, Floyd Stroup, who testified that the defendant was intoxicated at the time of his arrest. The testimony of Mrs. Tyner that the defendant was drunk is further substantiated by the testimony of Lee Stiles, deputy sheriff, to the effect that the defendant in a conversation with Mamie Jackson, on the way to the county jail from Cushing to Stillwater, about 2 p. m. on February 7th, said he thought the whole thing occurred before the dance. The defendant did not have a clear picture of the sequence of the things that did happen, if we are to believe the deputy sheriff. The jury, weighing all the evidence, undoubtedly concluded the defendant was drunk when he shot Houston Tyner.

They undoubtedly believed that the other witnesses who participated in the drinking, except Pearl Nobles, were incapable of telling a reliable story. They believed her story that after leaving Grubb’s Corner, they went to a dance and then to Razz’s Cafe for food. That here Mrs. Jackson became angered at her husband and left by herself and returned to the Jacksons’ hotel room; that the remaining three of them finished their food before going back to the hotel.

Undoubtedly, they believed that Mrs. Tyner told a creditable story and they believed her version of what happened, particularly in view of the substantial corroboration of her story in many minor details incident to the shooting. She said that she first saw Mamie Jackson by herself about midnight; that Mamie had been drinking and was hic-coughing, crying, and hysterical; that shortly thereafter, Cecil Jackson and Pearl Nobles and Allen Mack-lin came; that Mamie and Cecil Jackson argued and that Cecil slapped Mamie Jackson. She testified that her husband, Houston Tyner, had called her earlier that his car was bogged down in the mud south of town. Mrs. Tyner said she went to the Jacksons to get one of the party to go out and help her husband. She said Allen Macldin said he and Pearl would go, that Cecil Jackson was too drunk; that they (the three of them) left, got to the bottom of the steps and met her husband as he drove up in his car; that her husband parked across the street and disappeared with the man who came with him. She went to her own apartment and remained there for one (l) hour and a half (%); that the next time she saw her husband, he came to her apartment with Cecil Jackson to get her to help quiet Mamie who was still hysterical; that she went and tried to get Mrs. Jackson’s mind off her trouble. Finally, Cecil Jackson wanted a pint of whisky, that he offered to put up $2 on it — Tyner finally offered to put up $1. Then Jackson wanted to roll dice for it. She said that she and Mamie Jackson left, went to her apartment to make some coffee to help sober Mamie up. Jackson and Tyner were rolling dice. Shortly thereafter, her husband, Houston Tyner, came in and said Jackson wanted to wrestle, which he had done, and he, Tyner, had thrown him on the bed and Jackson was hurt. They all three returned to the room and found Jackson on the bed groaning. In this connection the record shows that sometime prior, Jackson had sustained a pelvis injury in a rodeo. Jackson complained that Tyner had re-injured his pelvis. They wanted to call a doctor and Jackson said not to do it but wait ’till morning. Thereupon, Tyner left and called Maeklin in to see if any bones were broken. Pearl Nobles also came in. Jackson whirled off of the bed and said he was going to get his gun and kill the damn son-of-a-(Pearl Nobles also testified to this statement, in substance, and to the fact that she went and told Tyner what the defendant said. She then went to her room and stayed there); that Tyner came back in a jocular mood and Jackson asked him why he tried to kill him; that Jackson then became very abusive; that she left her husband and Cecil and Mamie Jackson there alone and went to her apartment. Mamie came back a few minutes later and asked her to come back; that Tyner had Jackson’s arms pinned to his sides and had him bent back over the bed. She asked Tyner to stop. He said he would not until the defendant Jackson agreed to quit fighting and trying to hurt somebody. Then, she said, she got hysterical herself and told them they were all drunk and that if they didn’t stop she was going to call the police. Then she left and all the other three followed her out into the hall, Tyner holding Jackson’s hands, stating he would let him go if he would quit, and not get his gun. Jackson promised he would quit and said he wanted to go to the bathroom. Tyner released him and went up the hall. Jackson whirled and ran back into his room to get his gun. Tyner ran and got his jacket and disappeared down the stairs out of the hotel. Mrs. Tyner said she then went to her apartment and was followed by Mrs. Jackson. They were together in the apartment and Jackson was out in the lobby with his gun. A short while later, she said, Tyner scratched on the window screen opening on to the roof of an adjoining building; She opened the screen and let him in and told him Jackson was in the lobby with his gun waiting for him. Tyner told his wife he would make him drop the gun. He then got a paring knife and stepped out into the hall — Jackson came around the. corner with his gun leveled toward Tyner. Tyner lunged forward and grappled for the gun and Jackson fired. She heard her husband cry he had been shot. She said she saw Jackson standing over her husband with the gun pointed toward him. As she ran down the steps to get the officers she heard a second shot, she testified. Then she went to the police station and reported her husband had been shot and that she was afraid to return until the officers got there. While there, she phoned back to the hotel to ascertain if they had arrived. She was told that they had.

In relation to the telephone call, Mrs. Jackson testified that Mrs. Tyner called her over the phone and asked if anyone was hurt. This testimony on the part of Mrs. Jackson was a predicate for the defense’s theory that no one but Mrs. Jackson and the defendant, Cecil Jackson, was there at the time of the shooting, and that Mrs. Ty-ner had run down the steps before the shooting occurred and did not see the altercation that resulted in the killing of Houston Tyner. This, the jury apparently discredited and in our opinion they had good reason for so doing, particularly in view of the fact that this was in direct contradiction to the testimony of John Coy, night sergeant of police, corroborating Mrs. Tyner. He testified expressly Mrs. Tyner asked in his presence over the phone if the officers were there.

The record further discloses that the defendant and his wife admitted that they had drunk whisky about 5 or 5:30 p. m. Furthermore, Mrs. Jackson testified that Houston Tyner was drunk and had severely abused the defendant that night. This, the jury did not believe, or found in it no justification for Jackson’s killing Tyner.

The defendant testified that another time, long before the night of the shooting as alleged in the information, Ty-ner had abused him and threatened to disembowel him with a knife. In this he was corroborated by a former proprietor of the hotel, Ray Courtney, who said this happened while the defendant was convalescing from the rodeo injury. He said that Tyner was drunk at the time. He testified that Tyner, on that occasion, was angry because Jackson would not tell him that Tyner’s wife was untrue to him while Tyner was away in the Navy.

As to the facts of the shooting, the defendant said that Tyner had abused him and hurt his pelvis. After Ty-ner left his room, the last time, Jackson said he decided to go to bed. He got his gun, put it in his pocket and started to the bathroom. When he reached the bathroom and started in, Houston Tyner, armed with a paring knife, grabbed him from behind, held him and tried to cut his throat with the knife; that they wrestled across the lobby and fell over some furniture with the defendant coming out on top. (Houston Tyner weighed about 190 pounds, was 28 years of age, was an Indian boy, whom the defense described as “strong” and “athletic.” The defendant at the time of the shooting was 51 years of age and as he testified was suffering from the rodeo pelvis injury which had been re-injured in the scuffle with Tyner. Apparently, if the defendant’s testimony is to be believed, Houston Tyner was able to throw him down on the floor and handle him with little difficulty, but at this particular moment, though he caught him from behind, he was unable to cope with the agility of the defendant.) When they fell, he finally got out his gun, he said, and was going to knock Ty-ner out. Tyner got hold of the gun and pulled it down between his legs, pulled back the hammer, and, the defendant’s finger being against the trigger, the gun was discharged one time, he said.

At the preliminary hearing, the record shows that after Tyner left the room the defendant said he thought the situation over and decided to go to the Commercial Hotel and spend the rest of the night and that he got only as far as the bathroom when Tyner attacked him with the knife.

The defendant offered evidence to show that he had been cut with a knife, but the testimony proved conclusively that there was nothing more than a mere scratch on the abdomen. He further testified that Tyner knocked some teeth out but the testimony of reliable witnesses disproved this part of his story.

The record shows that as a result of this shooting escapade, Houston Tyner died on February 10, 1944, resulting from gunshot wounds inflicted upon him by defendant in a fight of February 6, 1944. The foregoing constitutes a substantial statement of the evidence upon which the jury found the defendant guilty of second degree manslaughter.

In addition to what has been said hereinbefore, this court has repeatedly held that it will not weigh conflicting and contradictory evidence, which has been passed on by the jury. One of the most recent pronouncements of this rule is in Boulding v. State, 83 Okla. Cr. 352, 177 P. 2d 152, and Brown v. State, 81 Okla. Cr. 314, 164 P. 2d 401, wherein this court said: Where the evidence is circumstantial^ though conflicting, this court will not reverse the same on the grounds of insufficiency. In this record, the evidence of Mrs. Tyner, the only known living, sober, witness, is quite substantial. Moreover, it is corroborated in many important details by officers of the law. Furthermore, the state’s case is contradicted only by witnesses who admitted that they were drinking and one of whom, the defendant, was described by the officers as being drunk. The other eyewitness on behalf of the defendant, Mamie Jackson, at one time in the evening, was on a crying drunk.

The record further discloses that the defendant, Cecil Jackson, admitted a former conviction by a plea of guilty of a felony of having transported a stolen car in interstate commerce. This admission carries with it, under the law, the implication of knowledge of the stolen character of the automobile and went to the defendant’s credibility regardless of the defendant’s full explanation, unobjected to by the state, seeking to absolve himself from guilt. Therefore, we are of the opinion that the contention of the defendant as to the insufficiency of the evidence is without merit.

The next proposition is that the court erred in admitting into the record unlawful and incompetent evidence, prejudicial to and preventive of the defendant having a fair trial.

In this connection, the defendant contends that evidence of social whisky drinking, commencing at about 5:30 or 6 p. m. and dancing thereafter, of the trip out to Grubb’s Corner, of drinking beer, of the personal dispute or quarrel between the defendant, Jackson, and his wife at Razz’s Cafe, and of what took place in the Jackson apartment, prior to the time when Tyner, allegedly, jumped on Jackson, was wholly incompetent and should have been excluded. In our opinion, this contention is unsound. All the things detailed, commencing with the whisky drinking in the Jackson apartment at 5:30 or 6 p. m., and continuing there and elsewhere, leading up to the shooting, throw light on the defendant’s state of mind at the time of the shooting, and form a part of an unbroken chain of events leading up to and climaxing with the shooting of Houston Tyner by the defendant. This conclusion is supported by Phelps v. State, 64 Okla. Cr. 240, 78 P. 2d 1068. In syllabus three (3), this court said:

“Evidence of the actions, conduct, and general demeanor of defendant a short time prior to the commission of the homicide is competent as tending to show the state of mind of defendant at the time of the killing.”

The evidence of this character was offered, for the purpose of and was clearly admissible, to show the defendant’s state of mind prior to and at the time of the shooting. See, also, McCollum v. State, 57 Okla. Cr. 381, 48 P. 2d 872; Inman v. State, 22 Okla. Cr. 161, 210 P. 742; Tallon v. State, 22 Okla. Cr. 89, 210 P. 309.

The next contention of the defendant is that the court erred in excluding competent, relevant, and material evidence from the consideration of the jury.

First, he complains he was not permitted to show Ty-ner’s reputation. As to this, the record discloses, defense counsel laid the predicate to show by the defendant, Ty-ner’s reputation for being quarrelsome, but never did ask the defendant what that reputation was. As to the defendant’s wife, Mamie Jackson, defense counsel did not lay the predicate for asking Mrs. Jackson about Tyner’s reputation for being quarrelsome. However, the defendant was permitted to show by his witness, Courtney, that the reputation of Tyner was bad, particularly when he was drinking. As to this phase of the record, the defendant’s complaint is obviously without merit.

Secondly, he complains that the court refused to permit Mrs. Jackson to testify why Mrs. Tyner, on a prior occasion, came into the Jackson room with her two boys and slept on a pallet at the foot of the Jackson bed. In this regard, he says, she would have testified “that Mrs. Tyner stayed in her apartment because she was afraid Mr. Ty-ner would do her bodily harm and injury and she stayed in her apartment for protection”.

Third, this contention is based upon the proposition that the court rejected testimony of Mr. and Mrs. Jackson in relation to threats and acts committed by the deceased, Houston Tyner, against his mother, sister, and his wife. In this connection, the defendant offered to prove that the testimony in this regard would show “that on one occasion her (Mrs. Tyner’s) mother-in-law, the mother of Mr. Tyner, gave her a quilt, when Mr. Tyner was threatening her life (Mrs. Tyner’s) and she went out in the cotton field and slept in order to keep Mr. Tyner from killing her; that Mary Lou Tyner told this witness that Mr. Tyner beat her up and beat his own mother nearly to death and beat his own sister and that Mr. Tyner was arrested and brought into Cushing and entered a plea of guilty and was fined on the charge.” This testimony, as the basis for the last two contentions, was clearly inadmissible since the threats and the acts committed in no way were directed to the defendant and had no connection in any way whatsoever with the defendant or the issues of this case.

In Phelps v. State, supra, this court, 64 Okla. Cr. at page 248, 78 P. 2d, at page 1072, said:

“There is nothing in the record to show that this threat, if made, was directed to the defendant or Bill Downing, and was clearly inadmissible. The general rule is announced by Wharton on Homicide, 3d Ed., § 253, p. 415:
“ ‘Vague, indefinite threats of the deceased, not mentioning the accused, nor shown to have reference to him, are inadmissible in evidence in a prosecution for homicide upon the question of self-defense. And threats made by the deceased against one person are not admissible in evidence in a prosecution against another person for killing him.' Wireman v. Commonwealth, 206 Ky. 828, 268 S. W. 586.”

There is a clear distinction between the excluded testimony in the case at bar, of threats against others, and the admitted testimony pertaining to the defendant’s drinking and a quarrel with his own wife on the night of the shooting. The former had no direct or incidental relation to the defendant and the shooting and is clearly inadmissible, while the latter goes to the defendant’s state of mind at a time not too remote, and is clearly admissible.

The defendant’s next contention is that the court erred in its instructions. First, he complains that under the evidence the court erred in giving instructions on first and second degree manslaughter; that the defendant was guilty of murder or nothing. Then he says that since the court gave instructions covering manslaughter in the second degree, it should have included a definition of “culpable negligence.”

It was the court’s duty to instruct on every degree of homicide which the evidence in every reasonable view suggested. This court so said in Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981, 987, quoting from Kent v. State, 8 Okla. Cr. 188, 126 P. 1040, and Cannon v. Territory, 1 Okla. Cr. 600, 99 P. 622, as follows, to wit:

“In a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not.”

This is a correct statement of the law. We think, because of the highly conflicting evidence, a reasonable view thereof warranted an instruction of second degree manslaughter. But, the defendant contends that such an instruction containing only the language of the statute was too general and should have contained a definition of culpable negligence and that the court erred in not giving a definition thereof. The defendant made no request for an instruction defining culpable negligence. We are of the opinion that under the law it would have been better for the court to have included in its instruction a definition of culpable negligence. This conclusion is based upon the language of the statute, § 716, Title 21 O. S. A., which reads as follows, to wit:

“Manslaughter in the second degree. — Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. R. L. 1910, § 2325.”

The definition of culpable negligence should have been such as is contained in and approved by Kent v. State, supra [7 Okla. Cr. 692, 126 P. 1043], as follows:

“No. 10. Culpable negligence is the want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions, and you are instructed that a person handling a deadly weapon will be required under the law to use a higher degree of care and circumspection than if using an instrument ordinarily harmless.”

However, we do not believe that the failure of the court to define culpable negligence, as a part of the instruction covering second degree manslaughter, constituted reversible error, in view of the record as a whole.

We think the evidence in this case tended strongly to prove the killing was premeditated and deliberate, and amply sufficient to support a verdict of murder, especially when considered in light of the defendant’s statement, “I am going to get my gun and kill him,” referring to Ty-ner, less than half an hour before the shooting. Under the record, as herein made, the jury could have clearly reached a verdict of murder.

Likewise, when viewed as a killing in heat of passion, by means of a dangerous weapon, and not with a design to effect death and not amounting to excusable or justifiable homicide, the evidence is sufficient to support the verdict of first degree manslaughter. Or, while engaged in committing a misdemeanor by the pointing of a pistol at another, resulting in the death of Tyner, the evidence would have supported a verdict of first degree manslaughter. But fortunately for the defendant, the jury in an exercise of mercy or in a mistaken view of the law or the facts, found the defendant guilty of manslaughter in the second degree.

Moreover, we are bound by the provisions of § 916, O. S. A. Title 22, as follows:

“Included offense or attempt may be found. The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. R. L. 1910, § 5923.”

We are likewise bound by the decisions of this court construing that section. In Fisk v. State, 62 Okla. Cr. 305, at page 312, 71 P. 2d 499, 501, this court said:

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

In Berry v. State, 54 Okla. Cr. 154, 18 P. 2d 285, 286, this court said:

“Here the charge is murder; this charge includes a charge of manslaughter in the first and in the second degree.”

See, also, Jenkins v. State, 57 Okla. Cr. 45, 45 P. 2d 161. In Inman v. State, supra, the defendant was charged with the crime of murder and convicted of manslaughter in the second degree. This court said, in that case, 22 Okla. Cr. at page 178, 210 P., at page 748:

“If any error was committed in finding defendant guilty only of manslaughter in the second degree, it was error of which defendant in this court will not be heard to complain. This doctrine is well established by a long list of authorities, among which are the following: Weatherholt v. State, 9 Okla. Cr. 161, 131 P. 185; Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A., N. S., 1121; * * * Smith v. State, 20 Okla. Cr. 301, 202 P. 519, 520; * * * Wilmoth v. State, 20 Okla. Cr. 453, 203 P. 1055, [21 A. L. R. 590]; Ballard v. State, 12 Okla. Cr. 277, 154 P. 1197.”

In Wilmoth v. State, supra [20 Okla. Cr. 453, 203 P. 1057], it was said:

“This court is committed to the doctrine that no prejudice can result to a defendant if convicted of a lower degree of homicide than warranted by the evidence.”

See, also, Tipton v. State, 23 Okla. Cr. 86, at page 93, 212 P. 612, 614, 31 A. L. R. 1074, wherein the court said:

“Where an offense is by statute divided into degrees, the jury may find the accused guilty of any offense the commission of which is necessarily included in that with which he is charged.”

See, also, Seabolt v. State, 59 Okla. Cr. 1, at page 8, 57 P. 2d 278, 281; there this court said:

“The general rule is that in a prosecution for murder, when the court submits the issue and the jury finds a defendant guilty of first-degree manslaughter, although under the law and the facts the crime is murder, yet if the defendant is convicted of a lesser degree of homicide than that shown by the evidence, no prejudice could have resulted to him since the error is in his favor.”

We therefore conclude that on this point no prejudice could have resulted to the defendant, under the state of this record, due to the fact that the defendant was convicted of a lessor degree of homicide than that supported by the evidence.

The defendant’s final contention is that the court erred in its instruction covering a prior conviction. The objectionable part of this instruction is contained in the first 16 words thereof. The instruction in its entirety reads as follows:

“You are instructed that however had the defendant may he, or however guilty of other offenses, the question for you to determine here is whether he is guilty of the offense charged, and whether that guilt has been shown beyond a reasonable doubt. No person should be convicted upon his reputation, character, or former convictions, but he can only be convicted upon the evidence in the case and the evidence must exclude any and every reasonable doubt of the guilt of the accused.”

The first 16 words thereof, we believe, are erroneous since it leaves, by innuendo, the impression in the minds of the jury that the court felt the defendant was a bad person. We believe that it would have been much more appropriate for the court to have eliminated that portion of the instruction altogether. It was unnecessary and forms no essential part of an instruction dealing with prior convictions. Otherwise, the instruction was a fair statement of the law. Though the first portion thereof was erroneous, we do not believe it is of such a character as to result in the miscarriage of justice or prejudice the defendant in any of his substantial rights. As to the error, if any, in the court’s instruction, Cowley v. State, 65 Okla. Cr. 479, at page 487, 88 P. 2d 914, 918, clearly states the law applicable to this contention, wherein the court said:

“The court is firmly committed to the rule that an instruction improper and erroneous will not be held reversible error where it is manifest, on consideration of all the instructions given, the testimony in the case, and the verdict of the jury, that such an instruction did not work to the prejudice of the defendant, or deprive him of any substantial right.”

See, also, Jones v. State, 20 Okla. Cr. 154, 201 P. 664; Fowler v. State, 8 Okla. Cr. 130, 126 P. 831; Needham v. State, 55 Okla. Cr. 430, 32 P. 2d 92; Cadwell v. State, 54 Okla. Cr. 2, 13 P. 2d 214; Roddy v. State, 47 Okla. Cr. 283, 287 P. 765; Calloway v. State, 38 Okla. Cr. 418, 262 P. 696; Fulkerson v. State, 17 Okla. Cr. 103, 189 P. 1092; Wilson v. State, 17 Okla. Cr. 47, 183 P. 613; Baker v. State, 65 Okla. Cr. 136, 83 P. 2d 586; Rickman v. State, 70 Okla. Cr. 355, 106 P. 2d 280; Glenn v. State, 72 Okla. Cr. 165, 114 P. 2d 192, 158 A. L. R. 1146.

The errors complained of in this case fall within the provisions of § 1068, Title 22 O. S. A., as follows, to wit:

“jHarmless error
“No judgment shall be set aside or new trial granted by any appellate court of this State in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. R. L. 1910, § 6005.”

We have carefully examined the entire record, the evidence, and the instructions, as a whole, and are of the opinion that the defendant was not deprived of any substantial rights. See, in this connection, the cases cited under the rule announced in Cowley v. State, supra.

Finding no substantial prejudice to the rights of the defendant herein and for all the foregoing reasons, the judgment and sentence imposed herein is affirmed.

BAREFOOT, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte WILLIAM M. MAYFIELD.
    No. A-10833.
    April 23, 1947.
    (179 P. 2d 934.)
    William M. Mayfield, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner, William M. Mayfield, has filed a petition for writ of habeas corpus, seeking his release from the State Penitentiary, at McAlester. He was convicted in the district court of Canadian county of the crime of attempting to obtain money by false pretense, and sentenced to serve a term of three years in the State Penitentiary.

No appeal was filed by petitioner. We have carefully examined the petition, together with the letters written by petitioner, and other exhibits attached to his petition. It is an attempt to have this court review by .habeas corpus the facts surrounding the trial of petitioner. There is nothing in the petition which raises any question of law, or which in any way reveals that the judgment and sentence of the district court of Canadian county is void, or that that court did not have jurisdiction of the person and the subject matter. No transcript of the record, or of the evidence appears in the record.

For the reason above stated, we are of the opinion that the demurrer to the petition filed by the Attorney General should be sustained, and the petition for habeas corpus denied. It is so ordered.


author: JONES, J.

text:
    Ex parte AUFFIE A. CHASE.
    No. A-10867.
    April 23, 1947.
    (180 P. 2d 199.)

      Lee Williams, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., and W. A. Carlile, Asst. Co. Attorney, both of Oklahoma City, for defendant in error.
   JONES, J.

This is an original action instituted by the petitioner, Auffie A. Chase, to secure a writ of ha-beas corpus, directed to the sheriff of Oklahoma county", the prisoner alleging he is being unlawfully restrained of his liberty in the county jail of Oklahoma county.

The verified petition alleges, in substance, that the petitioner is held in the county jail of Oklahoma county by reason of his arrest on a warrant issued by the Governor' of Oklahoma for his extradition to the State of New Mexico to answer a charge of burglary pending against him in Chavez county, New Mexico.

The petition further alleges that the certified copy of the complaint attached to the requisition of the Governor shows that the crime alleged to have been committed by the defendant was committed on March 4, 1947. That the petitioner could not have committed said crime on the 4th day of March, 1947, for the reason at that time the petitioner was confined in the county jail of Oklahoma county and was not in the State of New Mexico, and not having been in the State of New Mexico at the time of the alleged commission of the crime, that your petitioner is not a fugitive from justice.

In the response of the sheriff it is admitted that petitioner is being held in the county jail of Oklahoma county by the respondent under a warrant issued by the Governor of the State of Oklahoma for the arrest of the defendant as a fugitive of justice from the State of New Mexico. It is further alleged in the response that the crime alleged to have been committed by the defendant was committed on March 11, 1947, and that the date March 4, 1947, appearing in the copies of the complaint attached to the requisition papers is a typographical error.

At the time of the hearing, the case was submitted upon a stipulation of facts. It was stipulated that the records in the sheriff’s office of Oklahoma county show that petitioner had been confined in the county jail of Oklahoma county prior to March 4, 1947, and that he was released from the county jail sometime during the day on March 4,1947. Counsel for respondent introduced evidence to show that the original complaint filed against petitioner before a justice of peace in Roswell, Chavez county, New Mexico, alleged that he had committed the crime for which he was being extradited on March 11, 1947. There was no contention presented by petitioner that he was absent from the State of New Mexico on March 11, 1947, and there was no contention on the part of the agent of the State of New Mexico that the petitioner was in the State of New Mexico on March 4,1947.

It is conceded by counsel for the petitioner that the extradition papers upon which the warrant issued by the Governor of the State of Oklahoma is based are regular upon their face and they do not in any way question the legality of said papers, but rely solely upon the contention that petitioner' was not in the demanding state on March 4, 1947, and, therefore, is not a fugitive from justice from that state.

In the case of Ex parte Rabinwitz, 61 Okla. Cr. 83, 65 P. 2d 1236, 1238, this court considered a case similar in many aspects to the one now under consideration. The identical question now presented was considered in that case. In the Rabinwitz case, the petitioner contended that he was not in the State of Montana at the time the crime was committed bnt was in Humphreys, Mo., and the petitioner introduced the proof of 21 witnesses to show that he was in Humphreys, Mo., attending the funeral of his mother-in-law on the date which it is alleged that the crime was committed in the State of Montana. Many decisions of various courts were reviewed in that opinion, including certain decisions of the Supreme Court of the United States. This court held in disposing of the contention of petitioner, that the proceeding in habeas corpus to secure release from a warrant issued by the Governor upon demand of another state is a summary one:

“To be kept within narrow bounds, not less for the protection of the liberty of the citizen than in the public interest; that when the extradition papers required by the statute are in the proper form the only evidence sanctioned by this court as admissible on such a hearing is such as tends to prove that the accused was not in the demanding state at the time the crime is alleged to have been committed; and, * * * that defenses cannot be entertained on such a hearing, but must be referred for investigation to the trial of the case in the courts of the demanding state.”

This court further held that the only way a petitioner may secure his liberty in such a proceeding upon his contention that he is not a fugitive from justice is that the proof must conclusively establish he was not present in the demanding state at the time the crime is alleged to have been committed; that if there is a conflict in the testimony as to whether the ¿ceused was in the demanding state at the time alleged in the information, the writ should be denied and the accused remanded to the custody of the agent of the demanding state.

The original complaint filed against the defendant fixes the date for the commission of the alleged crime as March 11, 1947. Through an oversight on the part of someone in preparing a copy of the complaint to attach to the requisition papers, the date is fixed as March 4, 1947. The date of the alleged crime of the offense was not the controlling factor which influenced the Governor of Oklahoma in determining whether he would honor the requisition of the demanding state. It was. the allegations in the complaint filed against the accused setting forth the acts which were committed which constituted the crime which prompted the Governor to issue his warrant upon requisition of the demanding State of New Mexico. The date shown in the copy of the complaint attached to the requisition papers was merely incidental to the substance of the allegations contained in the complaint. If the complaint filed against the defendant in the State of New Mexico actually alleged the date of the commission of crime as March 4, 1947, the prosecution could have amended the complaint to have conformed to the actual date which the proof would show was the date of the commission of the alleged offense.

In the case of Ex parte George, 63 Okla. Cr. 115, 73 P. 2d 471, 472, this court held:

“The Governor’s warrant in an extradition proceeding is sufficient prima facie to justify the arrest of the alleged fugitive and his delivery to the agent of the demanding state.
“The decision of the Governor upon the jurisdictional facts in an extradition proceeding is presumptively correct.
“The proceedings being regular in form, it is incumbent upon the petitioner for habeas corpus, seeking to defeat extradition, to establish that he is not a fugitive from justice. * * *
“The date on which a crime is charged in' an indictment to have been committed, when not an essential element of the crime itself, is not material.
“It is sufficient to charge the crime to have been committed on some specified date prior to the finding of the indictment. This will admit proof of its commission on any date during the period covered by the statute of limitations.”

In the body of the opinion it is stated:

“The charge in this case is that petitioner deserted his minor children on the 1st day of August, 1937, and prior thereto. The year given for the alleged offense in the copy of the indictment was evidently a clerical error and should be 1936; however, this is not material, because under this allegation the state could prove the offense to have been committed at any time during the period covered by the statute of limitations, for the prosecution of the offense.”

The 'action of the Governor in issuing his warrant should not be nullified by the courts unless it conclusively appears that the accused is not a fugitive from justice and that the issuance of the warrant was in plain contravention of law. Ex parte Foster, 60 Okla. Cr. 50, 61 P. 2d 37.

The constitutional provision regarding extradition from one state to another was adopted to promote justice, to aid the states in enforcing their laws, and not to shield malefactors. U. S. Const, art. 4, § 2. The Supreme Court of the United States has emphatically announced its adherence to the doctrine that a faithful and vigorous enforcement of the provisions relating to fugitives from justice is vital to the harmony and welfare of the state, and that, while a state should take care that the rights of its people are protected against illegal action, both it and the judicial authorities throughout the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state. People ex rel. MacSherry v. Enright, 112 Misc. 568, 184 N. Y. S. 248.

It is our opinion that the petitioner is a fugitive from justice from the demanding state and his arrest and detention is not illegal.

The writ of habeas corpus is therefore denied. The sheriff of Oklahoma county is directed to deliver the petitioner, Auffie A. Chase, to the duly appointed agent of the State of New Mexico, for return to that state.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    FRED PAYNE v. STATE.
    No. A-10717.
    April 30, 1947.
    (180 P. 2d 193.)

      Eck E. Brook, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Chester Norman, of Muskogee, County Atty. Muskogee County, for defendant in error.
   BAREFOOT, P. J.

This appeal is based upon a transcript from the district court of Muskogee county, Okla.

A complaint was filed in .the city court of Muskogee, Okla., charging defendant with the unlawful possession of two pints of tax-paid whisky. He was found guilty and assessed a fine of $50, and 60 days in the county jail. An appeal was taken to the district court of Muskogee county, and the case was tried de novo, before the court, without a jury.

The transcript filed in this court does not show whether the defendant was found guilty or not guilty; does not contain the judgment and sentence of the district court; nor does it contain any order or minutes of the court or clerk showing the punishment assessed by the court. The only reference to a judgment or sentence is a recital in the petition in error that defendant was “assessed a fine of $100 against him and also imposed a jail sentence of thirty days in the Muskogee County jail.”

If the state had filed a motion to. dismiss the appeal, the same would have been sustained. Bennett v. State, 78 Okla. Cr. 161, 152 P. 2d 388.

The record discloses that the state relied upon two witnesses who were deputies from the office of the sheriff of Muskogee county. They testified to the searching of defendant’s premises, which one of them described as:

“A. It had been a junk yard. It was a long sheet-iron building. There was an office in the front and a desk in the front room with a bed in the back, and it was full of plunder, lumber and stuff. They were repairing the building. There was nothing in there except that.”

The officers found two pints of tax-paid whisky in the pocket of a raincoat which was hanging on the wall next to the desk in the front room of the building. They both knew the defendant, and testified that he was not present at the time of the search. Two other boys were in the building, but the deputies did not know their names. They did not know to whom the raincoat belonged. Both officers testified that the place had the reputation of being a place where liquor was unlawfully bought and sold. Defendant did not take the witness stand, nor did he introduce any evidence in his behalf.

Defendant’s assignments of enror are as follows:

“1. The court erred in convicting plaintiff in error (defendant, Fred Payne) because the testimony of the state is wholly insufficient to justify and sustain a conviction.
“2. The court'erred in not dismissing said case upon completion of the testimony of the state, when the state failed to introduce its search warrant and its affidavit (if it had such).
“3. The court erred in not sustaining the demurrer of defendant to the state’s testimony.
“4. The court erred in not sustaining defendant’s motion for new trial.”

As to the second error complained of, it may be stated that no motion to suppress the evidence by reason of an illegal search was filed or presented. No question was ever raised as to the validity of the search warrant. The only reference to a search warrant occurred when the assistant county attorney asked the first witness: “Q. And did you have a search warrant? A. Yes, sir.”

No objection was made by defendant to this testimony, and the witness was not cross-examined concerning the same. There was no request that the search warrant be produced, and no attempt by the defendant to have it introduced in evidence. No reference was made thereto until the motion for new trial was filed. Under these facts, the defendant cannot now raise this question. Gragg v. State, 72 Okla. Cr. 189, 114 P. 2d 491.

The other three assignments of error may be presented together.

Defendant first presents the question of the right to search his home, and cites cases in support thereof. The evidence in this case does not support the contention that the place searched was a home. Defendant did not testify and the evidence produced by the state would justify the belief that it was a place of business, rather than a home.

The defendant presents the question of intent, and says:

“To justify conviction for possession of intoxicating liquor with intent to violate the law, possession of the liquor and criminal intent must be shown.”

This proposition of law is true. But in this case the state alone introduced evidence. The liquor was found in defendant’s place of business. When this was proven the presumption was that it was the property of defendant. There was no proof on the part of the defendant that he did not own the coat, or the liquor. The state has assumed the burden cast upon it when it proved that the place where the liquor was found was defendant’s place of business. Defendant did not see fit to deny this and give the court an opportunity to find that the coat or the liquor did not belong to him.

The next question presented is that the evidence did not reveal the possession of intoxicating liquor “in excess of one quart” (Tit. 37 O. S. 1941 § 82), and, therefore, there could not be prima facie evidence that the possession thereof was for the purpose of sale.

The intent with which intoxicating liquor is possessed is a question of fact. Where the proof does not show that defendant had in excess of one quart of intoxicating liquor, then it is incumbent upon the state to show by other evidence that the defendant had the possession of the liquor with an unlawful intent, before it may be held that the evidence is sufficient to sustain a conviction. Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d 836.

Although the proof in the instant case of the amount of liquor found in the possession of defendant was not sufficient to make a prima facie case of unlawful intent to “convey, sell or otherwise dispose of such liquor”, contrary to law, the state made an additional showing that defendant’s place had the general reputation of being a place where intoxicating liquor was bought and sold contrary to law. There was no evidence to rebut this testimony. Under this statement of facts, we are not in position to say that the evidence was insufficient to sustain the judgment and sentence.

Taking into consideration the fact that the transcript does not contain the judgment and sentence of the district court of Muskogee county, we are of the opinion that the appeal should be dismissed, and the cause remanded to the trial court with directions to enforce its judgment and sentence. It is so ordered.

JONES and BRETT, JJ., concur.


author: BRETT, J.

text:
    JOE PRICE SCOTT v. STATE.
    No. A-10697.
    April 30, 1947.
    (180 P. 2d 196.)

      Wm. C. Ijams and Charles W. Moss, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Joe Price Scott, was charged in the common pleas court of Oklahoma county, Okla., with the offense of unlawful possession of 12 x 4/5 tax-paid gin, 12 x 4/5 tax paid whisky and one pint of tax paid whisky; tried, convicted, and sentenced to serve 30 days in the Oklahoma county jail and pay a fine of $500.

To this charge, on the trial, the defendant interposed a motion to suppress the evidence, based on the contention that his automobile was unlawfully searched without a warrant and the evidence thus obtained, incompetent to sustain a conviction, and that the court erred in not sustaining the motion to suppress. ,

On the motion to suppress, the proof on the part of the state established to the trial court’s satisfaction the defendant was arrested for reckless driving in the 3000. block of North Western street, Oklahoma City, and that incident to this arrest, a search of his automobile was made. This evidence established that the defendant was driving east on 30th street, came to a stop on the south side of the street with his automobile headed southeast, as though he intended to make a right-hand entrance into Western avenue. He was in the right lane to make'such a turn and his automobile was headed in the right direction. While he was thus situated, the arresting officers drove by and he saw them and they saw him. He suddenly pulled his car to the left and proceeded at a very rapid rate, as the officers testified, in excess of the speed limit, eastward on 30th street. After some pursuit, the defendant was apprehended in the driveway of a stranger to him at 619 North West 31st street. He was arrested and charged in the police court with reckless driving. To this charge he made no defense but forfeited his bond in the police court. The trial court found that incident to this arrest, his car was searched and the liquor discovered. The defendant, alone, testified in his own behalf on the motion to suppress, and admitted that he was engaged in the “liquor and insurance business.” The trial court overruled the motion to suppress. In this, he was supported by the evidence. We find no error in this feature of the record. The act of reckless driving was committed in the officers’ presence and the arrest, being lawful therefore, the officers had a right to search the defendant’s person, and his property in his immediate presence. In Odell v. State, 80 Okla. Cr. 142, 158 P. 2d 180, 182, this court quoted from Blair v. State, 75 Okla. Cr. 265, 130, P. 2d 545, wherein it was said :

“Whether search of, and seizure from, an automobile upon a public highway, without a search warrant, is reasonable, is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made.
“Where a misdemeanor is committed in the presence of an officer he has the right to arrest the offender without the necessity of having a search warrant. If the arrest is not a subterfuge, and is in good faith, the officer has the right to search defendant and his immediate surroundings, without the necessity of a search warrant.
“Where an arrest is made under the above circumstances, it is the best practice for charges to be filed on both violations.”

The case at bar clearly falls within the foregoing rule. See, also, Tripp v. State, 73 Okla. Cr. 69, 118 P. 2d 273; Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549. The question of suppressing evidence being a judicial one, this court will not reverse the findings of the trial court upon a question of fact where there is a conflict of evidence, and there is competent evidence in the record reasonably tending to support the findings of the court. Mitchell v. State, 73 Okla. Cr. 184, 119 P. 2d 99. The record in the case at bar is sufficient to support the finding of the trial court, that the defendant was lawfully arrested before his car was searched, and that there was no invasion of the defendant’s constitutional rights.

The next contention of the defendant is that the court erred in not giving the defendant’s requested instructions, as follows:

“The jury are instructed that the defendant admits having possession of the liquor in controversy in this action, but contends, and has offered evidence tending to show, that this possession of such liquor was intended for his own personal use and without any intention of violating any of the provisions of the prohibitory liquor laws of the State of Oklahoma; and, in this connection, you are instructed that possession of any amount of intoxicating liquor, intended for his own personal use, is not a violation of the law, and, unless you believe from the evidence, beyond a reasonable doubt, that defendant’s possession of the liquor shown from the evidence to have been possessed by defendant was for an unlawful purpose, as elsewhere in these instructions defined, then it is your duty to return a verdict of not guilty.”

The defendant admitted on the motion to suppress that he was engaged in the liquor business. He did not testify in the trial of the case on its merits, and there is no substantial evidence that the defendant had the liquor solely for his own personal use, or that it was not possessed by him, with the intention to convey, sell, or otherwise dispose of the same. Therefore, the defendant was confronted with the presumption created by the positive provisions of Title 37, § 82, O. S. A., reading in part as follows, to wit:

“The keeping, in excess of one quart of any spirituous, vinous, fermented or malt liquors * * * or the keeping in excess of one quart of spirituous, or one quart of vinous, or more than one quart of any liquor * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors * *

The defendant was clearly bound by this section of the statute, in the absence of satisfactory proof to the contrary.

In Lordi v. State, 47 Okla. Cr. 102, 287 P. 1083, this court said:

“The question of the sufficiency of the instructions and the action of the court in refusing to give special instructions requested must always be considered and determined by the facts in each case in which they arise.”

See, also, Pitts v. State, 53 Okla. Cr. 165, 8 P. 2d 78.

There being no substantial evidence to support the theory of possession for personal use, the court rightly refused to give the defendant’s requested instructions.

Finding no error in the record, the judgment and sentence of lower court must therefore be affirmed.

BAREFOOT, P. J., and JONES, J., concur.


text:
    ALBERT STORER v. STATE.
    No. A-10664.
    April 30, 1947.
    (180 P. 2d 202.)

      Mauntel & Spellman, of Alva, and D. P. Parker, of Buffalo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Albert Storer, was charged by information filed in the district court of Harper county with the crime of murder, was tried, convicted of manslaughter in the first degree and his punishment fixed at four years in the State Penitentiary, and he has appealed.

The defendant at the time of the homicide was the town marshal of the town of Buffalo. He also carried a special deputy sheriff’s commission. The deceased, James C. Baxter, was a soldier in the United States Army, stationed at Fort Sill, Okla. On July 12, 1944, the deceased departed from Fort Sill without leave. He arrived at Buffalo, Okla., about July 20,, 1944, and registered at the hotel there under the name of James R. Bradford. Shortly after his arrival at Buffalo, he commenced work cooking at a cafe operated by one Ross Murray. About one week later the deceased had a dispute with one of the waitresses at the cafe and quit his job.

The evidence showed that in the early part of the evening of July 31,1944, the defendant Albert Storer talked to J. J. Ownbey, sheriff of Harper county, concerning the deceased and the latter’s draft status, and the sheriff told the defendant to wait until the following morning and that he, the sheriff, would meet with defendant and talk to the deceased to see whether he was a deserter from the army.

The evidence of the state showed that later in the evening the defendant and his brother, Ray Storer, who was the under-sheriff of Harper county, saw the deceased and Murray, the restaurant operator, chipping ice behind the latter’s cafe. The two officers approached the deceased and the defendant inquired of the deceased as to whether he had been in the army, to which the deceased replied that he had. The defendant then asked whether he had his discharge papers and the deceased replied, “Yes, but it is in my room at the hotel.” The defendant then suggested that they go to the hotel to see the discharge papers. The defendant and deceased then started through the restaurant to secure the hat of deceased before going to the hotel.

Several people saw them as they emerged from the cafe and started walking np the highway which ran in front of the cafe. They testified in substance that the deceased was walking a few feet in front of the defendant; that both men were walking fast but that the deceased was walking faster than the defendant; that the defendant pulled his pistol from its holster and asked the deceased to stop; that the deceased stopped at that point and defendant engaged in further conversation with him. They were talking at the side of the highway which ran through the town. At this point two cars were seen approaching, one from the south and one from the north. To avoid the car heading in the northerly direction, the town marshal stepped to the east side of the highway, while Baxter stepped to the center of the highway. The deceased then ran to the other side of the road. The defendant yelled to him to halt and then fired, striking the deceased almost in the center of the back. The bullet passed through the trachea and caused the death of Baxter in a few minutes. Some of the witnesses testified that after the deceased was shot, he asked the defendant to pick him up and defendant told his brother to get a flashlight and that if Baxter started to get away that he would shoot him again.

On behalf of the defendant, the proof showed that defendant had been a peace officer for several years. That he had attended a meeting of peace officers at Woodward, at which time the F. B. I. had asked all persons to apprehend deserters and those not having draft registration cards. The defendant testified that he saw the stranger shortly after he came to Buffalo and heard that his name was Bradford. That he commenced to get suspicious of him and told the sheriff that he thought they should investigate him. That he and his brother went to the rear of the cafe and that his brother asked the deceased for his registration card and deceased said it was at the hotel; that the undersheriff told the deceased that he was under arrest and further directed the defendant to go with deceased to the hotel to see his papers and that if he was right to let him go and if he wasn’t to bring him back. That defendant and deceased stopped to talk on the' highway. Deceased told defendant that he had no identification papers, and defendant said “I will have to put you under arrest until we see about it.” That the deceased then said to the defendant, “I will kill yoq before morning, I am out and I am not going back.” That the deceased then hit defendant and ran; that defendant yelled for him to stop; that deceased ran into the shade of some trees out of sight of defendant and defendant fired a shot in that direction without being able to see the deceased, without intending to hit him, but solely to try to stop him.

It is contended that defendant did not have a fair and impartial trial because of the admission in evidence over the objection of defendant of bloody garments worn by deceased at the time of his death, and further that the court erred in admitting evidence of the conviction by the defendant several years before for the crime of stealing cattle after the defendant had admitted that he had been convicted of such crime.

This court will closely scrutinize all the record in every case in which appeal is taken to see whether or not. reviewing the record as a whole, the defendant has been given a fair and impartial trial and whether his conviction has been in accordance with constitutional principles. This is done whether the question is properly preserved in the lower court for presentation on appeal or not. Rieckert v. State, 78 Okla. Cr. 111, 144 P. 2d 117; Wooten v. State, 70 Okla. Cr. 292, 106 P. 2d 132; Dunbar v. State, 75 Okla. Cr. 275, 131 P. 2d 116.

The admission of the clothing in the evidence was proper. Morris v. State, 6 Okla. Cr. 29, 115 P. 1030; Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, Ann. Cas. 1912B, 766; Jones v. State, 17 Okla. Cr. 561, 190 P. 887; Dobbs v. State, 39 Okla. Cr. 368, 265 P. 661; Brantley v. State, 15 Okla. Cr. 6, 175 P. 51.

The state contended that the fatal shot was fired while the deceased had his back to the defendant and wholly without any legal provocation. The state’s proof showed that defendant was an expert shot with a pistol and the admission of the clothing refuted the contention of defendant that he did not fire at the deceased but only fired his gun in the air to try to get the deceased to stop, but wholly without any intention of hitting him. In connection with this same assignment of error, counsel for defendant contends that the state placed the wife of the deceased on the witness stand in rebuttal and asked her a series of questions which were incompetent and were propounded to the witness for the sole and only purpose of creating prejudice against the defendant. These questions in substance concerned the funeral of the deceased and were asked and answered without objection by counsel for defendant. The wife testified that the deceased was given a military funeral. That the government furnished the coffin and his body was returned to their home with a military escort. She further testified that' during the period of time her husband- was in the army, she received $120 per month compensation from the government for herself and three children. Throughout the trial, it wax made to appear on the part of the defendant, either through direct statements of his counsel or through inferential evidence introduced in Ms behalf, that the deceased was a deserter from the United States Army, and that such a crime was a felony. That the defendant had reasonable grounds to suspect commission of such a crime. That by reason thereof he had a lawful right to arrest the deceased and to fire the fatal shot if necessary to prevent his escape after his lawful arrest. We are unable to see the materiality of some of the questions asked by counsel for the state, but in view of the fact no objections were interposed to the questions, we do not believe that the asking and answering of these questions were in themselves so fundamentally erroneous as to constitute reversible error. The first objection interposed by counsel for defendant to that line of testimony was sustained by the court. The state contended that the fact that the government continued to pay compensation to the wife of deceased during his absence from the service and that he was given a military funeral conclusively refuted the theory that the deceased was a deserter.

In connection with this same assignment of error, it is contended that the court erred in admitting in evidence the information, the verdict, warrant, and judgment and sentence in the district court of Harper county to show the conviction of the defendant for the crime of stealing cattle in 1919; and further erred in admitting in evidence certain exhibits from the office of the court clerk to show the alleged commission by the defendant of the petit larceny offense of stealing watermelons.

In the direct examination of the defendant, counsel inquired concerning the conviction which the defendant had sustained for the theft of cattle when he was a youth 18 years of age. On cross-examination, no further inquiry concerning this conviction was made by counsel for the state. Several witnesses for the defendant testified concerning his good reputation in the community where he resided. On cross-examination, counsel for the state properly inquired of these witnesses whether they had heard as a part of his general reputation the fact that he had been convicted of stealing cattle and of stealing watermelons. Some of them admitted that they had heard of these convictions.

It is well settled that a defendant, the same as any other witness, may be asked on cross-examination for the purpose of affecting his credibility, whether he has ever been convicted of crime, and if he denies the alleged conviction, the state on rebuttal may introduce proof of such conviction. 12 O. S. 1941 § 381; Pryor v. State, 51 Okla. Cr. 345, 1 P. 2d 797; Flynn v. State, 68 Okla. Cr. 72, 96 P. 2d 96; James v. State, 64 Okla. Cr. 174, 78 P. 2d 708.

In James v. State, supra, it is held:

“A defendant by availing himself of the privilege of testifying in his own behalf thus waives his constitutional privilege and has all the rights and is subject to the same rules of cross-examination and impeachment as other witnesses.
“The statute, [Okla.] St. 1931, § 268, 12 Okla. St. Ann. § 381, permits proof of a prior conviction of the defendant in a criminal case for the purpose of affecting his credibility. This proof may be made either by the record or on cross-examination of the defendant.”

In view of the fact that the defendant had admitted his former conviction of cattle stealing, it was not necessary for the state to again encumber the record by showing such conviction, but it certainly did not constitute error for such proof to be made. The state failed to introduce the judgment and facts showing the disposition of the case wherein the defendant was charged with the misdemeanor of stealing watermelons, but in view of the testimony by the witnesses for defendant concerning his conviction for this petit offense, such/failure of proof did not affect the situation as presented to the jury. The proof of conviction was not complete until the judgment and sentence was identified and introduced in evidence. It is not competent to prove that a person has been charged with a crime for the purpose of affecting his credibility, but it is only competent to show that he has been convicted. The failure to introduce the judgment in the misdemeanor case is probably accounted for by reason of the confusion that arose during the testimony of the court clerk. Counsel for the state first inquired of the clerk concerning the various exhibits in the felony case. Inquiry was then made concerning the various exhibits in the misdemeanor case. The misdemeanor case was filed as No. 360 in the county court. The felony case was filed as No. 146 in the district court. After identifying the information and warrant in case No. 360, counsel then inquired about the verdict in case No. 146, and the exhibit was admitted in evidence after full proof of the conviction in that case had already been given. However, as we have hereinabove stated, the failure of the prosecution to prove a conviction in the misdemeanor case does not constitute reversible error in view of the other evidence bearing on this question.

It is further urged that the court committed error in giving instruction No. 7, which reads as follows: ■

“You are instructed that the. statutes of the State of Oklahoma provide that;
“Any person who willfully discharges any species of firearms, airgun, or other weapon in any public place, or in any place where there is any person to be endangered thereby, although no injury to any person shall ensue, is guilty of a misdemeanor.
“You are therefore instructed that if you can find and believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Albert Storer, at and in the county of Harper and State of Oklahoma, on the date alleged in the Information, unlawfully and willfully, in a public place, shot off his pistol, and you further believe and find from the evidence, beyond a reasonable doubt, that the deceased was killed by the discharge of said pistol in the hands of the defendant, although without any intention or premeditated malice or design on the part of the said Albert Storer to shoot and kill the said James R. Bradford, alias James C. Baxter, and you further find and believe, beyond a reasonable doubt, that said act was willfully and unlawfully done, in violation of the law making it a crime to shoot upon the public highway or public place, then, in that event, you will find the defendant guilty of manslaughter in the first degree and so say by your verdict. On the other hand, if after a careful, fair consideration of all the evidence in this case you have a reasonable doubt of the guilt of the defendant, you will give him the benefit of such doubt, and acquit him.”

This instruction should be read in connection with all of the other instructions, and particularly with instruction No. 6, which defined the crime of manslaughter in the first degree, and instruction No. 8, which instructed the jury further in connection with No. 7. In instruction No. 6 the jury was instructed, among other things, that ‘ homicide is manslaughter in the first degree when perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.” The misdemeanor which the state contended was being committed by the defendant and which was defined in the first part of instruction No. 7, is set forth in the Okla. Statutes as 21 O. S. 1941, § 1364.

We liad occasion, to consider an instruction in almost identical language given by- this same trial judge and in which present counsel for defendant represented the defendant in the other case. Feil v. State, 81 Okla. Cr. 133, 161 P. 2d 770. The facts in that case were in many ways similar to the facts in the instant case. The defendant, Feil (town marshal), was convicted of the crime of manslaughter for shooting a high school student while fleeing to escape arrest for a misdemeanor. The applicability of this instruction was unheld in the Feil case.

The defendant contended that he did not intend to ■kill deceased but fired in the darkness merely to scare him. If the deceased had willfully fired his gun in a public place without intent to hit anybody and had killed a bystander, then clearly the instruction given by the court would have been applicable. We do not see why it would not apply with equal force to the theory of the state as to the shooting of deceased. If the defendant did not have the lawful authority to arrest deceased, then the deceased at the time of the homicide was in the same position so far as defendant’s legal responsibility for his death was concerned as would have been an innocent bystander. Defendant said he fired in the dark without intent to hit anyone. An officer is just as liable as an ordinary layman when he discharges his gun in a public place where people are liable to be injured thereby, unless such firing of the gun is in the discharge of his lawful duties as an officer. The question as to whether the defendant had made a lawful arrest of deceased and setting forth the grounds which authorize an officer to arrest without a warrant were defined in instruction No. 2 and no complaint is made as to the correctness of such instruction.

The defendant complains in his brief of instruction No. 10, which reads as follows :

“You are further instructed that any person subject to military law who deserts or attempts to desert the services of the United States, shall, if the offense be committed in time of war, suffer death or such other punishment as the court martial may direct. In this connection you are instructed that absence of a soldier without leave is not desertion, unless an intention not to return to the service be shown. Desertion is the act of a soldier in absenting himself from his regiment, station or duty, and from the service, without authority, and with the intention of not returning; the absence may be originally without authority or it may begin at the end of a furlough or other leave of absence, or it may be originally involuntary, as where a soldier having been captured by the enemy fails to return to the service on escaping or being released from captivity; a deserter is one who is guilty of desertion.
“And in this connection you are further instructed that the military laws of the United States provide that it shall be lawful for any civil officer having authority under the laws of the United States, or of any state, territory, district or possession of the United States to arrest offenders, summarily to arrest a deserter from the military service of the United States and deliver him into the custody of the military authorities of the United States.”

No exception was taken to the giving of this instruction. The latter part of said instruction was taken from a requested instruction presented by counsel for defendant and is a quotation from the Federal statute. Tit. 10 U. S. C. A. § 1578. There is no misstatement of law in said instruction. It should have been more comprehensive in that it would have been better for the court to have instructed the jury whether the crime of desertion was a felony and whether the crime of absence without leave from the military forces was a felony or misdemeanor. By inserting such into the instruction the court would have better enabled the jury to have applied some of the law given in other of the court instructions. However, is is well settled in this state, that where no exception is taken to the giving of an instruction, the giving of the same will net be considered as error, unless it is so fundamentally erroneous as to mislead the jury and thus deprive the defendant of his constitutional right to a fair and impartial trial. If counsel for the defendant had not been satisfied with this instruction and had thought that additional instruction on the question should have been given, it was his duty to call the matter to the attention of the court by requested instruction. Merriott v. State, 18 Okla. Cr. 247, 194 P. 263; Dickson v. State, 26 Okla. Cr. 403, 224 P. 723.

Counsel for defendant filed a motion for a new trial on the ground of newly discovered evidence. The alleged newly discovered evidence consisted of a transcript from the office of the Adjutant General giving a full and complete record of the military career of the deceased. This record showed that during a large part of the time the deceased was enlisted in the United States Army that he was absent without leave. Most of this evidence, in one form or the other, was brought out during the trial. If the record had been available at the time of the trial and admitted in evidence, it would not have substantially affected the issues. The defendant had no knowledge of the military record of the deceased and everything that he did was on mere suspicion. The evidence in the record before us just fails to disclose any legal justification for this killing.

When this case is thoroughly considered from every angle, and all of the various assignments of error have been analyzed, there is one glaring feature of the case and that is that the defendant shot the deceased in the back, without adequate provocation, while he was fleeing. All of the collateral elements of the case which are presented as grounds for reversal of the judgment of conviction were evidently taken into consideration by the jury in mitigation of the punishment as they only assessed the minimum punishment of four years’ imprisonment in the State Penitentiary. No record is appealed to this court that is perfect in every detail. It is sometimes easy to forget the living trial in the search for error in a dead record. The trial was conducted in substantial compliance with the law. Another trial judge might have handled the case differently in some details, but if there are any irregularities of procedure, they were not such as deprive the defendant of any substantial rights. We do not agree with some of the statements made by the Assistant Attorney General in his brief, especially with that part which castigated the defendant concerning his activities as town marshal, nor 'do we agree with him that the jury should have given the defendant death in the electric chair or life imprisonment for this offense.

The punishment which was meted out under every view of law was reasonable and just and the judgment and sentence of the district court of Harper county is accordingly affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    Ex parte HENRY E. WALKER.
    No. A-10856.
    May 7, 1947.
    (180 P. 2d 670.)

      Henry E. Walker, pro se.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent R. B. Conner, Warden.
   BRETT, J.

On September 18, 1940, in the district court of Osage county, Okla., the petitioner, Henry E. Walker, was charged in the cause No. 3440 with the crime of assault with a deadly weapon, pleaded guilty, and was sentenced therein to serve three (3) years in the .State Penitentiary. On the same day, he was charged in the district court of Osage county, Okla., in cause No. 3441 with the crime of robbery with firearms, to which he pleaded guilty and was sentenced to twelve (12) years in the penitentiary. The sentences in cause No. 3440 and No. 3441 were to run consecutively, requiring the petitioner to serve a total of fifteen (15) years in the penitentiary. From these judgments and sentences, the petitioner took no appeal.

The petitioner presents his petition for writ of ha-beas corpus without the benefit of an attorney to advise him. In his petition he does not attack the court’s jurisdiction of his person, the subject matter, or assert that the proceedings in which he was charged, tried, convicted and sentenced are void. He bases his claim to relief upon the proposition that he had been led to believe, by the prosecutor, that if he would plead guilty the sentences that would be imposed would run concurrently, but that the court, in pronouncing the judgments and sentences, made them to run consecutively, and that by reason of this fact, the sentences were excessive.

To this petition, the Attorney General has demurred on the grounds that the petition did not state facts sufficient to warrant petitioner’s release and that the allegations relied upon, in said petition, should have been raised on appeal.

In Ex parte J. H. Tollison, 73 Okla. Cr. 38, 117 P. 2d 549, 550, this court said:

“This court is very liberal in construing petitions filed by inmates of state institutions which are prepared without the advice and help of an attorney, as we realize that there will be many cases where prisoners may have good grounds for petitioning this court for relief, but are unable to secure the assistance of an attorney because of their financial condition or otherwise; and in those instances we give every reasonable inference that we can to. their petitions to see whether the same are sufficient on their face to justify a hearing upon the issues thus raised.”

However, the writ of habeas corpus is limited to cases in which the judgment and sentence of the court attacked are clearly void. This coart, oa habeas corpas, will not look beyond the jadgment and sentence of any coart of competent jarisdiction as to mere irregalaritites of pro-cedare. This coart so held in Ex parte Tollison, supra. See, also, Ex parte Dann, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486.

The only point raised in the petition goes to the proposition that the jadgments and sentences imposed were excessive; therefore, the only qaestion presented was, did. the coart have aathority to impose the sentences pro-noanced in canses nambered 3440 and 3441. Under the provisions of § 645 O. S. A., Title 21, the coart coaid have assessed a penalty, not to exceed five (5) years. Under §1 801 O. S. A., Title 21, for robbery with firearms, the coart coaid have assessed, as the maximnm penalty, the death sentence, or not less than five (5) years in the penitentiary. It is therefore apparent that the jadgments and sentences were not excessive as beyond the statatory aa-thority of the coart to pronoance. The coart, having jar-isdiction of the person of the defendant and of the crime charged and not having exceeded its aathority in passing sentence, its jadgment is not void. This coart so held in Ex parte W. O. West, 62 Okla. Cr. 260, 71 P. 2d 129; also, Ex parte Charles Evans Keel, 62 Okla. Cr. 277, 71 P. 2d 313, 314, wherein this court said :

“Where a petitioner is imprisoned under a jadgment, of conviction for crime, unless the court was without jar-isdiction to render the particular jadgment, and the jadgment is void and not merely voidable, relief cannot be had by habeas corpus.
“On habeas corpus to determine legality of imprisonment where detention is under the jadgment of a district court, the court is limited to a determination of whether-the facts stated in the information constitute an offense, and whether the judgment and sentence imposed was warranted by law and was within the jurisdiction of the court.”

It is therefore apparent that the facts alleged in the petition for writ of habeas corpus herein are insufficient, even if established, to warrant the discharge of the prisoner; only a lack of jurisdiction or errors or irregularities which divest the court of jurisdiction or renders the judgment void can be raised by habeas corpus, Ex parte Henry Thomas, 56 Okla. Cr. 258, 37 P. 2d 829. The petition presents no such errors as would divest the court of jurisdiction or render the judgment void. The demurrer to the petition for writ of habeas corpus is therefore sustained and the petition dismissed.

BABEFOOT, P. J., and JONES, J., concur.