text:
    Hollis Gilmore v. State.
    No. A-621.
    Opinion Filed April 12, 1910.
    (108 Pac. 416.)
    1. PARDON — Grant Pending Appeal — Validity. A pardon granted and accepted after conviction and pending an appeal in the 'Criminal Court of Appeals is valid under Const, art. 6. sec. 10, wherein the Governor is empowered to grant, after conviction, reprieves, commutations, paroles and pardons.
    2. PARDON — “Conviction.” The term “conviction,” in article 6, sec. 10, of the Constitution, denotes the final judgment of the trial court, upon a plea of or verdict of guilty.
    S. APPEAL — Pardon—Dismissal. Where a pardon is granted and accepted, and brought to the attention of this court pending an appeal, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from Canadian County Court; H. L. Fogg, Judge.

    Hollis Gilmore was convicted of gaming, and appeals.
    Dismissed.

      B. B. Forrest, for appellant.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   DOYLE, Judge.

Plaintiff in error was convicted in the qpunty court of Canadian county for-the crime of conducting a public gambling house, and was sentenced to pay a fine of $500, and to serve a term of 30 days in the county jail, from which judgment he appealed to this court.

While the case was still pending in this court, the acting Governor granted an unconditional pardon to the plaintiff in error, and he has filed a certified copy of said pardon in .this court, the material part of- which reads as follows:

“Whereas, it appears from the court records that the said Hollis Gilmore was indicted by the grand jury on his own testimony in violation of his constitutional rights, and pardon lias been recommended by Judge John J. Carney and Hon. B. W. Riley: Now, therefore, I George W. Bellamy, acting Governor of the state of Oklahoma, by virtue of the authority vested in me by law, do hereby grant unto the said Hollis Gilmore a pardon of the said offense, to take effect immediately, restoring unto the said Hollis Gilmore all of the rights of citizenship. In witness whereof, I have hereunto set my hand and caused to be affixed the great seal of the state of Oklahoma, at Guthrie, this 1st day of April, A. D. 1910.”

The question now presented in this ease is: Has there been a conviction of the plaintiff in error within the meaning of the Constitution, so that executive clemency may be invoked?

Section 10, art. 6, of the Constiution, provides:

“Tire Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases' of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. He shall communicate to the Legislature at each regular session each case of reprieve, commutation, parole or pardon, granted, stating the name of the concict, the crime of which he was convicted, the date and place of conviction and the date of commutation, pardon, parole, or reprieve.”

As we view it, an appeal pending in this court does not deprive the Governor -of the power to grant a pardon to the appellant. In its ordinary sense the term “conviction” is used to designate that particular stage of a criminal prosecution, when a plea of guilty is entered in open court,-or a verdict of guilty is returned by a jury. But in a strict legal sense it denotes the final judgment of the court. Chief Justice Marshall defines “conviction,” as “a technical term applicable to judgment in a crim-' inal prosecution.” A conviction within the meaning of the Constitution is an adjudication "that the accused is guilt}'. It imports the final' consummation of the prosecution, from the complaint to the judgment of the court by sentence. And where an appeal is taken to this court, and, pending appeal, a pardon is granted and accepted, the appellant thereby waives all his rights upon the appeal, and when brought to the attention of this court the áppeal will be dismissed.

In the ease of Com. v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699, Justice Gray concluding a very learned and elaborate discussion of the question, wherein he cites many instances where the pardoning power has been invoked after conviction, and while the cases were pending in the court of review, said:

“It was argued for the commonwealth that the defendant could not be said to be convicted at the time when this pardon was granted, because a bill of exception was then pending in this court to the rulings under which he had been found guilty, and that, after pleading the pardon, he might still prosecute his exceptions, and, if they should be sustained, have the verdict set aside. But it is within the election of the defendant whether he will avail himself of a pardon from the executive — be the pardon absolute or conditional. If he does not plead the pardon at the first opportunity, he waives all benefit of the pardon; if he does so plead it, he waives all other grounds of defense. Staunf. P. C. 150; J. Kelying, 25; 4 Bl. Comm. 402; U. S. v. Wilson, 7 Pet. 150 [8 L. Ed. 640]. The pleading of the pardon in the superior court would therefor be ipso facto a waiver of his exceptions.”

In the ease of State v. Alexander, 76 N. C. 231, 22 Am. Rep. 675, the court said:

“At common law the crown exercised the power of pardon at any time. The consequence was that crimes were smothered. The facts were not brought to light. The person charged was not brought before the public and required to answer the charge, •and, of course, the public were dissatisfied. But under our Constitution and statute, the person charged must be brought before the public in a public trial and face his accusers, and all the facts must appear, and the jury must find him guilty, and the court must sentence him. If then he will ask for pardon, he cannot deceive the pardoning power. The public are in possession of the facts and can resist his application. Nor is the pardoning power any longer irresponsible to the public, because he has to report the facts and his reasons for exercising the power. It is not denied that a pardon granted under these circumstances is valid; but the objection made is that these.prerequisites do not exist in this case, for although the defendant has ' ‘ been regularly charged, tried, found guilty by the jury, and sentenced by the court, therebjr bringing his case within the constitutional provisions, yet he took it out of the provision by appealing to the Supreme Court, which appeal vacated the sentence or judgment; and so there was no ‘conviction ’ remaining, and therefore the pardon is invalid as wanting a ‘conviction* to support it. And this brings us to the construction of the Constitution as to what is meant by ‘conviction/ Does it mean the verdict of the jury, or the sentence of the court, or the verdict and sentence both? The word is ordinarily used to denote the verdict of the jury, guilty. How did the jury find? Guilty; or, they convicted him. What did the judge do? Sentenced him to be hanged. This is the language ordinarily used in such matters, both in conversation and in books, law and literary. It is never said that the jury sentenced him, nor that the judge convicted him. * * * Nothing can be a conviction but the verdict of the jury. Take that to be so, still inasmuch as the Constitution, in the same section in which it authorizes the Governor to pardon ‘after conviction/ requires him to report to the General Assembly not only the conviction but the sentence, is it not intended that there shall be a sentence to report, else how can he report it ? And if the appeal vacates the sentence, then there is no sentence to report; and so there is no sentence to support the pardon. Technically that would seem to be so; but it is a refinement merely. Suppose the defendant in his application for pardon should say: ‘I was convicted of murder and sentenced to be hanged. I appealed to the Supreme Court, but I abandon the appeal and pray for a pardon/ Might not the Governor pardon him and in his report say that the applicant had been convicted of murder and sentenced to be hanged- and appealed to the Supreme Court, but-abandoned his appeal and prayed for pardon, and that he had pardoned him because he was satisfied that he was innocent? Would not that substantially comply with the Constitution to say that he had been convicted and that he had been sentenced? It is insisted that the object is not to pardon him while he is making defense, nor until be surrenders and begs for mercy. If that were true, still does he not surrender and beg for mercy when he abandons his appeal and prays for pardon? But it is not always true that the defendant ought to be expected to surrender and beg for mercy. There are cases where he has been improperly convicted and asks, not for mercy, but for justice.”

See, also, Com. v. Kiley, 150 Mass. 325, 23 N. E. 55; Smith v. State, 74 Tenn. 639; Hackett v. Freeman, 103 Iowa, 296, 72 N. W. 528; Manlove v. State, 153 Ind. 80, 53 N. E. 385; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366.

Applying the principles of law stated in the foregoing cases to the question involved, we are of opinion that the restriction imposed in the constitutional provision upon the exercise of the pardoning power does not apply to cases where there has been a conviction in the trial court and an appeal taken therefrom.

The language of the statute providing for appeal is (section 6951, Snyder’s St.):

“If the crime of which the defendant is convicted be a bailable one, the court shall at the time of entering judgment notify the defendant of his right to an appeal,” etc.

There manifestly the judgment and sentence is considered to be the conviction.

Therefore, it is considered that the appeal be, and the same is hereby, dismissed, and the came remanded to the county court of Canadian county.

FURMAN, PRESIDING Judge, and .RICHARDSON, Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shirley Chapman v. State.
    No. A-567.
    Opinion Filed April 12, 1910.
    (108 Pac. 418.)

      Appeal from Canadian County Court; H. L. Fogg, Judge.

    Shirley Chapman was convicted of having in possession intoxicating liquors, and he appeals.
    Dismissed.

      R. B. Fairest, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Canadian county for the crime of having possession of intoxicating liquor,' with the intention of violating the law, and was on the '27th day óf November, 1909, sentenced to pay a fine of $50 and serve a term of 30 days in the 'county jail; from which judgment he appealed to this court. On April 1, 1910, while said appeal was pending, Acting Governor Bellamy, granted him an unconditional párdon, and he has filed a certified copy of said pardon in this court. The facts as to the pardon in this case are the same as in the case of Hollis Gilmore v. State, ante, p. 639, 108 Pac. 416, and the principles of law are the same and the decision the same.

Therefore it is considered that the appeal be, and the same is hereby, dismissed, and the cause remanded to the county court of Canadian county..


text:
    W. E. White v. State.
    Nos. A-649 and A-650.
    Opinion Filed April 12, 1910.
    (108 Pac. 1135.)

      Appeals from Creek County Court; Josiah O. Davis, Judge.

    W. E. White was twice convicted of illegally selling liquor, and appeals.
    Dismissed.

      J. L. Byrne, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Creek county in two cases- for the crime of having possession of intoxicating liquor with intent of selling the same, and was on the 12th day of November, 1909, in one case sentenced to pay a fine of $300 and be imprisoned in the county jail for 60 days, and in the other case he was sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days, from, which judgments he appealed. On April 5, 1910, while said appeals were pending. Acting Governor Bellamy granted Mm an unconditional pardon in each case, and he has filed a certified copy of the same in this court. The facts as to the pardon in these cases are the same as in the case of Hollis Gilmore v. State, ante, p. 639, 108 Pac. 416, and the principles of law are the same, and the decision the same. Therefore it is considered that said appeals be, and the same are, hereby dismissed, and the eases remanded to the county court of'Creek county.


author: PEE CTTBIAM.

text:
    Frank Sauleck v. State.
    No. A-639.
    Opinion Filed April 12, 1910.
    (108 Pac. 1134.)

      Appeal from Pittsburg County Court; R. W. Higgins, Judge.

    Frank Sauleck was convicted of violation of the prohibition law, and appeals.
    Dismissed.

      Horton £ Smith, for plaintiff in error.
   PEE CTTBIAM.

Plaintiff in error was convicted in the county court of Pittsburg county for a violation of the prohibition law, and was on the 13th day of January, 1910, sentenced to serve a term of 30 days in the county jail and to pay a fine of $50, from which judgment he appealed by filing in this court on March 5, 1910, petition in error with case-made attached. Now, on this 13th day of April, 1910, plaintiff in error files his motion to dismiss said appeal. Wherefore it is by the court ordered that said appeal be, and is hereby, dismissed, and the case remanded, with direction to the county court of Pittsburg county to cause the judgment and sentence to be carried into execution.


author: DOYLE, Judge.

text:
    G. W. Teels v. State.
    No. A-185.
    Opinion Filed April 16, 1910.
    (108 Pac. 415.)
    APiPEAL — Failure to File Briefs — Affirmance. Where the plaintifl in error was convicted, upon a trial by jury, of a violation of the prohibition law, and appeals from the judgment of conviction, and no briefs are filed or argument presented, this court will not search the record to discover errors, and the judgment of the trial court will be affirmed, where no prejudicial error appears upon the face of the record.
    (Syllabus by the Court.)

      Appeal from Washita County Court; L. B. Shean, Judge.

    G. W. Teels was convicted of selling intoxicating liquor., and appeals.
    Affirmed.

      Fred 8. Caldwell, Counsel to the Governor, for the State.
   DOYLE, Judge.

Plaintiff in error was convicted in the county court of Washita county o'f the crime of unlawfully selling intoxicating liquor, and was on the 23d day of February, 1910, sentenced to pay a fine of $200 and to serve a term of 90 days in the county jail, from which judgment and sentence he appealed by filing in this court on May 20, 1909, his petition in error, with transcript of record, duly certified by the clerk of the county court, together with proof of service of notice of appeal as required by law. On June 23, 1909, his attorneys of recdrd, Massingale & Duff, filed their withdrawal as counsel, with the request that the firm of Holcombe & Bulow be substituted. It was so ordered, and an extension of 60 days was given to file briefs. On March 15, 1910, Holcombe & Bulow filed their withdrawal as counsel, “for the reason that plaintiff in error has failed and neglected to pay or secure them for their services and has failed and neglected to provide the necessary expenses for preparing and filing briefs.” At this March, 1910, term of this court the cause was submitted on the motion of the attorney for the state that said appeal be dismissed for want of prosecution, on the ground that no briefs have been filed, or that said judgment bo affirmed on the record:

No briefs have been filed, and no errors have been pointed out, except as shown by the petition in error. In cases of this kind, where no briefs are filed by plaintiff in error, this court will not search the record to discover errors, but will only look to the jurisdiction of the court, the sufficiency of the information, and the regularity of the judgment. Following this rule, we have examined the record as shown-, and we are unable to perceive any errors.

The judgment being in all respects tegular, the judgment is hereby affirmed at the cost of plaintiff in error, and the case remanded to the county court of Washita county, with -direction to carry the judgment and sentence into execution.

FUEMAN, Presiding Judge, and EICHAEDSON, Judge, concur.


author: PEE CUEIAM.

text:
    G. W. Teels v. State.

      No. A-184.
    Opinion Filed April 16, 1910.

    (108 Pac. 416.)

      Appeal from -Washita County Court; L. R. Shean, Judge.

    G. W. Teels'was convicted of an illegal sale of liquor, and appeals.
    Affirmed.

      Fred S. Caldwell, Counsel to the Governor, for the State.
   PEE CUEIAM.

Plaintiff in error was convicted in the county court of Washita county of a violation of the prohibition law, and was on the 23d day of February, 1909, sentenced to pay a fine of $150 and to serve a term of 15 days in the county jail, from which judgment he appealed by filing in - this court on May 20, 1909, a petition in.error, with duly certified transcript of the record attached.

The facts in this case are same as in the- case of G. W. Teels v. State (decided at this term), ante, p. 646, 108 Pac. 415. Upon the authority of that case, the judgment of the county court of Washita county is hereby affirmed, at the cost of plaintiff in error, and the cause remanded to the county court of Washita county, with direction to carry the judgment and sentence into execution.


text:
    Melvin M. Jacobs v. State.
    No. A-263.
    Opinion Filed April 21, 1910.
    (108 Pac. 429.)
    1. APPEAL — Wight of Accused to Review — Escape Wending Appeal. Where a defendant has been convicted of murder and sentenced to imprisonment for life at hard labor in the state penitentiary, and perfects an appeal to this court, and while said appeal is pending makes his escape from the custody of the law, he thereby waives his right of having said conviction reviewed -by this court.

      2. SAME — Dismissal of Appeal. The Criminal Court of Appeals will not consider an appeal, unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case, and where the defendant makes his escape from the custody of the law, or is at large, as a fugitive from justice, this court will on motion dismiss his appeal.
    (Syllabus toy the Court.)

      Appeal from District Court, .Alfalfa County; M. C. Garber, Judge.

    Melvin M. Jacobs was convicted of murder, and appeals.
    Dismissed and remanded.

      Geó. W. ToA'iridge, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State. '
   DOYLE, Judge.

Melvin M. Jacobs, plaintiff in error, was convicted of murder. His conviction was had upon an indictment returned at the March, 1909, term of the district court of the Twentieth judicial district, held within and for Alfalfa county, wherein said indictment charged that he did on the 1st day of February, 1909, with malice aforethought, kill and murder one Arthur L. Strole, by shooting him with a pistol. Hpon his trial the jury returned a verdict of guilty and assessed the penalty at imprisonment for life at hard labor in the state penitentiary. April 1, 1909, the court pronounced judgment and sentence in accordance with the verdict. From which judgment and sentence an appeal was taken by filing in this court petition in error, with ease-made attached, July 28, 1909. In the meantime plaintiff in error was committed to the county jail of Garfield county. At this, the March term of this court, said cause was orally argued and submitted on briefs and argument. On April 4, 1910, there was filed in the case a motion of the Attorney General on behalf of the state to dismiss the appeal, which motion, omitting the formal parts, is as follows:

“Comes now the Attorney General for and upon behalf of the state of Oklahoma, and informs the court that heretofore, to wit, on April 1, 1910, the plaintiff .in error, Melvin M. Jacobs, being confined in the county jail of Garfield county, Olda., for safe-keeping, awaiting the disposition of his appeal herein, did then and there wilfully and unlawfully effect his escape from said jail by forcibly breaking therefrom^ and is now at large, a fugitive from justice, all of which appears from the affidavit of the sheriff of 'said Garfield county, the keeper of said jail, and’ having at the time the lawful custody of the accused, which said affidavit is hereto attached, marked 'Exhibit A,; and made a part of this motion. Wherefore the Attorney General says that, under the law and the rulings of this court, the plaintiff in error has forfeited his right to an appeal, and in legal effect hag. abandoned the same, in that he now refuses to submit himself to undergo such judgment as may be rendered herein.”

Attached to said motion, as “Exhibit A” is the affidavit of S. C. Campbell, sheriff of Garfield county, the material part of which is as follows:

“S. C. Campbell, of lawful age, being first duly sworn, on his oath state: That he is the duly elected, qualified, and acting sheriff of Garfield county, Oída., and has been such at all times hereinafter mentioned. That on the 1st day of April, 1909, one Melvin M. Jacobs was sentenced to life imprisonment by the district court of Alfalfa county, Okla., and thereafter was committed -to the custody of affiant as sheriff of Garfield county, pending the appeal of said Melvin M. Jacobs. That on the 1st day of April, 1910, the said Melvin M. Jacobs , by sawing the clasp off of the window bars, escaped from the Garfield county jail and is now at large and has not yet by affiant been apprehended. Tferfc sr copy of the commitment under which affiant has held the said Melvin M. Jacobs is hereto attached and made a part of this affidavit.”

Upon the facts stated the principles of law are the same as in the case of Tyler v. State, ante, p. 179, 104 Pac. 919, wherein this court said:

“From a review of the authorities we are convinced that it is no part of our duty as an appellate court to consider or review the judgment, orders, and rulings of which he complains, while he is at large as an escaped convict. Such has been the uniform holding of the courts of last resort in other jurisdictions, and it meets our full approval. * * * The appellant, by escaping from jail, where he was being held pending a determination of his appeal to this court, has voluntarily withdrawn himself from the jurisdiction of the court. So far as he has any right to be heard under the Constitution, and the statute before this court, he must be deemed to have waived it by escaping from the custody of the law. Where a person convicted of a felony has escaped from the custody of the law, no order or judgment, if any should be made, can be enforced against him, and appellate courts will not give their time to proceedings which, for their effectiveness, must depend upon the consent of an escaped convict. While we find no express provision of our statute authorizing a dismissal of an appeal in a criminal case for the reason stated in the present motion, we are of opinion that the appellant by his own act has waived the right to have his case considered and determined. In this conclusion we are sustained by the authorities quoted, and many others.”

The doctrine if the Tyler Case is approved, and on the authority of that case the motion of the Attorney General to dismiss the appeal is sustained, and the case remanded to the district court of Alfalfa count}1, Avith direction to have the judgment and sentence carried into execution.

FURMAN, Presiding Judge, and RICHARDSON, Judge, eoncur.


author: RICHARDSON, Judge.

text:
    Gabe Hawkins v. United States.
    No. A-104.
    Opinion Filed April 26, 1910.
    (108 Pac. 561.)
    1. EVIDENCE — Res Gestae — Declaration of Deceased. Upon a trial for murder, a declaration made by the deceased, clearly without premeditation or design, not more than hall a minute after the shooting, upon the spot where the shooting occurred, and which declaration tended to explain the main fact, namely, the cir- • cumstances of the shooting, is properly a part of the res gestae and is admissible.
    2. HOMICIDE — Appeal—Harmless Error — Admission of Evidence Without Predicate. Where a dying declaration is admitted in evidence before a proper predicate therefor is laid, but by evidence subsequently adduced the declaration is shown to be'admissible, the error in admitting the declaration without requiring the predi-cate proof to be first made is harmless.
    3. HOMICIDE — Evidence — Dying Declarations — Predicate for. Proof that the -deceased was shot one afternoon and died about eight or nine o’clock the following morning; that his wiound was intensely painful and necessarily fatal; that he was unable to be moved from the house in which he was shot; and that he stated that he was going to die; shows a conviction in deceased’s mind that death was impending, and is a sufficient preu cdiate for the admission of his dying declaration.
    4. SAME — Sense of Impending Death — Question for Court. Whether a purported dying declaration was made under a sense of impending death is a question solely for the co-urt in so far as it determines the admissibility of the declaration in evidence.
    5. SAME — Admissibility—Preliminary Proof — Procedure. AWhen a dying declaration is offered in evidence the court should require the necessary preliminary proof to be first made to the court and in the absence of the jury. If it is made and is sufficient. then both the preliminary proof and the declaration should be, given anew before the jury. If it is not sufficient, neither the preliminary proof nor the declaration should be given to the jury.
    (i. EVIDENCE — Testimony at Former Trial — Admissibility. Before the testimony of a witness at a former trial may toe proved as’ secondary evidence' against a defendant in the final trial, it must first be proved that such former trial was had, that the witness was sworn and testified, that the defendant was present and had opportunity for cross-examination, and that the witness has since died, become insane, left the state, that he is sick and unable to testify, or that his whereabouts cannot with due diligence be ascertained.
    7. TRIAL — Waiver of Objection to Evidence — Introduction of Counter Evidence. Where incompetent and injurious testimony is admitted over the objection of the defendant, the latter does not waive his objection by the introduction of counter-evidence, even though such counter-evidence would not have been competent but for the admission of the incompetent evidence sought to be counteracted by it.
    8. WITNESSES — Competency — Conviction of Crime. Under the law in force in the Indian Territory prior to statehood, record proof of the conviction of a witness of an-infamous crime, rendered such witness disqualified to testify except in his own behalf; but proof of such fact by the witness’s admission went only to his credibility.
    9. SAME — Testimony Antedating Conviction. Under the law in^ force in the Indian Territory prior to statehood, the deposition or former testimony of a witness qualified when he gave it, but subsequently disqualified by eonviction of an infamous crime, cannot after such conviction be admitted over objection, upon the theory that the witness must be competent at the time liis testimony is offered.
    10 HOMICIDE — Murder—Sufficiency of Evidence — Burden of Proof. Under Section 863, of Ind. Ter. Stat. 1899, to make a prima facie ' case of murder the prosecution is required to establish only two facts, namely, the death of the deceased, and the fact that he was killed toy the defendant. If those two facts are established without disclosing facts sufficient to raise a reasonable doubt of the degree of the homicide or of the defendant’s justification or excuse, then the burden shifts to the defendant to introduce sufficient evidence to engender a reasonable doubt as to the degree of the offense or as to whether he was justifiable or excusable.
    11. HOMICIDE — Murder — Instructions—Saif-Defense. Instructions upon self-defense in- a trial for murder which tell the jury that it must appear from the evidence that the defendant was not the aggressor 'before the plea of self-defense can avail him, and that if they believe certain facts from the evidence, then they should acquit the defendant as having acted justifiably; and which nowhere tell the jury that if, upon a consideration of all the evidence they entertain a reasonable doubt as to whether the defendant acted in his real or apparent necessary self-de? fense, they should acquit, are disapproved.
    (Syllabus by the Court.)

      Appeal from, District Court, Wagoner County; John TI. King, Judge. .

    The plaintiff in error, Gabe Hawkins, was convicted of the crime of murder, and his punishment assessed at imprisonment in the state penitentiary at hard labor for and during the term of his life. He filed a motion for a new trial, which was overruled, and he appeals.
    lieversed and remanded.

      Cook & de Graffenreid, for plaintiff in error.
    On question of res gestae: Price v. State, 1 Okla. Or. 358. On admissibility of testimony of witness subsequently convicted of infamous crime: TJ. S\ v. Angelí, 11 Fed. 84; West v. Louisiana, 104 U. S. 258; Motes v. TJ. S., 178 U. S. 44; Mallette v. North Carolina, 181. U. S. 590; Kring v. Missouri, 107 U. S.' 222; State ex rel. v. Edwards, 33 South. 209; People ex red. v. Johnson, 90 N. Y. Supp. 134; People v. Cox, 73 N. Y. Supp. 774; State v. Ardain, 24 South. 802; In re Murphy, 87 Fed. 549; Childers v. State, 30 Tex. Crim. App. 160; Cline v. State, 36 Tex. C-rim. App. 320; State v. Houser, 26 Mo. 431. On instructions on law of self-defense: Watkins v. TJ. 8., 1 Ind. Ter. 364.

      Chas. West, Atty. Gen., Chas. L. Moore, Asst. Atty. Gen., and S. M. Rutherford, for the State.
    — On question of res geslae: Carr v. State, 43 Ark. 99; Johnson v. State, 8 Wyo. 494; State v. Morrison, 64 Kan. 669; State v. Robinson, 52 La. 541; Lum-bright v. State, 34 Fla. 564. On admissibility of depositions of witness absent from state: Shackleford v. State, 33 Ark. 539; Hurley v. State, 29 Ark. 17; Griffith v. State, 37 Ark. 324; Dolan v. State, 40 Ark. 454; Thompson v. State, 105 Ala. 17. On instructions on law of self-defense: Dolan v. State, 40 Ark. 454; State v. Underwood, 57 Mo. 40; Irwin v. State, 29 Ohio St. 186; State v. Beams, 34 Minn. 38; Smurr v. State, 105 Inch 125; State v. Cobb, 65 S. C. 324; Jachson v. State, 77 Ala. 18; Isaacs v. State, 25 Tex. 174.
   RICHARDSON, Judge.

On the 4th day of October, 1905, the plaintiff in error, Gabe Hawkins, hereinafter designated as the defendant, was indicted in the United States Court for the Western District of the Indian Territory at Muskogee for the murder of one Sanford Daniels, alleged to have been committed in that district on the 30th day of April, 1905. The cause was continued from time to time until the admission of Okla.-homa into the Union, afier which by proper order of the District Court of Muskogee County it was transferred for trial to the District Court of Wagoner County, upon a showing that the offense, if any, was committed in the latter county. The cause was tried at the October, 1908, term of the court, and resulted in a verdict finding the defendant guilty of murder without capital punishment.

The defendant admitted the killing, but pleaded self-defense as a justification. The homicide was committed in a house owned by R. JB. Daniels, the deceased’s father, and occupied by one Dora Smith, a tenant. Just prior to the killing the said R. B. Daniels and Warrior Hawkins, a brother of the defendant, had a difficulty on these premises, in which no weapons were used and neither party was hurt. Neither the deceased nor the defendant participated in this difficulty, the defendant not being present at the time. The state contended that when the defendant, who was about two blocks from the scene of the trouble, heard of the difficulty he announced his intention to “go down and settle that squabble,” and that he then proceeded to the house carrying his pistol in his hand; that the deceased, who was on the porch when the defendant arrived, went into the house upon seeing the defendant coming up armed; that the defendant immediately - cocked his pistol and made a demonstration as if to shoot through the door, when those present told him not to shoot in the house because he might hit the deceased; that thereupon the defendant put his shoulder against the door, broke it open, and deliberately shot and killed the deceased, who was standing in the room unarmed.

/The defendant contended that he went to the house to get his brother and take him home; that he did not have his pistol in his hand; that he stepped upon the porch, and, the door being open, he saw the deceased in the room; that when the deceased saw him, he drew a pistol and said, “Gabriel, I am going to kill 3rou;” and thereupon leveled the pistol on the defendant, whereupon the defendant drew his pistol and shot the deceased.

A considerable crowd ivas present at the time of the shooting; and on the trial the contention of each party was supported by the testimony of several witnesses.

1. In response to questions propounded by the state, and over the objection of the defendant, the witness, E. B. Daniels, testified that the deceased told him immediately after the shooting that he, the deceased, was unarmed. In connection with this statement the witness testified that at the time the shot was fired he was about seven feet from the corner of the room in which the shooting occurred; that he ran into the room at once, that some one was then picking the deceased up from the floor where lie had fallen, and that the statement was made by the deceased at that time and under those circumstances. The defendant saved an exception to the action of the court in admitting this testimony, and he assigns it as error here.

The record shows that this declaration was made not more than half a minute after the shooting and upon the very spot where the shooting occurred; the time when and the circumstances under which it was made clearly indicate that it was made wholly without premeditation or design, and could not have been the result of deliberation; it tended to explain the main fact, which was the circumstances of the shooting, and it-followed immediately upon it. It was therefore properly a part of the res gestae, and was admissible. Price v. State, 1 Okla. Cr. 358, 98 Pac. 447; Com. v. Hackett, 2 Allen (Mass.) 136; Mitchum v. State, 11 Ga. 615; State v. Garrand, 5 Or. 217; State v. Ah Loi., 5 Nev. 99; State v. McDaniel, 68 S. C. 304, 47 S. E. 384; Com. v. Werntz, 161 Pa. St. 591, 29 Atl. 272.

2. The witness B. B. Daniels also testified that the deceased made a dying declaration in which he said that he was unarmed at the time of the shooting, and that he did not kndw why the defendant shot him unless it was on account of some old grudge. The defendant objected to this testimony for the reason that the proper predicate for its introduction had not been laid.

The only predicate laid at the time this testimony was given was the fact that the deceased had been shot, and that he made the positive statement that he was going to die. By evidence subsequently adduced, however, it was shown that the deceased was shot one afternoon, and died about eight or nine o’clock the following morning; that he was shot in the stomach a little to the left of the meridian line, the ball ranging downward, backward and to the right; that the wound was intensely painful and necessarily fatal, and, that the deceased until he died was unable to be moved from the room in which he was shot. All -of these facts considered together in our opinion are sufficient to show a conviction in deceased’s mind that death was impending, and thus t.o make the dying declaration competent. See leading case of Rex v. Woodcock, 1 Leach C. C. 503. Also Anthony v. State, Meigs (Tenn.) 265, 33 Am. Dec. 143; Reg. v. Perkins, 9 Car. & P. 395, 2 Moody, C. C. 135; State v. Phillips, 118 Iowa, 660, 92 N. W. 876; Mattox v. United States, 146 U. S. 140; Fogg v. State (Ark.) 99 S. W. 537; Com. v. Hargis (Ky.), 99 S. W. 348; People v. Dobbins, 138 Cal. 694, 72 Pac. 339; People v. Lem Deo, 132 Cal. 199, 64 Pac. 265; People v. Yokum, 118 Cal. 437, 50 Pac. 686; Com. v. Brewer, 164 Mass. 577, 42 N. E. 92; People v. Smith, 172 N. Y. 210, 64 N. E. 814.

As a matter of practice it is much better to require the state to make the full preliminary proof necessary to establish the competency and -admissibility of the--dying declaration in the absence of the,jury and before the declaration is given in their hearing;. but where that is not done, and a consideration of all the evidence in the case shows the dying declaration to be competent and admissible, the error, if any, will be treated as harmless. In such case, however, the ever present possibility of the state’s ultimate failure to make the predicate proof, and the serious injury to the defendant resulting from the consequently erroneous admission of the declaration, constitute a risk which the trial court should never take. Whether a purported dying declaration ivas made under a solemn sense of impending death is a question solely for the court in so far- as it determines the admissibility of the declaration in evidence; and when that stage of the proceeding is reached, the court should have the jury retire, and require the state to- make the necessary preliminary proof to the court before proceeding further in the presence of the jury. If such proof is made and is sufficient, then the jury should be recalled, and both the preliminary evidence and the declaration should be given before them. If the preliminary proof is not sufficient,' neither the declaration nor any part of the preliminary evidence; unless the latter is competent for some other purpose, should be given to the jury at all.

3. The state offered in- evidence, and the court admitted over the defendant’s objection, a writing purporting to be the testimony of one John Adams given before the United States Commissioner in the defendant’s examining trial. It appears from the statement of the attorneys for the prosecution, made to the court and incorporated into the record, that at th# time of offering this writing the witness Adams was serving a life term of imprisonment in the federal penitentiary at Fort Leavenworth, Kansas, under a cctaviction for the crime of murder; this was admitted by the defendant to be true,. It further appears, though only from the statement of the state’s attorneys, that a subpoena for the witness was issued, delivered to the sheriff for service and returned not served; that at the instance of the county attorney the Governor of Oklahoma made a request for the removal of the prisoner from the penitentiary to Wagoner County for the purpose of testifying in this case, and that the penitentiary authorities refused to permit his removal. The state read the writing to the jury, and the defendant excepted to the ruling of the court admitting it in evidence.

The statements contained in this writing were very damaging to the defendant. While the length of the document forbids its reproduction here in full, yet the following constituted a portion of it:

“I am a citizen. 1 know Warrior and Gabriel Hawkins and Sanford Daniels. . Was in town day Sanford was shot. Went to town about 2 o’clock. Saw Warrior and Gabriel by Tom Lewis’s. They were in a buggy. Saw them at Dora Smith’s place twice. I was in house when Sanford was shot, in the room where Sanford was shot. Saw .Sanford when he ■came. He first came up and stayed a while and then went back. While he was gone Warrior and Bob Daniels had a fight. Then '20 minutes after Sanford rode back up there. He went in the house. I went in behind Sanford and shut the door. Gabriel shoved the door open and shot Sanford. Sanford was next to middle door. Gabriel shoved open the south room door. Sanford was standing up when Gabriel shot him — doing nothing. I was two feet from Sanford. Sanford had nothing in his hand. I was east of him. When Sanford was shot he eased down by the side of the wall. Said he was shot. Gabriel asked who shot Sanford. I told him he shot Sanford and he rail away. I said ‘You shot him.’ I saw the pistol in his hand. Saw his pistol when he fired at Sanford. It was two or three feet from Sanford. Warrior was out-doors. I did not see Warrior after the shooting. I did not see Warrior with any gun.”

The admission of this writing was error. We pass for the present the question of the competency of the witness, John Adams, had he been produced in person to testify against the defendant upon this trial; and reserve for investigation further on the admissibility of the testimony of an absent witness given in a former trial of the same cause. Answer, both of thos.e questions, in the allirmative, and the admission of this writing was still patent error. In the first place this writing does not prove itself. It was not proved by a syllable of testimony from a single witness. There was no evidence other than the writing itself showing that an examining trial was ever had in this case; that John Adams ever testified as a witness at such examining trial, if there was one; that he was sworn, if he did testify; or that the defendant was present and had opportunity for cross-examination. Proof of each and every one of these matters from the mouth of a living witness, present and testifying from the witness stand, confronting the defendant and subject to his cross-examination, was an indispensable prerequisite to the admission of this testimony under any phase of the case. Carpenter v. State, 58 Ark. 283; Wilkins v. State, 68 Ark. 441; Dolan v. State, 40 Ark. 454.

The defendant, for the purpose of counteracting the effect of the purported testimony of the witness Adams, introduced without objection on the part of the state a contradictory statement proved to have been made in writing by Adams prior to the alleged examining trial. Adams’ purported testimony taken at the alleged examining trial shows that he was there interrogated about this contradictory statement, the time and place of his making it being stated in the questions and that Adams denied making the same. And the state contends that by introducing this Statement the defendant waived any objection'previously made to the admission of Adams’ testimony. We cannot agree to this contention. When incompetent evidence is introduced against the defendant and over his objection, he has the right to minimize its injurious effect by any competent counter-evidence which he may have, and by doing so he does not waive his objection previously made; and that is true though such counter-evidence would not have been competent, but for the admission of the incompetent evidence sought to be counteracted by it. The error of the court in admitting in evidence the written statement of Adams’ purported testimony was not waived or cured by the introduction of the alleged contradictory state.ment, and therefore necessitates a new trial of this cause.

The probability that upon another trial proper proof may be made of the facts just pointed out as a prerequisite in any case to the admission of this writing, necessitates the consideration of another reason urged bjr the defendant both here and below why the writing is inadmissible; and that is that its admission is in violation of the sixth amendment to the federal Constitution providing that in all criminal _ prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. •

This homicide was committed and this indictment was found in the Indian Territory prior to the admission of Oklahoma into the Union. The law as it existed in that territory, therefore, must determine 'this question. Congress, by Act of May 2, 1890 (26 U. S. Stat. L., c. 182, p. 81), put in force in the Indian Territory so far as applicable certain general laws of the State of Arkansas contained in Mansfield’s Digest, among which was chapter 20, adopting the common law; chapter 59, entitled “Evidence;” chapter 45, entitled “Criminal Law;” and chapter 46, entitled “'Criminal Procedure.” It has been held by the Court of Appeals in the Indian Territory, the United States Circuit Court of Appeals for the Eighth Circuit, and the Supreme Court of the United States, that in adopting and putting in force in the Indian Territory these general laws of the State of Arkansas, the constructions previously placed upon those laws by the Supreme Court of Arkansas were also adopted. Under the decisions of the Supreme Court of Arkansas, where the defendant has been confronted with a witness in a former trial of the same cause, whether before a coroner or justice of the peace sitting as an examining magistrate, or upon an application for bail, or upon a trial in the circuit court, and where the witness testified under oath, and an opportunity 'for, cross-examination was afforded the defendant, the testimony given by such witness on such former trial may be proved in the final trial as secondary evidence, if it is first satisfactorily proven that the witness has since died, become insane, left the state, or that his whereabouts cannot with due diligence be ascertained, or that he is sick and unable to testify. Hurley v. State, 29 Ark. 17; Shackelford v. State, 33 Ark. 539; Dolan v. State, 40 Ark. 454; Pope v. State, 22 Ark. 372; Vaughan v. State, 58 Ark. 353; McNamara v. State, 60 Ark. 400; Sneed v. State, 47 Ark. 180. And it is held by the court that the admission of such evidence under such circumstances is not violative of section 10, of article 2 of the Constitution of Arkansas, which provides that the defendant shall have the right to be confronted with the witnesses against him.

The Supreme Court of the United States has never passed upon the exact question presented by this record. It sustained such a procedure as not violative of the sixth amendment to the federal Constitution where it was shown that the witness had died since giving his former testimony. Mattox v. United States, 156 U. S. 237, 39 L. Ed. 409. And in Reynolds v. United States, 98 U. S. 145, it held that if the witness is absent by the act or procurement of the defendant, his farmer testimony may be given. It held in Motes v. United States, 178 U. S. 458, that where the absent witness was in the corridor of the court house within the hour before he was called, it appearing that his absence was due to the negligence of the prosecution, and not to the suggestion, connivance or procurement of the accused, the former testimony of the witness was inadmissible. Surely that would be the rule in any court.

The government of the Indian Territory being wholly federal, and the sixth amendment to the federal Constitution being a limitation upon the federal government and effective in the Indian Territory, if the decisions of the Supreme Court of the United States could be held to have so construed that amendment as to exclude the former testimony of a witness permanently absent from the territory and who could not attend upon the court if he would, such construction would of course be conclusive upon us in this ease; for Congress could no more put in force in the Indian Territory the law of another state, valid in the state but violative of the federal Constitution in the territory, than it could originally enact such a law for the Indian Territory. But we cannot find where the Supreme Court has so held; and in our opinion reason and principle and the weight of authority require a contrary holding. See Wigmore on Evidence, Vol. II, Chap. XLV, where the subject is ably and exhaustively treated, and to which we give our sanction.

If, subsequent to giving his testimony in the examining trial, the witness John Adams was convicted of the crime of murder and sentenced to the penitentiary, then under the law in force in the Indian Territory and preserved by the Enabling Act and our Constitution as applicable to pending cases there, upon proof of that fact by the production of the record of his conviction or by certified copy thereof, the witness would be disqualified to testify in this case. Bise v. United States, 5 Ind. Ter. 602; Werner v. State, 49 Ark. 122; Ramon v. State, 49 Ark. 176, 4 S. W. 658. Under the decisions in Arkansas 'and the Indian Territory, however, such conviction for the purpose of establishing the incompetency of the witness can be proved only bj the record or a certified copy thereof; and if the conviction is shown by the oral admission of the witness himself upon his examination, and not by the record, then it does not disqualify the witness but goes only to his credibility. Bise v. U. S., supra.

It is true that the law of this state in regard to the qualifications of witnesses is different; under the law in force in the Territory of Oklahoma, and by the Constitution extended over and put in force in the-whole of the State of Oklahoma, no person is disqualified as a witness by reason of his conviction for any crime except perjury; such conviction, if the offense involves moral turpitude, goes only to the credibility of the witness. It is also true that a law changing the qualifications of witnesses is not ex post facto as to the offenses committed prior to its passage. Hopt v. Utah, 110 U. S. 574, 28 L. Ed. 262. But these matters are not necessary to be considered here for the reason that under the Act of Congress of March 4, 1907 (34 U. S. Stat. L. 1287), amending section 20 of the Enabling Act, the terms of which were accepted by section 28 of the Schedule of the Constitution, there has been and could have been no change in the law with respect to offenses committed in the Indian Territory before statehood. The defendant in such case is to be tried under the law as it existed in the Indian Territory, and he neither gains nor loses any advantage by the change in the form of government or in the code of laws.

It was also the law in the Indian Territory that a defendant against whom the former testimony of >a now absent or deceased witness is offered, may make to the introduction of such testimony every objection which he could make if the witness were present and personally testifying; and if the witness subsequent to the giving of his former testimony has been convicted of an infamous crime, and that fact is properly proved, his former testimony cannot be introduced over the objection of the adverse party, the theory being that the witness must be competent at the time his testimony is offered. Redd v. State, 66 Ark. 475; St. L. I. M. & S. Ry. Co. v. Harper, 50 Ark. 137., 6 S. W. 720. The majority of the better considered eases, however, hold the contrary, and Mr. Wigmore lends the weight of his opinion to the latter view, saying, “The time of the witness’s testifying is here the time of the deposition or former testimony, his qualifications then to speak the truth are alone concerned.” Wigmore on Evidence, Vol. II, section 1410. And in some jurisdictions the very fact of the witness’ subsequent conviction and therefore disqualification is of itself held to warrant the admission of his former testimony given when no such disqualification existed. The rule in the Indian Territory, however, was as we have stated it, and we have no power to change it.

4. The court instructed the jury over the objection of the defendant that, “Before the plea of self-defense will avail the defendant upon trial, it must appear from the evidence that he was not the aggressor, and that he used all reasonable means in his power, consistent with his safety, to avoid the difficulty of killing his assailant.” The defendant excepted to the giving of this instruction on the ground that it places the burden of proof upon him; he says that in no instance does the burden shift from the prosecution to the defendant, but that to warrant a conviction the prosecution is required to show beyond a reasonable doubt the want of justification on the part of the defendant.

It was provided by section 863 of the Indian Territory statutes that, "The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide." To make a prima facie case of murder under this statute the prosecution is required to prove only two facts; namely, the death of the deceased, and the fact that he was killed by the defendant. If each of these facts are proved beyond a reasonable doubt aaid without disclosing facts sufficient to raise a reasonable doubt gs to whether the homicide was only manslaughter or as to whether it was justifiable or excusable, then prima facie the defendant is proved guilty of murder. Thereupon the burden of proof shifts to the defendant; and to discharge it he must produce evidence sufficient in quality and quantity to raise a reasonable doubt, either as to the degree of the homicide or as to whether he was justifiable or excusable, failing in which a conviction for murder is warranted. If, however, the defendant does produce evidence sufficient to raise such reasonable doubt, then the burden returns to the prosecution, and to warrant a conviction for murder it must, overcome such doubt thus engendered by proof beyond a reasonable doubt of the existence of each essential element of the crime.

Also section 896 of Ind. Ter. Stat. provides, "In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary; and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal- blow or injury was given.” The instruction complained of was substantially in the words of the statute; but this statute also is construed almost uniformly to mean that the defendant is required only to raise a reasonable doubt as to the necessity for the killing and as to who was the assailant. There could be no objection to this instruction if in connection with it the court gave the explanation which the interpretation of the statute requires. But it did not do so. It would have been better if, in the abstract pprtion of this instruction telling the jury under what circumstances the plea of self-defense could not avail the defendant, the court, instead of using the unqualified expression, “it must appear from the evidence that the defendant was not the aggressor,” had stated to the jury in substance that the law of self-defense is solely and emphatically a law of necessity; that it does not only imply the right of attack, and could not avail the defendant if he was the aggressor, or if the fatal difficulty was sought for by him, or was provoked by him by any wilful act of his own reasonably calculated to bring it about, or if he voluntarily or of his own free will entered into it, no matter how hard he was pressed or how great his danger became during the progress of the difficulty. This would have conveyed to the jury the information intended to be given, and would not have been subject to criticism as placing on the defendant the burden of making greater proof than the law requires of him.

Also in the affirmative charge on self-defense the court told the jury that if they believed certain facts from the evidence in the case, then they should acquit the defendant as having acted justifiably; but the court nowhere told the jury, except perhaps inferentially in the general instruction upon the- presumption of innocence and the burden of proof, that if, after considering and weighing all the evidence in the case, they entertained a reasonable doubt as to whether the defendant acted in his real or apparent necessary self-defense, then they should give the defendant the benefit of that doubt and acquit him. The better practice is to do this in connection with the substantive charge on the defendant’s theory of self-defense as shown by the evidence.

For the errors indicated the judgment of the lower court is reversed and the cause is remanded with directions to grant the defendant a new trial. It is so ordered.

FURMAN, Presiding ¡Judge,-and DOYLE, Judge, concur.


text:
    John Fooshee v. State.
    No. A-181.
    Opinion Filed April 26, 1910.
    (108 Pac. 554.)
    1. APPEAL AND ERROR — Assignment of Error — Sufficiency. An assignment of error in substance that the court erred in overruling a motion for a new trial, states a conclusion which could result only from error committed prior to the presentation of the motion; and the assignment of itself presents no question for review in the appellate court.
    2. INDICTMENT — Construction of Recitals — “Then and There.” The formal part of an indictment roads as follows: “At the November, 1908, term of the District Court of Carter County, 'State of Oklahoma, begun and held in the City of Ardmore in said county, on the 9th day of November, 1908, the grand jury of said county, good and lawful men, legally drawn and summoned according to law, and then and there examined, empaneled, sworn and charged according to law, do present and find, etc.” Held, that the words “then and there” have direct reference to the expression, “at the November, 1908, term of the district court,” and not to the phrase, “on the 9th day of November, 1908.”
    3. INDICTMENT — Recitals—Date of Impaneling Grand Jury. The date of the empaneling of a grand jury is properly shown by the journal of the court, and need not appear in the indictment.'’ If the indictment shows that it was found and returned at a term of the district court by a grand jury empaneled during that term, it is sufficient in that respect.
    4. GRAND JURY — Qualifications of Jurors. The mere fact that a person is a member of an association organized for the purpose of aiding the public officers in the maintenance of law and order and the suppression of crime, does not disqualify such person as a grand juror.
    5. SAME — Time for Questioning Qualifications. Under Section 6738 of Snyder's Comp. Laws of Okla., after a grand juror has been examined as to his qualifications, has answered under oath that he is qualified, has been received by the court and permitted to act, and after an indictment has been found, no possible issue can be made upon the competency or incompetency of such jur- or for the purpose of invalidating' the indictment.
    6. SAME. Under section 6663 of Snyder’s Comp. Laws of Okla., a person held to answer a charge for a public offense may, before the grand jury is sworn, challenge for cause an individual grand juror or the entire panel; failing to do so, he cannot, after an indictment has been found, take advantage of any objection to the panel or to an individual juror, whether he knew of such objection at the time the jury was empaneled or not.
    7. JURY — Competency of Jurors — Service on Recent Panel. The statutory inhibition against placing an elector’s name in the jury -box who has served upon a regular jury panel within twelve months last past, is not mandatory, but only directory; and a violation thereof as to any person will not vitiate the jury list, but will render such person subject to challenge for cause when called upon to serve the second time. If, however, he be not challenged on that ground, the question of his competency cannot afterwards be raised.
    8= GRAND JURY — Authority of Deputy County Attorney. Under section 1603 of Snyder’s Comp. Laws of Oklahoma, a lawfully appointed deputy county attorney may appear before the grand jury for the purpose of interrogating witnesses, and may perform the same duties before the grand jury which the county attorney himself may perform.
    9. INDICTMENT — Setting Aside — Misconduct of Grand Jury. Proof that the grand jury left their regular jury room and went to a nearby sanitarium to take the testimony of a witness, without any showing as to w'ho the witness was, whether or not his testimony was in fact taken, why he could not attend before the grand jury, or to what case the testimony of the witness pertained, the act of the grand jury standing in the record as an isolated fact unconnected with the case at bar by any evidence direct or circumstantial, constitutes no ground for setting aside an indictment.
    10. INDICTMENT — Murdei—Equivalent of Statutory Language. An indictment for murder, to be sufficient, must allege that the killing was done without authority of law, but it need not allege it in the exact lang-uage of the statute; the use of any other words equivalent in effect and meaning is sufficient.
    11. SAME — “Unlawfully.” The word “unlawfully” is the full equivalent in effect and meaning of the phrase “without authority of law,” as the latter is used in the statutory definition of murder.

      12. HOMICIDE — Murder—Indictment—Sufficiency. It is not necessary to allege in an indictment for murder that the deceased was a human being.
    13. SAME — Design to Kill Another Than Deceased. In an indictment for the murder of one person committed with a premeditated design to effect the death of a different person, it is not necessary to allege an actual assault upon the person designed to be killed, under a statute defining murder as the killing of one human being by another, without authority of law, and with a premeditated design to effect the death of the person killed or of any other human being.
    14. INSTRUCTIONS — Intimation by Judge of Opinion of Guilt. In an instruction to the jury that,' "If you convict the defendant, you can only convict him on one count of the indictmeiit,” the ■conditional clause, “if you convict the defendant,” does not indicate any belief, opinion or desire in the mind of the court as to what the verdict of the jury should be.
    15. TRIA'L — Verdict—Specifying Count of Indictment. Where a conviction is had upon an indictment containing more than one ■count, but each count charging the same offense in a different form, the law does not require that the jury state in their verdict upon which count the conviction is had.
    16. SAME. Where the same act constitutes two or more different offenses, and such different offenses are charged in separate counts of the same indictment, the law requires that a verdict of conviction state upon which count the conviction is had.
    17. HOMICIDE — Murder—Instructions—“Premeditated Design.” The court instructed the jury that, “A design to effect death is premeditated within the meaning of the law, if the intention to take life is deliberately formed in the mind before the act is done which results in death, no matter for how short a time* It may be formed instantly before committing the act by which it is carried into execution.” Held, a sufficient definition of a premeditated design to effect death.
    18. INSTRUCTIONS — Defining Legal Terms Used — Necessity. The failure of the court to define a legal term used in his instructions and in the statutory definition of the offense, where the defendant makes no request for a definition of the term and .saves no exception to the failure of the court to define it, is no ground for reversal .
    19. INSTRUCTIONS — On Weight of Evidence. 'The court instructed the jury that, “It is the opinion of the court that there is no proof in the case justifying a conviction of the defendant of manslaughter in the second degree, that your verdict should toe either guilty of murder, manslaughter in the first degree, or not guilty; but notwithstanding this opinion of tihe court, you may, if on your oaths you believe the defendant guilty of manslaughter in the second degree, convict him of that crime.” Held erroneous as being a charge on the weight of the evidence.
    20. INSTRUCTIONS — Degree of Offense Not in Evidence. The court should not instruct upon a degree of an offense of wlhich there is no evidence tending to show the defendant’s guilt.
    (Syllabus by the Court.)

      Appeal from District Court, Garter County; Malcolm B. Rosser, Trial Judge.

    John Fooshee was. convicted of the crime of murder and his punishment assessed at imprisonment in the state penitentiary at hard labor for and during the term of his life. From an order overruling a motion for a new trial, he appeals.
    Affirmed.

      Fooshee & Brunson, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   RICHARDSON, Judge.

The plaintiff in error, hereinafter called the defendant, as ground for a reversal of this cause urges seven assignments of error, which we shall consider seria-tim.

The first is that the lower court erred in overruling the defendant’s motion for a new trial. This assignment is general in form; it is predicated solely on other specific assignments of error, and states a conclusion which could result only from error committed in the trial of the cause and prior to the presentation of the motion for a new trial. Of itself, therefore, this assignment presents no question for review in this court.

Before entering his plea below the defendant filed a motion to set aside the indictment, alleging five grounds therefor. The court, after hearing the testimony adduced in support of said motion, overruled the same and the defendant excepted. The first reason stated in the motion as a ground for setting aside the indictment, together with the court’s action in overruling the same, is made the basis of defendant’s second assignment of error. This assignment is in substance that the court erred in overruling defendant’s motion to set aside’ the indictment, because said indictment shows on its face that it was returned by a grand jury empaneled and sworn on the 9th day of November, 1908, and the crime is alleged in said indictment to have been committed on December 1, 1908, and after the date as shown by the record on which said grand jury was discharged.

,If the facts stated in this assignment were true, then undoubtedly the motion to set aside should have been sustained on this ground, and the action of the trial court in overruling the same would constitute reversible error; for the reason that such a state of facts would necessarily show, either that the indictment was found and returned prior to the commission of the offense charged therein, contrary to subdiv. 5, sec. 6704, Snyder’s Comp. Laws of Oklahoma, or else that .it was found and returned by a purported grand jury after said grand jury had been discharged by the court and had in fact ceased to exist as a grand jury. The journal entries show, however, that the District Court of'Carter County convened on November 9, 1908, on which day a grand jury was empaneled and sworn, and one L. J. Ackers appointed its foreman. Said grand jury made its final report and was discharged on November 19, 1908. On December 4, 1908, the court being still in session, upon the petition of about two hundred citizens of Carter County, the honorable S. H. Russell, judge of that judicial district, made and entered an order for the drawing and summoning of twenty persons from which to empanel another grand jury, and ordered the venire made returnable on December 7, 1908. On December 7, 1908, such other grand jury was lawfully empaneled, and W. F. Whittington appointed its foreman. On December 14, 1908, this last grand jury, not having been discharged but being still in session, returned into open court the indictment in question against the defendant, duly endorsed and signed, and the same was filed in open court and in the presence of the grand jury. That part of the indictment material to this question reads as follows:

“At the November, 1908, term of the District Court of Carter County, State of Oklahoma, begun and held in the city of Ardmore in said county, on the 9th day of November, 1908, the grand jury of said county, good and lawful men, legally drawn and summoned according to law, and then and there examined, empaneled, sworn and charged according to law, to diligently inquire into, etc. * * * do present and find, etc. * * *”

The gist of the defendant’s contention on this point is that the words “then and there” as used in said indictment, refer specifically to the preceding expression, “on the 9th day of November, 1908,” thus identifjdng the grand jury which returned this indictment as the grand jury which was empaneled on that day and consequently as the grand jury which was discharged on November 19, 1908, prior to the commission of the offense charged. This contention is extremely technical, and we cannot assent to its correctness. In the first place, the expression “then and there” as used in the indictment refers to the term of the court during which the jury was examined, empaneled and sworn, as said term is designated and described in the indictment, that is, “at the November, 1908, term,” and does not refer to the particular date of November 9, 1908. In the second place, there is no statutory or other legal requirement that an indictment show the date of the empaneling of the grand jury which found it. Section 6704, Snyder’s Comp. Laws of OMa. That is properly shown by, and is preserved in, the journal of the court. And even if the expression then and there as used in this indictment should be held to refer to the date of November 9, 1908, and thus create a presumption that the grand jury which returned the indictment was empaneled on that date, that presumption is nevertheless completely overcome by the journal entries which show the dates of the empaneling and discharging of the two_ juries. The indictment does show unequivocally that it was found and returned at the November, 1908, term of the District Court of Carter County, Oklahoma, by a grand jury lawfully empaneled during that term, and nothing more is required by the law in that respect.

Moreover, if the journal of the court is not to be considered, as the defendant contends, but only the indictment is to be looked to in' this matter and is to control, and if the expression then and there, as used in the indictment, refers to the date of November 9, 1908, then there is nothing to show that the grand jury empaneled on that date had ever been discharged, and nothing to show that this indictment was not returned and lawfully returned by that grand jury; for in such case the indictment so states, and the defendant says that it is conclusive. And if one journal entry may be examined to impeach the indictment in this respect, why may not another be looked to to sustain it? Are we to examine the journal to confute the indictment, but required to close the book as soon as it appears that we shall find proper entries in chronological order explaining the whole matter and showing a legal and consistent procedure throughout? Must we, in connection with this indictment, look to the- order empaneling and discharging the first grand jury and close our eyes to the one empaneling this jury? We think not.

The third assignment of error is based upon the action of the court in overruling the motion to set aside the indictment, the defendant claiming that such action was erroneous for the reason that the grand jury which returned the indictment was not drawn and empaneled according to law, in that W. F. ’Whit-tington, the foreman, had previously been drawn and empaneled as a member of the petit jury at the same term of that court. This fact was set out in the motion. The assignment of error contains the further statement that Whittington was prejudiced against the defendant, and that his selection on said grand jury was therefore prejudicial; but the motion to set aside contains no such averment, nor is the statement supported by the testimony taken on the hearing of the motion. The only evidence relied upon to show prejudice against the defendant on the part of Whittington is the fact that he was a member of an association in Ardmore called a Law and Order League, which had for its purpose the aiding of the public officers in the maintenance' of law and order and the suppression of crime, and that Whit-tington had contributed one dollar toward bearing the incidental expenses of that organization.

We find nothing in the foregoing which shows that Whit-tington was prejudiced against the defendant; nor did the fact that he was a member of a law and order league disqualify him for grand jury service. Koch v. State, 32 Ohio St. 353; Com. v. Brown, 147 Mass. 585, 18 N. E. 587; 9 Am. St. Rep. 736, 1 L. R. A. 620; Peoples v. State (Fla.) 35 So. 223. But even, if he was prejudiced and was disqualified, that fact could not avail the defendant after the indictment had been returned. Lee v. State, 69 Ga. 705; Williams v. State, 69 Ga. 11; State v. Baughman, 111 Iowa, 71, 82 N. W. 452; Com. v. Woodward, 157 Mass. 516, 32 N. E. 939, 34 Am. St. Rep. 302; U. S. v. Belvin, 46 Fed. 381; State v. Rickey, 10 N. J. L. 83; Com. v. Clark, 2 Browne, 323; People v. Jewett, 3 Wend. 314; State v. Gillick, 7 Iowa, 287.

The record before us shows that Whittington had been previously drawn and empaneled as a petit juror at that same term of the court. It also shows that he was excused as a petit juror, but does not show how long he served, if he served at all, before he was excused. There is nothing in the record which shows how his name came to be drawn from the jury box twice. Whit-tington testified, that he had a son with the same initials as himself, but that his son was not there at that time. It may be that his son was a resident of Carter county when the jury list was made up, and that one name was intended for Whittington and the other for his son. Be that as it may, our statute settles all objections to the competency of Whittington as a grand juror so far as it affects this indictment. Section 6738, Sinyder’s Comp. Laws of Oklahoma, provides:

“When a grand juror has been fully examined as to his qualifications to sit, and has answered under oath that he is qualified, and has been received by the court and permitted to act, his incompetency shall not thereafter be shown as a ground of objection to any indictment returned by that grand jury.”

The journal entry of the order empaneling this grand jury shows that Whittington together with all of the other grand jurors was duly sworn to answer truthfully all questions touching his competency and qualifications to serve as a grand juror; that he was fully examined by the court as to his qualifications to sit; that the court found him competent and qualified, received him as a grand juror, and permitted him to act as such. That being true, after an indictment had been found against the defendant, no possible issue could be made upon Whitting-ton's competency or ineompetency which would invalidate that indictment. People v. Phelan, 123 Cal. 551, 56 Pac. 424; People v. Geiger, 49 Cal. 643; People v. Arnold, 15 Cal. 478; State v. Hamlin, 47 Conn. 95, 36 Am. Rep. 45; Bellair v. State (Ind.) 6 Blackf. 104; State v. Ingalls, 17 Iowa, 8.

It is true that the law contemplates that a juror’s name shall , be placed on the same list only one time, and that only one slip of paper bearing his name shah be placed in the jury box. It is also true that section 3993 of Snyder’s Comp. Laws Okla. provides that, “No elector’s name shall be placed in the box by the jury commissioners who has served upon a regular panel within the twelve months last past.” But there is nothing in the record to show that Whittington had served on a regular jury panel within the twelve months preceding the placing of his name in the jury box, nor that he had served the limit of two weeks during this particular term of court. Moreover we regard these matters as being not mandatory but merely directory. A violation of them, unless done with a corrupt or fraudulent intent to injure the defendant, would not vitiate the whole list of jurors selected or the whole panel drawn; though individual jurors so selected and drawn would be subject to challenge for cause^ if seasonably made, when drawn the second time after having already served within the statutory period.

Furthermore the record shows the presence of the defendant in open court during the empaneling of the grand jury, and the tender of the jury to him by the court for examination and challenge ; a privilege of which the defendant did not avail himself, though another prisoner, John Mulkey, on that occasion did challenge a juror named Warren. Section 6663, Snyder’s Comp. Laws of Oírla, provides as follows:

“Neither the state, nor a person held to answer a charge for a public offense, can take advantage of any objection to the panel or to an individual grand juror unless it be by challenge, and before the grand jury is sworn, except that after the grand jury is sworn, and before the indictment is found, the court may, in its discretion, upon a good -cause shown, receive and allow a challenge.”

If the defendant should succeed in having this indictment set aside on. account of an objection to the juror Whittington, then he would be taking advantage of an objection to this individual juror, not only after the grand jury was sworn, but also after the indictment had. been returned, a thing absolutely prohibited by the statute. This he cannot do. State v. Pierce, 90 Iowa, 506, 58 N. W. 891; State v. Gibbs, 39 Iowa, 318; State v. Hart, 29 Iowa, 268; Dixon v. State, 74 Miss. 271; State v. Welch, 33 Mo. 33: Stale v. Hofman, 71 N. J. L. 285, 58 Atl. 1012; Carter v. State (Tex.) 46 S. W. 236, 48 S. W. 504; Barber v. State (Tex.) 46 S. W. 233.

Also the motion to set aside the indictment does not state that Whittington’s alleged ineompetency was unktaown to the defendant at the time the jury was empaneled, nor was any evidence adduced on the hearing to that effect. As the fact that such incompetency was or was not known to the defendant was a fact peculiarly within the defendant’s own knowledge, then even in the absence of the above statute, it was incumbent on the defendant, since he was present at the empaneling of the jury, to aver and prove such want of knowledge on his part. In the absence of such averment and such proof, even if we had no such statute as the sections quoted above, the indictment would not he set aside. Musick v. People, 40 Ill. 268; State v. Howard, 10 Iowa, 101; Patrick v. State, 16 Neb. 330, 20 N. W. 121. Tn such, case, the presumption being in favor of the legality and regularity of the proceeding, the defendant would be presumed to have known the facts; and the law would deny him the right to sit silently by and fail and refuse to make his objection known until after the indictment was returned, and then attack it with a motion to quash. But under the two sections of the statutes already quoted the defendant’s knowledge or want of knowledge is wholly immaterial, and in so far as we have been able to ascertain, has been so held by every court which has been called upon to construe a statute of similar import. The court committed no error therefore in overruling the motion to set aside the indictment on this ground.

\ In his fourth, assignment of error the defendant. complains that the court erred iu refusing to set aside the indictment, because one J. T. Coleman, who was not a member of the grand jury and who, as the defendant says, was not the county attorney of Carter County, was present in the grand jury room while the grand jury were investigating the charge against the defendant.

From the evidence introduced it appears that Coleman was present during the taking of testimony by the grand jury in this case; that he was not present while the jury were deliberating or voting upon the matter of finding an indictment: that he ivas at that time deputy county attorney of that county, and that his appointment was a matter of record in the county clerk’s office in that county.

The defendant does not attack the legality of Coleman’s appointment; but contends first, that uncler the statute no officer except the county attorney himself may be present at the talcing of testimony before the grand jury, and that the deputy county attorney is excluded; and second, that Coleman was a member of the Law and Order League, prejudiced against the defendant, and intent upon his prosecution.

Section 6683, Snyder’s Comp. Laws of Okla., provides:

“The grand jury may at all reasonable times ask the advice of the court or of the district (county) attorney. The district (county) attorney may at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable before them and may interrogate witnesses before them whenever he thinks it necessary, but no- other person is permitted to be present during their sessions except the members and a witness actually under examination, and no person whomsoever must be permitted to be present during the expression of their opinions or the giving of their votes upon any matter before them.”

Section 1602 of Snyder’s Comp. Laws, however, makes it the specific duty of the county attorney to attend upon the grand jury for the purpose of examining witnesses in their presence; and the following section, 1603, provides in express terms that the county attorney may appoint a deputy or deputies to perform the duties devolving on such county attorney. Construing section 6683 in connection with sections 1602 and 1603, we hold that the words “district (county) attorney” include the lawfully appointed deputy or deputies of the county attorney, and that such deputy or deputies may pei-form the same duties before the grand jury that the county attorney himself may perform. Regent v. People, 96 Ill. App. 189; Shattuck v. State, 11 Ind. 473; State v. Fertig, 98 Iowa, 139, 67 N. W. 87; Franklin v. Com., 105 Ky. 237, 48 S. W. 986.

Furthermore our statute makes provision for setting aside an indictment on account of the presence of an unauthorized person before the grand jury only when such person was present when the jury were voting upon the question of returning an indictment. Section 6738, Snyder’s Comp. Laws Okla. And while we are not called upon to decide the point, and do not decide it, yet there are numerous respectable authorities holding that the presence of a stranger. or unauthorized person in the grand jury room only while testimony is being taken, and not while the jury are voting or deliberating, will not invalidate the indictment, unless it is shown that the accused was thereby' prejudiced in some substantial right. Bennett v. State, 62 Ark. 516, 36 S. W. 947; State v. Bates, 148 Ind. 610, 48 N. E. 2; State v. Bacon, 77 Miss. 366, 27 So. 563; State v. Justus, 11 Oreg. 178, 8 Pac. 337; Mason v. State (Tex.) 81 S. W. 718; State v. Brewster, 70 Vt. 341, 40 Atl. 1037, 42 L. R. A. 444; State v. Wood, 112 Iowa, 484, 84 N. W. 503; Wilson v. State, 41 Tex. Cr. 115, 51 S. W. 916.

As to the second objection to Coleman’s presence in the grand jury room, we have already held that membership in a law and order league did not disqualify the grand juror Whit-tington, and it would be peculiar if such membership disqualified a public prosecutor. We find no evidence’ of any personal animosity on the part of Coleman against the defendant; and if he was intent upon prosecuting the defendant, as contended, then his intentions were onty in harmony with his duty. No misconduct on the part of Coleman is alleged or shown, nor did the defendant aver or prove that his rights were prejudiced in the least by any act of Coleman’s. We sustain the lower court upon this assignment of error.

The fifth assignment of error is that the court erred in overruling the defendant’s motion to set aside the indictment because the grand jury was permitted to leave the jury room and go to a sanitarium, some three or four blocks away, to examine a witness.

The case-made shows .that the grand jury, under the instructions of the court, went to a sanitarium to take the testimony of one witness. The record does not show who the witness was, whether or not his testimony was in fact taken, why he could not attend before the grand jury, or to what case the testimony of the witness pertained. That act of the grand jury stands in the record as an isolated fact, unconnected with this case by even a modicum- of evidence either direct or circumstantial. There are no doubt occasions on which the grand jury, ex necessitate, may by permission and under proper instructions of the court, leave their jury room and go to some nearby place at the county seat for the purpose of taking the testimony of a witness whose condition is such as to preclude his appearance in the jury room. The location of the grand jury room is not fixed by law. That question calls for no consideration here, however, for the reason that such act of the grand jury is not shown to have had any connection with the investigation of the charge against this defendant, and the defendant is not shown to have been injured thereby.

The next contention is that the court erred in overruling the defendant’s demurrer to the indictment. It is urged that the indictment is insufficient first, because it does not allege that the killing was done without authority of law, though it alleges that it was ¡done unlawfully;' second, bedause 'ft does not allege that Luther Ford, the deceased, was a human being; and third, because the killing of the deceased is alleged to have been done in an attempt by the defendant to kill one William Ballew, and the indictment does not allege that the defendant made an assault upon William Ballew.

Murder is defined by our statutes to be the» killing of one humaia being by another, without authority of law, and with a premeditated design to effect the death of the person killed or of any other human being. An indictment for murder therefore, to be sufficient, must contain an allegation that the killing was done without authority of law. But the pleader in framing the indictment is not required to use the exact language used by the statute in defining the offense; while it is better and safer to do so, yet the use of any other language equivalent in effect and meaning is sufficient. Walcher v. Territory, 18 Okla. 528. We hold that the word unlawfully as used in this indictment is the full equivalent in effect and meaning of the phrase, without authority of law. If an act is done unlawfully, it cannot be said to have the authority and sanction of the law; on the contrary it is done not only without authority, but in direct violation, of law and is an unlawful act. What the law does not prohibit, however, is permitted, and is therefore not unlawful. So an unlawful act can be only a prohibited act, an act forbidden by law, an act done without authority of law.

As to the second proposition, if it was necessary to allege in the indictment that the deceased was a human being, then the indictment is defective indeed; for in such case and by the same reasoning it was also necessary to allege that the defendant and Ballew were human beings, because murder could have been committed in this case only by one human being killing another human being being in an unlawful attempt to kill a third human being. Inasmuch as the word murder, however, implies fundamentally the killing of one human being by another, and as the indictment alleges that the defendant did “kill and murder one Luther Ford/’ the law presumes all parties mentioned to have been human beings, and there was no necessity for alleging it in the indictment. People v. McNulty, 93 Cal. 427, 26 Pac. 597, 29 Pac. 61; Cremar v. People, 30 Col. 363, 70 Pac. 415; Baker v. State, 121 Ga. 592, 49 S. E. 782; Sutherland v. State, 121 Ga. 591, 49 S. E. 781; Kirkham v. People, 170 Ill. 9, 48 N. E. 465; Merrick v. State, 63 Ind. 327; State v. Stanley, 33 Iowa 526.

Nor do we find any merit in defendant’s third contention upon the insufficiency of the indictment; namely, that it was necessary to charge an assault by the defendant upon Ballcw. By the express terms of our statute the unlawful killing of a human being committed with a premeditated design to effect his death, or with a premeditated design to effect the death of any other person, is murder. Certainly this definition will cover a ease where one person unlawfully assaults another with a premeditated design to kill him, and in the affray kills a third person. But it is not limited in its application to that character of case alone. Suppose that A in the night time lies in wait for the purpose -of killing B as the latter passes by; C comes along, and A mistaking him in the darkness for B, shoots C and kills him, but with the premeditated design to kill B. Would not that be murder? And yet no assault was committed upon B; he may have been miles away. It is true that in such case an indictment charging the homicide to have been committed with a premeditated design to kill 0 would be good, and under the doctrine of implied malice would be sustained by proof of the actual facts. But if the prosecution knew the facts and alleged them, A’s actual and premeditated design to kill B, and his assault upon and slaying of C with such premeditated design to kill B, would any one say that such indictment was not good, and that proof of the facts thus alleged would not support a' conviction? Of course there can be no murder without an assault. But the firing of the fatal shot, the striking of the fatal blow, the administering of the poison, all constitute not only an assault but also a battery. Necessarily therefore an assault upon the deceased is charged in the very allegation of the infliction of the fatal wound. And an indictment which charges the shooting and killing of the deceased, and alleges that the same was done without authority of law and. with a premeditated design to kill another person, naming him, fulfills the requirements of the statute; and if those allegations are sustained by the proof, a conviction thereunder must stand. The indictment in this case charges the offense substantially in the language of the statute, and is sufficient.

The court gave the jury the following instruction.

“You are instructed that if you convict the defendant, you can only convict him on one count of the indictment, and it will be your duty to say by your verdict on which count you convict.” .

The defendant in his seventh assignement of error complains of this instruction, and says that the expression, “if you convict the defendant,” carries the inference that the court desired a conviction. But we are unable to perceive how such an inference could possibly be extorted from those words. There is no such requirement of law, however, as that stated in this instruction; for where a conviction is had upon an indictment containing more than one count, but each count charging the same offense in a different form, as does this indictment, the law does not require that the jury state in their verdict upon which count the conviction is had. In such case a general verdict of guilty or not guilty and, if guilty, stating the degree of the crime where it is distinguished into degrees, is all that is required. The rule is otherwise, however, where the same act constitutes two or more different offenses, and such different offenses are charged in separate counts of the same indictment. In the latter ease the verdict should state upon which count the defendant is convicted for the purpose of showing the crime of which he is convicted. But no injury results to the defendant where the court on an indictment charging the same offense in different counts, requires that the verdict state the count upon which the conviction is had; and the error, if any, is harmless.

The defendant makes the same complaint of the tenth instruction in which the court told the jury, “if you find the defendant guilty of murder, you will assess his punishment at, etc. * * *” It is hard to believe that this assignment is urged seriously. The use of the expression, “if you find the defendant guilty,” does not indicate in the slightest degree any belief, opinion or desire in the mind of the court one way or the other as to what the verdict of the jury should be.

> Lastly the defendant says that the court erred in failing to give the jury a clear, accurate and concise definition of premeditated design and of the term without authority of law.

The court in his seventh instruction defined premeditated design as follows:

“A design to effect death is premeditated within the meaning of the law if the intention to take life is deliberately formed in the mind before the act is done which results in death, no matter for how short a time. It may. be formed instantly before committing the act by which it is carried into execution.”

The defendant has pointed out no feature wherein this definition lacks clearness, accuracy or conciseness, and we hold it sufficient, especially in the absence of any request to the trial court that it be amplified.

The court did not in direct terms define to the jury the expression without authority of law as used in the definition.of murder, but in instructions of which the defendant does not complain the court defined both justifiable and excusable homicide, and submitted those issues to the jury. Every homicide committed without legal justification or legal excuse is committed without authority of law; the court properly stated to the jury what constituted legal excuse and legal justification, and the instructions as a whole convey a correct understanding to any intelligent mind of what is meant by the expression, “without authority of law.” Furthermore, the record shows no request on the part of the defendant for an instruction defining this term, no exception to the failure of the court to define it; and the matter is not mentioned in defendant’s motion for new trial. Even if error had been committed in that respect therefore, under the state of the record this court would not reverse on that ground.

This disposes of all of the defendant’s assignments of enor, and requires an affirmance of the judgment below.

There is one matter, however, to which we think attention should be called in an admonitory way, and that is the 17th instruction given by the court. Tt is as follows:

“You are instructed that it is the opinion of the court that there is no proof in the case justifying a conviction of the defendant of manslaughter in the second degree, that your verdict should be either guilty of murder, manslaughter in the first degree or not guilty; but notwithstanding this opinion of the court, you may if on your oaths you believe the defendant guilty of manslaughter in the second degree, convict him of that crime.”

We disapprove this instruction. If there was no evidence introduced on either side tending to show that the homicide was manslaughter in the second degree, if under the evidence adduced the court could say as a matter of law that the defendant was either guilty of murder or manslaughter in the first degree, or else was innocent, then he should not have submitted to the jury the question of manslaughter in the second degree at all. New v. Territory, 12 Okla. 172, 70 Pac. 198; Robinson v. Territory, 16 Okla. 241, 85 Pac. 451; Regnier v. Territory, 15 Okla. 652, 82 Pac. 509. On the other hand, if the evidence in any manner justified the submission to the jury of the defendant’s guilt or innocence of manslaughter in the second degree, then certainly it was error for the court to charge upon the weight of the evidence by informing the jury that in the opinion of the court the evidence did not warrant a conviction for that crime. In such ease a jury might thereby be influenced to convict a defendant of one of the higher degrees of homicide, when otherwise they would find him guilty only of manslaughter in the second degree. Another vice in this instruction is the fact that it does not require the jury to find the defendant’s guilt of the offense beyond a reasonable doubt to warrant a conviction.

'The giving of this instruction, however, was not excepted to; it was not mentioned in the motion for a new trial, and has not been assigned or urged as error here. None of the evidence taken in the ease was incorporated in the case-made except that introduced in support of the motion ,to set aside the indictment. So we know nothing about the issues made by the evidence. If in fact the evidence did not warrant the submission of manslaughter in the second degree to the jury, then the instruction was harmless; a',nd from the defendant’s acquiescence in the court’s action, we presume that to have been the case. As the record stands, the giving of that instruction is not reviewable here as a ground for reversal; but we have, thought it proper to express our opinion in regard to it to the end that future error may be avoided.

The judgment of the lower court will therefore be affirmed.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.