text:
    JOHN H. GRAY v. STATE.
    No. A-8689.
    Oct. 12, 1934.
    Rehearing Denied Dec. 7, 1934.
    (38 Pac. [2d] 967.)

      King & Crawford and J. W. Bolen, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of murder; was tried and convicted of manslaughter, and sentenced to serve a term of 16 years in the state penitentiary.

The testimony on behalf of the state shows the defendant lived in Pontotoc county, near Steedman, Okla.; that the deceased, Charley Long, was a share cropper with the defendant; on the 7th da yof July, 1933, the defendant with other parties went to the city of Ada, Okla,., and while there procured some whisky, ami on their way home bought a quart of whisky; the parties took one or more drinks of this whisky, and when they reached defendant’s home they had something like a pint left; Bill Hopkins and defendant, when they returned from Ada, sat down on the porch in front of the defendant’s house and drank some more of the whisky; shortly after the parties returned from Ada, the deceased, who had been plowing near the defendant’s house, quit plowing and came to the house to do the chores before night; wrhen he passed where the defendant and Bill Hopkins were sitting, they asked him to take a drink of whisky and he did so1 and passed on toward the bam; later he came back and got the milk bucket and was gone a short while and came back and set the bucket down. The trouble arose over some papers to be turned in to- the federal government with reference to ploAving up a cotton crop on the farm in which the defendant and deceased were interested.

As shoAvn by the proof the deceased claimed he asked the defendant to- sign the papers, and that the defendant did not sign them in the proper places and as many times as was intended they should be signed. Witness Hopkins states deceased told the defendant he asked him to sign the cotton papers in three places, and the defendant called the deceased a “God damned liar,” and deceased reached doAvn and picked up a rock, and says: “Don’t call me a God damn liar, I will knock your God damned brains out.” At this time the Avitness Hopkins states the defendant was sitting in a chair on the porch.

The deceased still held the rock in his hand, and told the defendant he would go in the house and get the God damned papers and burn them; deceased then walked into the middle room of the house, got the papers, and stepped off the porch into the yard; Avhen he had gotten about four or five feet off the porch, the defendant got up and walked around and entered the middle room of his house; at this time the deceased turned and started to face toward the east; Hopkins states he could not see the defendant at the time, but did see about six or eight inches of a gun barrel sticking out of the door; that deceased whirled around throwing his right side to the door, and about that time the gun fired. Witness thought the shot hit the deceased in the right side; the deceased threw up his hands and then went to sinking down; after which the defendant ■ got closer to the door and fired the second shot; the body of the deeeasfed then flattened out on the porch; his head went off the north end of the porch with his head and shoulders almost against the house. Witness at that time did not know where the wife of the defendant Gray was; the defendant came out without the gun and stepped into the yard; at the time deceased Charley Long was shot, the witness says the rock was in his hand; that the deceased did not at any time attempt to attack the defendant with the rock; witness stated he was within about eight feet of where the shooting took place. After the shooting defendant came out in the yard and asked the witness to come to him, taking the witness into the log room that stood south from the other room and a little bit east; witness then stated:

“I asked Mr. Gray what he did that for and he stated, ‘You don’t know all I know. I have been wanting to do this a long time.’ The defendant then said, ‘I am going to Charley’s house, you stay here until I get back, if you don’t, God damn you, I will kill you.’ I told him to shoot, I was going to Charley Brooks.”

Witness never saw the defendant from that time until the preliminary trial.

The testimony shows that Bill Hopkins was the only eyewitness to the trouble between the deceased and the defendant, unless defendant’s wife was in one of the rooms of the house where she could have seen what took place. She was not called as a witness; therefore the only eyewitness testifying was Bill Hopkins.

The state called the funeral director, Wyley Keith, who stated there were two wounds on the body of the deceased, one on the right side about the third rib, and the other on the back; either of the wounds would have been fatal. The wounds seemed to have been inflicted by a shot gun.

The state also called Dr. I. L. Cummings, who testified to the location of the wounds, and that either would be fatal. Further testimony was offered by the state as to the location of the house, porch and barn.

The defendant, testifying in his own behalf, stated he came to Oklahoma from North Arkansas; admitted the killing of Charley Long at his home in Pontotoc county on the 7th day of July, 1933. The defendant further stated the deceased was living at his home and making a share crop. He also gave some testimony as to what he heard about the deceased being quarrelsome and having had trouble with other parties. With reference to the killing he stated when he and Bill Hopkins returned from Ada and sat down on the porch of his home, they had about a pint of whisky:

“Charley was plowing over east about 150 yards, maybe 200; in ten or fifteen minutes Charley came along going south; Bill Hopkins asked him, ‘Don’t you want a drink of whisky?’ and he said, ‘I believe I do.’ He took a drink and it looked like he drank about half of what was in the jar, something like a half pint, and went on I suppose to put up his mules; he came back and asked me, ‘Why don’t you sign them papers?’ And I said, ‘Charley, I did sign them papers, where that little dash was on the paper and got Francis Johnson to witness it.’ He said, ‘You are a damned liar, you didn’t. I will get the damned papers and burn them up,’ and he went in the house. I did not see him get the papers but he came out with some in his hand and went to milk the cows; when he returned he set the milk bucket down by the well and stepped back and says: ‘God damn you, you know you did not sign them papers like I told you.’ I said I signed them papers like he told me, and he said, ‘You are a God damn liar,’ and jerked up a rock and says, ‘I will knock your God damn brains out.’
“When, he did that he started around the well; I got my gun and when he was coming on the porch with the rock I was coming toward the door with the gun, and I was, the best I remember, about seven or eight feet of the door Avhen he was just outside the door; I says, ‘Charley, if you don’t stop, I will kill you,’ and he did not stop and I shot two shots just as fast as I could fire them; that is all I knoAv about it; he had a big rock in his hand; the rock looked bigger than this rock, but it looked something like that size; I thought he was going to kill me; the gun Avas in the room in a rack on the wall just above Charley’s trunk. Charley had left his trunk in the room; he slept there during the winter. Me and my wife had not had any trouble about these papers; I wanted to. sign the papers, I needed the money; my wife had read them over to me twice the night before; I signed them in one place and had Francis Johnson to witness the signature; my eyes got so I could not see to read; I have been afflicted for about sixteen years with neuritis; Charley Long is about forty-two years old, and weighs about 160 to 165 pounds; I weigh 145 to 150. He was very quick and strong physically.
“After I shot the deceased, I said to Bill Hopkins, ‘You take that chair and don’t let anybody move him until the officers get here’; I did not make the statement to Hopkins that he did not know all I kneAA, that I had been wanting to kill Charley Long for a long time; I have never had any reason to want to kill him; we had had no trouble; I did not tell Bill Hopkins if he did not stay there I would kill him; I came on to Ada that night. I think I told Mr. Hubert Bryson that he did not need to know how the trouble occurred.”

On cross-examination many questions Avere propounded to the defendant with reference to trouble he might have had in Arkansas, and other places, all of Avhich was immaterial to the issue being tried, and should not have been asked, they were on immaterial points, and counsel for the state, even though he was cross-examining the defendant, went far afield in asking improper, irrelevant, and immaterial questions concerning the past life of the defendant.

The defendant, to reverse the judgment, has: assigned nine, errors alleged to' have been committed by the trial court. In his brief the first error argued and urged by the defendant is:

“Because the court erred in giving the following instructions to the jury: Numbers 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, and 39, to which the plaintiff in error duly excepted.”

Number 16 of the state’s instructions complained of by the plaintiff in error, and argued in his brief, is as follows :

“While a person need not be in actual, imminent peril of his life being taken, or of great ‘personal injury being done him, yet, if the jury believed that the defendant had reasonable ground to believe and did believe from the facts as they reasonably appeared to him at the time that the danger was so urgent and pressing, or apparently so urgent and pressing, that the defendant could not avoid the necessity of killing in safety to himself, to protect himself from death or great personal injury, then- if under such circumstances the killing took place, it was justifiable.”

The defendant insists that instruction 16 shifts the burden of proof from the state to the plaintiff in error, arguing at length that the court in this instruction tells the jury that if the defendant had reasonable grounds to believe and did believe that danger was urgent and pressing, he had the right to act. It is urged by the defendant that this instruction was misleading and prejudicial to his rights for the reason that under that part of instruction 16 complained of by the defendant the jury could have a reasonable doubt, but it would avail him nothing.

An instruction in the exact language of instruction 16, complained of by the defendant in this case, was approved by this court in the case of Brantley v. State, 15 Okla. Cr. 6, ■ 175 Pac. 51. The language of this instruction is one that has been approved by this court and almost universally followed by the trial courts in instructing upon the law of self-defense. We do not think the instruction tends to place any undue burden upon the defendant, and is not erroneous. It is a clear statement of the law that has been followed by this court in many opinions.

It is next urged by the defendant that the court erred in its instruction No. 27, which instruction is as follows:

“Some evidence has been introduced in this case tending to show that the general reputation of the defendant in the community in which he lived was that of a quiet, peaceable citizen, and the court instructs you that if you find and believe from the evidence that prior to the alleged offense for which the defendant is now on trial his general reputation in the community in which he lived was that of a peaceable citizen, then you should consider that fact and give it such weight as you deem proper in determining the question of the defendant’s guilt or innocence of the charge against him, and if, upon a careful consideration of all the evidence in the case, including that bearing upon the good reputation of the defendant, you nevertheless believe beyond a reasonable doubt that the defendant is guilty of either of. the offenses above mentioned, then his previous good reputation Avill constitute no justification or defense.”

The defendant in his brief argues that instruction 27 clearly puts the burden on the defendant to prove his good reputation when as a matter of law it is presumed, and refers to his argument in his brief as' to> instruction Nó. 16, being an improper instruction. Upon an examination of the record we find, that the defendant put his reputation in issue by calling witnesses to testify as to his previous good character. It is true, as argued by the defendant, that his reputation was presumed to be good until put in issue, and when put in issue the state would then have the right to offer testimony by calling witnesses for the purpose of controverting the question of the good reputation of the defendant for being a peaceable, law-abiding citizen. Similar instructions to the one given by the court in this case, of which the defendant complains, have been substantially approved by the territorial Supreme Court in the case of Wells v. Territory, 14 Okla. 438, 78 Pac. 124, and Wilson v. State, 3 Okla. Cr. 714, 109 Pac. 289.

In Carney v. State, 29 Okla. Cr. 83, 232 Pac. 451, 452, in the body of the opinion this court said:

“Evidence of previous good character of the defendant is admissible in his behalf upon the theory that, being of good character, it is improbable that he would have committed the offense with which he is charged; and it is for the jury to weigh and consider and give such effect as they think it entitled, in considering and determining whether the defendant is guilty of the offense with which he is charged. By numerous decisions of this court it is held that previous good character of a defendant is a fact that he is entitled to have submitted to' the jury precisely as other circumstances favorable to him. Davidson v. State, 15 Okla. Cr. 85, 175 Pac. 120; Kirby v. State, 25 Okla. Cr. 330, 220 Pac. 74, 33 A. L. R. 1212.”

In Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594, 598, this court said:

“If the jury believe from the evidence that prior to the occasion in question the defendant’s reputation in the community in which he lived for truth and veracity was good, then the jury may consider that fact in determining the question of the defendant’s guilt or innocence of this charge. But, if, upon a consideration of all the evidence in the case, you believe beyond a reasonable doubt that the defendant is guilty as charged, then his previous good reputation would neither justify nor excuse the offense.”

We hold that instruction 27, complained of by the defendant, is supported by the decisions not only of the territorial Supreme Court but also' by this court. The court did not err in giving! the instruction.

It is next contended that the court erred in giving instruction No. 31, and in support of his contention that instruction No. 31 is erroneous he cites the case of Patzwald v. U. S., 7 Okla. 232, 51 Pac. 158. The defendant contends that the court, in Patzwald v. IT. S., supra, draws a distinction between an abiding faith and moral certainty, and that instruction 31 complained of is insufficient, for the reason that the court does not use the words, moral certainty.

Ballentine, in his Law Dictionary, page 1, defines “abiding faith” as “a belief or confidence in the guilt of one accused of crime which remains or continues in the minds of the jury.”

Ballentine also, at page 831, defines “moral certainty,” as follows:

“The phrase is one, the use of which is not likely to assist the jury in charging upon the question of reasonable doubt. It is an artificial form, the words having, no precise and definite meaning. As explained in the Century Dictionary, it signifies a probability sufficiently strong to justify action upon it. In Webster’s International, the first definition given is, ‘a very high degree of probability, although not demonstrable, as a certainty.’ It has also been used as indicating a conclusion of the mind established beyond a reasonable doubt.”

Ballentine further, at page 1033, states:

“Proof to a moral certainty, the same as proof beyond a reasonable doubt, is a phrase synonymous and equivalent to proof to a moral certainty, each signifying such proof as satisfies the judgment and conscience of the jury.”

It will he seen from the quotations from Ballentine’s Law Dictionary that the argument presented by the defendant as to instruction 34 complained of is without merit, as it is a phrase used as a synonym of the expression beyond a reasonable doubt. An instruction similar to the one here given was approved by the Supreme Court of the United States, in the case of Hopt v. Utah, 120 U. S. 430, 7 S. Ct. 614, 30 L. Ed. 708, in which case the court discussed at length the question raised in this case and stated:

“The difficulty with this instruction is that the words ‘to a reasonable and moral certainty’ add nothing to the words ‘beyond a reasonable doubt;’ one may require explanation as much as the other.”

In Commonwealth v. Costley, 118 Mass. 1, the court held that the words of a reasonable and moral certainty add nothing to the words beyond a reasonable doubt:

“As applied to a judicial trial for crime, the two phrases are synonymous and equivalent; each has been used by eminent judges to explain the other; and each signifies such proof as satisfies the judgment and consciences of the jury, * * * that the crime charged had been committed by the defendant, and so satisfies them as to leave no other reasonable conclusion possible.”

It was there also said that from the instruction to the jury they should also> be satisfied of the guilt of the defendant beyond a reasonable doubt.

In Thompson v. State, 16 Okla. Cr. 716, 184 Pac. 467, in discussing the question of the trial court defining reasonable doubt, this court said:

“The trial court also, over the objection and exception of defendant’s counsel, gave an instruction defining the term ‘reasonable doubt.’ This court has repeatedly admonished trial courts against giving any instruction attempting to define the term ‘reasonable doubt.’ Grandsen v. State, 12 Okla. Cr. 417, 158 Pac. 157; Nelson v. State, 5 Okla. Cr. 369, 114 Pac. 1124.”

In this case the court instructed the jury that the state must prove each and every material allegation in the information, and that the jury must be convinced beyond a reasonable doubt of the guilt of the defendant before it should return a verdict of guilty. When this instruction was given by the court to the jury, even though the defendant requested the court to define reasonable doubt, we hold that it was not necessary for the court to define what is meant by reasonable doubt.

The instruction is not prejudicially erroneous under the facts in the record. The jury could not have been misled by the language of the court in attempting to definé “reasonable doubt,” as the guilt or innocence was a simple issue under the facts.

It is further contended by the defendant that the trial court erred in overruling his motion for a new trial on the ground of newly discovered evidence. An examination of the defendant’s motion for a new trial discloses that the only statement made in his motion for a new trial is that the evidence he desired to produce by the witnesses named in the motion for a new trial could not have been, by the exercise of due diligence, discovered in time for his trial. An examination of the affidavits attached to the motion for a new trial shows that they all relate to the question of the impeachment of the witness Bill Hopkins. The motion fails to show any diligence on the part of the defendant, or that any effort was made to procure the attendance of the witnesses named by whom the defendant claims he can show the reputation of Bill Hopkins for truth, and veracity in Washita county was bad. Many of the witnesses reside in Washita county, and the record discloses that if the defendant could show by these witnesses who resided in Washita county that Hopkins’ reputation was bad when he resided in Washita county, that the ecidence would be cumulative, as a number of witnesses from Washita county testified at the trial that the reputation of Bill Hopkins when he lived in Washita county for truth and veracity was bad, which evidence was not rebutted by the state.

The record discloses that at the time of this killing there was only the defendant, Bill Hopkins, and the wife of the defendant at the home; as to whether or not the wife saw the shooting the record is silent, so the only eyewitnesses testifying were Bill Hopkins for the state, and the defendant in his own behalf. The state could not call the wife of the defendant as a witness.

This court, in Ball v. State, 47 Okla. Cr. 145, 286 Pac. 808, in the third paragraph of the syllabus said:

“In a motion for a new trial upon the ground of newly discovered evidence, the diligence used in procuring testimony must be stated fully. It is not enough to merely allege that the defendant has used due diligence, hut the facts constituting such diligence must be stated fully, so as to enable the court to determine whether or not proper diligence has been exercised.”

In order to entitle the defendant to a new trial on the ground of newly discovered evidence, section 3120, O. S. 1931, must be complied with. The defendant did not make a sufficient showing to justify this court in holding that the trial court abused its discretion in overruling his motion for a new trial. It has been repeatedly held by this court that a motion for a new trial is addressed to the sound discretion of the trial court, and its actions will not be disturbed unless a manifest abuse of discretion appears. Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026.

The motion for a new trial is fatally defective because it does not state fully the circumstances to show that such evidence was newly discovered and could not have been discovered earlier by the exercise of due diligence. The defendant is required to set out in his motion facts shoAving that he used due diligence to procure the testimony. Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311; Devore v. State, 33 Okla. Cr. 403, 243 Pac. 999; Donahue v. State, 38 Okla. Cr. 87, 259 Pac. 179.

Upon the shoAving made by the defendant the court did not err in overruling his motion for a new trial.

Considering the instructions together, they correctly stated the law applicable to' the facts. The defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal.

This is a case where the facts are clearly disputed. The evidence given by the defendant is contradicted by the only eyewitness, Bill Hopkins. The record shows the wife of the defendant was at the house at the time of the killing but for some reason was not called as a witness by the defendant. The record shows the defendant is a man of 75 years of age. If his testimony was to' be believed, when he fired the shots he believed he was in danger of receiving great bodily harm or losing his life at the hands of the deceased. If the testimony of the witness Hopkins is to be believed, the defendant shot the deceased without any justification. After considering the age of the defendant, the testimony of the state, which shows that the deceased was going toward the door of the room in which the defendant was, with a rock in his hand, and circumstances surrounding the trouble, we believe the punishment imposed is excessive and should be modified from 16 years to 10 years, and as so modified the judgment is affirmed.

EDWABDS, P. J.. and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    TOM BRINKLEY v. STATE.
    No. A-8719.
    Oct. 12, 1934.
    (36 Pac. [2d] 954.)
    B. N. Linville, for plaintiff in error.
    J. Berry King, Atty. Gen.; and Smith C. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county of the offense of petit larceny, and his punishment fixed by the jury at a fine of $82.

It appears from the record that only 22 jurors of the regular panel drawn for that term of the county court appeared at the opening of the court. The trial court, deeming this number of jurors insufficient for the needs of the term, appointed one Willis Cooke, a member of the Bar of Custer county but without criminal cases pending in the court, to serve a special venire and bring seven additional jurors from the body of the county; that Cooke duly performed this duty and that the seven additional men so summoned appeared, their names were written on the jury slips and placed in the jury box; defendant filed his motion to quash the panel and made timely objection to these proceedings ; that as these initial names were drawn from the jury box counsel peremptorily challenged them and, after exhausting all of his challenges, defendant was compelled to go to trial before a jury of four of the regular panel and two of the special venire.

Section 3517, C. O. S. 1921, sets forth the procedure in drawing juries for the district court.

Section 3519, C. O. S. 1921, sets forth the procedure in drawing juries for the county court.

.Section 3518, C. O. S. 1921, provides:

“At any time during the term of any court, after the petit jury has been drawn and summoned in the manner herein provided for, when, for the trial of any cause, civil or criminal, the regular panel of jurors shall appear to be insufficient, the jury may be completed from talesmen, or the court may direct that an open venire be issued to the sheriff or other suitable person, for such number of jurors as may be deemed necessary, to be selected from the body of the county, or from such portion of the county as the court may order: Provided, that no person shall serve as a talesman oftener than once a year.”

In Allen v. State, 16 Okla. Cr. 136, 180 Pac. 564, this court said:

“Under the statute (sections 3692 and 3693, Revised Laws 1910), it is within the discretion of the trial court to order an additional drawing of names from the jury-box, or to direct that an open venire issue to the sheriff for such number of jurors as may be deemed necessary to be selected from the body of the county.”

Defendant makes no contention that, the jurors were prejudiced against him, nor that he did not have a fair and impartial trial before them, but objects to the procedure in placing- the additional names in the jury box.

Under these authorities the county court had power to issue a special venire, and, if otherwise qualified, such persons could legally serve as jurors.

It is next contended the court erred in the giving of certain instructions.

While some of the instructions are not as full and well worded as they might have been, yet when they are all considered together they fairly state the law of the case.

Other errors are complained of, but they are not of sufficient importance to require separate discussion.

The guilt of the defendant being cleanly established by the evidence of the state and no fundamental error appearing, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    E. R. CLEVELAND v. STATE.
    No. A-8792.
    Oct. 12, 1934.
    (36 Pac. [2d] 954.)

      Joe Adwon, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted of illegal possession of intoxicating liquor and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record in this case was filed in this court August 16, 1934; no brief in support of the appeal has been filed.

An examination discloses no' fundamental error. The evidence is sufficient to support the verdict of the jury.

The case is affirmed.


author: PER. CURIAM.

text:
    JACK MINTON v. STATE.
    No. A-8763.
    Oct. 12, 1934.
    (36 Pac. [2d] 954.)
    J. W. Burrow, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER. CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted of being intoxicated in a public place and was sentenced to pay a fine of $10 and costs.

The case was tried without a jury.

The record was filed in this court July 5, 1934. No briefs in support of the appeal have been filed.

The record discloses no fundamental error. The evidence fully supports the verdict.

The case is affirmed.


text:
    HENRY ESTES v. STATE.
    No. A-8730.
    Oct. 12, 1934.
    (36 Pac. [2d] 952.)
    Frank Nesbitt and E. C. Fitzgerald, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Henry Estes was convicted in the district court of Ottawa county of the crime of manslaughter in the first degree on an information charging, him with the murder of one Delmar Fugate, alleged to have been committed on: the 25th day of May, 1933, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of five years.

It was the theory of the state that defendant was angered at deceased because he had betrayed defendant’s daughter and refused to marry her; that defendant armed himself and went to the home of deceased for the purpose of compelling him to marry the wronged daughter, or killing him; that, on arriving at deceased’s home, the daughter went and got deceased and brought him to the car where defendant was waiting for him; that, when defendant demanded to know if deceased intended to marry the girl, and he said he did not, defendant immediately fired the fatal shot.

It was the theory of defendant that deceased not only wronged the daughter, but had threatened the life of defendant; that defendant went to deceased’s home on his invitation for the purpose of trying to make a peaceable settlement; that, when deceased approached defendant’s car, he was armed and attempting to draw his pistol; and that defendant shot him in self-defense.

The jury heard the testimony for the state and for the defendant, visited the scene of the homicide, considered all of the exhibits introduced in evidence in connection with all of the testimony of the witnesses, and saw fit to believe the state’s witnesses and to disregard the self-defense pleas of the defendant, which they had a right to do.

The evidence of the state supports its charge and theory, while the evidence of the defendant and his witnesses supports his theory. Defendant’s argument in his brief goes rather to the credibility of the witnesses and the weight of the evidence than to its sufficiency.

There being a sharp conflict in the evidence, this was for the jury. This court never reverses a case for insufficiency of the evidence, where there is competent evidence in the record supporting the judgment of conviction. Ostendorf v. State, 8 Okla. Cr. 362, 128 Pac. 143; Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683; Johnson v. State, 22 Okla. Cr. 332, 211 Pac. 425; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Keesee v. State, 46 Okla. Cr. 405, 287 Pac. 813; Wininger v. State, 55 Okla. Cr. 78, 24 Pac. (2d) 661.

It is next contended the trial court erred in instructing the jury on manslaughter in the .first degree, the particular contention being that, if the defendant was guilty of anything, it was of murder, and that he was entitled under the evidence to' an acquittal or a conviction upon that charge alone.

Section 2710, C. O. S. 1921, provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

This question is controlled by repeated decisions of this court, the leading case being that of Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526, wherein the court held:

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

Other authorities to the same effect are: Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622; Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042; Atchison v. State, 3 Okla. Cr. 295, 105 Pac. 387; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040; Steward v. State, 9 Okla. Cr. 327, 131 Pac. 725; Bobinson v. State, 15 Okla. Cr. 456, 177 Pac. 925.

, This court has also held that, where the evidence touching- on motive, aggression, and justifiable acts of self-defense on the part of both parties was conflicting, this justified an instruction on manslaughter in the first degree. Irby v. State, supra; Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879.

The defendant relies principally upon the case of Leseney v. State, 13 Okla. Cr. 247, 163 Pac. 956, where this court held that the giving of such an instruction where the evidence only tended to prove murder was reversible error.

In Irby v. State, supra; Harper v. State, supra; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519; Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742; Willis v. State, 25 Okla Cr. 259, 220 Pac. 72; Stanley v. State, 28 Okla. Cr. 135, 229 Pac. 657; and Nowabbi v. State, 36 Okla. Cr. 101, 252 Pac. 442, this court refused to follow the rule laid down in the case of Leseney v. State, supra.

From a full consideration of all the evidence, we are convinced that the jury would have been fully justified in convicting defendant of murder. No doubt the jury took into consideration the betrayal of defendant’s daughter by deceased, and sympathized with him, as most juries do under like circumstances, but could not bring themselves to excuse him entirely from punishment, and therefore found him guilty only of manslaughter in the first degree. However, upon the record our duty is performed by affirmance of the judgment.

Under this assignment, defendant complains of the insufficiency of the instruction on manslaughter in the first degree.

The court in instruction No. 9 merely stated the law as contained in section 1740, C. O. S. 1921. The instructions as a whole state the law and are as favorable to the defendant as the evidence warranted.

Finally, it is contended the county attorney made certain prejudicial and improper remarks in his argument to the jury.

The record does not contain the argument made by defendant’s counsel, and only a portion of the closing argument of the county attorney. Counsel for defendant repeatedly interrupted the county attorney and objected to certain remarks made by him. In most instances the ruling of the trial court was favorable to defendant. In such instances there is no adverse ruling on which he may be heard to complain in this court. In other instances, where the ruling was adverse to the contention of defendant’s counsel, no exception was taken to' the ruling of the trial court. In such instances he cannot be heard to complain of something in this court that he does not except to in the trial court.

The defendant was in the wrong in carrying a deadly weapon to the scene of the killing. The jury evidently did not believe his story that he was engaged on a mission of peace and at the invitation of deceased. Evidently the jury thought there was sufficient provocation and that the mental state of defendant was such as to reduce the degree of the killing from murder to‘ manslaughter in the first degree.

Finding no reversible error, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: EDWARDS, P. J.

text:
    CHARLES W. HOEL v. STATE.
    No. A-8757.
    Oct. 12, 1934.
    (36 Pac. [2d] 951.).
    Moman Pruiett and Chas. Moss, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of robbery with firearms, and was sentenced to serve 30 years in the penitentiary.

The record discloses that defendant, acting with two other persons, robbed a business concern of $624. That one Wallace, a participant in the crime, has since been killed while resisting arrest; that the other participant, A. L. Defer, is now a fugitive.

The record was filed in this court June 19, 1934; no brief in support of the appeal has been filed.

The identification was positive. No fundamental error appears. The evidence fully supports the verdict.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JACK HICKS v. STATE.

      No. A-8775.
    Oct. 12, 1934.
    (36 Pac. [2d] 951.)
    Merritt & Reed, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted of a second and subsequent violation of the prohibitory liquor law, and was sentenced to pay a fine of $50 and to serve one year and one day in the penitentiary.

The record was filed in this court July 27, 1934; no brief in support of the appeal has been filed.

An examination discloses no fundamental error. The evidence is sufficient to support the verdict.

The case is affirmed.


author: DAVENPORT, J.

text:
    Ex parte LOYD MUSE et al.
    No. A-8818.
    Oct. 19, 1934.
    (37 Pac. [2d] 317.)

      Morrill & Snodgrass, for petitioners.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

This is an original application for writ of habeas corpus of Loyd Muse and Leon Tetter, who were tried in the district court of Jackson county, Okla., on the 29th day of September, 1934, on an information charging them with burglary in the second degree. The charging part of the information, omitting the caption, is as follows:

“That at and within said county and state, on about the 13th day of August, 1934, and anterior to the filing of this information Loyd Muse and Leon Tetter then and there being, did then and there, willfully, unlawfully, burglariously and feloniously, break into and enter by opening a door a certain building of one Tom McCormack, said building being then and there a two-story frame building and being located three miles west and four miles south of Altus, Jackson county, Oklahoma, and being then and there a place where personal property was at said time kept, with the unlawful, felonious and burglarious intent on the part of the said Leon Tetter and Loyd Muse to stealthily and feloniously take, steal and carry away, without the knowledge or consent and against the will of the said Tom McCormack, two saddles and two- bridles, the personal property of and in the possession of the said Tom McCormack and of the value of $75.00 and to deprive the said Tom McCormack of said property and to convert the same to the use and benefit of them, the said Loyd Muse and Leon Tetter, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

The trial resulted in the jury returning the following verdict, omitting the caption:

“We, the jury empaneled and sworn to try the issues in the above entitled cause, do upon our oaths find the defendants, Loyd Muse and Leon Tetter guilty of grand larceny, and assess their punishment by confinement in the state prison for a term of one year.
“[Signed] J. W. Chism, Foreman.”

On the 29th day of September, 1934, the petitioners filed in said court their motion in arrest of judgment, wherein they allege that said judgment was a nullity, wherein they were convicted of an entirely separate and distinct offense from the one charged in the information, which motion was overruled, exceptions saved, and a judgment was entered by the trial court in accordance with the said verdict, adjudging said defendants guilty of the crime of grand larceny, and ordering them to be imprisoned in the State Reformatory, at Granite, Okla., for a period of one year.

Hon. D. R. Rutherford, county attorney of Jackson county, Okla,, and Morrill & Snodgrass, attorneys for petitioners, have stipulated as to the facts in the trial court; the said stipulation of facts, after omitting the caption and number of the case, being in words and figures as follows :

“It is hereby stipulated and agreed by and between the defendants and the state that the facts herein are as follows:
“That on the 8th day of September, 1934, the petitioners were charged in the district court of Jackson county, Oklahoma, by information, with the crime of burglary, as shown by the copy of the information attached to petitioner’s petition; that thereafter said cause on the 29th day of September, 1934, was tried in said court on said information; that thereafter, on the 29th day of September, 1934, the court instructed the jury that they might find the defendant guilty of either burglary or grand larceny under said information, and that on the 29th day of .September, 1934, the jury in said cause found the defendants guilty of grand larceny and assessed their punishment at confinement in the state prison for a term of one year; That thereafter the defendants filed their motion in arrest of judgment, which was by the court, overruled, and said defendants, sentenced, in accordance with said verdict to serve a term of one year in the state prison for the crime of grand larceny.
“That the sheriff of Jackson county, Oklahoma, holds and imprisons the petitioners, solely and only under said judgment for the purpose of delivering them to the warden of the state prison, there to satisfy said judgment.
“Dated this 5th day of October, 1934.”

Petitioners in their brief urge that the judgment of confinement is void for want of jurisdiction of the trial court to render the judgment, and insist that the judgment of the court must in all cases be based upon the verdict of the jury, and the verdict of the jury must be responsive to the issues joined in the indictment or information; otherwise petitioners urge the court is without jurisdiction to render judgment thereon.

It is further contended by petitioners that the crime of grand larceny is a separate and distinct crime from that of burglary and is not .an element of that offense, consequently not an included offense where the information charges the crime of burglary in the second degree.

The prosecution is based on section 1931, O. S. 1931; the material part of the section being as follows:

“Every person who breaks and enters in the day time or in the night time * * * any building or any part of any building, booth, tent, railroad car, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.”

The petitioners, in presenting their petition, argue at length that under the statute on which the information is based grand larceny is not an included offense on a charge of second degree burglary, and they insist that by reference to the statute upon which this prosecution is based it will be shown that burglary may be committed without committing larceny.

The only question to be considered in this case is the question: Is grand larceny an included offense under our statute defining burglary in the second degree? Section 20, art. 2, of the Constitution provides that the accused shall be informed of the nature and cause of the action against him.

Section 2883, O. S. 1931, in part, provides:

“The indictment or information must contain * * * a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a. person of common understanding to know what was intended.”

Section 2884, O. S. 1931, provides that the indictment or information must be direct and certain as it regards the party charged, the offense charged, and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense.

Section 2886, O. S. 1931, provides the indictment or information must charge but one offense, but where the , same acts may constitute different offenses, or the proof may be uncertain as to which of the two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information.

Petitioners rely on Ex parte Harris, 8 Okla. Cr. 397, 128 Pac. 156, to' sustain their contention that the court is without jurisdiction to sentence them for grand larceny for the reason that grand larceny is not an included offense in the charge of burglary in the second degree. The Attorney General copies in full section 3097, O. S. 1931, which reads as follows:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

It is not disputed by the petitioners that the section of the statute quoted by the Attorney General is the correct. law, but they insist that the facts in the case show that the section quoted by the Attorney General is not applicable to the facts in this case. The Attorney General in his brief argues that the fact that the court erroneously-construed the law and erroneously instructed the jury did not cause the court to lose jurisdiction of the particular proceeding, but at most its action in instructing the jury was an error that is reviewable on appeal, and that habeas corpus is not the proper proceeding, citing In re Wilkins, 7 Okla. Cr. 422, 115 Pac. 1118, in which the court held:

“The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions : Had the court which rendered the judgment jurisdiction of the subject-matter and of the person convicted? And did the court in the course of the proceedings which resulted in the judgment lose jurisdiction to render a valid judgment and sentence?”

The rule now supported by abundant authorities and clear reasoning is that the court must not only have jurisdiction over the person and subject-matter but authority to render the particular judgment. The want of jurisdiction to render a particular judgment may arise from the constitutional prohibition against the infliction of certain punishment or from punishment for an offense not charged in the indictment or information.

In the case of People v. Curtis, 76 Cal. 57, 17 Pac. 941, the California Supreme Court held that larceny is not an included offense in the crime of burglary.

In Ex parte Harris, 8 Okla. Cr. 397, 128 Pac. 156, in the third paragraph of the syllabus, this court held:

“The judgment of the court must in all cases be based upon the verdict of the jury, and the verdict of the jury must be responsive to the issue joined by the indictment or information and the plea of the person on trial thereto, otherwise the court is without jurisdiction to render judgment thereon.”

The petitioners were placed on trial on a charge of burglary in the second degree, and the jury found them guilty of grand larceny. Grand larceny not being an included offense in the charge of burglary in the second degree, the court was without jurisdiction to sentence them to the penitentiary on a conviction of grand larceny.

The judgment must be based on the verdict of the jury, and the verdict of the jury must be responsive to the issues joined. The verdict in this case has not been set aside. The petitioners having been in jeopardy, they cannot again be tried on this information. The judgment rendered by the trial court is void, and the persons accused are entitled to be discharged on a writ of habeas corpus.

Let the writ issue and the petitioners be discharged.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    STATE v. HARMON (CHIC) STONE.
    No. A-8776.
    Oct. 19, 1934.
    (37 Pac. [2d] 320.)

      Sam Y. Colby, Co. Atty., for plaintiff in error.
    Don Welch,, for defendant in error.
   EDWARDS, P. J.

Defendant was charged in the district court of Marshall county of assault with intent to rape. On the 16th of April he entered a plea of guilty and was sentenced to serve a term of two' years in the state penitentiary. On April IT he filed motion to set aside the judgment and sentence and prayed to be allowed to withdraw his plea of guilty and to enter a plea of not guilty, assigning as a reason that he was not guilty; that he entered his plea without having the advice of counsel or having advised with his friends. Action was deferred to May 11th, when the motion was sustained, the judgment and sentence vacated and set aside, and defendant permitted' to withdraw his plea of guilty and to enter a plea of not guilty. From this order the state has attempted to appeal.

The state contends that the trial court was without jurisdiction to entertain the motion to set aside the judgment and sentence, citing Ex parte Strader, 37 Okla. Cr. 285, 257 Pac. 1112; Tracy v. State, 24 Okla. Cr. 144, 216 Pac. 941.

This court is without jurisdiction to review this appeal for two reasons: First. The right of the state to appeal in a criminal case is limited by section 3191, Okla, Stat. 1931, which is:

“Appeals to the Criminal Court of Appeals may be taken by the state in the following cases and no other:
“First. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“Second. Upon an order of the court arresting the judgment.
“Third. Upon a question reserved by the state.”

This statute expressly restricts the state’s right of appeal to the three classes of questions therein enumerated. The question here sought to be reviewed is not within the terms of the statute. The statute cannot be enlarged by construction. Defendant’s motion is in effect a motion for a new trial; the judgment of the trial court is in effect a judgment granting a new trial. In State v. Weathers, 13 Okla. Cr. 92, 162 Pac. 239, wherein a defendant was convicted in a jury trial and his motion for a new trial was sustained by the trial court and the state attempted to appeal, it was held the state had no right to appeal from order granting a new trial. To the same effect is State v. Curley, 13 Okla. Cr. 25, 161 Pac. 831. This court is without jurisdiction for the further reason that notice of appeal was not made on defendant as required by section 3193, Okla. Stat. 1931. State v. Foster, 55 Okla Cr. 459, 32 Pac. (2d) 759.

For the reasons assigned the appeal is dismissed.


text:
    ROBERTA VAN WYCK v. STATE.
    No. A-8697.
    Oct. 19, 1934.
    (37 Pac. [2d] 321.)

      Bruce B. Potter, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Kay county of the offense! of receiving stolen property, and her punishment fixeff by the jury at imprisonment in the county jail for a period of three months and a fine of $150.

It is first contended the court erred in overruling defendant’s motion to suppress the evidence.

It appears from the record that Mrs. Elzata Anderson was the owner of, and occupied a home at, 719 East Lincoln street, in the city of Blackwell; that the house consisted of two rooms, one being a combined kitchen and living room and the other a bedroom; that defendant was a •boarder at this home and slept in a bed with the owner, Mrs. Anderson; and the officers arrested Mrs. Anderson and defendant on the street in Blackwell and took them to the police station; that there the officers asked Mrs. Anderson for permission to starch her home, which she readily granted, and accompanied the officers while they made the search; that a large amount of ready-to-wear and other articles alleged to have been stolen were found in the bedroom.

Under the facts as disclosed by the record, the motion to suppress the evidence was properly overruled.

It is next contended the court erred in overruling defendant’s motion to instruct the jury to acquit her because the evidence was insufficient.

Clerks and managers of the Jett Mercantile Company, C. E. Anthony & Co., J. C. Penny & Co., and L. C. Burr & Co. identified something like a dozen articles as having previously been in their stores. None of these witnesses could testify positively that the articles had been stolen, and none of them would say that the articles might not have been sold. The most they would say was that their records did not disclose they had ever been sold and that they believed they had not been.

To sustain a conviction in this case, the state must prove beyond a reasonable doubt: (I) That the property alleged in the information was in fact stolen; (2) that the same was received by defendant from some one other than the owner; (3) that the receiving of the property was within Kay county; (4) that defendant knew, or had reason to believe and did believe, that the property was stolen.

In attempting to make its case, the state offered very weak and unsatisfactory evidence that the property had been stolen. It offered no evidence that defendant received this property from another than the owner, nor did it offer any proof that defendant knew, or had any reason to believe, that the property was stolen.

All the articles mentioned in the amended information as having been stolen are such as pass freely from hand to hand and person to person.

To sustain a conviction of receiving property recently stolen, knowing it to have been stolen, it must be shown by direct or circumstantial evidence, beyond a reasonable doubt, that at the time defendant received such property she knew it had been stolen. When the evidence fails to show every essential element of the crime charged, the court, on proper motion, should direct a verdict for the defendant. Mullins v. State, 15 Okla. Cr. 347, 176 Pac. 765; Weaver v. State, 30 Okla. Cr. 309, 235 Pac. 635.

In Pickering v. U. S., 2 Okla. Cr. 197, 101 Pac. 123, it was said:

“To constitute the crime of receiving stolen property knowing the same to have been stolen, the act of receiving or concealing the same must be accompanied by a criminal intent of the accused to aid the thief, or hope to obtain some gain or reward for restoring the stolen property to the owner, or in some way to derive a benefit or profit therefrom. The evidence must show beyond a reasonable doubt the fraudulent intent of the accused concomitant with receiving the stolen property.”

There is no evidence in the record to' show that the defendant knew anything about where the goods came from or had anything to' do with the taking of the same, except the circumstance that some of the articles were found in a trunk and suitcase belonging to' defendant, and others under the bed and about the room in boxes and sacks.

Mrs. Anderson, testifying for the state, said defendant had been at her place about six weeks, which would make her coming prior to the time the articles complained of were missing; that the goods the officers took in the raid were in her bedroom and in the trunk and suitcase of defendant; that there was a box and a package or two' defendant had gotten from, the cleaners or was going to take to the cleaners; that she did not see the goods before or after they were taken to the police station, and could not identify any of the articles as ever having been in her home.

The state having failed to prove the material allegations of the information, the case is reversed and remanded, with directions to dismiss the same, unless the state has other evidence.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    SON WILLIAMS v. STATE.
    No. A-8740.
    Nov. 9, 1934.
    (37 Pac. [2d] 658.)
    S.. H. Singleton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county of the offense of burglary in the second degree — a second and subsequent offense — and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 10 years.

The information, in addition to charging burglary in the second degree, alleged that the offense was a second and subsequent one, and that therefore the defendant was subject to an enhanced punishment for the. offense.

Counsel for defendant demurred to the information in the trial court and claims in this court that section 2299, C. O. S. 1921, providing for an increased punishment for a second and subsequent conviction, is unconstitutional and in violation of section 9, art. 2, which provides :

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.”

In support of the argument advanced, counsel relies upon the decision of this court in the case of State v. Johnsey, 46 Qkla. Cr. 233, 287 Pac. 729. The statute construed in the Johnsey Case is entirely different from the statute in this case, in that in the Johnsey Case the punishment provided for a violation of that statute is not uniform to all classes of offenders, but was based upon the number of years defendant was serving in the' penitentiary, and had no reference to the gravity of the offense committed by him in escaping from the penitentiary. Not so in the case at bar. The punishment here prescribed by the statute is for the offense committed, taking into consideration the fact that the person committing it has already been convicted of a felony. This statute does not attempt to inflict any additional punishment for the first offense. The punishment is exclusively for the second offense. The second offense is complete within itself, without reference to any acts which occurred before the enactment of the statute. The first conviction is a fact which must be taken into consideration by the court or jury in fixing the punishment for the second offense. The Legislature under this act classified criminals into first and second, or other offenders. This classification was within the power of the Legislature.

This court has passed upon similar statutes increasing the punishment for a second and. subsequent conviction of the violation of the provisions of the prohibitory liquor law, and has held this section constitutional. Jones v. State, 9 Okla. Cr. 646, 133 Pac. 249, 48 L. R. A. (N. S.) 204; Tucker v. State, 14 Okla. Cr. 54, 167 Pac. 637; Hildebrandt v. State, 19 Okla. Cr. 30, 197 Pac. 852.

16 Corpus Juris, p. 1339, cites numerous cases holding statutes similar to the one under consideration to be constitutional as not providing unusual or cruel punishment, as noti being ex post facto laws, as not providing a penalty disproportionate to the nature of the offense, as not denying due process of law, and as not delegating legislative power to the prosecutor.

It is next contended the trial court erred in permitting certain jurors who' had sat in the trial of the codefendant on a similar charge in another case, and which jury had returned a verdict of guilty against such codefendant immediately prior to the beginning of this trial, to sit as jurors in this case over the objection and exception of the defendant. The record on this assignment is as follows:

“Comes now the defendant, Son Williams, and respectively asks the court to excuse all jurors who have been sitting in the courtroom and who have heard the testimony in the case of the State of Oklahoma v. Hubert Cline, a codefendant of this defendant, who has just been tried on a similar offense, and especially those jurors who have sat as jurors in a case for an identical offense. Mr. Sullivan: I wish the record to show Hubert Cline was charged with grand larceny by himself and no one else and it is not an identical case. By the Court: Overruled. By Mr. Singleton: Exceptions. By the Court: Overruled at this time for the reason the court can’t, at this time, determine whether and what jurors are disqualified, but counsel will have an opportunity on voir dire examination to determine whether the other case will make them disqualified in this case, and, if so, at that time the matter will be passed upon.”

It thus appears that the trial court left the question of the alleged disqualification of such members of the jury panel to be determined on voir dire examination, which was the only way it could properly be determined, as subdivision 5 of section 2998, Oklahoma Statutes 1931, makes it ground for implied bias as to a juror for “having served on a trial jury which has tried another person for the offense charged in the indictment or information.”

In the case of Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300, this court held that such provision applied only to disqualify jurors who had sat in the trial of the identical charge against a codefendant, and that it did not mean that if the codefendant had been charged with some other murder and this defendant charged with this murder that the trial of the codefendant would disqualify the juror; so that, in order to- bring the jurors within the terms of that statute as a ground of disqualification, it must be shown that they sat upon the trial of the codefendant for the identical crime charged against the defendant then on trial. There is no such showing in this record. In fact, the record discloses that Cline was charged with grand larceny, while this defendant was charged with burglary in the second degree. In the voir dire examination of the jurors on the question here presented nothing is disclosed that in any way shows any bias or prejudice on the part of any juror against this defendant that would disqualify him to sit as a juror in the trial of this defendant for this particular offense. The record does not disclose Avho sat as jurors in the case, nor is it made clearly to appear that any juror who sat in the trial of the codefendant on a similar charge sat in the trial of this case, nor does the record disclose whether defendant had exhausted all of his peremptory challenges and Avas compelled to accept any such alleged disqualified juror by reason of having exhausted his peremptory challenges. Before defendant could claim error because of such alleged disqualification, he must affirmatively show that he exhausted all of his peremptory challenges. Davis v. State, 53 Okla. Cr. 411, 12 Pac. (2d) 555:

It Avas incumbent upon defendant to show that he did not get a competent jury. This he has not done. The presumption is that the jury was competent, and the assignment therefore is Avithout merit. Coatney v. State, 52 Okla. Cr. 70, 2 Pac. (2d) 604.

It is next contended the trial court erred in giving instruction No. 8. In his brief counsel says:

“While this is substantially a correct statement of the law, it is stated in such a way that the defendant did not really get the benefit of said instruction.”

Counsel thus admits that the instruction complained of correctly states the laAV, but contends that because of the phraseology of such instruction the jury Avas unable to comprehend what the court meant by giving such instruction. Apparently the only theory upon Avhich defendant contends that the instruction Avas erroneous is that the jury was too ignorant to understand plain English. On this theory it might- Avith equal force be said that the jury would be too ignorant to understand the defendant’s requested instruction, because it is not any more clear than instruction No. 8.

While the instruction complained of is not as clear as it might have been, yet it was sufficient to advise the jury that if they failed to find the defendant had committed the second offense that the limit of his punishment would be seven years, but that if they did find him guilty as charged and also found that he had been convicted for a previous offense, then they might assess his punishment for a term of not less than 10 years.

The jury apparently were not confused by this instruction, since the evidence is conclusive that defendant had been convicted of another offense, and since the jury did give him the added penalty.

A careful examination of the record discloses no fundamental error.

The cause is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    HOMER SULLIVAN v. STATE.
    No. A-8731.
    Nov. 9, 1934.
    (37 Pac. [2d] 655.)

      L. E. Mifflin, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was by information jointly charged with Dave Belcher of the crime of murder; was tried separately, convicted of manslaughter in the first degree, and sentenced to be imprisoned in the state penitentiary for a period of 10 years.

The testimony shows that on Sunday previous to the killing on April 11, 1933, Mike Davis and his brother Ned Davis attended church services in the neighborhood of their home, which is in the northwestern part of .McCurtain county; that the said Mike and Ned Davis caused a disturbance at the meeting. On the following Monday a number of citizens in that neighborhood went to the office of a justice of the peace, and were there met by the county attorney. Charges were prepared and filed against Mike and Ned Davis for disturbing religious worship.

The record further discloses that on Tuesday Cal Sullivan, a. brother of the defendant, had a fight with Mike Davis, and that Sullivan got the worst of the fight. On Tuesday, the day of the killing, the defendant went to the home of J. H. Dean, a deputy sheriff, and requested Dean to arrest the Davis boys. Dean inquired if there.were papers out for the boys’ arrest, and received an affirmative reply that the papers were at the office of J. W. Tew, a justice of the peace. Dean and the defendant went to the office of the justice of the peace and got the warrants which had been issued by the justice of the peace for the arrest of Mike and Ned Davis for disturbing religious worship. The deputy sheriff then requested the defendant to go to the home of Dave Belcher, who was a deputy sheriff, and get him to go' and assist in making the arrest. The defendant went to the home of Belcher and got Belcher. Dean, Belcher, and the defendant started toward the home of the Davises, and on the way Mr. Dean deputized Claud McAlester to help him make the arrests.

In his testimony Dean states he got the defendant to go with them to show him the way to the Davis home, but he did not deputize him to assist in making the arrest. On the way to the Davis home, the defendant stopped at the home of a Mr. Holley and procured from him a 30-30 Winchester rifle. The testimony of J. H. Dean, one of the deputy sheriffs in the party, is that, when they got within 100 or 150 yards of the house, he told the defendant Sullivan not to come up to' the house; that, when he and McAlester got up to the house, there were some people sitting on the porth, and he hollowed “Hello,” and Mrs. Davis, the mother of the boys, asked what they wanted, and he told her they had some papers for Ned and Mike. They were invited into the house, and found Ned Davis, and were advised by Ned’s mother that Mike had either left, or was fixing to leave, for Colorado, and intended to come back and pay his fine later. While they were waiting for Ned to get ready to go with them, they heard three shots fired. Ned Davis, in his testimony, testified that he thought he heard five.

The testimony further shows that, immediately after the shots ceased, Dave Belcher rushed in the room, and, on being asked what Avas the matter, said there was some shooting going, on out. there. Belcher and MeAlester went out and discovered Rube Davis, the father of Mike and Ned, lying about 70 feet east of the back of the house, the house facing west, and nearby they found Mike Davis, who Avas unconscious. They carried Rube and- Mike Davis into the house, and Mike died in a few minutes. The record further shews that the defendant was not seen at or near the Davis place after the shooting, but the next day he came into Idabel and surrendered. Two shells were found that fit the 30-30 gun the defendant had borrowed from Holley and had carried Avith him to the Davis place.

The defendant testified he Avas deputized by J. H. Dean, the deputy sheriff, to assist in the arrest of Mike and Ned Davis; that there had been a charge of felony filed against the Davis boys, and that they Avere arresting them for disturbing religious Avorship, and on the felony charge; that the county attorney had advised them on Monday preceding Tuesday of the killing that the boys might be arrested upon a felony charge without a Avarrant, and the defendant insisted they Avere going to arrest the boys for both the felony charge and on the charge of disturbing religious Avorship.

The record further discloses that the county attorney testified in rebuttal that he had not given the defendant and his neighbors the authority or advised them to make the arrest of the Davis boys on the felony charge without a warrant. He stated he told them he would investigate the charge, and that, if he found they should be indicted for burglary, he would indict them. It is disclosed by the record that this burglary charge had been pending for some time. Mike and Ned were charged with the burglary jointly with their father. The preliminary complaint was still pending in the office of the justice of the peace, but no warrant had been issued upon the charge and turned over to the officers when they went out to arrest Mike and Ned Davis for disturbing religious worship.

The defendant, testifying in his own behalf, stated they went out to arrest Ned and Mike Davis on a charge of burglary, and on a charge of disturbing religious worship upon a warrant that had been issued by the justice of the peace. He states positively that Deputy Sheriff Dean had deputized him to go with them, but admits that he was left some distance from the home of the Davises; that McAlester went to the front of the Davis home, and Belcher and the defendant went to the rear of the building. Defendant says he located himself near the northeast corner of the garden, and shortly thereafter he heard somebody hollow “Halt,” and a shot was fired; that Mike Davis came running toward, him and he hollowed to him to halt, “and threw his gun down and fired into the ground about 8 feet in front of me; that Mike ran a short distance and another shot was fired; Mike ran about 35 feet and fell; that shortly thereafter Rube Davis, the father of Mike Davis, came up; he was holding a pistol in both hands, and I told him to stop, and shot low to keep Rube Davis from killing me; Rube Davis fell, and I went on away, and the next day came in and surrendered.”

The foregoing is an abstract of the testimony upon which the defendant was tried, convicted, and sentenced.

Fourteen errors have been assigned by the defendant as grounds for reversal. It is only necessary to discuss the first assignment of error, which is as follows: “Error of the court in overruling plaintiff in error’s motion for a new trial.” The motion for a new trial covers all the other assignments.

In discussing, the errors assigned, the defendant argues at length that the evidence is insufficient to sustain a conviction, and that his demurrer should have been sustained. In support of his contention, he argues there is no testimony in the record showing he shot Mike Davis, that the record fails to show any previous arrangement or agreement on his part and Dave Belcher to do bodily harm to Mike Davis, arguing that the defendant testified he did not shoot Mike Davis, and that a shot was fired from the house near* where Dave Belcher was standing.

It is further contended by the defendant that the state failed to prove that Mike Davis was shot with a 30-30 caliber rifle. Dave Belcher was jointly charged with the defendant, and, as shown by the record, did not testify. It is not disputed by the defendant that his brother and himself and the Davis boys were enemies, and that he had ill feelings against the Davis boys. The only conflict in the testimony is the question, Did the deputy sheriff deputize the defendant to assist in making the arrest of Mike and Ned Davis, and in doing so, did the sheriff go to the Davis home for the purpose of arresting Mike and Ned Davis on a burglary charge without a warrant? The defendant insists they went to the Davis home for the purpose of arresting Mike and Ned Davis on both a misdemeanor charge, for which the deputy sheriff had a warrant, and on the burglary charge without a warrant. This contention is disputed by the sheriff; the sheriff further testifying that he left the defendant 100 to 150 yards from the Davis home, and advised him not to come up to the house.

The county attorney denies the statement of' the defendant that he told them on Monday previous to the killing on the following day that they could go out and arrest the Davis boys on the burglary charge without a warrant.

The evidence shows that defendant stopped on the way to' the Davis home and borrowed a gun from a Mr. Holley. The deputy sheriff says he got the defendant to go with him to show him the way to the Davis home. Defendant says that he heard the shot in the rear of the Davis home, he heard some one come running toward him, and that he said “Halt,” and fired his gun into the ground in front of the party running, and that another shot was fired from the direction of the house, and Mike Davis ran a few feet further and fell. The defendant states immediately thereafter Rube Davis, the father of Mike Davis, came toward him with his pistol in both hands, and that he shot low and wounded Rube Davis to keep from killing him.

The jury heard the evidence and had an opportunity to judge the demeanor of the witnesses while testifying, and reached the conclusion that the defendant was guilty. of manslaughter in the first degree. This court has repeatedly held that the issue of facts is for the determination of the jury, and a conviction will not be disturbed on appeal because of a sharp conflict in the evidence if the evidence adduced reasonably tends to support the verdict and judgment. Adeaholt v. State, 19 Okla. Cr. 122, 198 Pac. 351; Campbell v. State, 23 Okla. Cr. 259, 214 Pac. 738; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The question of the granting of a new trial has been repeatedly passed on by this court, and the court has held that a motion for a new trial is addressed to the sound discretion of the trial court, and its action will not be disturbed unless a manifest abuse of discretion appears. Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026, 1028, and cases therein cited.

It is further contended by the defendant that the court erred in its general instructions and in refusing to give special instructions requested by the defendant. A careful examination of the instructions given by the court and those requested by the defendant disclose that the instructions given by the court, when considered in their entirety, correctly cover the law applicable to' the facts in this case, and that the court did not err in giving its general instructions. It further appears from the record that the requested instructions by the defendant were not supported by the facts, as the instructions requested were based upon insinuations or contentions of the defendant without any competent evidence to support the defendant’s contention that they had gone to the Davis home to make an arrest for a known felony, but he offered no proof to support his contention. The only effort made' to prove the contention of the defendant was his statement, the statement of the deputy sheriff being positively contradictory, and the facts and circumstances surrounding the defendant at the time of the killing show conclusively that the officers did not go to the Davis home for the purpose of arresting Ned and Mike Davis on a burglary charge.

It has been held by this court many times that the trial court is not required to delve into the realms of conjecture and specially instruct on some theory of the law not reasonably supported by the evidence. Ussaery v. State, 22 Okla. Cr. 397, 212 Pac. 137; Fray v. State, 46 Okla. Cr. 260, 285 Pac. 142.

The record does not disclose sufficient facts to justify or to warrant the defendant in killing Mike Davis. The defendant was very fortunate that the jury did not find him guilty of murder under the facts and circumstances disclosed by the record. The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. There are no errors in the record warranting a reversal. The evidence is sufficient to sustain the judgment.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte HENRY THOMAS.
    No. A-8830.
    Nov. 16, 1934.
    (37 Pac. [2d] 829.)
    H. J. Mackey, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus.

Petitioner alleges he is unlawfully restrained by the chief of police of Oklahoma City. That he was arrested on a charge of disorderly conduct, and at the police station a charge of public drunkenness was filed against him. That he was fined $15 and costs; that he appealed to the county court, was there tried, convicted, and fined $10 and costs. He alleges there was no competent evidence against him in either the police court or the county court. He contends the county court did not have jurisdiction for the reason that in appealing, he did not serve the notice required by law and that therefore the appeal was not properly lodged in the county court.

The writ of habeas corpus cannot be used as an appeal, a writ of error, or certiorari. Only a lack of jurisdiction or errors or irregularities which divest the court of jurisdiction or render the judgment void can be raised by habeas corpus. If the evidence was insufficient or the conviction was based on incompetent evidence, his remedy is by appeal. His contention that the county court did not have jurisdiction of his appeal for the reason that he did not serve notice of appeal is wholly without merit. It is trifling with the court to contend that one convicted of a crime in an inferior court may appeal to the proper appellate court, invoke and submit to its jurisdiction, and when there convicted, then deny the jurisdiction of the court, because in appealing he had not strictly followed the statute in some matter of procedure.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.