text:
    BINE WHEELER v. STATE.
    No. A-4273.
    Opinion Filed Dec. 15, 1923.
    (220 Pac. 962.)
    (Syllabus.)
    1. Appeal and Error — Irregularities to be Affirmatively Shown. Irregularities in the proceedings of courts of record will not be presumed, but must be properly and affirmatively shown.
    2. Courts — Evidence—Orders not to be Impeached by Evidence Aliunde. The orders of a court of record which appear to be properly entered cannot be impeached by evidence aliunde the record; its proceedings and sessions and adjournments can be proved only by its records.
    3. Motions — Orders Showing Convening of County Court as Importing Absolute Verity. An entry of an order showing the convening of a county court imports absolute verity, when brought into question in any subsequent proceeding, other than a proceeding to vacate or correct it, instituted in the court in which the order was made.
    4. Intoxicating Liquors — Unlawful Possession — Evidence Insufficient. In a prosecution for having possession of intoxicating liquor, evidence considered, and held insufficient to support a verdict of conviction.
    5. Same — Evidence not Showing Liquor Usable as Beverage. In a prosecution for having possession of intoxicating liquor, evidence held not to show that the liquor or compound in question was capable of being used as a beverage.
    Appeal from County Court, Harmon County; E. C. Abernathy, Judge.

      Bine Wheeler was convicted of having in his possession intoxicating liquor, and he appeals.
    Reversed.
    C. H. Madden, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed June 13, 1921, in the county court of Harmon county, charges that Bine Wheeler did have in his possession about 25 gallons of intoxicating liquor, to wit, corn whisky or mash, which contained more than one-half of one per cent, of alcohol, measured by volume and capable of being used as a beverage, with the unlawful intent to sell the same. Upon his trial on the 25th day of January, 1922, he was by verdict of the jury found guilty as charged in the information. Motion for a new trial was duly filed, overruled, and the court by its judgment sentenced the defendant to be confined for 30 days in the county jail and to pay a fine of $250 and the costs. To reverse the judgment he appeals.

When the ease was called for trial, the defendant filed a motion to dismiss on the ground that the court is without jurisdiction to hear and determine this cause, for the reason:

“That the January term has lapsed, in that this court was not convened the first Monday in January nor within a week thereafter of this year, 1922, and the defendant asks leave to introduce the testimony of the court clerk and of the sheriff of this county to prove the foregoing facts.”

Counsel for the state objected to the introduction of this evidence, on the ground that the records of the court are the best evidence. The court sustained the objection, and further stated:

“The court further finds that the records of the court clerk show that the county court of Harmon county was regularly opened on the first Monday in January, 1922, and that at that time the court was adjourned until the 4th Monday in January, 1922, and for this reason the motion to dismiss is overruled.”

This action of the court is the first error assigned. It is the law that the acts of a court of record are known by its records alone, and cannot be established by parol testimony; it acts by its records, its openings, and sessions and adjournments can be proved only by its records. The record or entry of the court is higher and more trustworthy than any parol evidence can be. If one record is subject to be questioned by parol, then another must be, and all security and confidence in the stability of records are gone. 23 E. C. L. 158, and cases cited.

It is the well-settled rule in this state that orders and judgments of a court of record which appear to be properly entered cannot be impeached by evidence aliunde the record.

In the case of In re Coyle, 4 Okla. Cr. 133, 111 Pac. 666, it is said:

“It appears from the certified copy of the record that the orders therein contained were properly entered. So long as this record stands in any proceedings in which it may be brought into question, other than one to vacate and correct it, instituted in the court in which it was made, it imports absolute verity, and cannot be attacked or impeached in an application for habeas corpus.”

In the case of In re Tucker, 4 Okla. Cr. 221, 111 Pac. 665, it was held that the entry of an order showing the convening of the county court imports absolute verity when brought into question in any subsequent proceeding other than a proceeding to vacate or correct it, instituted in the court in which the order was made.

In Wilson v. State, 3 Okla. Cr. 714, 109 Pac. 289, it is said:

"The case-made contains no recital showing the absence of a journal entry convening the court on the first Monday in July, nor does it recite any other fact from which the absence of such an entry could be legitimately inferred. We are not permitted to presume that the court failed to observe the law, nor to hold that it so failed by a doubtful construction of this particular entry. The offense charged being one within the jurisdiction of the court, the plaintiff in error being present, and the trial being had on a day between the dates fixed by law for convening and finally adjourning the term, every presumption is in favor of the regularity of the proceeding; and this must be overcome by a proper showing in the case-made before we should hold that the court did not have jurisdiction.”

It follows that the trial court properly sustained the objection to the evidence offered in support of the motion to dismiss, and did not err in overruling said motion.

Of the other errors assigned we deem it only necessary to consider the one, that the evidence is insufficient to support the verdict. The evidence shows that the sheriff and un-dersheriff and three deputy sheriffs, in executing a search warrant, went to the home of appellant, about 12 miles northeast of Hollis, and found a barrel in the yard of appellant’s house that had been about half full of what they termed mash.

Sheriff Horton testified:

"We found by the house a barrel that about 20 gallons of mash had been poured out of. There was a line around inside of the barrel, and below the line it was wet.”

B. B. Briscoe, undersheriff, testified:

"We went out Saturday night and stayed there until 2 o’clock in the afternoon of the next day. We got up pretty close to the house, and Mr. Wheeler went out of the window on the east side and rolled a barrel out from the house and poured the contents out. We filled up a couple of fruit jars of the stuff and brought it to town. We arrested Mr. Wheeler and brought him to town. We sent the stuff to a chemist at Oklahoma City. I would say that it was mash set for the making of whisky. I do not know whether it was intoxicating of not.”

Ed Smith, deputy sheriff, testified:

“We stationed ourselves in a shinnery patch where we could view the house. We stayed there until about 2 o’clock Sunday afternoon and started towards the house. Arriving there we saw 10 or 15 gallons of corn mash lying on the ground where he had poured it out of the barrel. There was some meal, barley, and sugar left in the barrel. Mr. Wheeler asked the sheriff if he had a search warrant, and the sheriff said he did.”

Dr. L. B. Bitter testified:

“I am a chemist for the Wesley Laboratory at Oklahoma City. I made an analysis of alcoholic liquor labeled corn whisky that I received from the county attorney of Harmon county, and found the same to contain 19.97 per cent, ethyl alcohol, measured by volume.”

The state rested, and the defendant demurred to the evidence and moved the court to direct a verdict of acquittal on the ground there was no evidence to show that the substance analyzed was capable of being used as a beverage.

As a witness in his own behalf, Bine Wheeler testified:

“There was nothing in the barrel but a half sack of bran, some sour syrup that we could not use, and dish water. It was raining that Sunday morning, and the gutter on the east side of the house had blown down. My wife asked me to fix it. Bert Clark was there. We rolled the barrel up to the side of the house, and I got on the barrel to fix the gutter. As I got off the barrel, it turned over. I have a sow with ten little pigs, and I used the slop to feed them.”

Mrs. Arche Wheeler testified:

“I live about 200 yards from Bine Wheeler’s house. I visit there often. The barrel on the east side of the house was for slop, and things from the table. I have put slop in it myself. I have often seen Bine Wheeler slop his hogs from the- barrel.”

Clara Wheeler, appellant’s wife, testified:

“It was nothing but a regular slop barrel. I used it for slop of the table and for dish water. The slop was fed to our sow and her ten pigs. It was never used for the purpose of making mash or for distilling whisky.”

Homer Beach testified:

“I farmed the Arch Miller place, and I was frequently around Bine Wheeler’s house. Often saw slop poured in a barrel near the house, and saw Bine Wheeler several times .take slop out of it to feed his pigs; the last time was noon Saturday, the day before his arrest.”

Three other witnesses testified that they were near neighbors and several times saw Bine Wheeler take slop from the barrel and feed it to his hogs.

At the close of the evidence the defendant asked the court for a directed verdict of acquittal, on the ground that the evidence was insufficient to warrant a conviction.

The sufficiency of the evidence to sustain the conviction is challenged on several grounds; however, it is only necessary to consider the one, that the evidence does not establish that the so-called mash or compound in question was capable of being used as a beverage.

The statute provides that it shall be unlawful to have the possession of any liquors or compounds of any kind or de-seription whatsoever, whether medicated or not, which contain as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage,” with the intention of violating any of the provisions of the prohibitory enforcement act. Section 7002, Comp. Stats. 1921.

One of the essential elements of the offense charged is that the liquor or compound was capable of being used as a beverage. The character of a compound or mixture containing as much as one-half of one per cent, of alcohol or more may be such that its use as a beverage is impossible.

The word “beverage,” as defined by Webster, is, “Liquid for drinking; drink.” The mere fact that a person, in order to gratify an inordinate appetite for intoxicants, may drink poisonous or noxious compounds or mixtures containing alcohol, is not evidence that the same is capable of being used as a beverage.

Having possession of a compound or mixture containing as much as one-half of one per cent, alcohol, and which is not intended and cannot be used as a beverage, is not an offense, and the mere fact that such compound or mixture can be and is swallowed, does not make it a beverage.

In State v. Costa, 78 Vt. 198, 62 Atl. 38, it was said:

“The mere fact that a liquid can be and is swallowed, does not make it a beverage”; the question being whether it was intended to be used as a beverage.
“The use of liquor as a ‘beverage’ does not mean simply that the same is to be drunk, but the word ‘beverage’ is used to distinguish the act of drinking, liquor for the mere pleasure of drinking, from its use for medicinal purposes.” 1 Words and Phrases, First Series, p. 769; Gue v. City of Eugene, 52 Or. 282, 100 Pac. 254.

Carefully considering the whole testimony in the case, we fail to find any competent evidence showing or tending to show that the so-called mash or swill in question was capable of being used as a beverage, and for this reason we think the conviction is not sustained by the evidence, as said by this court in Loftin v. State, 11 Okla. Cr. 428, 147 Pac. 505:

"Considering the presumption that the law always indulges as to the innocence of the accused and the necessity of establishing the guilt of the defendant beyond a reasonable doubt, the evidence should be of such a character as to overcome prima facie the presumption of innocence. If the evidence only raises a mere suspicion, or, admitting all it tends to prove, the defendant’s guilt is left dependent upon mere supposition, surmise, or conjecture, it is insufficient to sustain a conviction.”

If the defendant be guilty he should be convicted upon competent evidence and not upon insinuations and innuendo. The administration of even-handed- justice demands it, and the law will sanction no other kind of a conviction.

For the reasons indicated, the judgment of the lower court is reversed.

MATSON, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    CARL GRAHAM v. STATE.
    No. A-4135.
    Opinion Filed Dec. 17, 1923.
    (220 Pac. 967.)
    (Syllabus.)
    1. Appeal and Error1 — Exclusion of Evidence of Fact Otherwise Proved not Prejudicial'. The exclusion of evidence to prove particular facts is not prejudicial if the facts sought to be proved are proved by other evidence and it appears that the evidence excluded should not have changed the result.

      Z Homicide — Assault with Intent to Kill — Exclusion of Evidence of Threats Against Accused not Prejudicial Where Hostility Otherwise Proved. The exclusion of evidence of alleged threats, where evidence of other threats was admitted to be introduced as having been made by the prosecuting witness against the defendant and it was conceded that on the day of the shooting the prosecuting witness and the defendant had had a quarrel which resulted in both of them being arrested, disclosing that ill feeling existed between the parties at the ■ time of the shooting, is held not to be prejudicial error.
    3. Homicide — Self-Defense—Reasons of Accused for not Living with Wife Irrelevant. In a prosecution against defendant for shooting his wife’s stepfather, where the issue of self-defense is raised, an investigation into the reasons of the defendant for not living with his wife were not germane to the issue of self-defense, and such evidence was properly excluded.
    4. Instruction Approved. Instructions bearing on the issue of self-defense examined in connection with other instructions given and refused, and it is held, that the instructions given fairly and fully cover the law of the case and that no prejudicial error occurred in refusing to give instructions requested.
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    Carl Graham was convicted of assault with intent to kill, and he appeals.
    Affirmed.
    On the 12th day of April, 1921, the county attorney of Muskogee county filed in the district court of said county an information charging the plaintiff in error, Carl Graham (hereinafter referred to as defendant), with the crime of assault with intent to kill one John Cash, alleged to have been committed on the 17th day of February, 1921, in Muskogee county.
    On the 24th day of May, defendant having waived arraignment and pleaded not guilty to the charge, the cause came on regularly for trial before the Hon. Benjamin B. Wheeler, district judge, and a jury.

      On the 25th day of May, 1921, after having heard the evidence and the instructions of the court, the jury returned a verdict of guilty as charged in the information and fixed the punishment at imprisonment in the peniteniary for a term of four years. On the 27th day of May, 1921, the defendant filed his motion for a new trial, setting out 21 different grounds and reasons for, a new trial, and on the 6th day of June, 1921, the motion for a new trial was heard and overruled; whereupon the trial court proceeded to sentence the defendant, on the verdict returned, to four years’ imprisonment in the state reformatory, to all of which actions the defendant excepted and prayed an appeal to this court. After proper allowances of time to make and serve case-made, due notices of appeal having- been given, the trial judge, on the 30th day of July, 1921, certified to a true and correct case-made, and the same, with petition in error attached, was filed in this court on November 26, 1921, and the appeal is regularly before this court for review on its merits.
    John Cash, the prosecuting witness, at the time he was shot by the defendant worked in the grocery store of E. L. Powers, which store was located at 107 North Main street in the city of Muskogee, Okla. Cash was the stepfather of the wife of defendant Graham. It appears that some time early in the fall of 1920, Graham had been compelled to marry the stepdaughter of Cash in order to avoid a prosecution for rape or some other similar felony.
    On the morning of the 17th of February, 1921, Cash had called Graham out of the A. & C." Pool Hall, which is located on West Okmulgee street between Second and Main streets in the city of Muskogee, and walked with the defendant to the corner of Main and West Okmulgee streets. There a controversy occurred between Cash and the ,de_ fendant concerning the wife and baby of the defendant, in which conversation Cash said that he asked defendant if he said that the baby did not belong to him, and defendant said he did not say it, “and you cannot prove it,” and Cash told him that he could, that defendant’s wife had told him, and if she said that in front of defendant’s face and his face he told defendant he (Cash) was going to make defendant swallow every word he said about it; that the defendant got sore, and at that time a policeman, George Sherrod, walked up and arrested them and took them down to the police station.
    Concerning the trouble that day at Main and West Ok-mulgee, the defendant testified as follows:
    “We walked down to the corner of Main street, and he said he heard— My wife told him that I said the child didn’t belong to me, and he said he was going to kill me if I denied it. I told him, I said, 'Why don’t you do it?’ And then Mr. Sherrod arrested us.”
    Further the defendant testified that while they were on their way to the jail, after Sherrod had arrested them, Cash said, “I will get you before night,” and Sherrod.turned around and told him to shut up — “I wouldn’t make those threats if I was you.”
    That after this occurrence at Main and Okmulgee, and after the arrest of these parties, they each put up money for their appearance in the police court in that city for disturbing the peace, and Cash went back to work at the grocery store and Graham went to a secondhand store and purchased a Remington 32 automatic pistol, loaded.
    The shooting occurred about 3 o’clock that afternoon in front of Power’s grocery store. The defendant shot Cash with the 32 pistol that he had bought that day from the secondhand dealer. Cash was unarmed at the time, was dressed in his work clothes, and wearing a long rain coat.
    Just what occurred immediately preceding and at the time of the shooting is detailed by Cash as follows: After having testified that he left Powers’ grocery store about 3:10 that afternoon to make a special delivery of an order of groceries, and when leaving the store he saw this defendant and another fellow standing in front of the Stag cold drink stand which adjoins the grocery store on the north, both stores being on the west side of Main street, ■ that he made the delivery, was gone about 7 or 10 minutes, and came back, and the defendant was still standing there when he came up to the curbing and parked his car and reached down to cut off the engine, then he said the following occurred:
    “Q. What do you mean by cutting your engine off? A. Cut the motor off — stop it from running. Q. I see. A. And just as I raised up he was standing in front of me, and he shot just as I looked. Q. Were you in the car at that time? A. Yes, sir. Q. Did you ever get out of the car? A. Never did. Q. What did you do when he fired first? A. Well, I kind of staggered and fell back in the seat. Q. Where did he hit you the first shot, if you recall? A. The first shot he hit me, he hit me just about an inch above my heart. Q. Stand up, if you will, John. How many times did he shoot at you? A. He shot at me eight times. Q. How many times „ did he hit you? A. He hit me eight times. Q. How close was he standing to you when he fired the first shot? A. About six feet from me. Q. Did he move from that place during the time he was firing? A. He made two or three shots and stopped to get up closer to me and he fired the rest. Q. What were you doing — before I get to that, now just tell the court and jury where you were shot, the different places you were shot. A. Well, I was shot through my chest here once — shot in my arm. Q. Now, just tell which arm. A. In my right arm, right in my elbow, and broke it, and then the next shot —I don’t know which shot — -I was shot through this leg once. Q. Which leg is that? A. My left leg. Q. And where would you say this shot entered? A. It entered just about here and came out here (indicating). Q. How far above your knee? A, Well, I don’t know; just about nine inches, I guess. Q. Entered in the front? A. Yes, sir. Q. And came out at the rear of the leg? A. Yes, sir. Q. Tell the next place. A. Well, the next shot is through my foot here, through the bottom of my foot, Q. Which foot? A. Left foot. And the next shot was a glancing shot up this way. Q. On which side? A. On my left side. Q. On the top of the thigh of the leg? A. Yes, sir; and the next shot — this was a glancing shot across this leg, Q. Glancing what part of the leg? A. My left leg. Q. In front? A. Yes, sir; and the next shot went through this right leg and came through here inside. Q. Where did it enter in the left leg, near what? A. Right close to my knee. Q. And came out? A. Came out right here, right along here. Q. About 9 or 10 inches above the knee? A. Yes, sir. The next shot went through here somewhere in my hip. Q. Through your right hip? A. Yes, sir. Q. Just through the flesh? A. Yes, sir. Q. Is that all? A. Yes, sir; that is all. Q. Sit down now. Now, I will ask you, John, to explain to the court and jury the rapidity of the shots, how fast the shots were fired? A. Well, they was shot so fast I don’t know how far apart they were fired; I know every time he hit me. Q. You mentioned a moment ago he shot two or three times and then he stepped up? A. That is when he shot the first three or four shots. I don’t know exactly how many shots he fired when he stopped and got up closer to me. Q. Then how rapidly did he fire the rest of the shots? A. Yes, sir; pretty fast. Q. What did you say, if anything? A. Well, I could not say. Q. Did he say anything? A. No, sir; he never said a word. Q. Did you notice what sort of a gun it was he was using? A. Well, I think it was an automatic. Q. You don’t know whether it was or not? A. No, sir. Q. And you described these shots, were attempting to describe the shots, as they were fired into your body, or just the place where you were hit — do you understand my question? A. Yes, sir. Q. When you just described the shots, the places you were shot in the body, as you described them, was that the way you were hit, or were those just the places where you were hit? A. That is where I was hit. Q. Did you attempt to describe the first, second, and third places, and so forth? A. No, sir; I didn’t. Q. Can you do that? A. Well, I don’t believe I can. Q. You can’t tell where the first shot hit you? A. Yes, sir. Q. Do you know where the last shot hit you? A. No, sir; I don’t Q. What were you doing while this shooting was going on John? A. Well, I wasn’t doing anything but jumping and hollering, ‘Murder!’ Q. While you were doing that, where were you in the car? A. Yes, sir; I had done fell back in the body of the car. Q. Now, I want you to describe to the jury this seat you were sitting on, on the Ford truck you speak of. Did it have a back or not? A. Well, the place where the steering wheel is'has got a back on it. Q. Which side is the steering wheel on? A. On the left-hand side. Q. Go ahead and describe the back of the seat. A. That is just a little piece about this long on the left-hand side of the steering wheel, and the other part there ain’t nothing to it, and when I got up to get off the car he made the first shot, and I fell back to the seat something like this, like I was sitting down, and he kept firing, and finally I fell back into the body. The body came along up about this far up. Q. About a foot or so, you say? A. Yes, sir; and my legs was on the seat and my body was down in the body. Q. Where were your legs with reference to the rest of your body and the defendant Carl Graham, while he was doing that shooting, between you and Carl Graham or the other way? A. Between him. Q. And your head? A. And my head, yes, sir. Q. Did you see —I don’t know whether I asked you or not — did you ever get out of that car? A. No, sir; until they taken me out when I got to the hospital. Q. Did they take you to the hospital, did you know, at that time? A. At that time, I didn’t know; no, sir.”
    The defendant’s version of the tragedy was detailed by him as follows:
    “A. Yes, sir; and I was fixing to go down to my room, and I went to one of these secondhand stores to buy an auto-matie. When I first went in, one of those fellows was busy, and I went out on the street, and I went back and bought this gun. Q. What made you buy that gun? A. Well, he had been threatening to kill me, and I bought it for protection. Q. Had other people told you about threats he had made? A. Yes, sir. Q. And you bought that for what purpose? A. To protect myself with. Q. Did you have any intention of assaulting or hurting him in any way or making any effort to hurt him, unless he first assaulted or attacked you? A. No, sir. Q. Now, who was with you at the time of and just before the shooting? A, Henry Cowan. Q. Henry Cowan? A. Yes, sir. Q. Is that the Henry Cowan that testified this morning? A. Yes, sir. Q. Where did you get with Henry Cowan? A. On Broadway. Q. Where did you go when you got with Henry Cowan or he got with you? A. Well, he was going to work, I suppose, or going down to the A. & C. Pool Hall, I think, and I was going to my room. Q. Was you on the direct route to your room? A. Yes, sir. Q. Were you at any time standing in the stairway there as testified to by Cash? A. No, sir; I was not. Q. At the time of the trouble had you come straight from where you got with Henry at the time the shooting; had you come straight down there, from where you got with Henry Cowan? A. Yes, sir. Q. Now, I want you to tell the jury, Carl, just what happened when you came along there where the trouble occurred? A. Well, I was going down the street, and Henry Cowan came along — I knew Henry, and stopped, and we started on down the street, and just about the time I got pretty near even with this grocery store, I didn’t lack much, nearly even with it, he whips into this curb with his car and jumps out, gets out of the car, and said, ‘I am going to kill you, you son of a bitch,’ and throw-ed his hand back that way (designating), and I seen the handle end of a gun, and when he done that, I shot him; I shot him, I don’t know, maybe three or four times, and he gets back in the car, and I thought he was going to stop, and I slowed up for a second or two, I guess it was; he acts — he had a rain coat on, and he acts like he is getting behind something, so I shot him again. I don’t know just how many times I shot him. I shot him a time or two. I shot him until he fell. Q. When he got in the car now, you say you slowed up. Why did you slow up? A. I thought he was going to stop. Q. And that is what made you begin shooting again, when he acted like he was getting behind? A. For protection, to protect myself. Q. Did you think he was going to shoot you? A. Yes, sir.”
    Dr. W. T. Tilly, who waited on the prosecuting witness immediately after the shooting, described the wounds as follows :

      “A. Well, there was one entered just at the elbow here, and ranged up, splitting this bone in three pieces, and that bullet is still in there, I suppose; it was the last I knew. And then there was another one just above the heart and through, and there was another one went in here and came out back there. Q. When you say ‘in here,’ Doctor, please designate the leg or arm so we can get it in the record? A. Well, there was one went in, my recollection is, along about the middle of the thigh, between the knee and hip. Q. That left leg? A. Of the left leg, and came out just about that angle; and then there was one went in — either went in there or came out there, I don’t know which, but right in there, and came out at the toes here. Q. Of the left foot? A. Of the left foot. Q. About the center of the left? A. Center of the left foot, and came out at the toes. And then there was another one went in about six inches above the knee. Q. In the right leg? A. Yes, and came out about six inches from the hip joint, under the thigh, and then there was two glancing shots, I believe it was, that is my recollection, on the left side of the hip; one here and one a little higher up. One grazed the side just above the hip, is my recollection.”
    Hugh Askew, a witness for the state, testified in substance that he was across the street and probably a little north from where the shooting occurred, in the Cardinal Wholesale Drug Company’s place; that he heard one or two shots, walked to the door several feet, and saw the defendant fire five or six times; that John Cash was lying in a Ford delivery truck; that after the shooting he went over to the car; that there were several persons around, but he did not know who reached Cash first; that Dr. Tilly’s son and some one else got into the truck and drove Cash to the hospital; that the shooting had ceased before he started over to the ear.
    Frank Fabian testified, in substance, that he was on the corner of Main and Okmulgee streets when the shooting began; that he did not see the first two shots, guessed he saw about the third; that what he thought was the third shot fired Cash was in the car sitting in the seat; that he thought he saw four shots fired; that they came so fast he did not get to count them; that he ran up there, and before he got there the firing had ceased; that Graham was 8 or 10 feet from Cash at the time of the shooting.
    On cross-examination, this witness stated that Graham was standing west of Cash when the shooting was going on, and that Cash was sitting in the seat; that Cash was sitting up straight and dodging.
    Sam Hutchinson, a negro, testified in substance as follows: That he had just come out of the store, when two men came along, and that he saw the shooting; that just as he came out of the store a fellow drove up in his automobile, and that one of the two men began shooting him; that the man who was getting shot did not get out of the car, but fell to the floor and began hollering; that it seemed to him the fellow doing the shooting shot four or five times.
    Ed Davidson testified in substance that he was working as a merchant police; that he saw the last two shots fired; that he was across the street and went over and arrested the defendant; that the defendant was standing on the sidewalk in front of the Powers Grocery Store; that Cash was in the automobile when the last two shots were fired; that he found the gun in the defendant’s hip pocket; that the defendant made no resistance when he was arrested.
    Henry Cowan testified on behalf of the defendant, and said in substance that he saw the trouble that occurred between the defendant and John Cash; that it occurred on Main street between Okmulgee and Broadway; that he and the defendant were walking along the sidewalk, having come from Main street and Broadway; that they were going south; that they were at no time in the stairway between the place called the Stag and Powers Grocery Store; that he and the defendant were walking along when Cash drove up in a Ford ear to the curb, jumped out on the sidewalk,' and said, “I am going to kill you,” and reached back in his hip pocket, and that the defendant began shooting; that he could not tell whether Cash had a pistol; that he (witness), when the shooting began, stepped back close to the stairway; that Cash jumped back in the seat of the car and kept dodging around, it looked like, to get behind the seat. This witness further testified that the defendant had said or done nothing to or toward John Cash until Cash had done what the witness stated he had done, as above set out.
    On cross-examination, this witness stated that he worked at the A-. & C. Buffet & Pool Hall, 105 West Okmulgee; that he had known the defendant 12 or 14 years; that he had never discussed this case with the defendant, but had with his lawyers.
    J. F. Rice was next called, and testified in substance that the day after the defendant married John Cash’s stepdaughter he heard Cash talking on North Third street; that Cash asked him (the witness) where the defendant was; that he told Cash he had seen the defendant aronnd the corner just awhile ago, about 30 minutes ago, and Cash said: “Well, I am looking for him; if I find him it won’t be very healthy for him.” And he put his hand back like this, back on his hip; that he told the defendant what Cash had said to him before the trouble; that the statement made by Cash to him was last fall some time, and the next day after the defendant married the stepdaughter of John Cash.
    J. H. Miller was next called on behalf of the defendant, and testified in substance that he knew both the defendant and John Cash; that he saw the trouble that occurred between them; that he saw Cash drive up and that Graham was going down the street with some one whom he did not know; that Cash jumped out of the car and pulled his coat back like this, and started toward Graham; that just as he did that he (witness) saw a flash; that Cash said something, but that he did not understand it; that after Graham began shooting, Cash was jumping around and got back in the car and got in the seat.
    C. 0. Millsaps was next called on behalf of the defendant. He stated in substance that he resides at 3210 Denver, Muskogee ; that he had lived in Muskogee 11 years; that he was a stepbrother of the defendant; that he was present at the difficulty between the defendant and John Cash in front of the Powers Grocery Store; that Cash drove up in a Ford car, and got out and called the defendant a son of a bitch and put his hand back like this, like he was going after his gun; that about that time the defendant went to shooting; that Cash got out of the car and stepped upon the sidewalk and reached back, and that he (witness) saw the handle of a pistol; that he was probably 15 or 20 feet away; that Henry Cowan was walking with defendant just before the shooting occurred; that they came from the north and were going south; that he did not know how many times the defendant shot; that after defendant began shooting Cash jumped back in the car; that he thought the defendant fired about twice after Cash got in the car; that the defendant did not say or do anything to Cash until Cash did as above related; that Cash did not get the gun out of his pocket; that he did not see the defendant until after Cash had made some remark and had his hand on his gun; that after he saw Cash with his hand on his gun he looked around and saw the defendant with his gun.
    Bob Harris was next called on behalf of the defendant, and testified that he was coming down the sidewalk; that the defendant and another party were behind him; that he went into the Stag cold drink stand, and just in an instant he heard the shooting; that just as he went in he saw Cash drive up in the delivery car and stop and get out; that he then stepped into the cold drink stand and almost immediately the shooting took place; that Cash parked his ear in front of the grocery store.
    The defendant as a witness in his own behalf, in addition to what has heretofore been stated, testified that after he had shot Cash three or four times he thought Cash was going to stop, and that he (defendant) slowed up for a second or two; that Cash had a rain coat on and acted like he was going to get behind something, and that he (defendant) shot him again and shot him until he fell; that he believed Cash was going to shoot him; that if he had not thought so he would not have shot Cash; that he did not shoot any after Cash fell to the floor of the car; that he had heard of threats Cash had made against him.
    On rebuttal the state introduced evidence as follows:

      "James Oliver Tilly testified in substance that he appeared on the scene two or three minutes after the shooting; that John Cash was in the back of a Ford delivery truck; that when he came up a bunch of men were around-there; that they were all excited; that he came within about 2% feet of Cash; that he got in the Ford truck after a little while and took Cash to the hospital; that Sig Hargrove went with witness to the hospital; that when they got to the hospital Cash’s clothing were cut off and laid aside; that Mrs. Rogers made a search and found no gun or weapon of any kind; that he (witness) saw no gun in the car.
    "On cross-examination the witness said he did not know who was the first person to Cash, or what they did.
    "W. S. Spessard was next called, and stated in substance that he saw the defendant and Henry Cowan in front of the Stag about 10 minutes before he heard the shooting.
    "J. W. Beheler was next introduced, and stated in substance that he was 10 feet away when the last two shots were fired; that when the shooting ceased he went to the truck and laicT Cash down in the truck; that he saw no pistol.”
    The above and foregoing is in substance the evidence introduced in the ease.
    Crump, White & Seawel, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). It is first contended that the trial court erred in excluding certain evidence offered in connection with the examination of the witnesses Rice and Reed and the defendant, which said evidence related to certain threats alleged to have been made by the prosecuting witness, John Cash, against the defendant Graham.

The portions of the record necessary to be considered in connection with this assignment of error are as follows:

“Q. State your name. A. W. E. Reed. Q. Where do you live, Mr. Reed? A. I live out at Brushy Mountain now. Q. Were you sworn with the other witnesses yesterday? A. Yes, sir. Q. Are you acquainted with Carl Graham, the defendant? A. Yes, sir. Q. Do you know John Cash? A. I know him when I see him. Q. Have you ever heard John Cash say anything about Carl Graham in any way? A. I heard him—
“By Mr. Gumm: I object unless he knows. A. Yes.
“By Mr. Crump: Q. When was it about, as near as you can tell? A. Last summer sometime; I believe it was last summer, as near as I can remember, right after Carl got into trouble, and they put him in jail, and he got out. I think it was a day or so after he got out, maybe the day he got out. Q. When he was having trouble over Cash’s stepdaughter, the girl he did marry? A. Yes, sir. Q. Where was it you heard Cash say what you heard? A. Down in front of the Cardinal Hotel, right in front of the Cardinal rooms. Q. Down in front of the Cardinal rooming house on Okmulgee? A. Yes, sir. Q. What did he say?
“By Mr. Gumm: We object as incompetent, irrelevant, and immaterial and too remote to be admissible.
“By the Court: I believe I will sustain the objection. (Whereupon the following offer to prove is made out of hearing of the jury by counsel for the defendant:)
“By Mr. Crump: We offer to prove by this witness that the witness John Cash, about the time the trouble was up about the defendant’s relations with his now wife, Cash’s stepdaughter, that Cash stated if Carl Graham didn’t do what was right about the matter that he was going to kill him.
“By Mr. Gumm: We object as incompetent, irrelevant, and immaterial and too remote.
“By the Court: Sustained.
“By Mr. Crump: We except. Stand aside.”

Part of the redirect examination of the witness Rice is as follows:

“Q. What was it he stated to you some time ago?
“By Mr. Gumm: We object as incompetent, irrelevant, and immaterial, and for the further reason it was never disclosed to the defendant.
“By the Court: Sustained.
“By Mr. Crump: We except. (Whereupon the following offer to prove is made out of the presence and hearing of the jury:)
“By Mr. Crump: We now offer to prove by the witness that shortly after Carl Graham married his present wife, that Cash told this witness now on the stand if Carl hadn’t have married her he would have killed him, and if he didn’t treat her right he would kill him.
“By Mr. Gumm: We object as incompetent, irrelevant, and immaterial.
“By the Court: Sustained.
“By Mr. Gumm; And for the further reason it was never told or related to the defendant by this witness.
“By the Court: Sustained.”

Certain offers to prove threats were made in connection with the defendant’s examination, and are as follows:

“Q. Has Cash ever at any time had any conversation with you about you and your wife or about your relations with your wife, or anything of that kind? A. Yes, sir. Q. About — well, when the trouble — were you arrested on account of your relations with the girl? A. Yes, sir. Q. At that time did Cash have any conversation with you just after you got out of jail, made bond and got out of jail? A. Yes, sir. Q. Where was it? A. It was down on — I don’t know what street. It is in front of the Cardinal rooming house. Q. That is on this street right here, isn’t it, Okmul-gee? A. Yes, sir; on Okmulgee. Q. What did he say to you there ?
“By Mr. Gumm: We object as incompetent, irrelevant, and immaterial, and too remote from this occurrence to have any connection with it whatsoever — the same reason as the other testimony.
“By the Court: Where have you been living since that, since the occasion that you have just been asked about?
“By the Witness: You mean since the shooting occurred?
“By the Court: No, since the occasion Mr. Crump asked you about?
“By Mr. Crump: Q. When you had the conversation with Cash in front of the Cardinal? A. Well, I stayed at this rooming house awhile, and then stayed down home awhile down close to Checotah.
“By the Court: How long were you.in town before this trouble came upon the 17th day of February?
“By the Witness: Well, I was in town, I suppose — well, about a month and a week, I guess.
“By the Court: Objection sustained.
“By Mr. Crump: We except. (Whereupon the following offer to prove is made by counsel for the defendant, out of the hearing of the jury:)
“By Mr. Crump: We offer to prove by the witness Graham that very soon after he was released from jail, and before he married his present wife, that Cash told him that if he didn’t do right about the matter and didn’t marry the girl he would kill him, and that if he did marry her and didn’t treat her right that he would kill him, and that he had a damn good notion to do it anyway.
“By Mr. Gumm: Objected to as incompetent, irrelevant, and immaterial, and too remote from this occurrence to have any connection therewith.
“By the Court: Sustained.
“By Mr. Crump: We except. (The above and foregoing was all of the offer to prove made out of the hearing of the jury, by the defendant, at this time.)
“By Mr. Crump: Q. Well, I will ask you if after that, at different times, whether or not Cash had any conversation with you in which he made any threats against you? A. Yes, sir; two or three times. Q. Can you recall any place where you were after that that he used any language or made any threats? A. Yes, sir. Q. Where? A. Well, it was on Second street, and one of them was up on Cherokee and Broadway. I mean Main and Cherokee, I guess it is, on the corner. Q. You don’t know the streets very well? A. No. Q. Well, the first one of those that you had after the time out in front of the Cardinal, when was that? A. As near as I can remember — well, it was about, I guess, a month. Q. About a, month after the Cardinal incident? A. Yes, sir. Q. What did he say to you at that time?
“By Mr. Gumm: Objected to as incompetent, irrelevant, and immaterial, and for the further reason it is too remote from this occurrence.
“By the Court: This is in October, 1920?
“By Mr. Crump: Yes.
“By the Court: Sustained.
“By Mr. Crump. We except. (Whereupon the following offer to prove is made by counsel for the defendant, out of the hearing of the jury:)
“By Mr. Crump. I offer to prove that Cash, at the time the witness has testified, about a month after the incident which occurred in front of the Cardinal rooming house, stated to this defendant in effect that from the information he could get he wasn’t treating his wife right, and if he found out he wasn’t he was going to fix him.
“By Mr. Gumm: Same objection, as incompetent, irrelevant, and immaterial, and too remote.
“By the Court: Sustained.
“By Mr. Crump: We except.”

It is strenuously contended that the exclusion of the foregoing proffered evidence of threats by the prosecuting witness against the defendant was erroneous and prejudicial.

In the case of Smith v. State, 14 Okla. Cr. 250, 174 Pac. 1107, it is held:

“Threats and misconduct on the part of the deceased toward the defendant occurring prior to the homicide form of themselves no justification or excuse for the taking of human life.
“Where the element of self-defense enters into homicide cases, it is the duty of the trial court to admit evidence of threats and other misconduct on the part of the deceased toward the defendant under proper instructions to the jury covering the law of self-defense. And this would be true if there was any doubt as to who was the aggressor at the time of the killing.”

For a further discussion of the admissibility of threats against the defendant by the person slain or injured in prosecutions where the element of self-defense enters, see the body of the opinion in the case of Smith v. State, supra, and cases cited therein.

The testimony of the defendant and of some of his witnesses is sufficient to present the issue of self-defense in this case. The evidence of threats offered to be proved as having been made by the prosecuting witness against the defendant was therefore competent, and the court should have admitted it.

The question now arises: Was the exclusion of such evidence reversible error?

In order to give full consideration to the questions presented by the foregoing assignment of error, it is necessary to incorporate herein other portions of the record disclosing the admission of evidence of threats alleged to have been made by the prosecuting witness against the defendant.

The witness J. F. Rice was permitted to testify as follows :

“Q. Well, do you know about Carl Graham having some trouble and getting arrested over the girl that he married? A. Yes, sir. Q. That is, Mr. Cash’s stepdaughter? A. Yes, sir. Q. When was it with reference to that now? A .Well, it was the day that he made bond on that charge. Now, I can’t say what that date was. Q. I see, it was the day Carl made bond on that charge? A. Yes, sir. Q. And then how soon after that did he marry? A. The next day, I believe. Q. The next day — now, what was it and where was it that you heard Cash talking? A. It was on South Third street. Q. Just tell the jury. A. Just this side of Okmulgee. Q. Just tell the jury what Cash said. A. Or North Third, rather. Q. Just tell the jury what Cash said to you. A. Well, I and a fellow—
“By Mr. Gumm: We object to that, if the court please, as incompetent, irrelevant, and immaterial, and too remote.
“By the Court: I will let him answer it. A. I and á fellow by the name of Shipman was standing there talking, and he came up to me, Mr. Cash did, and he asked me where Carl was, and I told him I didn’t know. I said, ‘I seen him around the corner just awhile ago, about 30 minutes ago,’ and he says, ‘Well, I am looking for him,’ and he says, ‘If I find him, it won’t be very healthy for him,’ and he put his hand back like this. Q. Back how? A. Back just like this (demonstrating). Q. Back on his hip? A. Yes, sir; but he didn’t — I just took it for granted.”

Concerning threats alleged to have been made by the prosecuting witness against him, the defendant testified as follows:

“Q. Now, on the day that you did have the trouble — the day that you shot Cash, had you seen Cash that day before the time of the shooting? A. Yes, sir. Q. Where were you when you saw him first? A. I was in the A. & C. Pool Hall. He came in there and called me out. Q. Is that the one that is run by Tom Anderson and Frank Corey? A. Yes, sir. Q. When he called you out, what did he say to you? A. Well, we walked down to the corner of Main street, and he said he heard — my wife told him that I said the child didn’t belong to me, and he said he was going to kill me if I denied it, and I told him, I said, ‘Why don’t you do it?’ and then Mr. Sherrod arrested us. * * * Q. As you were going down to the jail, after Sherrod arrested you, what happened, if anything, between you and Cash, or what did Cash say, if anything? A. Cash said, ‘I will get you before night,’ and Sherrod turned around and told him to shut up — ‘I wouldn’t be making those threats if I was you.’ ”

In addition to the foregoing alleged threats, the defendant also testified that just before he shot prosecuting witness the prosecuting witness called him a “son of a bitch” and said, “I am going to kill you.”

Further, the defendant was permitted to testify that he had heard of other threats that had been made against him by the prosecuting witness.

It appears from the foregoing excerpts from the record that certain threats alleged to have been made by the prosecuting witness against the defendant were excluded from consideration by the jury upon the ground that they were too remote and had no bearing upon the issues. The offers to prove show that such alleged threats were conditional in their nature, some depending upon the failure of the defendant to marry the stepdaughter of the prosecuting witness, and another upon the failure of the defendant to treat the stepdaughter of the prosecuting witness good, provided he did marry her. These alleged threats were all the outgrowth of a prosecution which was at the time pending against the defendant for statutory rape. The defendant married the prosecutrix, who was a stepdaughter of the prosecuting witness, so that such threats as were based upon his failure to marry her were of very little probative force in this prosecution. However, we are inclined to the view that evidence of such alleged threats should have been permitted to go to the jury for what it was worth.

It is apparent, however, that the jury had before it for consideration evidence, by the testimony of the witness Rice, of a similar alleged threat, and also by the testimony of the defendant as to a threat by the prosecuting witness to kill the defendant on that day, and' further evidence of an intention to carry this latter threat into execution at the time of the shooting.

The alleged evidence of threats which was excluded was, therefore, to a large extent cumulative of that which was permitted to go to the jury.

In Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311, it is held:

“The exclusion of evidence to prove particular facts is harmless, if the facts sought to be proved are subsequently proved by other evidence, and it is apparent that the evidence excluded could not have changed the result.”

See, also, Clingan v. State, 15 Okla. Cr. 483, 178 Pac. 486; Kennedy v. Commonwealth, 109 S. W. 313, 33 Ky. Law Rep. 83.

It is apparent from consideration of this record that the evidence of these alleged threats which was excluded could have had very little bearing upon the result of this trial, as it was conceded that on the day of the shooting the prosecuting witness and the defendant had had a quarrel which resulted in both of them being arrested, thus clearly indicating that ill feeling existed between the parties at the time this shooting occurred.

It is next contended:

“That the court erred in not permitting the defendant to testify and' state to the jury while on the witness stand why he was not living with his wife.”

This evidence was properly excluded, as it had no bearing upon the question of the right of the defendant to defend himself against an attack by the prosecuting witness which he claimed was imminent at the time of the shooting.

As the shooting was admitted, an investigation into the marital troubles of the defendant was a collateral issue. Whether the defendant was or was not living with his wife, or his reasons for not living with her, were not germane to the issue of self-defense.

It is next contended that the trial court erred in giving instructions numbered 5 and 7.

The instructions here complained of are identical in substance with instructions numbered 11 and 12, approved by this court in the case of Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988, and have bearing on the issue of self-defense. Considering the instructions as a whole, we believe the charge to fairly and fully cover the law of the ease; that the jury was not misled by such instructions; that when so considered they are not open to the objections separately urged'‘against instructions numbered 5 and 7; and that the court did not err in refusing to give certain requested instructions in view of the fact that the law of the case was sufficiently covered in the general charge.

The punishment inflicted in this case was well deserved. While the testimony of the defendant, if believed, tended to present a shooting in defense of his person, his conduct in arming himself shortly before the shooting and his conduct at the time of the shooting in, according to his own testimony, shooting the prosecuting witness four or five times after the prosecuting witness had apparently abandoned any effort to attack him, cannot be justified without doing violence to those well-settled rules and statutes which point the duty to one engaged in a conflict to use only such force as is necessary to prevent injury to himself at the time.

The prosecuting witness was unarmed, was clothed in a heavy rain coat, and was engaged at the time of the shooting in his usual vocation. The defendant had previously armed himself with a loaded, deadly weapon, had placed himself in a position where he knew he was likely to come in contact with the prosecuting witness; in fact, he made no effort to avoid what he himself testified would likely be a fatal encounter. He shot the prosecuting witness eight times, bullets entering from the bottom of the feet to one inch above the heart, and the entrances and exits of these bullets are silent witnesses to the fact that the prosecuting witness and other state witnesses told the truth as to how this shooting occurred. The defendant is extremely fortunate that none of these eight wounds proved fatal. That he will be permitted to expiate this crime by serving four years in the penitentiary, instead of the balance of his natural life, should be cause for rejoicing on his part.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


author: BESSEY, J.

text:
    ELIAS RIDGE v. STATE.
    No. A-4502.
    Opinion Filed Dec. 18, 1923.
    (220 Pac. 965.)
    (Syllabus.)
    1. Infants — Prosecution of Delinquent Under 14 for Capital Offense to' be Conducted with Deliberation — Infant Without Parent or Next Friend not Allowed to Waive Substantial Rules of Procedure. Where a delinquent child under the age of 14 years is charged with a capital offense, the proceedings in the juvenile court and at' the preliminary trial and in the district court should be conducted with deliberation, giving the accused the benefit of every substantial rule of procedure in his favor.
    a. An infant defendant, without parent, guardian, or next friend, should not be permitted to waive such rights unless it appears beyond all doubt that the child comprehends the import and effect' of such waiver.
    2. Same — Infant Under 14 Convicted of Murder Entitled to Ne,w Trial for Noncomplianoe with Statutory Procedure. Where an infant charged with murder was in the juvenile court adjudicated a delinquent child, and then accorded a preliminary hearing before a magistrate, and tried and sentenced to death in the district court all in one day, this, considered with other facts appearing of record, indicates that the accused was deprived of the benefits of several statutory rules of procedure designed for his protection, as pointed out in the opinion.
    Appeal from District Court, Mayes County; A. C. Brewster, Judge.
    Elias Ridge was convicted of murder, and he appeals.
    Reversed and remanded.
    J. B. Dudley, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, Elias Ridge, was by information filed in the district court of Mayes county on September 12, 1922, charged with the murder of Mrs. Willie Adair on August 8, 1922. On the same day he entered his plea of guilty, whereupon the court adjudged him guilty as charged and fixed his punishment at death by electrocution on Friday, the 17th day of November, 1922. The execution of this sentence has been from time to time postponed by the Governor, but plaintiff in error is still in the death cell at McAlester, awaiting the execution of such sentence. From this judgment the plaintiff in error, by W. D. Mathews, former commissioner of charities and corrections of the state of Oklahoma, as his next friend, has appealed to this court.

The record discloses that Elias Ridge is a black boy, and that on August 8, 1922, the day of the homicide, he was 13 years and 8 months old; that the deceased, Mrs. Willie Adair, on the afternoon of that day was alone with her two children, attending to her domestic duties about her house, near where the accused was staying with his uncle, Hardy Smith, a negro tenant on the place; that while Mrs. Adair was at or near the back door of her home the accused committed a brutal assault upon her with a knife, an iron bar, and a stick of wood; from the wounds so inflicted she soon thereafter expired.

In a confession later made by the accused to the county attorney and others he admitted making the assault. The provocation or motive for the crime was that he was directed to kill the deceased by Hardy Smith, for which Hardy Smith promised to give him a pig and possibly other minor considerations. At first the accused denied having had anything to do with the commission of the crime, and he assisted others in searching for the murderer.

On September 12th, the day that the information was filed, the record shows that the defendant, Elias Ridge, was present in person, and both sides announced ready for trial, whereupon the county attorney requested that the court appoint an attorney for the defendant, and the court, in compli-anee with such request, appointed Mr. A. W. Fisher, who accepted the appointment. The accused' was then furnished a copy of the information, with the names of the state’s witnesses indorsed thereon. After the information was read and a copy handed to the accused the court informed him that he had a right to a trial by jury; the accused stood mute, and the attorney appointed to represent him announced that his client was ready to be arraigned and plead at once. The attorney then made this statement:

“I have talked with the boy, and he told' me very frankly and plainly just what he did ■ and all the circumstances, and in my opinion there was but one thing to do, and that I have done — that is, advise him to plead guilty, and that is my advice to him.”

The court then inquired whether the findings of the juvenile court had been filed in the district court; upon being advised that such findings had' not yet been filed in the district court, an order was made that the proceedings had in the juvenile court be filed, and this was accordingly done. . These findings were to the effect that on September 12, 1922, the accused was adjudged a delinquent child, possessed of average intelligence of a child of his age, and knowing the wrongfulness of his acts, and ordering that he should be prosecuted accordingly.

The court then accepted the plea of guilty and heard evidence from which he found that the defendant was a delinquent child, over the age of 13 years, possessed of average intelligence of a child of his age, and that at the time of the commission of the fatal assault he knew the wrongfulness of the act. The accused by his counsel then waived the time provided by law for pronouncing sentence, and the court rendered judgment upon his plea of guilty, fixing the punishment as hereinbefore stated.

A condensed recapitulation of the steps taken shows that at a hearing had in the juvenile court on September 12, 1922, Elias Ridge was adjudged' to be a delinquent child, knowing the wrongfulness of his acts at the time he committed the fatal assault; that on the same day an information was filed in the district court, charging him with murder; that on the same day a purported preliminary hearing was had before the county court, in which an attorney not employed by the accused or any one for him, but later appointed by the district court, waived his preliminary hearing; that from the county court the accused was taken immediately before the district court, where this attorney was appointed to represent him; that the accused was there arraigned and on advice of his counsel pleaded guilty; that under instructions from his appointed atttorney he also waived the statutory time for the, pronouncing of sentence, whereupon the accused was sentenc-' ed to die in the electric chair; that all of this was done on the 12th day of September, 1922. Every step taken, from the judicial finding in the juvenile court to the signing of the death warrant in the district court, was done between the rising and the setting of the sun.

The Constitutions of the United States and of this state guarantee a speedy trial to every person accused of crime. Undoubtedly this trial was sufficiently “speedy” to meet all constitutional requirements. But coupled with that guaranty there is another right that one accused of crime shall have a fair and impartial trial. The accused child now, through the intervention of the commissioner of charities, urges that his sentence to death herein should be modified or set aside by this court because the record, as he claims, shows that he did not have a fair and impartial trial, by reason of the waiver of several of his constitutional and statutory rights; and for the further reason that the common-law and statutory presumptions that this 13 ye„ar old negro boy was legally and mentally incapable of committing this crime were not overcome by sufficient evidence.

The Attorney General, joined by the county attorney who prosecuted the case and other attorneys employed to aid in the prosecution, have confessed error, upon the ground that a 13 year old child, charged' with a capital offense, in the absence of parent or guardian, is incapable of waiving the safeguards provided by law in criminal trials.

The circumstances surrounding this homicide were of a most depraved and revolting nature, and the perpetrator, if mentally responsible, should be dealt with in a manner befitting the gravity of the offense. But where the brutality of a murder is such as to point to the total depravity of the perpetrator under circumstances tending to excite the ire, prejudice, and passions of all who hear of the facts, it is all the more important that the accused at his trial be accorded every safeguard provided by law, eliminating as far as may be influences of popular elamor, hatred, and revenge.

The old law books abound in accounts where children of tender years were executed for murder, but in recent years a more humane policy has been followed, giving more consideration to the mentality of the child, his juvenile training or want of training, and any dominating evil influence exercised over the child by others. Even in early times Sir Mathew Hale held that where an infant of 9 years of age had confessed to the killing of another of like age and “upon examination it was found, he hid the blood and body and the justice held he ought to be hanged,” that “the circumstances must be required of by a jury, and the infant is not to be convicted upon his confession.” 1 Hale P. C. 27.

In Hawk. P. C. (Leach’s Ed.) 1, 1, it was said:

“From this supposed imbecility of mind the protective humanity of law will not, without anxious circumspection, permit an infant to be convicted on his own confession.”

An infant can neither sue nor defend a suit in a civil action, and with even less propriety can an infant waive his substantial rights in a criminal proceeding, and where a court arbitrarily appoints a stranger to represent him, the person so appointed should, in a capital case, refrain from waiving any of the provisions of the statutes designed for the infant’s protection, unless it appears beyond all doubt that the infant fully understands the effect and the results growing out of such waiver.

Under section 8082, Comp. St. 1921, it is provided that—

“Every child who shall have been adjudged delinquent, * * * shall continue to be a ward of the [county] court until such child shall have been discharged as such ward by order of court. * * * The court may, however, in its discretion cause such child to be proceeded against in accordance with the laws that may be in force governing the commission of crime. ’ ’

Even in the juvenile court this accused boy had a right to trial by jury. Section 8071, Comp. St. 1921. Since the juvenile court hearing was had the same day the several different steps of the trial were had in the district court, it is probable that no jury was summoned, and no waiver appears.

Hardy Smith, the uncle and the real instigator of this crime, has since been convicted and his punishment fixed at life imprisonment. It hardly seems right that this boy of immature years and understanding should suffer death, where several of his substantial rights were waived, and where there was such a want of due deliberation at the trial.

From all that appears in the record we conclude that neither the spirit nor the letter of the law has been followed in these proceedings, and that the confession of error by the Attorney General should be sustained.

The conviction is therefore set aside, and the cause remanded for a new trial. The warden of the penitentiary is directed to deliver the plaintiff in error into the. custody of the sheriff of Mayes county, who will hold him in custody subject to further proceedings according to law.

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


author: PER CURIAM.

text:
    O. C. LOGAN v. STATE.
    No. A-4343.
    Opinion Filed Dec. 22, 1923.
    (220 Pac. 1117.)
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    O. C. Logan was convicted of the offense of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    "Wilkinson & Hudson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, O. C. Logan, was convicted in the county court of Pittsburg county of the offense of manufacturing intoxicating liquor and punishment fixed at imprisonment in the county jail for a period of 30 days and to pay a fine of $50. Judgment was rendered on the 24th day of March, 1922, and the appeal lodged in this court on the 20th day of May, 1922.

The cause was finally submitted on the 6th day of November, 1923. No brief has been filed in behalf of plaintiff in error and no appearance was made to orally argue the cause at the time it was submitted.

Rule 9 of this court provides:

"When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    BERT CLARK v. STATE.
    No. A-4275.
    Opinion Filed Dec. 22, 1923.
    (220 Pac. 974.)
    (Syllabus.)
    Evidence — Conviction for Unlawful Possession, Based on Evidence Procured by Unauthorized Search, Set Aside. Where a conviction is predicated largely upon evidence procured by an unauthorized search and seizure, and there is no other substantial evidence supporting the charge, the conviction will be set aside.
    Appeal from County Court, Harmon County; E. C. Abernathy, Judge.
    Bert Clark was convicted of illegal possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    C. H. Madden, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Bert Clark, plaintiff in error, in this opinion designated the defendant, was, by information filed in the county court of Harmon county on July 9, 1921, charged with having in his possession on that day one gallon of whis-ky, with the unlawful intent to barter, sell, and otherwise dispose of the same. At the trial, by verdict of a jury, he was found guilty as charged. Subsequently, on January 25, 1922, the court pronounced sentence on the verdict, fixing his punishment at a fine of $100 and 30 days in jail. From the judgment so rendered, he appeals.

This conviction was predicated largely upon evidence procured by an unauthorized search and seizure. Evidence so procured has been held to be inadmissible, for the reasons set out and analyzed in detail in the ease of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, to which reference is made for information concerning precedents and reasons for the rule there announced.

It has been urged that in this ease the objection to the reception of this evidence came too late because it was not made until after the evidence on both sides had been introduced. The better practice is, where incompetent evidence, whether oral, documentary, or physical, is offered, for the objections thereto to be interposed at the time and a failure to so do may be considered a waiver. The reasons for this rule are well stated in Youman v. Commonwealth, 189 Ky. 152, 224 S. W. 860, 13 A. L. R. 1303, where it is said that the proper time and only time in which objections can be made to the introduction of evidence by the mouth of witnesses is when it is offered during the trial, disapproving the rule laid down in some earlier decisions to the effect that evidence procured by unauthorized search and seizure should be objected to before the trial, and that an objection made during the trial came too late.

Eliminating this illegal evidence, we find there is not sufficient proof to sustain the verdict.

The judgment of the trial court is therefore reversed, and the cause remanded.

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


text:
    HENRY YOUNG v. STATE.
    No. A-4149.
    Opinion Filed Dec. 22, 1923.
    (220 Pac. 975.)
    (Syllabus.)
    Appeal and Error — Judgment Supported by Evidence not Disturbed Because of Conflict Between Witnesses. Where the evidence on the part of the state is sufficient to support the verdict and judgment, the judgment will not be disturbed on appeal solely because of conflicts between the testimony of witnesses for the state and of those for the defendant.
    Appeal from District Court, Hughes County; John L. Coffman, Judge.
    Henry Young was convicted of burglary in the second degree and sentenced to serve a term of two years in the •penitentiary, and he appeals.
    Affirmed.
    Anglin & Stevenson, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Plaintiff in error was convicted in the district court of Hughes county, of the crime of burglary in the second degree on an information charging that on or about the 19th day of March, 1921, he and his codefendant, Frank Henry, broke and entered the store building of one P. M. Parker, located in the town of Non, Hughes county, with intent to steal therefrom. Upon a trial to a jury the defendant Young was found guilty and punishment fixed as above stated. Judgment was rendered on the 19th day of July, 1921, and case-made and petition in error filed in this court on the 27th day of December, 1921.

But one question is raised in this appeal, to wit, the sufficiency of the evidence to sustain the verdict and judgment.

In this connection it is contended by counsel representing this defendant that there is an entire absence of evidence to show that the defendant entered the store building asi charged in the information with any criminal intent.

"We deem it unnecessary to enter into an extended discussion of the merits of this contention. The writer of this opinion has carefully read the entire transcript of the evidence in this case. The evidence on the part of the state discloses that this defendant and his codefendant, Frank Henry, were caught in the act of burglarizing Parker’s store as charged in the information; that they practically confessed their guilt at the time and further showed the parties who caught them just how the burglary was effected.

They attempted to explain their conduct by claiming that one of the clerks in the store had agreed to open the store that night so that this defendant could get a pair of shoes that he had been looking at the afternoon before.

Any conflict in the evidence was for the jury to reconcile, if possible. If not, the jury was to determine whom to believe and whom to disbelieve. The evidence on the part of the state is clearly sufficient to support this judgment. Under repeated holdings of this court, therefore, the judgment will not be disturbed on appeal.

It is ordered that the judgment be,.and the same is hereby, affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    THOMAS MORTON v. STATE.
    No. A-4166.
    Opinion Filed Dec. 22, 1923.
    (220 Pac. 976.)
    (Syllabus.)
    1. Evidence — Evidence of Accomplice Sufficiently Corroborated. The record examined, and held, that the testimony of the alleged accomplice is amply corroborated.
    2. New Trial — Newly Discovered Evidence Insufficient. Motion for new trial on grounds of newly discovered evidence held properly overruled.
    Appeal from County Court, Logan County; A. H. Boles, Judge.
    Thomas Morton was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    B. F. Garrett, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Thomas Morton, plaintiff in error, here designated the defendant, was, by information filed September 28, 1921, in the county court of Logan county charged with the unlawful manufacturing of intoxicating liquor. At the trial, October 13, 1921, by verdict of a jury the defendant was found guilty as charged, and his punishment assessed at a fine of $500 and 4 months’ imprisonment in the county jail. From the judgment on this verdict, he appeals.

The evidence in this ease discloses that Charles Swanson, a deputy sheriff, in company with the county attorney and Ed Robertson, another deputy sheriff, went to the house occupied by the defendant and a man named Whittle in the outskirts of Guthrie, armed with a search warrant, for the purpose of searching the place; that in the execution of this search warrant they found a still in operation, a quantity of mash and some whisky in process of distillation- — all of which was seized and introduced in evidence at the trial. The defendant was apparently in charge of the still, and when apprehended said: “You have caught me right in the act; I wouldn’t have had this happen for a thousand dollars.” The facts as above outlined appear in the testimony of all three of the witnesses named.

Defendant, through his counsel, claims that this conviction should be set aside because — -First. The proof, as he alleges, was insufficient to show that the liquor seized was whisky or intoxicating liquor. Second. Because the proof is not clear that the still and liquor belonged to the defendant, or that the still was being operated by him. Third. That the conviction was predicated in part upon the testimony of one Whittle, an accomplice, and that the testimony of this accomplice was not sufficiently corroborated. Fourth. That the court erred in overruling defendant’s motion for a new trial on the grounds of newly discovered evidence, the purport of which was that the still seized belonged to Whittle.

Without going into explanatory details, the court has carefully examined each of the propositions urged, and finds that the record does not support any of them. In our judgment the evidence is amply sufficient, independent of the testimony of the accomplice. The newly discovered evidence, if produced, would not exonerate the defendant.

Finding no prejudicial error in the record, the judgment of the court below is affirmed.

MATSON, P. J., and DOYLE, J., coucur.


text:
    Ex parte LOUIS BAKER.
    No. A-4892.
    Opinion Filed Dec. 24, 1923.
    (220 Pac. 1117.)
    Petition of Louis Baker for writ of habeas corpus.
    Cause dismissed.
    Hall & Pickens and G. Arthur Holloway, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

This is a petition for writ of habeas corpus of Louis Baker to be admitted to bail pending an appeal from a judgment of the county court of Hughes county. A rule to show cause issued and before the cause was submitted counsel of record in open court moved to dismiss the same.

It is therefore ordered that said cause be and is hereby dismissed.


text:
    CARL THOMAS v. STATE.
    No. A-4163.
    Opinion Filed Dec. 26, 1923.
    (220 Pac. 976.)
    (Syllabus.)
    1. Evidence — Searches and Seizures — Officer net Protected in Making Unauthorized Search and Seizure by Search Warrant Subsequently Issued — Evidence so Obtained in Liquor Case Inadmissible. Where an unauthorized search and seizure is commenced and in progress, the issuance of a search warrant for the purpose of making valid that which at its inception was illegal will afford no protection to the officer making such search and seizure.
    (a) Evidence so obtained should be excluded on the timely objection to its introduction.
    2. Searches and Seizures — Officer Executing Search Warrant not Authorized to Amend it by Interlineiation. Where a valid search is in progress and it appears to the officers executing the same that nothing can be found at the place named in the search warrant, the officer executing the warrant had no right to amend it by interlineation, or otherwise, so as to include other adjacent premises.

      3. Evidence — Extrajudicial Confession to be Corroborated. A mere naked extrajudicial confession should be corroborated by other competent proof.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Carl Thomas was convicted of illegal possession of whis-ky, and he appeals.
    Reversed and remanded.
    Monk & MeSherry, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

The specific offense charged followed by a conviction thereof, was that the plaintiff in error, here designated the defendant, had in his possession or under his control, on the 11th day of October, 1921, 100 gallons of whisky, with the intent of violating the prohibitory liquor laws of this state.

The proof shows that on the day preceding, October 10, 1921, defendant was arrested under circumstances indicating that he was making a sale of a small quantity of whisky to some young men near the defendant’s premises. While one officer took the defendant to jail, the other officer went into the home of the defendant, where he saw the wife of the defendant empty some whisky into the toilet stool. The officer then seized a quart and a pint bottle in the bathroom, and went out into the dining room and waited there until another officer came with a search warrant. Under authority of this search warrant further search was made in which no other liquor was discovered. On the evening of the 10th another search warrant was issued, directing the officer to search the the dwelling house of A. A. Banks for liquor supposed to belong to the defendant. On October 11th, armed with this latter search warrant, the United States commissioner, accompanied by several peace officers, went to the Banks home, where they entered and made at least a partial search, finding nothing. Then and there this United States commissioner amended the search warrant by interlineation with a pencil, inserting these words, “outhouses, shop in back yard, vacant fields, vacant houses and property adjacent, including cellars and all places on the premises where liquor could be stored. ” The search of these premises then proceeded, resulting in the finding of about 100 gallons of whisky in casks hidden in a bam loft and covered with hay.

These premises belonged to Banks, but there was some evidence that the defendant was frequently seen in that vicinity. Later, while in the custody of the officers, the defendant made an extrajudicial confession to the effect that the whisky found in the Banks barn belonged to the defendant and that defendant would assume all responsibility therefor; that defendant did not want Banks prosecuted. There was some evidence tending to show that the officers told defendant while he was in their custody that Banks might not be prosecuted if defendant would assume all responsibility himself, and that this may have influenced the defendant to make the confession. There is some testimony of circumstances indicating that Banks and defendant were partners and equally responsible.

The defendant here urges: First, that the seizures made at defendant’s residence on October 10th and at the Banks bam on October 11th were illegal, and that the evidence so procured illegally was inadmissible; second, that the extrajudicial confession, if such it was, was 'not corroborated by any competent evidence.

The purposes of a search warrant are to preserve the home, premises, and private belongings from unreasonable invasion and abuses. If the rule recently announced by this court in the case of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, and other eases since decided involving like circumstances, were to be so extended as to permit the issuance and execution of search warrants during the course of an unauthorized search and seizure and thus make valid that which at its inception was invalid, it would in many cases amount to a destruction of the rule itself. A search warrant executed or amended to meet the emergencies of a search and seizure then in progress, without sufficient authority, is as a sounding brass or a tinkling cymbal, a clear evasion of the purpose of the constitutional safeguards for which it was created.

Whether or not our deductions are correct, that neither one of the search warrants gave legal authority to the. peace officers to execute them, the facts supporting their legality, or that of either one of them, if not a question of law, were at least a question for the jury, and it was error for the court to refuse the defendant’s proffered instruction directing the jury to give heed to no evidence procured by an unauthorized search if then found as a fact that one or th© other, or both, of the search warrants were illegally executed.-

We think there is some merit to the second objection urged by counsel for defendant. Outside the evidence illegally obtained, if it was so obtained, by the extrajudicial confession, there is no probative proof that the liquor found in Banks’ bam belonged to the defendant, or that he had it for illegal purposes. Brown v. State, 20 Okla. Cr. 396, 196 Pac. 967; Henry v. State, 14 Okla. Cr. 189, 169 Pac. 658; Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849; 1 R. C. L. 586.

Considering the evidence illegally obtained, we suspect that defendant was an illicit whisky dealer on a large scale, and that Banks was his partner, or was implicated with him. We would affirm this case if we could do so without violence to basic principles of law, but to place our stamp of approval on the practice here criticized would have a tendency to invite more flagrant violations of correct .practice and encourage abuses that might adversely affect the constitutional rights of innocent persons.

The judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

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


text:
    AUGUSTUS BARRON v. STATE.
    No. A-4329.
    Opinion Filed Dec. 22, 1923.
    (221 Pac. 117.)
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Augustus Barron was convicted of the illegal transportation of intoxicating liquor, and he appeals.
    Reversed.
    Wilkinson & Hudson, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

Plaintiff in error, Augustus Barron, here referred to as the defendant was convicted in the county court of Pittsburg county on March 22, 1922, of unlawfully conveying intoxicating liquor in said county. His punishment was assessed at a fine of $50 and a term of 30 days in jail. From the judgment on this verdict he appeals.

The Attorney General has filed a confession of error in this case on the ground that the evidence at most amounts to no more than a suspicion against the defendant.

There were but three witnesses for the state. W. L. Johns, a deputy sheriff, testified that there was a picnic and dance at a park near Carbon; that he saw a Ford car with the curtains closed pass near the dance platform, and observed that the car was parked about 150 yards distant, where two men and two ladies got out of the car; that he recognized none of them; that about an hour later he approached the car to search for liquor, and found the defendant sitting in the front seat. The officer asked defendant if that was his ear, and defendant replied that it was not. By the use of a search light which was on the front seat,' the officer discovered some bottles of whisky on the back seat. . Defendant told the officer that it did not belong to him, and that he knew nothing about it. A negro boy who assisted the officer also testified, but shed no additional light on the incidents just recited. The same is true of another bystander who witnessed the arrest of defendant.

The defendant testified that he had just gotten into the ear (that he did not dance, and was there waiting for a companion), when the officer came up and at the point of a gun said: “What have you got in this car?” Defendant replied: “I don’t know what is in this car.” The officer then looked in the back seat, where he found a bottle. Another witness testified that defendant had gone to the park with him in a Dodge truck. There was no testimony that defendant sold or transported whisky, or that he was a person of that character.

The confession of error is sustained, and the cause reversed.

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


text:
    DOC MURRAY v. STATE.
    No. A-4394.
    Oinion Filed Dec. 22, 1923.
    (221 Pac. 116.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Doe Murray was convicted of maintaining a public liquor nuisance, and he appeals.
    Affirmed.
    O. P. Estes, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Doe Murray, was convicted in the county court of Oklahoma county of the offense of maintaining a public liquor nuisance, and his punishment fixed at imprisonment in the county jail for a period of six months and to pay a fine of $500. Judgment was rendered on the 6th day of March, 1922. A proper extension of time having been made by the trial court, the appeal was lodged in this court on the 3d day of July, 1922.

The cause was finally submitted on the 8th day of November, 1923. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time it was submitted.

Rule 9 of this court provides:

“When no counsel appears, and no briefs are filed, the eourt will examine the pleadings,' the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    GEORGE PALAMARCHUK v. STATE.
    No. A-4164.
    Opinion Filed Dec. 22, 1923.
    (221 Pac. 120.)
    (Syllabus.)
    1. Libel and Slander — Information for Slander — English Equivalent of Words1 Charged Uttered in Foreign Language Sufficient. Giving effect to the statutory enactments modifying the common law rules of pleading, we hold that' an information charging slanderous words in a foreign language need not recite the foreign words spoken, but that the English equivalent is sufficient, provided the information contains an allegation that they were spoken in a foreign language, naming it, and that the English equivalent used is a true and correct translation thereof, following the decisions in California, Missouri, and Iowa cited in the opinion.
    2. Same — Variance. Because the information contained no averment that alleged slanderous words were uttered in a foreign language there was a consequent variance between the information and the proof.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    George Palamarehuk was convicted of slander in imputing unchastity to a female, and he appeals.
    Reversed and remanded.
    J. E. Layden and Monk & MeSherry, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

George Palamarehuk; plaintiff in error, here designated the defendant, was by information filed in the county court of Pittsburg county on March 25, 1921, charged with the offense of falsely and wantonly imputing a want of chastity to Tressa Slotta. At the trial November 17, 1921, he was found guilty as charged, with his punishment assessed at 30 days in jail and a fine of $250. From the judgment on this verdict he appeals.

The defendant was a priest in charge of a congregation of the Russian branch of the Greek Catholic Church, at Harts-horne. He was educated at the University of Odessa, spoke the English language imperfectly, and used what is known as the “high” Russian language, such as was spoken at the University and among the educated classes of that country, and also used some Russian dialect, commonly termed “low” Russian, and spoken by the common and uneducated classes of Russians of Austria, Carpathia, Galicia, and other provinces, and which was used by the members of his congregation at Hartshorne.

This prosecution grew out of a church quarrel, in which the trustees and members of the church committee wanted to have the defendant removed as the priest in charge of this church. A meeting of the committee and congregation had been called at the place of worship for the purpose of auditing the finances of the church, at which 12 or 15 members had assembled. On this day the weather was inclement, and the ground covered by about a foot of snow, on account of which the defendant announced to those assembled that no official meeting would be held. However, an informal discussion was had as to the finances of the church. The defendant had intimated that Andrew Slotta, husband of the female alleged to have been slandered, who was one of the trustees of the church, had not accounted for certain of the funds in his possession and control. Andrew Slotta, speaking in some Russian dialect, stated that the defendant made the statement he did concerning the misappropriation of church funds because Mrs. Slotta had repulsed improper advances from the defendant. When this statement was made by Slotta, the priest became angry, and in the Russian language, or some Russian dialect replied in substance that Mrs. Slotta was a wanton, affected with a venereal disease, and had been sexually intimate with negroes, expressed in obscene and insulting terms.

The exact words used by the defendant cannot be ascertained from the record, because the different witnesses testifying for the state interpreted the expressions used by the defendant differently, but the substance and effect of the slanderous statement, as testified to, was practically the same. Several witnesses, friends of the defendant in the church controversy, testified that no such slanderous statement or imputations were uttered by him. The material part of the information was to the effect that the accused wantonly and falsely imputed to Tressa Slotta a want of chastity by the. making of the statement outlined above. There was no allegation that the statement was made in the Russian language, or any Russian dialect, and from the reading of the information, without the. aid of other parts of the record, it would appear that the slanderous words used were spoken in English. The defendant urges in this appeal that there was a variance between the allegations and the proof, and that the information was insufficient, because it did not state the slanderous words in the Russian language or dialect as spoken, with a true translation of the foreign words in the English, together with an allegation that the translation was correct.

It has been held by a long line of authorities, ancient and modern, that where the slanderous words spoken are uttered in a foreign language the words must be set out in the information in the language in which they were spoken, with a translation thereof in English added. Romano v. De Vito, 191 Mass. 457, 78 N. E. 105, 6 Ann. Cas. 731; Wormouth v. Cramer, 3 Wend. (N. Y.) 395, 20 Am. Dec. 706; Pelzer v. Benish, 67 Wis. 291, 30 N. W. 366; Kerschbaugher v. Slusser, 12 Ind. 453; Simonsen v. Herold Co., 61 Wis. 626, 21 N. W. 799. Other cases to the same effect may be found in the notes to the Romano Case in 6 Ann. Cas. 731. The cases cited are for the most part civil cases, but it has been held that the same rule would apply in a criminal case. Stichtd v. State, 25 Tex. App. 424, 8 S. W. 477, 8 Am. St. Rep. 444; 17 R. C. L. “Libel and Slander,” §§ 142 and 228; section 1115, Newell on Slander and Libel, 3d Ed.

It has been held in a number of cases, where the rules of practice have changed the common-law rule, that where foreign words are alleged as slanderous it is sufficient in pleading to recite the English meaning without quoting the foreign words, with appropriate averments however, that the words were spoken in a foreign tongue. Bower v. Deideker, 38 Iowa, 418; Butts v. Long, 94 Mo. App. 687, 68 S. W. 754; Elfrank v. Seiler, 54 Mo. 134; Stevens v. Kobayshi, 20 Cal. App. 153, 128 Pac. 419. While there is no provision in our Constitution or statutes requiring that pleadings be couched in the English language, the practice is so universally established in this state that it would seem that there would be no occasion for such a provision. Even before statehood, pleadings and court records in the Five Civilized Tribes were recorded in the English language. Under our practice, both civil and criminal, it is provided that a pleading should contain a statement of facts constituting the cause of action in ordinary and concise language, disregarding any error or defect which does not affect the substantial rights of any of the parties. Sections 265, 318, 2563 and 2564, Comp. St. 1921, in which the statutory rules of pleading in civil and criminal cases are practically the same.

Giving effect to the statutory enactments just cited, we hold that an information charging slanderous words in a foreign language need not recite the foreign words spoken, but that the English equivalent is sufficient, provided the information contains an allegation that they were spoken in a foreign tongue, naming it, and that the English equivalent used is a true and correct translation thereof, following the decisions in California, Missouri, and Iowa, cited above. By this test we find from the record here that the claim of the plaintiff in error that there was a variance between the allegations and the proof is well founded. There was no allegation in the information that the words were spoken in the Russian language, “high” or “low,” or in any Russian dialect, while the proof conclusively shows that the slanderous words spoken were uttered in some Russian dialect. There was no sufficient showing in the proceedings that the words spoken were truly and correctly translated into English, and here lies the danger in framing an information, so that it appears that the slanderous words were spoken in English, and supporting it by proof that they were uttered in some foreign language or dialect.

The words as charged in the information were exceedingly obscene and repulsive in their nature, some of the words being vulgar expressions difficult to define in any language. The rule should therefore be invoked that the pleadings should state that the expressions were uttered in a foreign language, coupled with an allegation as to the true translation in English, in order that the accused might prepare to meet the issues by the use of interpreters and witnesses familiar with both languages. The accused claims further that the testimony was insufficient to support the verdict. It is difficult to conceive how a priest officiating over a religious body at a public meeting would so debase himself as to use the obscene and scurrilous language attributed to him. The evidence upon “this point being conflicting, the question of whether the defendant used the language alleged was for the jury. The annals of criminal cases often disclose that persons of high standing and position and supposedly high character are sometimes guilty of disgraceful conduct.

Because the information contained no averment that the words uttered were in a foreign language, and the consequent variance between the information and the proof, the judgment of the trial court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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