author: BESSET, J.

text:
    LEE BIRD v. STATE.
    No. A-3934.
    Opinion Filed Dec. 13, 1922.
    (210 Pac. 925.)
    (Syllabus.)
    1. Trial — Instructions and Modifications to Be in Writing. Our Statutes (sections 5870, 5007, 5905, and 5913, Rev. Laws 1910) doubtless contemplate that all instructions to juries shall be in writing, including any material changes or modifications made during the deliberations of the jury.
    2. Appeal and Error — Verdict not Disturbed for Oral Explanations not Materially Altering Instructions. If oral explanations by the court arfe made which do not materially alter the' written instructions, and which haV-e no tendency to confuse the jury, the verdict should not be disturbed.
    3. Trial — Instructions Partly Written and Partly Oral Disapproved. Instructions partly in writing and partly oral should be avoided. Such practice is likely to' be confusing to both thjfe jury and the appellate court charged with passing upon their sufficiency.
    4. Same — Waiver of Statutory Right to Have Jury Instructed in Writing. The statutory right to have the jury instructed in writing may be waived even in criminal cases.
    5. Appeal and Error — Harmless Error — Unauthorized Inspection of Scene of Crime by Part of Jury. Where, before final submission, the jury were permitted to separate, and three jurors without permission inspected the place where the homicide took place, and where the whole panel, after submission, with the consent of the court, inspected the place, such irregularity will not operate as a reversal where nothing prejudicial appears.
    Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.
    Lee Bird was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Pruiett, Sniggs, Patterson & Morris, for plaintiff in error.
    George P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSET, J.

Plaintiff in error, Lee Bird, in this opinion referred to as the defendant, and1 A. Bird, the deceased, were brothers. The defendant was 65 years of age, and the deceased brother was about 70. It appears that the fatal tragedy grew out of a misunderstanding or dispute concerning their business affairs. Both men were engaged in the produce business in Oklahoma City, and at the time of the homicide they were occupying the same business building. For years prior to this time they had been in business, sometimes jointly and sometimes separately. At this time they were transacting business separately, but jointly using the same business building.

On the morning oí the homicide the defendant, upon going to his place of business, found the front doors of the building locked with a new spring lock. After trying to gain entrance through the front doors, and failing, the defendant went to the rear, where the deceased refused to permit him to enter. According to the testimony of the defendant, the deceased brother threatened to kill him if he forced an entrance. The defendant then went to a hardware store, purchased a revolver, and in the course of about two hours returned to the building and broke a large glass panel in the front door by striking it with a borrowed hammer. The deceased then approached this- opening in a threatening manner, with a hatchet in his hand. The defendant thereupon fired four or five shots, one of which struck the deceased, penetrating his body and causing almost instant death.

The killing was admitted, and the accused pleaded justification in his necessary self-defense.

The errors complained of may be treated under two subdivisions :

First. That the court erred in giving verbal instructions to the jury during the course of their deliberations.

Second. Misconduct of jurors, in that three jurors, without leave of court, visited and inspected the scene of the tragedy during the progress of the trial, before the issues were finally submitted to the jury.

After the jury had deliberated some hours, they were by the bailiff brought into court. Here the record shows the following :

“The Court: Gentlemen of the jury, the court understands you desire to ask a question.
“A Juror: Tour honor, there is two or three questions that the jury would like to be informed on. The first one is: What constitutes ‘reasonable doubt’? Shall I read them all now?
“The Court: You might read the rest of them.
“A Juror: What constitutes ‘unnecessary’ killing’ or murder, and what time the Frisco is supposed to leave on the morning of the killing.
“The Court: Save the parties plaintiff or defendant, or are the parties plaintiff and defendant willing that the court should answer the first question, as to what' is meant by reasonable doubt?”

There being no objection, the court proceeds’ as follows:

. “The Court: In answer to that question, the court will say that the statutes of this state that were adopted by the-Legislature some ten years ago defined ‘reasonable doubt/ That definition was given to the jury in a criminal case, following the exact language of the statute. The defendant appealed from a verdict of conviction in that case. The Criminal Court of Appeals, speaking through Chief Justice Furman, said that that is not the law of this state, and that the Constitution and the Bill of Rights of this state are of such import that the definition of reasonable doubt, as given by the statute, was not a legal enactment, and was not binding, and that if courts did not desire to have convictions reversed they must refrain from giving that definition. I take it that the meaning of the court in' speaking in that way is that no plainer language could be used to express the meaning sought to-be conveyed by those words, ‘reasonable doubt/
“Mr. Morris: Give us an exception to the remarks at. this time.' I don’t want to get up there before the jury objecting (This1 to the reporter.)”

The court then read to the jury from an opinion of this: court by Justice Furman, to the effect that the term “reasonable doubt” was a term easily understood; but difficult to define, and that any definition given would be more likely to confuse than elucidate the meaning of the term. This', in our opinion, constituted.no additional instruction to the jury. It was- simply an explanation why no instruction on reasonable doubt had been given, and why such an instruction should not be given.

The court then proceeded to explain the next question asked by the jury, as to the meaning of the term “unnecessary killing” or “murder.” The court reread a portion of instruction No. 6, defining “murder,” and then made the following ..observations:

“ * ** While a homicide that is perpetrated by means of a dangerous weapon, in a heat of passion, but without a' design to effect death, is manslaughter in the first degree, it does not constitute murder; it is manslaughter in the first degree, unless committed under such circumstances as constitute justifiable homicide. Now, gentlemen, this second question you have, as to what is meant by unnecessary killing.”

The court then Reread his instructions relating to unnecessary killing, manslaughter, and justifiable homicide. After the court read the instructions on justifiable homicide the court said:

“I am inclined to think that that is about as clear as it could be .stated. An act that is justifiable is not criminal. It is for you to say whether the facts as disclosed upon the trial bring the acts that were alleged to have been done, and which were done, within the definition of these offenses.”

After rereading of some other instructions, the court said: .

“In answer to your second question, as to the meaning of ‘unnecessary killing,’ which really refutes, if that were true, the claim'upon which the defendant is basing his right to act as he did under the circumstances as' he viewed them, that the decéased was about to kill him or to do him some great personal injury, in order to convict him, as explained in the instructions, of the crime of manslaughter in the first degree, if such were the facts, you must find that, viewing the situation from his standpoint, there was no reasonable ground upon which he could believe that his brother was about to do him some great personal injury at that time.”

While ordinarily we do not mean to approve of the giving of oral explanations of written instructions, pending the deliberations of the jury, yet under the circumstances here, where there were no specific objections to the giving of oral explanations, and where the explanations given did not amount . to a material modification of the written instructions, the irregularity will be considered as waived. The defendant, at the conclusion of the remarks of the court, made this objection: “Give us an exception to all these remarks of the court”— for what particular reason is not stated. The exception was allowed. The only other objection interposed to any of these proceedingsi was while the court was commenting on “reasonable doubt,” as hereinbefore quoted.

Upon the question of waiver or loss of the right to written instructions, or upon the question of oral modifications or explanations of written instructions, the courts are not in complete accord. In the following cases immaterial oral additions to written instructions have been held harmless: National Lumber Co. v. Snell, 47 Ark. 407, 1 S. W. 708; O’Donnell v. Segar, 25 Mich. 369; Currie v. Clark, 90 N. C. 355; Continental Nat. Bank v. Folsom, 67 Ga. 624; Fry v. Shehee, 55 Ga. 208. In many states it has been held that the statutory right to have the jury instructed in writing may be waived even in criminal eases. For a more complete discussion of this feature of the case, see slection 51, vol. 1, Blash-field’s Instructions to1 Juries, and cases and notes there cited.

Our statutes (sections 5870, 5007, 5905, and 5913, R. L. 1910) doubtless contemplate that all instructions shall be in writing, including any material changes or modifications made during the deliberations of the jury. But, if oral explanations by the court are made, which do not materially alter the written instructions, and which have no tendency to confuse the jury, or if the complaining party waives or fails to make proper and timely objections to oral explanations, the verdict should not be disturbed. Particularly is this true where, as in this case, the record as a whole shows a clear ease of deliberate murder, or at least that the killing was cruelly and unnecessarily , done in the heat of passion, by means of a deadly weapon. The defendant’s punishment was fixed at the minimum for manslaughter in the first degree, while the evidence would have supported a verdict for murder. Under such circumstances a new trial should not be granted unless it clearly appears that the defendant was deprived of some fundamental statutory or constitutional right, to his prejudice. In our opinion the instructions given, with the oral explanations made as here appears, constituted no such error. However, instructions partly in writing and partly oral should be avoided. Such practice is likely to be confusing to both the jury and the appellate court charged with passing upon their sufficiency. The better practice is to reduce all explanations and modifications to writing.

As to defendant’s objection that three jurors visited the scene of the homicide during the progress of the trial, before final submission, it also appears that, after submission, on request, the whole panel was taken to the place to inspect the premises. Nothing was shown to have taken place that was prejudicial to the rights of the defendant; these three jurors saw nothing more, and obtained no more material information than was imparted to all the rest of the jurors. The fact that one Julius Stumpf pointed out the building to these three jurors, and told them that defendant and deceased “had trouble off and on ever since they had been over there” (at that location), was to a large extent supported by evidence of witnesses in court. We do not see that this remark was prejudicial ; indeed, it may have inured to the benefit of the defendant, as being in support of his claim of justification in ■self-defense, tending to show that the deceased was Sometimes quarrelsome.

By consent of the parties the jury, before final submission, were permitted to separate, and the conduct of the three .jurors in visiting the sieene of the tragedy, though technically improper, was innocently done; and, since the other jurors by permission of the court also viewed the premises, in the .absence of any showing of corrupt or improper reception of testimony out of court, a verdict of manslaughter will not, for that reason alone, be disturbed.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    E. H. SHACKELFORD v. STATE.
    No. A-4412.
    Opinion Filed Dec. 14, 1922.
    (211 Pac. 1056.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Pardon. When the pardon power extends clemency, and the same is accepted pending the determination of the appeal, the appeal will be dismissed.
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    E. H. Shackelford was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
    Sandlin & Winans and Womack, Brown & Cund, for plaintiff in error.
   PER CURIAM.

The plaintiff in error, E. H. Shackelford, yas informed against for the murder of J. C. Hoff, and upon h\si trial was found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary foi a term of 10 years. From the judgment rendered in accordance with the verdict an appeal was duly perfected.

While his appeal was pending and awaiting decision before this court his counsel of record filed a motion to dismiss the appeal, pending in this case,, for the reason that on, the application of plaintiff in error a pardon was granted by Hon. E. Trapp, Acting Governor, in the absence of the Governor from the state.

The uniform holding of this court is that when a .pardon is granted by the Governor and accepted by the plaintiff in error and the matter is judicially called to the attention of this court pending the determination of the appeal, the appeal will be dismissed. ■ . ■

It follows that the motion to dismiss the appeal will be sustained-. It is therefore considered, ordered, and adjudged that the- appeal herein be dismissed, and the cause remanded to the district court of Stephens county.


author: BESSEY, J. MATSON, J.

text:
    EUGENE LIVELY v. STATE.
    No. A-3761.
    Opinion Filed Dec. 16, 1922.
    (211 Pac. 92.)
    (Syllabus.)
    1. Homicide — Evidence Insufficient to Sustain Conviction. The evidence examined, and found insufficient to support the verdict, when considered in connection with the other irregularities mentioned in the opinion.
    2. Trial — Jurors Permitted ito Indulge in Recreation. Where jurors before final submission in long and tedious criminal trials are kept together in charge of a bailiff, the jurors may be permitted to take open air exercise and indulge in any innocent recreation or amusement during the recess of the court, if kej>t free from all influence that may tend to interfere with a di3. passionate consideration of the issues.

      3. Same- — New Trial on Ground of Permitting Jury to Attend Publi-c Gathering Calculated to Arouse Prejudices. Jurors should not be permitted to attend public gatherings where the speaking or exhibition has a tendency to arouse the passions or prejudices of the jurors, or where they may be subjected to prejudicial extraneous influences.
    (a) As a general rule a new trial will not be granted on such ground alone, where no actual prejudice is apparent.
    Appeal from District Court, Coal County; J. H. Line--baugh, Judge.
    Eugene Lively was convicted of murder, and he appeals.
    Reversed.
    P. E. Wilhelm and J. G. Ralls, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

The plaintiff in error, Eugene Lively, in this -opinion Referred to as the defendant, on the 27th day of September, 1919, was found guilty of murder, and his punishment was assessed at imprisonment for life in the state penitentiary. The defendant was charged with the murder of Ed Welborn on the 22d day of July, 1918.

The evidence shows that previous to the killing of Wel-'born he and the defendant lived on adjoining farms, about ■eight miles north of Coalgate. Both were engaged in farming and stock raising, and had been close personal friends. Their families were friendly and frequently visited with each other, ■On Sunday, July 21, 1918, the day, prior to the homicide, the ■deceased, in company with an automobile mechanic, came to the home of the defendant and obtained his permission to repair deceased’s car at the blacksmith shop belonging to the defendant, located a short distance from his residence. They worked there several hours and went away about 4 o’clock in the afternoon, deceased returning to his home, where he remained until some time during the forenoon of Monday. He then went to see some neighbors about his threshing, .to find out when the threshers would come to his place. He did not return to his¡ home and was not again seen alive by any of his family. A neighbor girl testified that she saw the deceased on horseback some time during the afternoon on Monday about two miles from the spot where the body was found on Wednesday following.

The body of the deceased was found in what was known as the Peeler Beal pasture, about 50 yards from an old road running through the pasture and about the same distance from a creek, surrounded by timber and underbrush. He had been shot twice with a shotgun, once in the neck and shoulder and once in the breast. His horse was found some distance away, where the lariat rope around its’ neck had become entangled in some brush. The body was discovered by a searching party of neighbors of the deceased, among whom was the defendant. Some of them had been out on Tuesday also looking for the missing man. The body when found was in an advanced stage of decomposition, and with the assistance of a physician a post mortem was held.

There was no direct evidence tending to show that the defendant was anywhere near the place where the body was found at any time before its discovery.

It was the theory of the state that the deceased and the wife of the defendant had sustained illicit relations, and that the defendant for this reason waylaid the deceased and shot him from ambush.

The testimony tending to support this conviction was wholly circumstantial. The record is voluminous, containing 472 pages, made up largely of the testimony of a great number of witnesses who testified to the size and kind of gun owned by the defendant; the fact that certain kinds of shells had been purchased by him at different times; the identity and ownership of an axe that was afterwards found near the scene of the homicide; and to complaints and conversations had by the defendant and his wife with two witnesses relative to the alleged relations • between defendant’s wife and the deceased, in which ways and means were discussed or hinted at by which the defendant could, in one way or another, get rid of the deceased.

To recite and analyze this evidence in detail would unnecessarily prolong, this opinion, to no good purpose. Suffice it to say that this court has carefully examined the testimony of each and every one of the witnesses, and, assuming that each of the witnesses for the state testified truthfully in every detail, the most that can be said is that the defendant entertained a purpos'e to bring about the death of the deceased by the aid of the two witnesses who testified concerning conversations had with the defendant and his wife. There was no direct evidence that he ever took any active steps to execute this purpose; on the contrary, the testimony of these two witnesses was to some extent impeached and was of doubtful probative force.

The defendant and his wife were both originally charged with this homicide, but were prosecuted and tried separately. The testimony in this case indicates more strongly that the wife may have fired the fatal shot than that the defendant did. The record is far from conclusive as to, the guilt of the defendant, but, on the contrary, indicates that some other person not connected with the Lively family may have committed the crime.

Of the numerous assignments of error urged, but two need be noticed, namely:

First. That the evidence is insufficient to support the verdict. . .

Second. Misconduct of the jury, to. the prejudice of the defendant.

Upon the first assignment of error sufficient has been said to indicate that there is a grave and substantial doubt that the' showing made eliminated ievery reasonable hypothesis other than the guilt of the defendant, or that the crime may have been committed by some other person not connected with the defendant.

In the motion for a new trial a showing was made that after the jury had heard all the evidence and during an intermission in the argument the jury, in charge of the bailiff, without.the consent of the defendant, were in the jury box in the courtroom while a mass meeting was in progress in the courtroom, for the purpose of indorsing and ratifying what is commonly known as the “League of-Nations”; that one of the special prosecutors in this ease was the presiding chairman of this meeting; that numerous speeches were made by those there assembled, including a speech by J. H. Line-baugh, the presiding judge in this case; that the judge and other speakers strongly urged the ratification of .the League of Nations; that J. G-. Ralls, one of the attorneys for the defendant, entering the courtroom to resume the argument to the jury, was called upon by some one in the meeting for an expression of his opinion upon the questions then under discussion; that Mr. Ralls said as an American citizen he was opposed to any entangling alliances with the kings, monarchs, and rulers of the old countries, and that, if the League of Nations was indorsed, it would mean that the United States would immediately commence preparations for war on a large scale, and that it would devolve upon the United States and Great Britain to keep the peace of the world; that thereafter the county attorney, who was disqualified to act in the cage, reported a resolution and moved its adoption, in which reference was made to those who were opposed to the League of Nations as being pro-German, all of which provoked a heated discussion of these issues in the presence of the jury; that, among other things, the chairman of the meeting, the special prosecutor in this case, stated that on account of the polities of J. G. Ralls it might be expected that he would be opposed to the League of Nations.

It is also shown that at the time this trial was in progress there was a theatrical tent show being conducted in Coalgate, and that it was agreed that the jury, in charge of the bailiff, might)' attend the show; that for some reason they did not attend this tent show, but did on two nights, Thursday and Friday nights, September 25th and 26th, visit a moving picture show; that on Friday night there were shown court scenes involving the trial of a gypsy girl for the murder of her husband by the administration of poison, the evidence in the case being all circumstantial. There was thrown on the screen during the performance a heavy web-like apparition, funnel-shaped, illustrating how the threads of circumstantial evidence in the case had woven themselves about her, the point of the funnel culminating in the word “Guilty.” Extracts of the speeches for ■ the prosecution were thrown upon the screen and were of a highly excitable nature and calculated to place extraordinary stress upon circumstantial evidence and the credence to be accorded such evidence.

So far as the jury’s attendance at the moving picture show is concerned, the defendant ordinarily would have no cause for complaint for the reason that his counsel interposed no objections to the jury’s attending a show, though they did not in fact attend the performance contemplated by the defendant. However, in view of the fact that the evidence in this case was wholly circumstantial, we are fearful that an exhibition of the character witnessed, though inadvertently seen, considered in connection with the other circumstances shown, may have operated to the disadvantage of the defendant.

A rule for general application may be stated thus:

“All of the courts no doubt agree that any misconduct on the part of the jurors in a criminal case which was prejudicial to defendant, or any such misconduct on the part of the judge, officer in charge or outsiders, improperly influencing the jurors, not caused or waived by the defendant, is ground for setting aside a conviction and granting a new trial. On the other hand, as a general rule a new trial will not be granted where it clearly appears that defendant has not been injured or prejudiced by the misconduct.” 12 Cyc. 717.

Vigilance in preserving inviolate the impartiality of jury trials should be exercised. Jones v. Frank, 62 Okla. 26, 161 Pac. 795; Watson v. State, 7 Okla. Cr. 508, 124 Pac. 329; Ridley v. State, 5 Okla. Cr. 522, 115 Pac. 628; State v. Jeffries, 210 Mo. 302, 109 S. W. 614, 14 Ann. Cas. 524, notes 535; Shaw v. State, 83 Ga. 92, 9 S. E. 768; Wood v. State, 34 Ark. 341, 36 Am. Rep. 13; Babb v. State, 18 Ariz. 505, 163 Pac. 259, Ann. Cas. 1918B, 925.

The practice of furnishing indiscriminate and deversi-fied entertainment to jurors was condemned in Wood v. State, supra. There the bailiff first took the jury to a drug store (?), where they drank whisky. Later he took them to a billiard hall, where they were kept separate from the other players. On Sunday he provided one of the jurors with a clean shirt, and conveyed the panel in a hack five miles into the country to attend church. The defendant was a lawyer. Ills defense was that at the time of the homicide he was so drunk as to be incapable of forming a design to kill.

. The old rule that jurors were practically the prisoners of the court has been relaxed so that jurors in long and tedious trials may be permitted, to take open air walks and even indulge in innocent amusements and recreation. It has been held that attending church or theatrical performances may not be prejudicial, but, where the accused is on trial for his life, care should be taken to prevent the jurors’, minds from being diverted from the issues involved. Jurors should be impressed with the gravity of their office, and not. be permitted to regard their duties) as a kind of diversion or pleasant entertainment. Care should be taken to keep the jurors’ .minds free from the passions or prejudices that may prevail, so that they may concentrate their minds on the true issues involved. The excitement and passions of the people might have no direct relation to the case on trial, and still might be prejudicial. For instance, the deliberations of a jury might be impaired by an adjacent street riot, a destructive fire, or other tragedy in which individual jurors were or might be interested.

The question of indorsing the League of Nations excited bitter controversy among people everywhere. Persons favoring and those opposing it were venomously assailed, and this would have a tendency to affect the opinion these jurors entertained for its proponents or opponents, as the case might be. The motion for a new trial stated that a United States Senator opposing the League of Nations had recently been ■“rotten-egged” in a neighboring town.

Considering the fact that the trial judge, the acting prosecutor, and other active participants in the trial warmly took sides in the discussion, such discussions under the circumstances may have tended to create a mental atmosphere among the jury unfavorable to the defendant and his attorney. In the very nature of things, it would be impossible for the defendant to show by evidence just what psychological effect on the minds of the jurors these impressions produced.

The deceased was foully murdered by some person lying in wait. The gruesome circumstances surrounding the finding of the body tended to excite hostile feelings in the minds of the jury. There was no positive evidence that the defendant or any one connected with him was near the scene of the tragedy. The suspicion cast upon defendant emanated from two witnesses whose testimony was far from convincing. Where the facts have been fairly submitted to a jury, resulting in a conviction on purely circumstantial evidence, we would hesitate for that reason alone to disturb the verdict; but where there are irregularities, such as above outlined, which separately and alone might not operate to justify a reversal, a combination of all these conditions may be sufficient to cause a reversal. Considering everything, we are not satisfied that this defendant had such a fair and impartial trial, before an impartial jury, as is contemplated under the Constitution and laws of this state.

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

DOYLE, P. J., concurs.

MATSON, J.

(concurring). I concur in the'result. The conviction is based solely upon circumstantial evidence. This evidence is not sufficient to exclude every reasonable hypothesis other than that of the guilt of defendant. For that reason, the verdict is contrary to the law and the evidence, and a new trial should follow as a matter of justice and right.

The alleged misconduct of the jury at the mass meeting occurred in the presence of the trial judge. Nothing was said or done at that meeting that had any bearing upon the trial. The trial judge so found, and, after a careful examination of the record, I am convinced that such ruling did not amount to an abuse of judicial discretion on his part. If the remarks of defendant’s counsel at the mass meeting had a tendency to prejudice him before the jury, any such alleged error was invited.

The record shows that the jury was permitted to attend the picture show by consent of defendant’s counsel. I think that counsel should not be permitted to consent in the trial court, and by such consent create a situation which is claimed to be prejudicial when the cause reaches the appellate court. There is no showing that the jurors were permitted to separate at any time after they were sworn to try the cause, nor were they communicated with by anybody on any matter connected with the trial.

I do not want to be understood as commending the practice of permitting juries to attend picture shows or other theatrical performances, or even public mass meetings, during criminal trials. I think such practice should be condemned, but in the instant ease I believe there is no showing of misconduct on the part of the jury sufficiently prejudicial to defendant to constitute an abuse of discretion by the trial judge ■ in overruling the motion for a new trial.

For that reason, I think the judgment should be reversed solely upon the ground that the verdict is contrary to both the law and the evidence.


text:
    HARRY W. MIDDLETON v. STATE.
    No. A-3927.
    Opinion Filed Dec. 16, 1922.
    (210 Pac. 1119.)
    Appeal from District Court, Le Flore County; E. F. Lester, Judge.
    Harry W. Middleton was convicted of embezzlement, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Harry W. Middleton was convicted of the crime of embezzlement in the district court of Le Flore county, and his punishment fixed at imprisonment in the penitentiary for a term of one year. This appeal has been pending in, this court since the 3d day of March, 1921. The cause was submitted on March 14, 1922, at which time no appearance was made by any counsel representing plaintiff in error, but he was allowed 30 days within which to file a brief herein. No brief has been filed in behalf of plaintiff in error. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) 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.”

An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


text:
    RAY HAMILTON v. STATE.
    No. A-3943.
    Opinion Filed Dec. 16, 1922.
    (210 Pac. 1119.)
    Appeal from District Court, Delaware County; A. C. Brewster, Judge.
    Ray Hamilton was convicted of grand larceny, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Ray Hamilton was convicted in the district court of Delaware county of the crime of grand larceny, and his punishment fixed at imprisonment in the penitentiary for a term of one year and one day. This appeal has been pending in this court since the 16th 'day of March, 1921. The cause was submitted on March 15, 1922, at which time no appearance was made by any counsel representing plaintiff in error, but he was allowed 20 days within which to file a brief herein. No brief has been filed in behalf of plaintiff in error. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) 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.”

An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


author: PEES CURIAM.

text:
    M. C. GOLLIHAN v. STATE.
    No. A-3886.
    Opinion Filed Dec. 16, 1922.
    (210 Pac. 1119.)
    Appeal from District Court, Washington County; Preston A. Shinn, Judge.
    M. C. Gollihan was convicted of larceny of live stock, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PEES CURIAM.

M. C. Gollihan was convicted in the district court of Washington county of the crime of larceny of live stock, and his punishment fixed at imprisonment in the penitentiary for a term of three years. This appeal has been pending in this court since the 3d day of December, 1920. The cause was submitted on March 9, 1922, at which time no appearance was made by any counsel representing plaintiff in error, but he was allowed 15 days within which to file a brief herein. No brief has been filed in behalf of plaintiff in error. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

“When no counsel appears, and no briefs are filed, the court will éxamine 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.”

An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


author: DOYLE,. P. J.

text:
    W. R. KEY v. STATE.
    No. A-3855.
    Opinion Filed Dec. 19, 1922.
    (210 Pac. 1044.)
    (Syllabus.)
    1. Evidence — Rule as to Sufficiency of Circumstantial Evidence.— Where, in a criminal case, circumstantial evidence is entirely relied upon for conviction, the facts and circumstances must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence.
    2. Trial — Failure of Evidence — Directing Verdict for Defendant.— It is the duty of the trial court in a criminal case, where it deems the evidence insufficient to warrant a conviction, to advise the jury to acquit. Section 2713, Comp. Stats. 1921.
    3. Intoxicating Liquors — Manufacturing Whisky — Insufficiency of Evidence. — In a prosecution for manufacturing whisky, evidence reviewed, and held insufficient to sustain a conviction.
    Appeal from County Court, Jefferson County; E. L. Dillard, Judge.
    W. R. Key was convicted of unlawfully manufacturing whisky, and he appeals.
    Reversed.
    Hays Dillard, for plaintiff in error.
    George P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE,. P. J.

The plaintiff in error was tried and convicted on an information charging that he, the said W. R. Key, did, in Jefferson county, on or about the 20th day of December, 1919, unlawfully manufacture whisky. The jury failed to fix the punishment. On the 14th day of August, 1920, the court sentenced the defendant to be confined in the county jail for 30 days and to pay a fine of $250* and the costs.

Of the errors assigned we deem it only necessary to consider those that question the sufficiency of the evidence to sustain the verdict.

W. J. Ballard, sheriff, testified that with Jim Brown and Tom Tartar he went to' the defendant’s place, seven miles north and two miles west of Waurika, and found a lot of mash in the hogpen, and then they went into the cellar and found a galvanized vessel with some mash in it, and found some bottles with a little quantity of whisky in each one, which they drained out into a jar; that on their way there, about a quarter of a mile from the house, they found a car which had a half-gallon fruit jar full of whisky in it; that the mash was made from “chops.”

Jim Brown testified to substantially the same facts, and, further, that “we tracked the car that we found in the road to the gate of the defendant, coming from the north, and stopped at his house going south.”

On cross-examination both witnesses stated that there was not any evidence of the use of a fire in the cellar. The vessel was introduced in evidence.

The state rested, and the defendant moved for an acquittal in the form of a demurrer to the evidence, for the reason the same is insufficient to sustain a verdict of guilty, which was overruled, and exception allowed.

For the defense A. Zender testified that his place was across the section line from the defendant; that he often saw that vessel on the Keys premises, first one place and then another, and saw his girls put it on top of four big disks and build a fire under it and cook slop in it to. feed the pigs; that the defendant has seven or eight pigs; that he often went across the road and got a drink out of the well when they were doing this, for about six weeks before the arrest, and often saw the defendant feeding it to the pigs; that the stuff in it was “shorts”; that he saw the ear that was stuck in the mud on the road the day before the arrest, and Woodie Stuard and Arthur Harned were in it; they were hunting birds. That in his native country of France he learned how to make wine and whisky, and this vessel was not suitable to make whisky.

Ben Zender testified he lived with his father across the road from the defendant; was at the defendant’s place once or twice a week; never did see anybody manufacturing whisky, or any evidence of manufacturing whisky there. That he saw the dlefendant’s daughters use this vessel on the fire place in washing.

In rebuttal the witness Jim Brown was recalled, and against the defendant’s objection was permitted to answer three or four hypothetical questions which were not based on the facts in evidence. At the close of the evidence the defendant moved the court to instruct the jury to return a verdict of acquittal, which was overruled, and exception allowed.

It. is made the duty of the trial court in a criminal case, where he deems the evidence insufficient to warrant a conviction, to! advise the jury to acquit. Section 2713, Comp. Stats. 1921. The facts and circumstances in evidence are wholly circumstantial.

The general rule in criminal eases is, where evidence is circumstantial, the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistént with his innocence. The mere fact that a vessel containing mash was found is insufficient to sustain a verdict finding the defendant guilty on a charge of manufacturing whisky. Carefully considering the competent testimony in the case, we are clearly of the opinion that the verdict is contrary to the evidence, and for this reason the trial court should have sustained the motion of the defendant for acquittal made by the defendant when the state rested.

Because the verdict is contrary to the evidence, and wholly insufficient to sustain a conviction, the judgment is reversed.

MATSON and BESSEY, JJ., concur.


author: BESSEY, J-

text:
    A. FRANCIS v. STATE.
    No. A-3618.
    Opinion Filed Dec. 21, 1922.
    (211 Pac. 433.)
    (Syllabus.)
    1. Homicide — Insufficiency of Evidence — Setting Aside Conviction ’on Motion for New Trial. — In a homicide case where there is substantial evidence tending to show that the prosecuting witness and not the accused fired the fatal shot, and independent of such showing the evidence against the accused is of do.ubtful probative force, the conviction should be set aside as not being supported by sufficient evidence.
    . (a) Under such circumstances, the verdict should have been set aside by the trial court on the motion for a new trial.
    2. Trial — Requiring Jury to Continue Deliberations for 96 Hours not Coercion. — In a homicide case where the testimony of a large number of witnesses is heard, involving many questions of fact relating to motive, impeachment, credibility of witnesses, the identity of weapons, and physical conditions surrounding the difficulty, we cannot say that the trial court abused his discretion in requiring the jury to continue their deliberations for 96 hours before reaching a verdict; such period of deliberation did not, under the circumstances, amount to coercion.
    3. Trial — Exclusion of Evidence — Insufficient Offer of Proof.— The trial court committed no error in the exclusion of evidence, as recited in the opinion, where no sufficient showing was made as to what the defendant expected to prove by the testimony of the witness.
    Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.
    A. Francis was convicted of the crime of manslaughter in the first degree, and he appeals.
    Reversed and remanded.

      J. P. O’Meara, Chas. E. Bush, and A. F. Moss, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J-

A. Francis, plaintiff in error, hereinafter referred to as the defendant, was on the 2d day of August, 1918, by information filed in the superior court of Creek county charged jointly with John Francis with the murder of Sadie Naufal on May, 1, 1918. The defendants were tried jointly, resulting in a verdict of the jury, February 25, 1919, finding defendant A. Francis guilty of manslaughter in the first degree, without assessing the punishment, and acquitting his codefendant John Francis. After the overruling of a motion for a new trial, the court pronounced judgment on the verdict rendered, fixing defendant’s punishment at confinement in the state penitentiary for a term of 10 years. From this verdict and judgment defendant A. Francis appeals.

The record shows that defendant A. Francis and John Francis, his son, and E. Naufal and Sadie Naufal, his wife, were Syrians; that the defendants and E. Naufal were engaged in the mercantile business in Drumright, Creek county, Okla., with places of business on the same street, on opposite sides of the street; that John Francis and E. Naufal were brothers-in-law, having married sisters. It appears further that John Francis and another Syrian were joint tenants of property belonging to E. Naufal, and that E. Naufal had instituted suit in justice court against John Francis and his eotenant for rent dde, which suit was set for trial in justice court at 2 o ’clock on May 1, 1918, the day of the tragedy; that earlier in this day, on the sidewalks and in the street between their respective places of business, John Francis and E. Naufal and Sadie Naufal had some argument and harsh words concerning their differences; that about 1 o’clock this argument was. renewed between E. Naufal and John Francis, whereupon John, with belligerent words and attitude, started across the street towards Naufal, who was on the sidewalk in front of his place of business.

From this point on to the close of the tragic affair the testimony of the state and the testimony of the defendant is more or less conflicting. According to the state’s testimony,. John called Naufal a vile name, and John and his father, defendant here, went across the street and followed Naufal into-his store, where they and Sadie Naufal engaged in a fight, and that A. Francis was armed with a small club or black-jack when he entered the store; that during the fight Naufal called to Sadie to get a gun and help him, and that he was then struck by defendants and rendered unconscious; that he was roused from his unconscious condition by the sound of a gunshot, and that he then saw A. Francis discharge as pistol at Sadie Naufal, his wife, resulting in her almost instant death;: that A. Francis then dropped the pistol and fled from the store;, that at the same time John in some manner got away also. Naufal then picked up the pistol, which he recognized as his own, and carried it back into his living room at the rear of the store and put it into his bed, where it was later found by the officers, with two chambers empty. After so disposing of his pistol, Naufal rushed out into the street, excitedly crying: “They have killed my wife! They have killed my wife!”-

The testimony of the defendant A. Francis, corroborated in material parts by thirteen other witnesses, was that when he saw that his son John and Naufal were about to engage in a fight he ran into the street where John was, remonstrating with him and attempting to hold him, but that John broke away and pursued Naufal into his store; that he followed John, and that he and Sadie separated John and Nanfal, who were then fighting; that John was knocked down near one side of the front of the store, and that Naufal was' partially down near the cash register on the other side, when he got a gun from somewhere about the cash register and fired two shots, one of which penetrated John’s shoulder and the other hit Mrs. Naufal, causing her death; that while the shots were being fired both John and A. Francis were retreating; and that they ran across the street to their own placel of business.

There were double doors in the front of the Naufal store, which were open at the time of the tragedy, and the balance of the front was glass display windows. A number of witnesses, attracted by the preliminary quarrel, testified that they saw all or a portion of the difficulty from the outside. A number of witnesses testified that immediately after the shooting Naufal, gesticulating with his hands in an excited manner, walked out into the street, exclaiming:, “Mein Gott, I’ve killed my wife, Sadie! I’ve killed my wife!” When questioned by the officers, Naufal denied that he had a' gun; the officers recovered the gun by breaking into the Naufal sleeping room, where they found it in a bed next the mattress, covered with bedclothing. There is no dispute that the gun from which the fatal shot was fired belonged to Naufal, and there is no evidence that defendant Francis was armed with a gun at any time during the trouble. There was some conflicting evidence to the effect that he was armed with a club or blackjack.

Naufal was first arrested for the killing of his wife, but was discharged at his preliminary examination.

The testimony of the witness Nova Mosleh, which was practically the only evidence corroborating the testimony of Naufal, was thoroughly impeached by a number of witnesses, who testified that she did not reach the scene of the tragedy until it was all over. Her veracity was impeached further by the direct testimony of the county attorney, who testified on behalf of the defendant; there is also direct testimony to the effect that Naufal paid her to, testify as she'did. A part of the testimony of the county attorney is as follows:

“Q. What is your name? A. Earl Foster.
“Q. You are county attorney of Creek county? A. Yes,, sir.
“Q. Some time after the Francis preliminary hearing at the city of Drumright, do you remember the occasion of myself and Mrs. Nova Mosleh, one of the witnesses used at that hearing for the state, coming to your place one Sunday afternoon? A. I do.
“Q. Do you remember that this affidavit was produced to you and read by you on that occasion? A. I remember it being produced to me ; I don’t remember, Mr. Lytle, whether I read it on that occasion or not. I will state further, however, that I knew the contents of it at that time; I had seen it before. I may, have read it; I don’t remember.
“Q. In answer to a question by either you or myself, is it not a fact that Mrs. Nova Mosleh made the statement that she was not present at the shooting of Sadie Naufal and didn’t see anything of the difficulty which resulted in the death of Sadie Naufal, and that her evidence given at the Francis preliminary hearing was false and untrue? A. Yes, sir; she stated that, or that in substance, in answer to questions propounded by myself or you.
“Q. State, in substance, what you said to her. A. I told her that I thought that any one who would testify to a falsehood, go on the witness stand and perjure themselves, was a great deal worse than murder or anything else. I was pretty mad at the time,' and I talked to her pretty rough, and asked her why and for whát reason she went upon the witness stand and testified the way she did if it wasn’t the truth, and. she told me that Naufal had offered her some rent on her house or had given her some rent on her house, or something of that kind, and' I asked her if that was the only-reason she went upon the stand and testified to the facts that she did in the preliminary, and asked her if there was any other reason, and she said, ‘No,’ that there wasn’t any other. That he had just given her — we figured it up, and it amounted to something like $75 or $80 in rent, that he had promised to give her. I believe I used words that she used and she wanted to correct her statement and wanted me to dismiss the case; that she was lying about it. There wasn’t anything to do, and I told her she would have to come upon the witness stand before the judge so he could hear her testimony, and that I would have to take it up with the court in Drum-right before I would dismiss the case upon, her coming out there. I believed that was the substance' of our conversation.”

The foregoing are the outstanding facts, gleaned from a careful reading of all the testimony in this case. To give all the details bearing upon this tragedy would extend this recital, to no good purpose.

The material assignments of error urged by the defendant may be stated as follows:

1. That the evidence is insufficient to support the verdict.

2. That the verdict of the jury was obtained by improper influence, amounting to coercion.

3. That the court erred in excluding the testimony of Mrs. Bari Anderson.

The Attorney General has confessed error, on the ground that the evidence for the state and the evidence as a whole is clearly insufficient to support the verdict. Ordinarily, this court is averse to reversing a case purely on the insufficiency of the evidence. In this ease, however, a careful consideration of the whole record leads us to overcome this hesitancy and agree with the Attorney General.

The testimony shows, beyond all question of doubt, that the pistol or revolver with which John Francis and Sadie Naufal were shot belonged1 to E. Naufal, the husband of Sadie, and that the same was procured from the Naufal premises by either Naufal or his wife during the progress of the fight; that the pistol, when found by the officers, contained four steel jacket bullets or cartridges; and that two of the chambers were empty, showing recent explosions. The bullet which passed through the head of Sadie Naufal was picked up from the floor just after the tragedy and was a steel jacket bullet, corresponding exactly with those in Naufal’s pistol found' in the bed where he confessed to hiding it; the bullet which was extracted from the shoulder of John Francis some weeks after the shooting also corresponded exactly with those in Naufal’s pistol. Naufal at first denied having or owning a gun, but later admitted that he had picked the pistol up from Sadie’s side after she was killed and placed it in the bed.

There were no witnesses in the store except the participants in the fight. The quarrel in the street and the fight in the store attracted the attention of a great number of people, who assembled in front of the store on the outside. The testimony of the witnesses E. Naufal, Will Ary, Tony Saffa, Paris Saffa, Mrs. Tony Saffa, and Mrs. Armstead was to the effect that, after Naufal had taken the pistol and placed it in the bed, he came out on the street and cried, “They’ve killed my wife!” or words to that effect. Witnesses R. F. North, Oma North, Grace Engle, Cora Engle, E. Gardner, A. B. Patterson, and Isaac Swaydon testified in effect that Naufal exclaimed, “I’ve killed my wife!” After the fatal tragedy, Naufal told witness Whitehead, “I don’t know how it happened.” He told Paul Saffa: “I had the gun. I don’t know who shot Sadie.” He told Mrs. Paul Saffa: “I didn’t mean to kill her; I was trying to shoot Francis.”

On the witness stand Naufal related the following story: That after John Francis and A. Francis had knocked him down he became unconscious (which, of course, was reasonable), but that just before he lost consciousness he told his wife to go and get the gun; that the next thing he knew a shot was fired, which roused him to consciousness; that presumably that shot was fired by the deceased, and the bullet hit John Francis; that he then saw the defendant A. Francis wrench the pistol away from his wife, Sadie, shoot her with the gun, and then threw the gun down by her side and run away from the scene. Then, instead of permitting this affair to remain as susceptible of proof as possible under the circumstances, he took the pistol with which his wife was killed, hid it in a bed, and denied the ownership or any knowledge of the pistol.

All of those directly interested in this tragedy were Syrians, as were most of the witnesses. Racially, thes.e are a Semitic people from the regions of Palestine, where there is a heterogeneous population mixed with Kurds, Arabs, Hebrews, and other Eastern tribes, a people of excitable natures and violent passions, against whom the people of this country have a more or less natural antipathy.

Considering all the testimony in connection with the remarkable story told by Naufal, along with the physical facts proved and about whiclfthere is no controversy, we conclude that the evidence is wholly insufficient to support the verdict. On the contrary, the evidence indicates that Naufal and not Francis did the fatal shooting.

Defendant complains that, there was error in keeping the jury together, for 96 consecutive hours in deliberation over their verdict. To fully appreciate this length of time, in connection with our 8-hour labor day, it amounted to 12 working days. Defendant claims that this amounted! to coercing the jury and forcing them to bring in a compromise verdict; that such verdict was not the result of calm deliberation and reason, but was the outcome of a contest of physical endurance. The. long period of deliberation was unusual, but there is no showing made that the jurors were improperly admonished or that their confinement was particularly irksome or vexatious. Under the provisions of section 5975, R. L. 1910, the court may discharge a jury when it satisfactorily appears that there is no reasonable probability that the jury can agree on a verdict. The record here does not, further than a mere suspicion, show any abuse of discretion in holding the jury together for such length of time, or that such action amounted to coercion.

The next question presented is: Did the court err in excluding further testimony of Mrs. Earl Anderson, as disclosed by the record as follows:

“Q. Do you remember the occasion of the death of Sadie Naufal? A. Yes, sir; I do.
“Q. Were you occupying any official position at that time? A. Yes, sir.
“Q. What was that? A. I was secretary and treasurer of the Council of Defense of Creek County and also Food Administrator for Drumright and. vicinity.
“Q. On or about that occasion did you see Mr. E. Naufal? A. I saw him that evening.
“Q. What were the circumstances under which you saw him? A. My husband brought him to our house.
“Q. What official position, if any, did your husband occupy? A. Deputy Sheriff.
“Q. Did you on that occasion have any conversation with E. Naufal as to the circumstances of the death of his wife ? A. I had! a very short conversation.
“Q. What was that conversation?
Mr. Poster: Objected to as incompetent, irrelevant, and immaterial.
The Court: Objection is sustained.
“Q. Did you on that occasion ask Mr. Naufal how his wife came to her death?
Mr. Poster: Objected for the same reason.
“Q. And did he answer, in substance, that she came to her death by accident?
Mr. Poster: Objected to for the same reason.
The Court: State in what particular you object, state the reason for your objections.
Mr. Poster: It is incompetent, irrelevant, and immaterial, and it makes no difference; I will withdraw the objection. .
“Q. You may answer yes or no. A. No, sir; I didn’t ask him how his wife came to her death.
“Q. Did he state to you in substance how she came to her death?
Mr. Burns: We object to that.
The Court: Objection is sustained.

This was an abortive attempt to impeach the prosecuting witness, Naufal. The witness on the stand was a reputable person, in whom the community had lodged governmental and patriotic duties, and her answer, had it been to the effect that Naufal told her that Sadie was shot accidentally, would have been very important. But we do not know, except perhaps inferentially, what her answer would have been, and there was1 no sufficient offer made to show its competency, or that Naufal had in fact made a declaration at variance with his statements under oath. In the absence of a more definite offer and showing, the court committed not error in sustaining the objections made.

There were several minor irregularities in this trial to which no exceptions were taken, and which may therefore be considered as waived. The instructions fairly cover the law of the case, and none were offered by the defendant to cover any issue not fully stated by those which were given. We find no fundamental error in the conduct of the trial and any not fundamental were waived, with the exception that under the evidence the verdict should be “Not guilty.”

We think the evidence is so palpably insufficient that the trial court should have set the verdict aside and granted a new trial. Out of considerations of expediency, trial courts sometimes pass the question of the sufficiency of the evidence to the appellate court in cases where it should have been more seriously considered' in the court below.

Reversed and remanded.

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


author: DOYLE, P. J.

text:
    MELVIN DAVIS v. STATE.
    No. A-3920.
    Opinion Filed Dec. 21, 1922.
    (210 Pac. 1042.)
    (Syllabus.)
    Homicide — Assault with Intent to Kill by Shooting with Pistol — Insufficiency of Evidence. — In a prosecution for assault with in- ' tent to kill by shooting with a pistol, evidence reviewed, and held insufficient to sustain the conviction.
    Appeal from District Court, Le Flore County; E. F. Lester, Judge.

      Melvin Davis was convicted of assault with intent to kill, and he appeals.
    Reversed.
    Neal & Neal, for plaintiff in error.
    George F. Short, Atty. Gen., and) N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Melvin Davis, was tried and convicted on an information charging that in Le Flore county, on or about the 1st day of December, 1919, he did willfully, unlawfully, and feloniously make an assault upon the person of Ace Davis by shooting him with a pistol,, with the unlawful and felonious intent to. kill the said Ace Davis. The jury failed to fix the punishment. The court sentenced him to be confined in the penitentiary at McAlester for the term of six months. To reverse the judgment an appeal was duly perfected.

In the view we have taken of the disposition necessary to be made of this case, it is neither important nor necessary to consider more than one of the many errors assigned, and that is, the insufficiency of the evidence to sustain the conviction.

It appears that the defendant, Melvin Davis, a man nearly 50 years old, and the complaining witness, Ace Davis, a young man about 25 years old, were cousins and lived near neighbors; that on the date alleged the complaining witness cursed the defendant, called him vile names, and threatened to whip him in the presence of several people, then followed him to a neighbor’s house and invited him to fight, and later met' him on the road and again threatened’ to assault him, and was shot by the defendant.

Ace Davis, the complaining witness, testified that—

“I was standing by the! side of the-road talking with two Parnell boys, and Joe Davis and Melyin Davis, the defendant, passed by going np -to Grant Parnell’s; I had a few words with Melvin as he passed, and I followed him to Grant Parnell’s, and asked him to fight; Melvin turned his horse,- and went down the road, 'and I followed him; when I overtook him he turned- his horse and fired two • shots; the first one hit, me in the side.”' ' ■■

On cross-examination he stated:

“When Melvin and Joe passed' me going towards Parnell’s, I told them to stop; that I wanted to> whip Melvin; Joe stopped, and Melvin went on to Parnell’s; I was drinking, but I knew what I was doing; when I got to Parnell’s I got down from my horse and asked him to fight me; I called him a damm son of a bitch; I followed him something over a quarter of a mile when he shot me; before that, at a dance at Ross Ayers’ house, I offered Melvin $15 to walk between me and the light. ’ ’

Ed Pox testified:

“I was at a play party at Ross Ayers’ house, and there , heard the defendant, Melvin Davis, remark that he would like to get hold of Ace Davis.”

Otis Vanmeter testified:

“I heard Melvin Davis say that he would like to get hold of Ace Davis; this was at a dance at Ross' Ayers’.”

The state rested, and the) defendant moved for an acquittal in the form of a demurrer to the evidence, which was overruled, and exception allowed.

As a witness in his own behalf the defendant testified:

“I had started' to Arkansas to sell a horse; 1 met Joe Davis; we rode on together about a quarter of a mile, and I saw Ace Davis and Will and Andrew Parnell standing by the roadside; as we passed Ace Davis said, ‘There is Melvin Davis, the son of a bitch; I am going to whip him’; 1 rode on; Joe did, too; Ace Davis started for his horse, and hollered. ‘Hold on, there’; Joe slowed up; I kept going on, and stopped at Parnell’s; they, Joe and Ace Davis, came along; Joe was trying to get Ace to go back; when Ace came up he jumped off (his horse, and said, ‘You told some parties you were going to whip me, and now is a good time to do it’; I said, ‘Ace, you bring those parties to me’; he said, ‘I don’t have to bring nothing; you said it, you damn son of a bitch; don’t deny it’; so I just turned my horse and rode on down the road towards Arkansas. Just as I got to the big road he hollered, ‘Hold on there, you son of a bitch; you can’t get away; I am going to whip you,’ and he came right on; just as he came up even with me he pulled his horse, and grabbed to his side, and said, ‘If you don’t stop, I will kill you, ’ and I jerked my gun and shot at him; he grabbed his side, and I saw he did not have a gun in his hand, so I didn’t try to/shoot any more.”

Will Parnell, Joe Davis, and W. G. Parnell testified to the facts as testified to by the defendant.

Several witnesses qualified as character witnesses, and testified to the good character of the defendant as being a peaceable, law-abiding man.

In rebuttal the complaining witness testified:

“When I-was shot by Melvin Davis, I did not have any arms or a pistol; I did not say I was going to kill him; I didn’t intend to kill him; I was aiming to whip him, all right.”

He was then asked :

“Q. Did you intend to whip him as much as you could without killing him? A. Yes, sir.”

At the close of the evidence the defendant moved the court to direct the jury to return a verdict of acquittal, because the evidence is insufficient to sustain a conviction.

The Attorney General has filed a confession of error, on the ground that the evidence is insufficient to sustain the verdict and to warrant a conviction, and that the court erred in six of the instructions given.

Carefully considering all the evidence, we reach the conclusion that the jury must have rendered their verdict under the influence of passion and prejudice, and we are clearly of the opinion that the verdict is contrary to the law and the evidence, and that the trial court should have sustained the defendant’s motion to direct a verdict of acquittal.

The judgment of the lower court is therefore reversed, and the cause remanded, with direction to dismiss.

MATSON and BESSEY, JJ., concur.


text:
    LEVI LUCAS v. STATE.
    No. A-4059.
    Opinion Filed Dec. 21, 1922.
    (210 Pac. 1040.)
    Appeal from County Court, Muskogee County; Enloe v. Ver nor, Judge.
    Levi Lucas was convicted' of the unlawful possession of intoxicating liquor, and sentenced to pay a fine of $50 and to serve 30 days’ imprisonment in the. county jail, and he appeals.
    Appeal dismissed.
    L. C. MeNabb, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction against defendant, Levi Lucas, rendered in the county court of Muskogee county on the 2d day of July, 1921, wherein defendant was sentenced to imprisonment in the county jail for 30 days and to pay a fine of $50 on a verdict of a jury, finding, him guilty of the offense of unlawful possession of intoxicating liquor.

No written notices of appeal were served on the county .attorney of Muskogee county or on the court clerk thereof, nor was any summons in error served on the Attorney General, nor a waiver by said officer of the issuance and service ■of same.

In this case, counsel relied solely upon the 'giving of oral notice of appeal. This form of notice is insufficient in criminal cases, Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173.

This court having never acquired jurisdiction of this appeal, the same, for reasons stated, is hereby dismissed.


text:
    Ex parte RANGE JONES.
    No. A-4030.
    Opinion Filed Dec. 26, 1922.
    (211 Pac. 1119.)
    In the matter of the application of Ranee Jones for a writ >o£ habeas corpus.
    Dismissed on motion of petitioner.
    See, also, 20 Okla. Cr. 430, 203 Pac. 480.
    R. C. Roland, for plaintiff.
    The Attorney General, for respondent.
   PER CURIAM.

This is an original application on the part of the petitioner, Ranee Jones, for writ of habeas corpus. Since the filing of the petition, petitioner by his counsel .has moved the court to dismiss’ the petition. In conformity -with said motion, the petition and cause is hereby dismissed.


text:
    Ex parte HARRY SIPE.
    No. A-4479.
    Opinion Filed Dec. 26. 1922.
    (210 Pac. 1039.)
    (Syllabus.)
    1. Habeas Corpus — Right to Bail in Capital Case — Burden of Proof. Upon an application for writ of habeas corpus to be let to bail, after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show .facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution.
    2. Bail-Refusal of Bail in Capital Case for Insufficiency of Evidence. If, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner's guilt of a capital offense, bail will be refused.
    Habeas corpus by Harry Sipe, charged with murder, for admission to bail.
    Writ denied, and bail refused.
    Brown, Williams & Brown, James Mathers, and J. B. Champion, for petitioner.
    George P. Short, Atty. Gen., N, W. Gore, Asst. Atty. Gen., and John L. Hodge, Co. Atty., of Ardmore, for respondent.
   DOYLE, P. J.

In this proceeding the petitioner Harry Sipe, by his attorneys, has presented to this court a verified petition, wherein he alleges that he is unlawfully imprisoned and restrained of his liberty in the county jail of Carter county by the sheriff of said county, that the cause of his said restraint is that he was committed to said county jail by D. W. Butcher, a justice of the peace in and for the city of Ard-more, as an examining magistrate upon a preliminary examination held upon the 23d day of October, 1922, upon a complaint charging petitioner with’ the murder of one Herman Cheek in said county on October 22, 1922, and that thereafter, on the 25th day of October, 1922, upon a hearing had before Hon. B. C. Logsdon, district judge, said judge refused to allow petitioner bail, and that petitioner is now held by virtue of the commitment issued by the justice of the peace aforesaid, and further alleges that he is not guilty of the crime of murd'er as charged in said information, and that upon the evidence introduced at said preliminary examination together with the affidavits of certain other persons which are presented herewith, it is shown that the proof of his guilt of the crime of murder is not evident nor the presumption thereof great. A transcript of the testimony taken upon the preliminary examination is annexed to and made a part of the petition.

The testimony for the state shows that Herman Cheek, ■deceased, was manager of what is known as the “Palace Barber Shop,” on the south side of East Main street in Ardmore; that Shelton Bros, conducted a tailor shop in a room in the rear of the barber shop; that between 8 and 9 o’clock of the evening of the homicide Clyde Shelton and Leo Knoff and Herman Cheek, deceased, were playing cards in the tailor •shop, when petitioner, a policeman, with another officer, came to the back door and forced it open, and petitioner shot and killed Herman Cheek; that deceased was unarmed.,

As a witness in his own behalf Harry Sipe testified that -Chief of Police Hignight told him to go down and meet Mr. Poster, and, meeting Poster, they went around to the back door •of the Palace Barber Shop; it was a screen door and a door with pasteboard panel where glass had been; that he split the screen with his knife; those inside jumped up, and the light went out; somebody ran into him and grabbed him and :his gun went off; “I said, ‘Officers; hands up;’ then I shot.”

The settled rule of this court is that upon an application for bail by a writ of habeas corpus, after commitment for a •capital offense by an examining magistrate, the burden is upon petitioner to show facts sufficient to entitle him to bail, when thesé facts do not appear from the evidence adduced on the part of the prosecution; and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. In re Bean, 17 Okla. Cr. 576, 190 Pac. 1091; Ex parte Butler, 15 Okla. Cr. 111, 175 Pac. 132; In re Kerriel, 12 Okla. Cr. 386, 157 Pac. 369.

Upon the record before us, and without entering into a discussion of the facts, we deem it sufficient to say that in our opinion petitioner is not entitled to be admitted to bail as a matter of legal right. It is therefore considered and adjudged that the writ be denied, and bail refused.

MATSON and BESSEY, JJ., concur.


text:
    Ex parte WILLIAM BRUNER.
    No. A-4410.
    Opinion Filed Dec. 26, 1922.
    (210 Pac. 1041.)
    Habeas corpus by William Bruner, charged with murder, to be admitted to bail.
    Bail allowed.
    Hill & Billingsley, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for respondent.
   PER CURIAM.

In this proceeding the petitioner, William Bruner, filed in this court on the 15th day of July, 1922, his duly verified petition, alleging that he is unlawfully imprisoned and restrained of his liberty by C. H. Brown, sheriff of Seminole county; that the cause of his said restraint is that on the 15th day of April, 1922, upon his preliminary examination on a complaint charging that in said county on the 9th day of April, 1922, he did kill and murder one Ben Hardin, by shooting him with a pistol, and was held to answer to the district court without bail; that heretofore, on the 6th day of June, he made application to the Hon. John L. Coffman, district judge, for bail on said charge, and said application was denied; that he is not guilty of the crime of murder as charged' in said information; that upon the evidence introduced on said preliminary examination and before said district judge it is shown that the proof of his guilt of the crime of murder is not evident nor the presumption thereof great.

Attached to said petition and made a part, thereof is a transcript of the testimony taken on the preliminary examination and before the district judge.

As a witness for the state, Hampsey Roberts testified:

"I am a Seminole fullblood. Last Sunday morning I went over to Ben Hardin’s and found him on the road looking for a gun which he said he had lost there. He asked me to go with him to Bill Bruner’s place, and we went on from there. Bill was at home, and he and' Ben went out behind the corn-crib; I returned to the house, and shortly after I heard the report of a gun. I ran out and then I heard two or three other shots fired. I went on straight to my home.”

In his own behalf petitioner states:

“I am a married man; I live in Seminole county, one-half mile from Ben Hardin’s place in Okfuskee county. He had recently been convicted of violating the liquor laws, and served time in the Okfuskee county jail; about a month before he told me he wanted to make whisky at my place, because it was in Seminole county and the Okfuskee county law could not get him; that if I would not let him I would have to get out and leave there. I had seen him carrying a pistol on numerous occasions, and I was afraid I would have trouble with him so 1 went and consulted a lawyer, Mr. Hill at Wewoka, and he told me to see the sheriff. I then went to the sheriff’s office and talked with Mr. Lester, undersheriff. This was about a week before the homicide. I told him all about it. Two or three days before the fatal difficulty Ben Hardin came to me and told me that he would give me until Sunday to get out or come to his terms. On Saturday I went to Wewoka, a distance of about. 14 miles, and returned to my home early Sunday morning, April 9th. I was at home but a short time when Ben Hardin and Hampsey Eoberts came to my house. They were intoxicated. A few words were spoken in the house, then Ben asked'me to come out and talk about a matter. We went out back of the corncrib and talked a few minutes. ■ Ben told me that he had a shooting scrape last night with somebody sneaking around after his ‘chock,’ then he said, ‘Have you decided td- let me make whisky here?’ I said, ‘Noi,’ and X told him that I had talked to the officers and that I would turn him in if he did. He cursed and said I would not do it; I' went to a trough in the lot and threw out the cobs and started to the door in the crib.. He said, ‘You God damn. white-livered son-of-a-bitch, you will turn me in, will you?’ I said, ‘Yes.’ He said, ‘I will kill you,’ and he put his hand to his hip pocket quick; I thought he was going to shoot me; I jerked my gun and shot at him three times as fast as I could shoot. I went to the house and told my niece I had shot Ben, and then came to Wewoka and gave myself up.”

Following the hearing on the 18th day of July, 1922, and, upon a consideration of the testimony,, it was adjudged that petitioner is entitled to be admitted to bail, and it was ordered that said petitioner be admitted to bail in the sum of $15,000, bond to be conditioned as required by law, said bond to be approved by the court clerk of Seminole county.


author: MATSON, J.

text:
    D. H. DUBOIS v. STATE.
    No. A-4187.
    Opinion Filed Dec. 26, 1922.
    (210 Pac. 1043.)
    (Syllabus.)
    1. Rape — Fact that Accused and Prosecutrix not Married Shown by Circumstantial Evidence. — In a prosecution for rape, the fact that defendant and prosecutrix were not married to each other may be established by circumstantial evidence. For circumstantial evidence held to be sufficient on this point, see body of opinion.
    2. Evidence — Best Evidence Rule. — It is a well-established rule of the law of evidence that the best evidence must be produced of which the nature of the case is capable.
    3. Evidence — Evidence of Act Committed in Presence of Witness Primary. — Where the proprietor of a hotel testified that defendant, with the prosecutrix in witness’ presence, registered at the hotel under the name of “M. L. Smith and wife,” such evidence is primary. The witness was not testifying to the contents of the hotel register, but to the act of defendant committed in her presence.
    4. Rape — Proof of Penetration Essential. — Proof of penetration is essential, where the conviction is for rape.
    5. Same — Sufficiency of Evidence to Submit Offense of Attempt to Rape. — Where the prosecutrix denies the commission of the crime, and the state’s evidence on the question of penetration is entirely circumstantial, and not such as to preclude every reasonable hypothesis other than guilt, but the evidence is sufficient to justify a conviction of attempted rape, it is the duty of the trial judge to submit to the jury the question of defendant’s guilt of the necessarily included attempted offense.
    6. Appeal and Error — Reversal—Insufficiency of Evidence. — Where the trial judge fails' to submit the question of defendant’s guilt of the attempted offense, and the evidence falls short of showing a completed crime, the judgment .of conviction must be reversed because of insufficient evidence to sustain it.
    Appeal from District Court, Le Flore County; E. F. Lester, Judge.
    D. H. Dubois was convicted; of rape in tbe second degree, and he appeals.
    Reversed and remanded.

      Neal & Neal, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Le Flore county wherein defendant D. H. Dubois was convicted of rape in the second degree, and his punishment assessed at a term of 15 years’ imprisonment in the state penitentiary. Several alleged errors are assigned, chiefly relating to the failure of the state to prove the material elements of the offense.

First, it is alleged that there is no sufficient proof that defendant and prosecutrix were not husband and wife. The proof on this issue is slight. No direct evidence was offered by the state, although witnesses were introduced who apparently could have testified from personal knowledge that defendant and prosecutrix were not married to each other. However, in view of the fact that the record discloses that prosecutrix was under the marriageable age, was going by a different name than that of defendant, had been living with her father up to the time of the alleged commission of the offense, etc., we think the circumstantial evidence on this issue is sufficient. We suggest, however, that if a subsequent trial be had of this case the question of whether or not defendant and prosecutrix were married be established with more certainty.

It is also contended that the trial court erred in permitting the proprietor of the hotel, where this offense was alleged to have occurred, to testify that, shortly before defendant and prosecutrix were found there in a room together, defendant registered, for the purpose of obtaining a room, as “M. L. Smith and wife.” It is urged that the hotel register was the best evidence' of its contents, and that secondary evidence was-inadmissible, without some preliminary showing that the best evidence was unobtainable.

While it is a well-established rule of the law of evidence that the best evidence must be produced of which the nature of the case is capable, the mistake of defendant’s counsel here is in the application of the rule to the testimony produced. The witness was not testifying to the contents of the' hotel register. She was testifying to a fact of which she had personal knowledge,, an act on the part of defendant that occurred in her presence.

While the hotel register was the best evidence, perhaps, that the names “M. L. Smith and wife” were contained in it, it was not independent of supplemental proof, evidence of the-fact that defendant had written “M. L. Smith and wife” there. Oral testimony of this act of defendant, committed in. the presence of the witness, was primary evidence;, was the best evidence obtainable under the circumstances, and the trial court did not err in permitting the witness to testify to that fact,, as she remembered the occurrence independently of the hotel register, and did not need it even for the purpose of refreshing her recollection.

It is also contended that “the trial-court erred in refusing to advise the jury to return a verdict of not guilty.” This assignment presents the question of the sufficiency of the evidence to sustain the conviction. There is no proof of penetration. Proof of penetration is essential, where the conviction is for rape. Section 1836, Comp. Stats. 1921. At most the evidence on this point (which is entirely circumstantial) discloses- an intention to commit rape, with overt acts evidencing such intent. The prosecutrix, as a witness, denied the commission of the offense by the defendant, and the state’s evidence on this point does not preclude every reasonable hypothesis, other than' that penetration was accomplished.

While the evidence is in the opinion, of the court amply sufficient to justify a conviction of attempted rape, this theory of the ease was not submitted to the, jury. The jury returned a verdiet of guilt of rape in the second degree, fixing the punishment at 15 years’ imprisonment in the state penitentiary. The judgment conforms to this verdict returned. Under section 2740, Comp. Stats. 1921, a defendant charged with rape may be convicted of the attempted offense.

Where the evidence, as in this case, falls short of proving the completed offense, the trial judge should, and it is the duty of the trial judge to, submit to the jury the question of defendant’s guilt of the necessarily included attempted offense. Where this is not done, and the evidence falls short of showing a completed crime, the judgment of conviction must be reversed, because of insufficient, evidence to sustain it. Brumley v. State, 18 Okla. Cr. 705, 193 Pac. 49.

For reasons stated, the judgment is reversed, and the cause remanded to 'the district court of Le Flore county for further proceedings not inconsistent with this opinion. The warden of the state penitentiary is hereby directed to surrender the defendant to the sheriff of Le Flore county upon proper demand.

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


text:
    Ex parte T. L. HATCHER.

      No. A-4451.
    Opinion Filed Dec. 27, 1922.
    (211 Pac. 95.)
    (Syllabus.)
    Bail — Evidence not Creating a Reasonable Doubt of Guilt of Murder— Denial of Bail. — Upon an application for bail after commitment on a charge of murder, on the ground that the proof of guilt is not evident, nor the presumption théreof great, and where, upon a consideration of all the evidence offered, the court is of the opinion that it is insufficient to create a reasonable doubt of petitioner’s guilt, bail will be refused.
    Habeas corpus by T. L. Hatcher, charged with murder, for admission to bail.
    Writ refused, and bail denied.
    Keys & Rakestraw, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

In this proceeding T. L. Hatcher, by his attorneys, has presented to this court a petition alleging that he is unlawfully imprisoned in the county jail of Kiowa county by Charles Lee, sheriff of said county; that he is so held under a commitment issued by W. L. Hunter, justice of the peace in and for district 4 of said county, based upon a preliminary examination held by him upon a complaint wherein petitioner is charged with the murder of one B. Phillips in said county on the 19th day of August, 1922. Petitioner avers that he is not guilty of the crime of murder as charged, and that the proof of his guilt of the crime of murder is not evident nor the presumption thereof great. Attached to said petition is a transcript of the testimony taken upon the preliminary examination.

It appears that petitioner did not testify on the preliminary examination. On the return day of a rule to show cause entered and issued in the case on September 9, 1922, a hearing was had, and at that time it was ordered and adjudged that the writ be denied and bail refused.

Upon the hearing it was the contention on the part of counsel for petitioner that he was entitled to bail from'the testimony taken upon his preliminary examination and upon his affidavit, for the reason that the proof is not evident nor the presumption great that he is guilty of murder as charged in the complaint. Petitioner admits that he killed B. Phillips by shooting him with a pistol, and claims that he killed him in self-defense.

The settled rule of this court is that upon an application for bail by writ of habeas corpus, after commitment for a capital offense, by an examining magistrate, the burden is upon petitioner to show facts sufficient to entitle him to bail, when thesé facts do not appear from the evidence adduced on the part of the prosecution, and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. Ex parte Butler, 15 Okla. Cr. 111, 175 Pac. 132; In re Bean, 17 Okla. Cr. 576, 190 Pac. 1091.

It would serve no useful purpose to review the testimony, and, in view of the trial before a jury, to do so would possibly be prejudicial to the petitioner. We deem it sufficient to say that we find therein no element of legal justification or excuse,- and our conclusion is that the petitioner is not entitled to bail as a matter of legal right. We do not know what may be shown upon the final trial.

The writ is refused, and bail denied.

MATSON and BESSET, JJ., concur.


text:
    LIONEL SUTTER v. STATE.
    No. A-4351.
    Opinion Filed Dec. 27, 1922.
    (211 Pac. 91.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Pardon by Appellant.— When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of- this court, the.appeal will be dismissed as having been abandoned.
    Appeal from District Court, 'Washington County; C. W. Mason, Assigned Judge.
    Lionel Sutter was convicted of assault with intent to kill, and he appeals.
    Appeal dismissed.
    Campbell & Ray and Leahy, Macdonald, Burnette & Files, for plaintiff in error.
   DOYLE, P. J.

Plaintiff in error, Lionel Sutter, was convicted of assault with a dangerous weapon with intent to kill, and his punishment fixed at five years in the penitentiary. On the 3d day of December, 1921, the court rendered judgment on the verdict. To reverse the judgment an appeal was perfected by filing in this court on May 20, 1921, a petition in error with case-made.

Counsel for plaintiff in error have filed a motion to dismiss the appeal herein on the ground and for the reason that on the 9th day of December, 1922, and pending the determination of this cause in this court, said appellant was granted a pardon for the offense of which he was herein convicted. A duly certified copy of said pardon was attached to said motion.

The uniform holding of this court is that when the pardoning power extends clemency and the same is accepted pending the determination of an appeal, the appeal will be dismissed, and when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

It is therefore considered'and adjudged that tbe appeal herein be dismissed, and the cause remanded to the district court of Washington county.

MATSON and BESSEY, JJ., concur.