text:
    JASON COFFEEN v. STATE.
    No. A-3862.
    Opinion Filed Oct. 9, 1922.
    Rehearing Denied Dec. 2, 1922.
    (210 Pac. 288.)
    (Syllabus.)
    1. Trial — Scope of Rebuttal Evidence — Moral Conceptions of Accused as Basis for Defense; of Emotional Insanity. Where one accused of the murder of his wife admits the killing and pleads temporary or emotional insanity caused by the discovery that his wife for weeks previous had been, and still was, sustaining illicit relations with another man, and where the testimony of the defendant tfends to show that the defendant was a man of good moral character, respectable and respected in the community, and that up to this time his home had been pleasant, and that he had a high conception of the duties- of a husband and the virtue of women, and that the discovery and knowledge of these illicit relations so preyed upon his sensitive mind, culminating in temporary insanity, during which he shot both offending parties, the state in rebuttal may, if it can, show that the defendant possessed no such exemplary character, but that the defendant himself was, or may have been, a libertinje.
    (a) Such rebuttal testimony is permitted, not for the purpose of showing the truth of the facts proven, but to show the condition of the defendant’s mind, to rebut the inference that the mental shock or strain was sufficiently great to un- ' seat his reason.
    (b) Such proof may be made by showing specific acts and declarations, and • not by evidence of general reputation.
    2. Evidence — Insanity—Entire Demeanor Proper to Be Shown. When the insanity of a person is in issue, his conversations, acts, and declarations inconsistent with his sanity may be shown, and great latitude is allowed in the admission of such evidence. His entire conduct, including words spoken by him, the manner of his speech, and his appearance, may be introduced for the purpose of showing the condition of his mind.
    Appeal from District Court, Garvin County; Frank Mathews, Assigned Judge.
    Jason Coffeen was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      J. T. Blanton, Thos. L. Farris, and Joe A. Edwards, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

On April 5, 1920, Jason Coffeen was placed on trial in the district conrt of Garvin county, charged with the murder of his wife, Mary Coffeen. He was convicted of manslaughter in the first degree, and by the verdict of the jury his punishment was fixed at confinement in the state penitentiary for a term of eight years.

This tragedy grew out of what, in current magazine literature, is termed the “eternal triangle.” At the climax the defendant, on his own premises, shot his wife’s alleged lover, Walter Rowland, and then shot his wife. Rowland recovered. The wife suffered almost instant death. The defendant for his defense interposed a plea of insanity.

Practically the only error urged is the alleged incompetency of certain testimony concerning the private life of the defendant, introduced by the state in rebuttal. To determine whether this was error it will be necessary to consider the features of evidence outlined below.

The testimony of numerous witnesses on the part of the defendant showed in a clearcut, positive manner:

That at the time of the tragedy the defendant was over 50 years of age. That he had resided in the town of Strat-ford, Okla., since the year 1912, and that during his residence there he was an active, prosperous business man, pleasant and sociable with his business associates and with his acquaintances. That for several years his family relations were pleasant, his family consisting of himself, his wife, and one- son, 12 years of age at the time of the homicide. That he treated bis wife and son with kindness and consideration, and that they together attended church, public gatherings, and places of entertainment. That about 2 years prior to the commission of the crime charged defendant’s wife took into their home a boy baby, 5 days old, whose mother had just died, and whose father was the man Rowland who afterwards became involved with defendant’s wife. That when this baby was about 9 months old Rowland began to make frequent visits to the home of the defendant, occasionally remaining overnight with the family. That as time passed such visits became more and more frequent. That about 10 months prior to the homicide a young unmarried woman, about 20 years of age, was taken into defendant’s home to assist the wife with the housework and the care of this baby. That during the time she was in this home she became pregnant, and that defendant insisted that she leave his home, but the wife insisted that she remain. That the father of the child afterwards born to this young woman was a son of Rowland, whose baby boy had been taken into defendant’s home. That this young woman carried messages and letters to and from defendant’s wife and her alleged lover, Rowland. That about 7 months prior to the commission of the crime charged the defendant found Rowland near the back porch, retreating from defendant’s home, in the nighttime, with his shoes and most of his clothing in his hands. ■ That Rowland was discovered by the defendant upon his arriving home unexpectedly and after he had broken in the the front door, which he found locked, and hurried through the house to the back porch. That the defendant then called in the roomers in-the house, a young man and his wife, and stated to them, in the presence of his wife, what he had just discovered, and the wife admitted the truth of defendant’s accusations, in the presence of these roomers. The defendant then, in a highly excited state of mind, went to the home of his business partner, where he related what had occurred. On the following morning this business partner and his wife went to the home of the defendant, where the incidents of the night before were discussed in the presence of defendant’s wife, who again admitted the truth of the charge made by the defendant.

That thereafter the defendant. became nervous, irritable, and worried about his domestic affairs. That the discovery of his wife’s infidelity was continually upon his mind, and that he constantly and persistently discussed his domestic affairs with his friends and neighbors, and even with strangers. That Rowland, a few days after this discovery, entered the home of the defendant, holding in his hands at the time a pair' of cotton hooks. That an argument ensued wherein this man cursed and abused the defendant. That a short time thereafter the defendant causéd Rowland’s arrest for the purpose of having him placed under a peace bond. That at the hearing it developed that it was the only desire of the defendant that this man remain away from the defendant’s home and cease to interfere further between his wife and him. By mutual agreement further proceedings to keep the peace were abandoned. Notwithstanding this, for a period of several months, Rowland continued to visit frequently in the home of the defendant in the latter’s absence. That on two or more occasions he was found lurking in the alley back of defendant’s house in the nighttime, endeavoring to conceal his presence. Defendant insisted that Rowland’s child be returned to Rowland, and tried to get his wife’s consent to selling the home and move to some other place where they owned property, in order to prevent further visits from this man. The wife, .however, refused to give her consent to the sale of the home and refused to remove from the town where they resided, or to return the child to his father. That about this time the defendant and his wife, although living under the same roof, occupied separate rooms, and that the wife, with financial aid furnished by Rowland, took steps to procure a divorce from the defendant. Finally defendant caused to be served upon Rowland a written notice demanding that he take his child from the home of the defendant. Pursuant to this notice the child was removed, but a few days later was placed in the home of a neighbor living just across the street from defendant’s home.

About 15 days prior to the commission of the homicide the defendant and his wife went by rail from their home to a town about 85 miles distant. At a railroad junction they remained overnight, registered at a hotel as man and wife, and occupied a single room. While there at this hotel the defendant and his wife agreed to reconcile their differences, and the wife agreed to cease associating with Rowland. The defendant then returned home, and his wife resumed her journey up into Kansas. About the time the defendant expected his wife home, as indicated by a postal card received from her, Rowland made a trip to Chickasha, through which town the wife would pass on her return home. The defendant later found out that Rowland and defendant’s wife had been in Chickasha the same night. This occurrence, which took place about a week prior to the killing, again aroused the suspicions of the defendant and aggravated the defendant’s apparent eccentricities and irrational conduct. He would relate to his friends and acquaintances his troubles for hours at a time. He would repeat and rehearse his statements to the same person over and over. Witnesses stated that about this time the eyes of the defendant' took on a glassy stare, that he became totally indifferent to his business, which he had been neglecting since the trouble began, that he suffered lapses of memory and sometimes seemed unconscious of what was said to him by his friends, and that much of the time he would walk to and fro on the streets of the town, abruptly changing his course without any apparent cause, that he was seen frequently about the streets late at night, traveling up and down, and that he suffered loss of appetite, and became weak, anemic, and dispirited.

That on the morning of the tragedy defendant was particularly nervous, having spent several hours pacing up and down the sidewalk in front of and about his premises; that some one had communicated to him that Rowland was bringing his child that day to the home of the neighbor across the street, and that defendant had told his business partner that he feared Rowland would make further attempts to visit defendant’s wife. That about 12 o’clock Rowland appeared on horseback with the child and left it with the neighbor, and then rode out in the street diagonally towards the defendant, who was standing on the sidewalk in front of his residence. That the defendant thereupon drew his gun and fired three shots at Rowland, who leaned forward in his saddle and galloped off' down the street. One of these shots penetrated Rowland’s hip, from the effects of which wound he later recovered. After firing at Rowland, defendant turned and ran into the house, where he found his wife rapidly ascending the stairs. He brushed aside his 12 year old son and fired two shots at his wife, one of which entered her back, killing her instantly. After the tragedy the defendant acted cool and collected until an officer came and placed him under arrest.

Forty-six witnesses testified in behalf of the defendant, most of them his neighbors and acquaintances, nonexpert witnesses. Many of these testified concerning his mental state at and prior to the time of the tragedy. Based upon his actions and conduct, as recited by these various witnesses in detail, their conclusions were as follows, to use their own expressions :

“He paced around like lie was unbalanced;” “impressed me as being irrational;” “didn’t seem to be at himself;” “looked frustrated and had a wild look in his eyes;” “seemed like he was in bad trouble;” “acted peculiar;” “acted like he was under a deep strain;” “his maneuvers indicated he was bothered;” “seemed to be in an excited state of mind, worried;” “not fit to transact business;” “acted like an insane or drunk man;” “would look at you with a stare and would not answer;” “kind of rattlesome, not normal;” “fidgety, excitable;” “acted unusual, acted very insane;” “was not balanced, cog loose;” “acted very irrational.”

Others testified to the same general import. The late Dr. Duke, of Guthrie, who qualified as an expert, stated in substance that in his opinion the defendant was insane and irresponsible at the time of the homicide and for some time previous.

A number of neighbors and acquaintances of the defendant, nonexpert witnesses, testified on behalf of the state concerning the conduct of the defendant at and for some time prior to the homicide. Based on such conduct, some of their deductions were as follows:

“His eyes would glare as if it made him mad;” “he wasn’t insane if I am any judge;” “I would say he was sane;” “of course he was mad; didn’t impress me as being crazy;” “seemed all right to me;” seemed to be absolutely sane;” “seemed rational. ’ ’

If all the facts in detail were arranged and related by a skillful writer, this would make an interesting story; but that is foreign to the legitimate function of a judicial opinion. To determine the issues here, we deem it sufficient to state that the testimony on. the part of a great number of witnesses tended to show that the defendant stood well socially and financially in his home town; that he was a respectable and respected citizen there; that until Rowland interfered with defendant’s home relations his home life had been ideal; that he had been a good provider and a faithful, affectionate husband; that he had high ideals of home and the chastity of women; and that when he discovered his wife’s perfidy and unfaithfulness, coupled with her refusal to break and discontinue her relations with Rowland, he suffered constant mental anguish and humiliation that culminated in dethroning his reason to such an extent as to render him mentally irresponsible for his acts in connection with the fatal tragedy:

This showing was to some’extent, particularly as to defendant’s state of mind, controverted by the testimony of several witnesses for the state. Moreover, to controvert the showing of the defendant that the intensity of the mental shock produced upon him by his wife’s infidelity and perfidy of his neighbor was such as to unseat his reason, the state, over the objections of the defendant, sought to prove, and in a measure did prove, specific conduct tending to show that the defendant himself may have been a rounder and a libertine. Facts were shown indicating that defendant’s ideals of the sanctity of the home and the virtue of women were not so exalted .as shown by defendant’s testimony, and that therefore the shock to his mind and finer sensibilities could not be so very great — at least not so great as to unbalance his mind.

The defendant claims that this class of testimony was incompetent and highly prejudicial. On this question we concede that, if this class of testimony was incompetent, it was highly prejudicial. The competency and relevancy of this kind of testimony under the circumstances here, it seems to us, is a mixed question of mental philosophy and law. In dealing with the philosophy of sex emotions there is danger of drifting intoi boundless uncertainties of theoretical speculation. With this danger in mind we will endeavor to keep within the bounds of reason. Suppose it had been shown that this defendant was a moral degenerate, in the habit of eon-sorting with prostitutes and dissolute women; and that in the course of events he married one of them, who subsequently proved unfaithful to him; would it be likely that his discovery of her unfaithfulness would cause him to lose his mind and drive him insane? We think, in reason, that the shock would not be so great as it would to a man of refined sensibilities, having high conceptions of the sanctity of the home and the virtue of women.

We have not been able to find an adjudicated case deciding this exact question, but there are authorities in which the principle here involved has been applied in a general way to specific acts of alleged insane persons. Wigmore on Evidence, vol. 1, '§ 228, says:

“Sanity and insanity are terms applicable to the mode of operation of the mind as judged by some accepted standard of normality. The mode of operation of the mind is ascertainable from the conduct of the person in question; i.e.; from the effect produced by his surroundings on his mind when responding by action to those surroundings. Virtually, then, the mind is one, while the surroundings are multifold; and the mode of operation cannot be ascertained to be normal or abnormal except by watching the effects through a multifold series of causes. On the one hand, no single act can be of itself decisive; while, on the other hand, any; act whatever may be significant to some extent. The first and fundamental rule, then, will be that any and all conduct of the person is admissible in evidence. There is no restriction as to the kind of conduct. There can be none; for if a specific act does not indicate insanity it may indicate sanity. It will certainly throw light one way or thei other upon the issue. ‘Upon this I believe that no difference of opinion will be found to exist,’ said Mr. Justice Patteson, in a celebrated case, ‘as to the principle upon which such evidence is admissible. Every act of the party’s life is relevant to the issue. There can be no escape from this consequence. There is no distinction in kind (whatever there may be in degree) between one or another piece of conduct as evidence to be considered; some inference is always possible. ’ On the general principle of relevancy any piece of conduct offered as indicating insanity may be explained away as equally or more consistent with sanity.”

Now, if the defendant be permitted to show that he possessed a highly sensitive moral mind and that some great shock probably brought on emotional insanity, why may not the state show, if it can, that the accused possessed no such character by showing that he had perverted sexual propensities, and that his moral sensibilities were blunted to such an extent as to make it improbable that the shock disturbed his mental equilibrium? In an early case decided in the United States Circuit Court, U. S. v. Holmes, 1 Cliff. 98, Fed. Cas. No. 15,382, Associate Justice Clifford of the United States.Supreme Court said:

“Whenever * * * the. accused” has offered his acts, conduct and declarations before and after the homicide, “the government may offer evidence of other acts, conduct and declarations of the accused within the same period to show that he was sane, and to rebut the evidence introduced for the defense.”

This same principle is announced in volume 1 of Clev-enger’s Medical Jurisprudence, p. 498:

“And where acts, conduct, and declarations of the accused are introduced to prove the insanity of a person at the time of the commission of the act, the prosecution in rebuttal is not limited to an explanation or denial thereof, but may offer evidence of other acts, conduct, or declarations (or circumstances) tending to show his sanity within the same period, and such evidence is not objectionable as an attack upon his character.”

When the insanity of a person is in issue, his conversations, acts, and declarations inconsistent with his sanity may be shown, and great latitude is allowed in the admission of such evidence. On the issue of insanity of one accused of crime evidence of his entire conduct, including words spoken by him, the manner of his speech, and appearance, may be introduced, not for the purpose' of showing the truth of the facts proven, but to show the condition of his mind. Such proof may be made by showing specific acts, declarations, and conduct, and not by evidence of general reputation. Any evidence of this character that tends to explain the issue is admissible. 14 R. C. L. 617.

The practice of determining the issue of insanity in this state is in keeping with the declarations just made. Section 4572, R. L. 1910, among many other things, provides that upon this issue the peculiarities of temper, habits, disposition, pursuits, passion, religious impressions, and other matters having a bearing on the case may be inquired into.

Touching upon the admissibility of this class of testimony, Chief Justice Burford, in Turner v. Territory, 11 Okla. 660, 69 Pac. 804, said:

“If the testimony tends in the least degree to support the defense of insanity at the time of the commission of the act, it is error to exclude it from the consideration of the jury. It is not every peculiarity of manner or speech that is the result of insanity; some persons in their normal state of mind have peculiar manners, unusual customs, and make use of strange and extraordinary expressions. It is only when the peculiarities of speech and conduct indicate a change in the usual and ordinary manners and language of the particular individual that mental unsoundness may be inferred.”

The case of Tingley v. State, 16 Okla. Cr. 639, 184 Pac. 599, was a case in which the defendant testified that he believed that the deceased and his (defendant’s) wife were' intimate, that the deceased had invaded his home, and that partly by reason of such conduct defendant’s reason was temporarily dethroned. The state, to rebut any presumption of insanity arising from such belief, introduced testimony tending to show that the defendant had failed to keep his own life pure and did not have so high a regard for the sanctity of the home as would cause the discovery of a wife’s infidelity to dethrone t£e reason of a pure man. The court held that, whether this evidence was or was not proper rebuttal evidence, it was not prejudicial under the circumstances in that case, and stated that the question of whether it was proper rebuttal evidence was not necessary to a decision of that case, and, except inferentially, announced no rule of evidence governing such a situation.

Since all the authorities hold that evidence in chief of specific facts and conduct showing that the accused may have been insane at the time of the commission of a homicide is admissible, we think there is no good reason why the state may not show facts and circumstances which tend in any way to rebut this inference. We hold, therefore, that under the peculiar circumstances here the court did not abuse his discretion in permitting the state to introduce evidence in rebuttal tending to show that the defendant’s social life was not exemplary and in submitting it to the jury under the instructions given, for the purpose of counteracting the inference raised by defendant to the effect that the shock to his sensitive, refined, mind caused him to become temporarily insane, culminating in the homicide charged. There was ample evidence to support the verdict.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    WILL BAKER v. STATE.
    No. A-3716.
    Opinion Filed Aug. 19, 1922.
    Rehearing Denied Dec. 2, 1922.
    (210 Pac. 292.)
    (Syllabus.)
    1. Homicide — Self-Defense—Proper Instruction on Viewing Circumstances from Defendant’s Viewpoint. For instruction considered a, fair exposition of the law that the jury should view the circumstances surrounding the killing from the standpoint of the defendant, where an issue of self-defense is raised in a homicide case, see body of opinion.
    2. Trial — Instructions—Covering Issued. The instructions must be applicable to the evidence. An instruction, although incomplete, is not ground for reversal if it fairly covers the law on a matter in which the evidence is not in dispute.
    3. Appeal and Error — Harmless Error — Instructions. This court is not authorised to reverse a conviction on the ground that thfe trial court ¡erred in its instructions to the jury, unless from an inspection of the entire record it appéars that the defendant was injured thereby, and to determine this issue thte court must consider the question as to whether the defendant is guilty or innocent of the offense charged.
    4. Homicide — Harmless Error in Instructions — Lack of Defensive Evidence. Where the defendant is convicted of manslaughter in the first degrée and punishment assessed at the minimum-under the law, and defendant’s own testimony shows him to be guilty of the crime of which he was convicted, alleged errors in the instructions and in the refusal to give a requested instruction will not be held prejudicial.
    Appeal from District Court, McCurtain County; A. A. ■McDonald, Judge.
    Will Baker was convicted of manslaughter in the first degree, and sentenced to a term of four years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.
    Etheredge & Arnett, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from a judgment of the . district court of MeCurtain county wherein Will Baker was found guilty of manslaughter in the first degree for the killing of one Charlie Walker, and sentenced to serve a! term of four years in the state penitentiary. Defendant Will Baker and deceased, Charlie Walker, were negroes, and on the night of the killing were attending a negro festival at the home of John Cubit, who resided about 10 miles south of the town of Haw-orth in MeCurtain county, Okla. About 30 or 40 minutes before the- altercation which resulted in the killing of Charlie Walker defendant and deceased had had some trouble inside the house of John Cubit, in which difficulty defendant received a knife wound at the hands of the deceased. The parties were separated, the wound was dressed, and there is' some evidence that an effort was made to get the deceased to leave the festival. The fatal difficulty occurred near a fire, which was built outside the yard gate in the public road. Several people were standing close to the fire at the time the difficulty occurred, and the evidence as to just what occurred at that time is somewhat conflicting. According to the state’s witnesses, the defendant approached the deceased from the rear, and struck him over the head with a fence paling, or other heavy stick of wood, knocking him down, and thereafter defendant continued to beat the deceased over the head and body with such instrument until he was told by some bystander to run. The deceased died some time the next day from the effects of the wounds received in this beating.

The defense interposed was self-defense. The defendant contended that just prior to the time he struck the deceased, the deceased, as the defendant thought, made an effort to strike him with a knife, and that whatever he did in the altercation by way of beating the deceased was done to prevent the deceased from again injuring him with the knife. There was some evidence to the effect that an open knife was found in the right hand of Charlie Walker immediately after the beating. In detailing just what occurred at the time of the fatal difficulty the defendant testified as follows:

“Q- Supposing this is the gate you are coming out of (indicating). We will turn it around a little bit. Let this represent the gate this way. We will use this stick (indicating). Then the path ran which way? A. East and west. Q. Where was Charlie from here (indicating) ? A. West. Q. When you saw him? A. West. Q. As you went out of the gate, supposing this is the gate, where would Charley Walker be? A. West of the gate. He would be like this (indicating). Q. Place that stick where the stick was lying relative to the gate. A. Like this (indicating). When I turns like this I sees Eli Steel and Louis Duckett kinda watching in the hall to try to see how I am going out of the gate. I looked, and the stick was lying a little further this way (indicating), and I picks up the stick, and he jumps at me, and I struck left handed and kinda whirled like that (indicating), and he went down on his all fours, and I run up by the side of him and hit him with the stick. I hit him just as fast as I could like this (indicating). Q. You then did what? A. Run on up the road. Q. About how far did you run before you stopped? A. I guess maybe it was about 30 or 40 yards. * * * Q. Will, when you got out of the gate and looked and saw Charley Walker, which way was his face? A. Facing me. Q. Was he standing still, or not? A. No, sir; coming towards me. Q. How was he coming towards you? In what attitude? A. Coming towards me with’ a knife in his hand. Q. Just stand up and show the jury. A. Coming towards me with his hand up like that (indicating). Q. In which hand did he have his knife? A. Right hand. Q. Did you see the knife at that time? A. I could see the blade shining by the moon light.”

It is first contended that the trial court erred in giving two instructions on the law of self-defense. Instruction No. 15, first complained of, is as follows:

“In determining the question as to whether or not the defendant was in danger or apparent danger, under these instructions you are told that the law requires you to view the circumstances at tbe time from tbe defendant’s standpoint, as they reasonably appear to bim, that is, that the circumstances, under which the killing occurred, as they reasonably appeared to the defendant,, were sufficient to excite the fear of a reasonable person that his life was in danger, or that he was in danger of receiving great bodily injury at the hands of the-deceased, or apparently so, and that the defendant acted under the influence of such fear at the time.”

'An instruction in almost the identical language of that above, where the issue was self-defense, was approved in the-case of Turner v. State, 4 Okla. Cr. 164, at page 191, 111 Pac. 988. We consider the instruction a fair exposition of the law that the jury should Anew the circumstances surrounding the killing from the standpoint of the defendant.

instruction No. 16, also complained of, is as follows:

‘ ‘ Evidence has been offered before you for the purpose of showing that the deceased had made threats of violent nature toward the defendant prior to the difficulty. You should consider this evidence, and if you believe that the deceased had made threats of a violent nature toward the defendant, you should consider this testimony in connection with the other facts in the. case, for the purpose of ascertaining whether or not deceased was probably the aggressor in the difficulty in which he lost his life, and if you b'elieve that threats of a violent nature made by the deceased against the defendant had been communicated to the defendant prior to the homicide, you may take this fact in consideration in connection with the proof in the case, for the purpose of ascertaining whether or not the defendant reasonably, in good faith, believed that he was in danger of losing his life, or of suffering great bodily injury at the hands of the deceased at the time of the homicide.”

It is urged against the latter instruction that it does not fully state the law, for the reason that it requires the jury to believe, not only that threats of a violent nature had been communicated to the defendant as having been made by the deceased against the defendant, but also the instruction requires .the jury to believe that such threats, although communicated, must have been in fact made by the deceased before they should be considered. We deem the law to be that, as to communicated threats, so far as they bear upon the condition of mind of the defendant, it is immaterial whether such threats were actually made by the deceased; and for that reason instruction No. 16 is clearly incomplete as a statement of an abstract proposition of the law relative to communicated threats in cases of this kind.

But, in view of the provisions in section 6005, Revised Laws 1910, this court is not authorized to reverse a conviction upon the sole grounds of misdirection of the jury, unless upon—

“an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a violation of a constitutional or statutory right.”

An examination of the record in this case discloses that as to such threats alleged to have been made by the deceased and communicated to the defendant there was absolutely no dispute in the evidence to the fact that such threats were actually made by the deceased. There having been no dispute on this issue we cannot see wherein the defendant was in any way prejudiced by the failure of the trial court to instruct as to the bearing of communicated threats where there was no evidence that such threats had been made by the deceased. The instruction given, we think, stated the law as applicable to the evidence in this case, and under the circumstances of the evidence was not prejudicial to the defendant.

It is also contended that the trial court erred in refusing to give the instruction No. 8, requested to be given by the defendant. This requested instruction related to the evidence Concerning the first difficulty between the defendant and the deceased, in which difficulty the defendant had received a knife wound at the hands of the deceased, and related to the purposes for which the jury should consider such evidence in its bearing on the issue of self-defense. We are of opinion that such instruction, or one of similar import, should have been given, and the court would be inclined to reverse this judgment for failure to give this requested instruction, were it not for the fact that defendant’s own testimony is sufficient to authorize his conviction of manslaughter.

This court would not be authorized to reverse a conviction on the ground that the trial court erred in its instructions to the jury, unless from an inspection of the entire record it appears that the defendant was injured thereby, and to determine this issue the court must consider the question as to whether the defendant is guilty or innocent of the offense charged. Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831; Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092.

Other alleged errors are complained of, but we deem it unnecessary to consider the same in view of the defendant’s testimony. It is a sufficient answer to the contention of defendant’s counsel to say that after a careful review of the facts in evidence the testimony is susceptible of only two conclusions. First, according to the state’s witnesses the jury would have been authorized in finding the defendant guilty of murder, and, taking the testimony of the defendant, we believe he is guilty of manslaughter in the first degree upon his own statement. That the testimony of the defendant established the defense of justifiable homicide could not be held without disregarding all well-settled rules and statutes imposing the duty on one engaged in a quarrel to use only such force as reasonably* appeared to him to be necessary to prevent death or serious bodily injury. In this ease the testimony of the defendant discloses that be not only struck the deceased over the head with a club, but after he had done so and the deceased, as defendant says, was “down on his all fours, I run up by the side of him and hit him just as fast as I could." Under such statement by the defendant the jury was clearly authorized in finding him guilty of manslaughter, and apparently the jury took the defendant’s view of the difficulty, or else he would have been convicted of murder.

This case was well tried, and has been ably briefed; and, after a careful examination of the entire record, giving full consideration to the errors assigned, we conclude that no other result could have been reached by the jury, on the defendant’s own testimony, than that of his guilt of manslaughter in the first degree. Under the repeated ruling of this court the alleged errors, therefore, were not prejudicial, and for reasons stated the judgment is'' affirmed.

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


author: BESSEY, J.

text:
    CLARENCE HENDRIX v. STATE.
    No. A-3965.
    Opinion Filed Dec. 4, 1922.
    (210 Pac. 734.)
    (Syllabus.)
    1. Evidence — Sufficient Corroboration of Accomplice — Larceny. The testimony of the accomplice was sufticitently corroborated.
    2. Evidence — Circumstantial Evidence — Conspiracy. A conspiracy ordinarily is established largely by circumstantial evidence of the acts and declarations of the parties, indicative of a common design to do an unlawful act.
    3. Evidence — “Accomplice” Properly Defined in Instruction. The definition of the word “accomplice” as stated in the court’s instructions to the jury was sufficient.
    4. Trial — Right to Propound Humiliating Questions on Crops-Examination. The propounding of embarrassing or humiliating questions to defendant’s witnesses on cross-examination, where .pertinent to the issues, does not constitute prejudicial misconduct.
    Appeal from District Court, Ellis County; T. P. Clay, Judge.
    Clarence Hendrix was convicted of larceny of domestic animals, and be appeals.
    Affirmed.
    C. B. Leedy and W. A. Briggs, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Att-y, Gen., for the State.
   BESSEY, J.

Clarence Hendrix, plaintiff in error, in this opinion referred to as the defendant, brings this appeal from a judgment and sentence of the district court of Ellis county, Okla., rendered on the 16th day of October, 1920. The defendant was convicted of the crime of larceny of domestic animals, and sentenced to serve a term of five years in the state penitentiary.

Seventeen assignments of error are set out in the petition in error filed in this court. These assignments are by counsel for defendant condensed into four specific, propositions, which are treated separately in the brief here.

This case, together with the case of State of Oklahoma v. George H. Hunter, Jr., just decided by this court, was tried in the district court of Ellis county, and the state seems to have tried both cases upon a theory that there existed at Hunter’s ranch a band of cattle thieves who were acting conjointly and systematically in the larceny of cattle in Ellis county. The persons apparently thus engaged in cattle thieving were George H. Hunter, Jr., L. B. Akins, Clarence Hendrix, and possibly others. A short time before the trial of this cause L. B. Akins was arrested, charged with the crime of burglary, and while in the custody of the sheriff of Ellis county made a confession in which he disclosed the larceny of a number of cattle, and implicated Hunter and Hendrix in each of the transactions. In the trial of the. defendant in this case L. B. Akins testified that about the latter part of August, 1919, he, Hendrix, and George H. Hunter had an agreement that Hendrix and Akins should go out and steal cattle, bring them to Hunter’s ranch, and that Hunter should then take charge of them and sell them, the profits derived from the thefts and sales to be divided among them. He also stated that, acting under this agreement, he and Hendrix stole and delivered to Hunter cattle taken from a number of people, including six head of cattle which they stole from a ranchman named Parkins, on or áb'out the 24th of September. This theft was the one charged in the information in this case. Akins testified further that, after he and Hendrix stole these cattle, they drove them to Hunter’s ranch, and that the next morning he, Hunter, and Hendrix marked the ears of the cattle, picked Hunter’s brand, a figure “2” on the left hip, on them, and turned them in Hunter’s field. Akins stated that on the night of the alleged stealing he rode a gray hors'e belonging to Hunter, while the defendant, Hendrix, rode a horse known as “Keno” which he borrowed from Mr. Fred Byars of Gage, and which seems to have been a noted cow horse in that community. Akins also testified that on the .night following this stealing, while he and Hunter were eating supper at Hunter’s home, the defendant came to the house, called Hunter and him out, and told them that Mr. Parkins had been over to Mr. Byars making inquiry as to who had had Mr. Byars’ horse “KJeno” the night before, stating to Mr. Byars that some one had stolen six of his cattle, and that Mr. Byars’ horse had been used in the stealing. Akins testified that the three of them immediately after supper destroyed the brands which had been placed upon these cattle, cut off the ears so that the earmarks could not be discerned, drove the cattle about six or seven.miles north from Hunter’s raxtch, and left them in the road. This is a condensed statement of the testimony of the accomplice L. B. Akins.

It was not shown that Vern Sheldon or T. F. Akins, a brother of L. B. Akins, had anything to do with the larceny. Both of these witnesses corroborate Akins, in that they state that Hendrix was at Hunter’s ranch at the times mentioned by L. B. Akins; that it was haying time, and they were at work on the meadow, and they saw Hunter, Hendrix, and L. B. Akins at work with strange cattle, roping, branding, and marking the same; they also testified to the coming of Hendrix to the Hunter home that evening at supper time, and the leaving of the three men immediately. .

Parkins, the owner of the cattle, testified as to their loss and the time they were missing. He also testified concerning the tracks made by one of the horses, and that these tracks corresponded to tracks made by the; horse “Keno” belonging to Mr. Byars; that he immediately went to Mr. Byars and learned from him to whom he had loaned the horse. Byars testified that at some time, being unable to give the exact date, Hendrix came and borrowed this horse, which was not an infrequent occurrence; that the following day Parkins came to his home and made inquiry as to who had had his horse the night before. It was also shown that when these' cattle were found they were about six miles north of the Hunter ranch; that their ears had been cut off, and that they had been freshly branded on the left hip, and, although the brands had been partially destroyed, he was able to recognize upon the left hips of two ofl the cattle what appeared to be the figure “2,” which was the. figure and location of the brand of G-eorge H. Hunter, Jr.

The defendant testified in his own behalf, and denied any connection with the alleged stealing, or with any conspiracy to steal cattle. He admitted having been at the. Hunter ranch, and admitted having been in company with L. B. Akins in the town of Gage about the time the cattle were stolen; he also admitted having ridden the Byars horse, Keno, stating that he frequently borrowed this horse, and was at liberty to go to Mr. Byars’ place and get a horse any time he wanted it. In addition to this he offered the testimony of some of the best citizens of the town of Gage, showing, that his reputation for honesty and truthfulness in that community was good, which the state did not attempt' to disprove.

Although in his brief defendant confines his argument to four main propositions, he insists that each of the 17 assignments of error are meritorious. This, of course, he has a right to do, and it is the duty of this court to consider each and all of the alleged errors urged when properly reserved, briefed, and presented in the written and published opinions of the court. However, it is not incumbent upon this court to treat specifically each error urged where they overlap or amount to needless repetition, or where they relate' to long-established and well-settled questions previously decided in other cases. In the early history of the jurisprudence of the United States and of this state, where the issues involved were new, and often intricate and of the utmost importance as establishing precedents for the guidance of courts and lawyers in cases’to follow, there were impelling and potent reasons why the courts should write long, elaborate opinions in which every issue involved was analyzed and the reasons given for the deductions made. But now, when móst of the questions raised have been settled by numerous decisions of the courts of this and sister states, it amounts to a useless imposition upon the bench and bar to multiply unnecessarily the pages of our published reports, text-books, and digests.

The massive accumulation of published law reports, textbooks, and digests of our complex system, including our federal decision^ an'd the decisions of 48 states, has become burdensome and expensive. Many lawyers of ordinary means are unable to equip their offices with adequate libraries, and it is becoming more and more difficult for those who are fortunate enough to have these facilities to sift out of this mass the specific principles sought. Hence our purpose to omit from written opinions such points as are well settled or of minor importance. The litigants have the right to have every issue considered, when-properly preserved and presented, but they cannot insist, as a matter of right, that each and all shall be exhaustively analyzed in the written and published reports! This court is on the best of terms with the publishers of many of the law reports, but we have no inclination to increase their profits or emoluments except where it tends to aid in the administration of justice.

Counsel for defendant contend that the evidence offered by the state was not sufficient to corroborate the testimony of the accomplice L. B. Akins, but at most was only sufficient to raise a suspicion or inference connecting the defendant with the crime charged; that the testimony offered was not consistent with the guilt of the defendant, neither was it inconsistent with his innocence.

Upon this point we do not agree with counsel for defendant. The coconspirator Akins testified in minute detail concerning defendant’s connection with the crime, and in doing so described the cattle stolen, the horses ridden by each of them at the' time, the place where' the cattle were taken, the manner in which they were treated, with respect to brands and marks, and the disposal of the cattle when it was learned that they were suspected of having stolen them. If his story was a fabrication, some of the details could have been successfully attacked. On the contrary, every specific act concerning the stealing of the cattle, as testified to by Akins, is corroborated by convincing direct or circumstantial evidence, either from persons or by incidents indicating that the facts as related by Akins were as he stated them to be.

First. It is conclusively shown by the testimony of T. F. Akins, Sheldon, Hunter, and Hendrix himself that Hendrix was at the Hunter raneh in company with Hunter and Akins just prior to the time the cattle were stolen.

Second. Hendrix was seen in the town of Gage, near where the cattle were stolen, riding the Keno horse, in company with L. B. Akins, about sundown on the evening before the alleged stealing took place.

Third. The owner of the cattle testified that the tracks made by one of the horses used in stealing the cattle corresponded to the tracks of the Keno horse.

Fourth. Hunter, Hendrix, and Akins were seen on the following day by Sheldon and T. F. Akins, roping and branding cattle on the Hunter ranch.

Fifth. The cattle were found north of the town of Gage, in the condition described by Akins, and it was possible to discern Hunter’s brand upon the left hip of two of the cattle.

Sixth. Hendrix admits in his testimony that he was at the Hunter ranch about this time; that he borrowed and rode the Keno horse, and that he and Akins were together in the town of Gage on the evening before the cattle were stolen. We think the corroboration was sufficient to justify the jury in finding, as they did, that the defendant was guilty.

In support of the state’s theory of a conspiracy alleged to have existed among defendant, Hunter, and Akins, it was shown that at this particular time there was a series of cattle thefts in that community, and the facts and circumstances indicated that all of them were committed by. these men under a joint agreement to steal cattle and divide tbe profits, and that these and other cattle stolen were taken to Hunter’s ranch by Akins and the defendant, where some were slaughtered and others sold or shipped to market. There was direct evidence of such a conspiracy, sufficiently supported by the conduct of the parties and by other circumstances proved.

In proposition No. 3 counsel complains of the instructions given by the court defining the law of accomplice and the corroboration necessary for the jury to find the defendant guilty. The instructions given by the court on this subject, being instructions Nos. 4 and 4y2, are as follows:

“You are instructed that a conviction cannot be had upon the testimony of an accomplice unless the testimony of such accomplice is corroborated by other evidence tending to connect the defendant with the offense, and such corroboration is not sufficient if it merely shows the commission of the offense. An ‘accomplice,’ as the word is here used, means any one unlawfully connected with the crime committed, either as principal offender, as accomplice, or accessory; it includes all persons who are connected with the crime by the commission of any unlawful act on their part transpiring either before or at the time of the commission of the offense as aiding or abetting the commission of said offense or as a participation therein, and whether or not he was present and participated in the commission thereof.”
“The testimony of the witness L. B. Akins shows that he was an accomplice in the commission of the offense with which the defendant stands charged, but you cannot find the defendant Clarence Hendrix guilty by reason of the testimony of the said witness, L. B. Akins, alone, until you are satisfied beyond a reasonable doubt that the same has been corroborated by other evidence tending to establish the fact that the defendant did in fact commit the offense charged in the information, and in this connection you are instructed that the corroboration herein mentioned need not be by eye-witness alone to the commission of the offense, but such corroboration may be by circumstances, and you may take into consideration all the facts and circumstances proven in the case in determining whether or not the defendant is guilty of the offense charged :in the information.”

We think that these two instructions are not subject to ..successful criticism. Those instructions, in- connection with the others given, fairly stated the law as applied to the facts .in evidence. Instruction No. 4 quoted in part the language of the statute, Section 5884, R. L. 3910. The term “accomplice” has been variously defined, and the definition given by the court as applied to facts proved in this case was sufficient. 'The language used was practically equivalent to that used in the cases cited below. Hendrix v. State, 8 Okla. Cr. 530, 129 Pac. 78, 43 L. R. A. (N. S.) 546; Baldock v. State, 16 Okla. Cr. 203, 182 Pac. 265; Cole v. State, 16 Okla. Cr. 420, 183 Pac. 734.

Proposition No. 4, discussed by counsel for 'defendant, is the alleged misconduct of counsel engaged in the prosecution «of the case. The record discloses that these persons charged with the larceny of cattle were well-to-do people who enjoyed good reputations for honesty and varacity in their home community. Many of the questions propounded were doubtless embarrassing to them, but were for the most part competent as -tending to explain the issues involved. So far as can be gleaned from the record, it appears that the efforts of counsel for -the state did not go beyond an earnest, determined effort to ‘bring out the facts as they really existed. ' If it is true that these individuals had hitherto enjoyed good reputations, but •were in fact roaming about over the ranches of their neighbors in the nighttime, taking that which was not their own, .an energetic prosecution on the part of the state was eom-■¡mendable.

For further facts surrounding this prosecution, see tbe companion case, Hunter v. State, 23 Okla. Cr. -, 212 Pac. 1014, just decided by this court.

The judgment of the trial court is affirmed.

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


author: PER CURIAM.

text:
    HENRY GRANSBURY v. STATE.
    No. A-3851.
    Opinion Filed Dec. 9, 1922.
    (210 Pac. 733.)
    Appeal from County Court, Alfalfa County; W. E. Wiles, Judge.
    Henry Gransbury was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Appeal dismissed.
    Titus & Talbot, for plaintiff in error.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., and W. L. Owen, Co. Atty., for-the State.
   PER CURIAM.

Plaintiff in error, Henry Gransbury, was convicted in the county court of Alfalfa county on a charge of having unlawful possession of intoxicating liquor, and punishment fixed at confinement in thé county jail for 60 days and a fine of $500. Judgment was rendered on the 11th day of May, 1920. From this judgment the defendant attempted to perfect an appeal by filing in this court, on September 10, 1920, a petition in error with case-made attached. The Attorney General and county attorney have filed a motion to rHsmiKs the appeal herein because the same was not filed within the time allowed by law and orders of the court.

It appearing on the face of the record that this appeal was not filed until the hundred and twenty-second day after the rendition of judgment, this being an attempted appeal from .a judgment of conviction for a misdemeanor, the motion to •dismiss the appeal will be sustained, and the cause remanded to the county court of Alfalfa county, with directions to enforce the judgment and sentence. Griffin v. State, 14 Okla. Cr. 300, 170 Pac. 518.


text:
    HENRY GRANSBURY v. STATE.
    No. A-3852.
    Opinion Filed Dec. 9, 1922.
    (210 Pac. 733.)
    Appeal from County Court, Alfalfa County; W. E. Wiles, .Judge.
    Henry Gransbury was convicted of selling cigarettes to a minor, and he appeals.
    Appeal dismissed.
    Titus & Talbot, for plaintiff in error.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., and 'W. L. Owen, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error, Henry Gransbury, was • convicted in the county court of Alfalfa county on a charge • of selling cigarettes to a minor, and punishment fixed at confinement' in the county jail for 30 days and a fine of $100. • Judgment was rendered on the 11th day of May, 1920. From this judgment the defendant attempted to perfect an appeal by filing in this court, on September 10, 1920, a petition in error, with ease-made attached. The Attorney General and ■ county attorney have filed a motion to dismiss the appeal herein because the same was not filed within the time allowed by law and orders of the court.

It appearing on the face of the record that this appeal was not filed until the hundred and twenty-second day after the rendition of judgment, this being an attempted appeal from a judgment of conviction for a misdemeanor, the motion to dismiss the appeal will be sustained, and the cause remanded to the county court of Alfalfa county, with directions to enforce the judgment and sentence. Griffin v. State, 14 Okla. Cr. 300, 170 Pac. 518.


text:
    WILLIE BUTLER v. STATE.
    No. A-3856.
    Opinion Filed Dec. 9, 1922.
    Rehearing Denied Feb. 29, 1924.
    (223 Pac. 193.)
    (Syllabus.)
    1. Appeal and Error — Case-Made Signed by One Other Than Trial Judge Nullity, A ease-made must be settled and signed by the judge who tried the case, and where a case was tried by one judge, and the case-made is signed and settled by another, and no showing is made as to inability of the trial judge to do so, such case-made is a nullity.
    2. Same — Appeal Considered on Properly Certified Transcript. Where the case-made is not properly signed and settled, and is stricken for that reason, and the record includes a properly certified transcript, the appeal will be considered on the transcript.
    3. Same — Presumption that Accused! not Convicted Wholly on Circumstantial Evidence, and Instruction Thereon Was not Neces. sary. When, on appeal by transcript only, it is contended that the trial court erred in not giving an instruction covering the law of circumstantial evidence, the presumption will be indulged that the evidence upon which defendant was convicted was not wholly circumstantial; this for the reason that the burden is upon an appellant to properly bring before this court enough of the proceedings in the trial court to permit us to pass safely and intelligently upon the questions presented.
    Appeal from District Court, Johnston County; George S. March, Judge.
    Willie Butler was convicted of grand larceny, and he appeals.
    Affirmed.

      Cornelius Hardy, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Johnston county, wherein plaintiff in error, Willie Butler, hereinafter referred to as defendant, was convicted of the crime of grand larceny, and sentenced' ito- serve one year’s imprisonment in the state penitentiary.

This appeal was attempted to be taken by the filing in this court of a purported case-made, as well as a certified transcript of the record proper, attached to the petition in error. Upon examination of the case-made, we find that this cause was tried by Hon. George S. March, judge of the Sixth judicial district of this state, who was assigned by the Chief Justice of the Supreme Court to sit in Johnston county, in the Twenty-Sixth judicial district, and that the said assigned judge, during the time of such assignment, tried this case. The purported case-made is signed and settled by Hon. J. H. Line-baugh, the regular judge of the Twenty-Sixth judicial district, who took no part in the trial.

Section 2814, Compiled Statutes 1921, in part provides:

“Instead of the appeal hereinbefore provided for, any party desiring to appeal to the Criminal Court of Appeals in any criminal case may proceed by case-made and petition in error in all respects and with all the rights as provided in 'Procedure, Civil.’ ”

Sections 787 and 788, Compiled Statutes 1921, civil procedure relative to the settlement of the case-made, are as follows:

“The court or judge may, upon good cause shown, extend the time for making a case and the time in which the case-may be served; and may also direct notice to be given of the time when a ease may be presented for settlement after the same has been made and served, and amendments suggested, which when so made and presented shall be settled, certified and signed by the judge who tried the cause; and in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire before the time fixed for making or settling and signing' a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired; and if no amendments are suggested by the opposing party, as above provided, said case shall be taken as true and containing a full record of the cause and certified accordingly.
“If, after final judgment in any civil or criminal case, the judge who presided at the hearing and trial of said cause, or any part thereof, or in any of the proceedings therein, shall die, or be out of office and absent from the state, or unable to settle the ease, the successor of said judge shall settle, sign and certify the case-made in said cause, or such part thereof as was presided over by such deceased or absent judge, and make all other necessary orders therein to enable the party to perfect the record for the appellate court; and to that end may, upon reasonable notice or appearance of the parties, hear evidence for the purpose of determining any disputed matter of fact in relation to the proceedings in such cause.”

This court had occasion to construe the foregoing statutory provisions in the case of Wilcox v. State, 15 Okla. Cr. 453, 177 Pac. 924, and held:

“A case-made must be settled and signed by the judge who tried the case, and where a case was tried by one judge, and the case-made is signed and settled by another, and no showing is made as to inability of the trial judge to do so, such ease-made is a nullity.”

See, also, Lyde v. State, 17 Okla. Cr. 365, 187 Pac. 252.

No showing is made as to the inability of the trial judge to sign and settle this case-made. The case-made, therefore, is a nullity, and this court has no jurisdiction to consider the appeal as other than an appeal by certified transcript of the record. We will proceed to treat the various assignments of error from that standpoint.

The record proper includes the following (section 2777, Compiled Statutes 1921):

“First. The indictment and a copy of the minutes of the plea or demurrer.
“Second. A copy of the minutes of the trial.
“Third. The charges given or refused, and the indorse-ments, if any, thereon; and,
“Fourth. A copy of the judgment.”

It is first contended that the trial court erred in overruling defendant’s application for a continuance. Said motion and application form no part of the record proper, and cannot be considered in this appeal.

It is also contended that the trial court erred in refusing to give an instruction on circumstantial evidence. Had the evidence been wholly circumstantial, it would have been error for the trial court to refuse to give an instruction properly covering the law of circumstantial evidence; but, had the evidence not been wholly circumstantial, the refusal to give such an instruction would not have been erroneous. As there is no properly settled case-made before this court, we cannot safely and intelligently pass upon this question on a transcript of the record only. The presumption will be indulged, in the absence of a proper showing to the contrary, that the evidence upon which defendant was convicted was not wholly circumstantial.

Certain alleged errors in the admission and rejection of evidence, and concerning alleged misconduct on the part of the trial judge during the progress of the trial and in the reception of tbe verdict, are questions that cannot be considered where the appeal is by transcript only.

The judgment is affirmed.

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


author: DOYLE, P. J.

text:
    LEE PETERS v. STATE.
    No. A-4307.
    Opinion Filed Dec. 12, 1922.
    (211 Pac. 427.)
    (Syllabus.)
    1. Homicide — Evidence Sustaining Conviction for Murder, but Insufficient to Warrant Death Penalty. In a prosecution for murder, the evidence considered, and held sufficient to warrant a verdict convicting the defendant of murder, but insufficient, under the circumstanctes of the case, to warrant the extreme penalty of the law, and the judgment and sentence of death is modified to imprisonment for life at hard labor.
    2. Jury — Negro’s Challenge to Array on Ground that Names of Negroes Were not Placed in Jury Box Properly Overruled. On a challenge to the panel, interposed by a negro defendant, on the ground that the jury list was composed exclusively of white men, that the jury commissioners failed to place the nambs of negroes in the jury box, where the evidence offered in support of said challenge failed to show that the names of negro'es on the tax rolls were excluded from the jury list on account of their race or color, held, that the trial court properly overruled the defendant’s challenge to the array.
    3. Same — That Jury List Composed Solely of . White Men not Ground for Challenge. The mere fact that the jury list is composed solely of whitte men will not be ground for challenge in such a case. There is no law requiring that negroes shall be selected to sit upon juries. The only law upon this subject is that they must not be texcluded therefrom solely on account of their race or color.
    4. Same — Discretion of Officers Charged with Selection of Jury List. Officers charged with the duty of selecting jury lists from the names on tHe tax rolls of the county can exercise their own discretion in selecting those persons who in their judgment are competent and qualified to serve as jurors, provided that they do not exclude competent and qualified persons who are ne-groes solely-on account of their race or color.
    5. Same — Substantial Compliance with Law as to Manner of Selecting Jurors. A substantial compliance with the law as to the manner in which jurors shall be selected and summoned is all that is required.
    Appeal from District Court, Creek County; Lucien B. Wright, Judge.
    Lee Peters was convicted of' murder, and he appeals.
    Modified and affirmed.
    Thompson & Smith, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an appeal by Lee Peters from a conviction of murder and judgment and sentence of death. The information charged that Lee Peters did in Creek county, on or about the 18th day of April, 1920, kill and murder one J. A. Anderson by shooting him with a shotgun. In accordance with the verdict of thei jury, he was sentenced to suffer the penalty of death by electrocution. When the appeal was perfected, an order was entered and served on the warden of the penitentiary staying the execution of the sentence pending decision of the appeal.

The record shows that the information in this case was filed in the district court of Creek county on the 27th day of May, 192.0; that on the 15th day of August, 1921, an order was entered transferring said cause to the superior court; that on his trial in the superior court the defendant, Lee Peters, was found guilty of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitentiary for a period of ten years; that a motion for new trial was duly filed, which motion was sustained, and a new trial awarded; that on the motion of the county attorney said cause was on the 17th day of December, 1921, duly transferred to the district court. When the case was called for trial, the defendant interposed a “challenge to the array of jurors,” based upon the ground that the panel from which all jurors must be called in this cause is composed exclusively of white persons, that the jury commissioners failed to place the names of negroes in the jury box, that said exclusion is a discrimination against this defendant, who is a negro, and is a denial to him of the equal protection of the laws as guaranteed to him under the Constitution of the United States.

In support of his challenge he called as a witness, J. A. Ellege, who testified in substance as follows:

“Mr. Ed Creegan, Mr. Fred C. Napp, and myself were appointed jury commissioners on the 1st day of January, 1922. We selected the jurors for the district, superior, and county courts of Creek county. We put into the box 200 names for each court. We selected the jurors from the names on the tax rolls, except where we knew personally that the name considered was that of'a taxpayer. We put the names of 5 or 6 negroes in the' district court box. We selected names under the law that says a negro had the same rights as a white man. I did not know anything about who was going to be tried, white men or negroes.” •

Fred C. Napp in substance testified :

“I am one of the jury commissioners of this county. We put the names of some negroes in this box. As I understand the law, we could not discriminate against negroes. I put in 4 names of negro taxpayers myself, and in all we put in 10 or 12. We did not exclude any taxpayer whose name was on the roll because he was a negro. We wanted to comply with the law.”

After hearing the testimony and the argument of counsel the court overruled the challenge to the panel and allowed an exception.

The sole question arising on the trial and now presented to us for decision is- whether the court erred in overruling the defendant’s challenge to the .array of jurors. Section 3515, Comp. Stats. 1921, provides! as follows:

“Said jury commissioners shall meet in the office of the county clerk, on the first Monday in January and July of each year, and at such other times as the district judge may order, and, after taking and subscribing their official oath, they shall proceed to select, for the district court, one list of names, of not less than two hundred persons, or such other number as the district judge may order, and a second and different list for the county court, of not less than two hundred names, or such other number as the county judge may order, which lists shall be selected from the names on the tax rolls of the county. No name of any person who does not possess the qualifications of a juror as prescribed by this chapter, or who has served upon a regular jury panel within the preceding twelve months, shall be placed upon a jury list. Each jury list shall be made up of names of persons from the various municipal townships in the county in proportion, as nearly as practicable, to the voting strength of such township.”

By numerous decisions of the Supreme Court of the United States it is held:

“Whenever by any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment to the Constitution , of the United States.” Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839; Rogers v. Alabama, 192 U. S. 226, 24 Sup. Ct. 257, 48 L. Ed. 417.

The precise question involved in this case was fully considered and passed upon by this court in McIntosh v. State, 8 Okla. Cr. 469, 128 Pac. 735, and in Smith v. State, 4 Okla. Cr. 328, 111 Pac. 960, 140 Am. St. Rep. 688, where this court say:

“The Fourteenth Amendment to the Constitution of the United States does not require the jury commissioners or other officers charged with the selection of juries to place negroes upon the jury list simply because they are negroes. The allegation that the jury was composed solely of white men does not violate the Fourteenth Amendment to the Constitution of the United States, and proof of that fact would not support the motion. The ground upon which the decisions of the Supreme Court of the United States rest is not that negroes were not selected to sit upon juries, but, that they were excluded therefrom solely on account of their race or color. In other words', there is no law to compel the jury commissioners or other officers of the court to select or summon negroes as jurors. They ean select any persons whom they regard as competent to serve as jurors without regard to their race or color, but the law prohibits them from excluding negroes solely on account of their race or color.”

And in Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808, it is held that:

“A substantial compliance with the law as to the manner in which jurors shall be selected and summoned is all that is required.”

It follows that the trial court properly overruled the defendant’s challenge to the array. The only other assignment is that:

“The evidence is insufficient to sustain a capital verdict and judgment.”

The facts in the case briefly stated are that the defendant attended a barbecue and there bought 20 cents worth of meat from the deceased, a negro, and shortly after deceased asserted that the defendant had not paid for the meat and owed him for it. Previously there had been no acquaintance or relations whatever between defendant and the deceased. The defendant left the place where the quarrel took place and went about half mile to'the town of Slick, where his wagon and team were, and in which wagon there was a double-barrel shotgun loaded with buckshot, which he had placed there when he left home. He than drove the team back to the barbecue.

The state’s witnesses testified that when the defendant drove up he grabbed his gun and shot deceased. As a witness in his own behalf the defendant testified that the deceased came towards him in a threatening manner with a pistol and said, “Back up!” and, fearing for his life, he fired. The Attorney General’s brief concludes as follows:

“It occurs to us, however, that inasmuch as plaintiff in error had at one time been accorded a sentence of ten years in the penitentiary, and was dissatisfied with it and sought and obtained a new trial, the result of which was a verdict fixing his punishment at death, is of itself sufficient ground for this court to modify the judgment of the court and reduce the punishment of plaintiff in error to confinement in the penitentiary for life, and this we respectfully recommend; otherwise, we are firmly convinced and respectfully suggest that the judgment of the trial court should be affirmed. ’ ’

In a capital case, the law of our state in its great humanity allows the jury, after they have first determined the question of guilt, to assess the punishment, which may be death or im-; prisonment for life at their discretion, and, even after the jury say that the defendant should suffer death, this court, in furtherance of justice, has the power to modify the judgment to imprisonment! for life.. Section 2820, Comp. Stats. 1921. In the case of Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170, it is said:

“The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice, is in no sense the power of commutation of the sentence of the lower court. Commutation can be granted only by the chief executive of the state, and is granted as a matter of clemency. The judicial power to modify a judgment and sentence and the executive power to pardon, parole, or commute are wholly distinct in their nature. The one is an award of justice, and the other is an act of grace. Commutation is a matter of discretion, and may be refused. Justice is imperative, and must not be denied. The fact that the Governor has the power to commute does not abridge the defendant’s right to appeal to this court for relief. In other words, the provision of our criminal procedure act make^ it the duty of this court to review the record, and in a proper ease, if necessary in the furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant.”

See Chambers v. State, 16 Okla. Cr. 238, 182 Pac. 714; Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613; State v. Young, 19 Okla. Cr. 363, 200 Pac. 260; Walker v. State, 18 Okla. Cr. 661, 202 Pac. 799.

Upon a careful examination and consideration of the whole record, we are of opinion that the evidence is insufficient to warrant the extreme penalty of the law, and for this reason the jury abused its discretion in assessing the death penalty, and that justice requires a modification of the judgment and sentence of death to that of imprisonment in the penitentiary for life at hard labor.

The judgment of the district court of Creek county herein is so modified, and, as thus modified, the judgment is affirmed.

MATSON and BESSEY, JJ., concur.


author: BESSEY, J. BESSEY, J.

text:
    TOM COTTON v. STATE.
    No. A-3754.
    Opinion Filed July 15, 1922.
    Rehearing Denied Dec. 12, 1922.
    (210 Pac. 739.)
    (Syllabus.)
    1. Indictme.nt and Information — Duplicity—Waiver—Assault with Dangerous Weapon. An information charging an assault with a dangerous weapota, under the provisions of section 2344, R. L. 1910, may not be duplicitous merely because as an incident to the offense stated it contains averments showing also an assault and battery.
    a. If the accused was in doubt as to the character of the assault charged, his failure to challenge the sufficiency of the information before trial constitutes a waiver of such defect, if any there was.
    2. Same — Waiver of Defects by Failure to Demur. Defects appearing upon the face of an information, excepting that the information does not state facts sufficient to constitute a public offense, or excepting an objection to the jurisdiction of the court, should be raised only'by a demurrer before announcing ready for trial; otherwise such objections will be deemed to have been waived.
    3. Assault and Battery — Proof of Another Offense not Necessarily a Variance. Where the proof supports the allegations of an information, proof that another offense may have been committed by the accused at the same time will not necessarily con. stitute a variance.
    On Rehearing.
    4. Appeal and Error — Harmless Error — Duplicity. Where the record shows that accused could not have been misled, and that another prosecution growing out of the same transaction is barred, a conviction will not be disturbed on the ground of duplicity.
    Appeal from District Court, Bryan County; George S. Marsb, Judge.
    Tom Cotton was convicted of assault with a dangerous weapon and he appeals.
    Modified and affirmed.
    Robert Crockett, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

On the 15th day of October, 1919, Tom Cotton was convicted of assault committed upon the person of Dan Lee with a sharp and dangerous weapon, with the intent to do bodily harm, and without justifiable or excusable cause. His punishment was fixed at imprisonment in the state penitentiary for a term of four years.

The charge, as set out in the information, in part states:

"That Tom Cotton * # # did commit the crime of assault with a dangerous weapon in the manner and form as follows: That is to say, the defendant did, in said county and state, at the date above named, unlawfully, willfully, and feloniously, and without justifiable or excusable cause, commit an assault in and upon the person of one Dan Lee with a certain sharp and dangerous weapon, to wit, a certain knife which he, the said Tom Cotton, then and there had and held in his hand, and he, the said Tom Cotton, did then and there assault, strike, beat, bruise, wound, cut, and otherwise illtreat him, the said Dan Lee, with said knife, with the unlawful, willful and felonious intent on the part of said defendant then and there to injure and do great bodily harm to the said Dan Lee, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The information was filed September 5, 1919, and on the same day the defendant was arraigned and entered his plea of not guilty. On the 14th day of October, 1919, the cause came on for trial upon its merits, both sides announced ready for trial, and a jury was impaneled and sworn. Witnesses for both the state and the defendant were sworn and placed under the rule.

The first witness on behalf of the state was Dan Lee, the person alleged to have been assaulted.. At the beginning of the examination of this witness the record is as follows:

“Q. State your name to the court. A. Dan Lee.
“Mr. Crockett: Wait a moment; the- defendant at this time wants to object to the introduction of any evidence on the part of the state for the following reasons:
“First. Because the information does- not conform substantially to the requirements of the statute relating to the charge of the offense in this state.
“Second. Because the information is duplicitous.
“Third. Because more than one offense is charged in said information.
“Fourth. Because it does not state facts sufficient to charge the defendant with the commission of a public offense.
“Fifth. Because this court is without jurisdiction to try this cause.
“The Court: The objections will be overruled.
“Mr. Crockett: We except."

This witness and a number of other witnesses testified to facts amply sustaining the allegations in the information, to the effect that this assault' grew out of ill feeling between the parties due to trespassing cattle; that the defendant and Dan Lee were neighbors, and that Lee received word from the defendant that the cows belonging to Lee were feeding on the wheat and oats belonging to the defendant, and requesting him to fix the fence and keep the cattle out; that while Lee w;as there fixing the fence the defendant advanced upon him with a! knife, and threatened to cut him; that he pursued Lee some distance from the place where they met, and inflicted knife wounds upon his person; that the defendant’s father and brother came and separated them, and assisted Lee to get up, and assisted him towards his home; that the defendant asked Lee if he wanted a doctor, and upon his stating that he did, the defendant procured a doctor for him. From all the testimony in the ease it appears that the assault was made; with the intent to do bodily harm, but probably with no intent to kill or to commit any other felony.

At the close of the state’s testimony defendant’s counsel made a motion requesting the court to instruct the jury to return a verdict of not guilty, on the following grounds:

First. That the evidence does not warrant the court in submitting the ease to the jury for the offense charged in the information.

Second. For the reason that there is a fatal variance between the information and proof on the part of the state.

Third. For the reason that the evidence is not sufficient to sustain the allegations contained in the information.

This motion was by the court overruled, and an exception allowed. The defendant then introduced his testimony. That the defendant was not tried for assault and battery appears throughout the record.

At the close of the testimony the defendant requested four separate instructions relating to the right of self-defense only, which instructions were refused by the court, but the substance whereof was incorporated in instructions given by the court on his own motion. The defendant excepted to but two instructions, Nos. 2 and 10, which were as follows:

“ (2) Now in this case, if you find from the evidence beyond a reasonable doubt that the defendant, Tom Cotton, in Bryan county, and state of Oklahoma, did, on or about the 18th day of May, 1919, unlawfully, willfully, feloniously, and without justifiable or excusable cause, and not in his necessary self-defens'e as hereinafter set forth in these instructions, make an assault in and upon the person of one Dan Lee with a certain knife, and that said knife in the manner in which it was used was a sharp or dangerous weapon, and did then and there with said knife assault, strike, wound, and cut the said Dan Lee with said knife, with the unlawful and felonious intent on the part of said defendant then and there to injure the said Dan Lee or to do him great bodily harm, then and in that event you should find the defendant guilty of an assault' with a sharp or dangerous weapon and assess his punishment at imprisonment in the penitentiary for any term not exceeding five years, or by imprisonment in the county jail not exceeding one year. If you do not so find, you should acquit the defendant.
“(10) The court further instructs the jury that, if you believe from tEe evidence that the defendant sought, brought on, or voluntarily entered into a difficulty with the said Dan Lee for the purpose of wreaking vengeance upon him, or if you find from the evidence that he cut and stabbed him because of the acts of the said Lee, but had no reasonable apprehension of immediate and impending injury to himself, and did so from a spirit of retaliation and revenge for. the purpose of punishing the said Dan Lee for past injuries, either real or supposed, done him, then the defendant cannot avail himself of the law of self-defense, and you should not acquit him on that ground, no matter how great the danger or imminent peril to which the defendant may have believed himself to have been exposed during the difficulty.”

In the motion for a new trial, which was heard and overruled, the defendant, among other things, urged that the’verdict should be set aside because there was a fatal variance between the charge and the proof. Later a motion in arrest of judgment was filed, for the following reasons:

First. Because the information does not substantially conform to the requirements of the statute relating to charging offenses and crimes in the state of Oklahoma.

Second. Because the information is duplicitous.

Third. Because more than one offense is charged therein

Fourth. Because the facts as therein stated are not sufficient to constitute a public offense.

Fifth. Because this court is without jurisdiction to try the offense charged.

This motion in arrest of judgment was likewise overruled.

The facts as above stated constitute a brief synopsis of the history of this ease so far as is necessary to a determination of the issues here involved.

This prosecution was predicated upon section 2344, R. L. 1910, which is identical with section 6510 of the Dakota Penal Code. Excluding the words in parenthesis, these statutes are as follows:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits1 any assault (or assault and battery) upon the person of another, with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

The words in parenthesis, “or assault and battery,” have since been incorporated in this statute in both North and South Dakota, section 9549, Compiled Laws of North Dakota 1913, and section 4081, South Dakota Revised Code of 1919. In the Dakotas, as their statutes now read, the offense may be charged as an aggravated assault or as an aggravated battery, in the disjunctive, while in this state the offense, under our statute, must be charged as an aggravated assault only. Under circumstances such as we have here, the pleader is apt to state an assault resulting in a battery where the two, as in this case, are so closely connected as to be practically inseparable.

The defendant urges! that this information is duplicitous, in that it charges an assault with a dangerous weapon, and also an assault and battery with the felonious intent to do Dan Lee great bodily harm, and that there is a fatal variance between the allegations in the information and the proof adduced by the state.

• From the whole: record we are convinced that it was the intention of the pleader to charge but one offense, that of an assault with a dangerous weapon, without any intent to kill or to commit any other felony. The offense so committed is by statute made at felony, and there was no reason to charge a mere assault and battery, which is only a misdemeanor. We think it is clear that the defendant knew that the state was relying upon the graver offense charged, if indeed two were charged, and if there was an inadvertent duplicity in the facts stated no one was misled.

If the defendant had any doubt as to whether he was about to be tried for an assault with a dangerous weapon or for a mere assault and battery he should have raised the objection by demurrer to the information before announcing ready for trial; otherwise the objection was waived. Our Penal Code (section 5791, R. L. .1910) states as one of the grounds for a demurrer that more than one offense is charged in the information. In that connection section 5799, R. L. 1910, provides as follows:

“When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment. ’ ’

A defendant cannot by announcing ready for trial have the advantage of a possible acquittal on the facts, or failing in that, have the verdict set’ aside because two offenses were stated, and by such procedure gain immunity from 'both. By a long line of decisions this court has held that objections to the sufficiency of the allegations in the information should be taken by demurrer, as provided by the Code of Criminal Procedure, § 5791, supra, in all eases, excepting where the objection is leveled at the jurisdiction of the court, or that the facts stated do not constitute a public offense. Stone v. State, 12 Okla. Cr. 313, 155 Pac. 701; Harrison v. State, 12 Okla. Cr. 399, 157 Pac. 707; Roebuck v. State, 14 Okla. Cr. 241, 170 Pac. 277; Simpson v. State, 16 Okla. Cr. 533, 158 Pac. 116; Ralston v. State, 16 Okla. Cr. 634, 185 Pac. 831.

In Hoffman v. State, 12 Okla. Cr. 345, 156 Pac. 1151, it was held:

“An objection to an information on the ground that more than one offense is charged therein, cannot be raised for the first time by a motion in arrest of judgment. Such an objection when not raised by demurrer is in effect waived.”

The statute upon which the information was based, the proof, the instructions of the court, the verdict and judgment, all deal with an assault with a dangerous weapon; true, the information and proof also show an assault and battery, but the defendant was not tried for battery separately or in conjunction with the other charge. There was but one issue submitted to the jury; no instructions were asked or given relating to assault and battery. Whether, when in stating facts showing an aggravated assault with a dangerous weapon a battery is also stated, this constitutes duplicity might, in cases of this character, be an open question, but one which need not here be decided. Suppose the pleader had also used the superfluous statement that the parties used profane language, and disturbed the peace of others, such allegations being used merely to show the gravity of the offense charged; would that necessarily make the information duplicitous?

Every battery includes an assault. The proof shows that an assault of the kind defined by the statute was committed; the proof that a battery was also committed does not necessarily constitute a variance. It is not a variance to prove unnecessary allegations in an information, amounting to surplusage, or to prove facts beyond those constituting the offense as it is defined by statute. A variance is a disagreement between the allegations in the information and the proof as to some matter which is legally essential to the charge, and which might subject the accused to another trial for the s'ame offense. State v. Crean, 43 Mont. 47, 114 Pac. 603, Ann. Cas. 1912C, 424; Oats v. State, 153 Ind. 436, 55 N. E. 226; 8 Words and Phrases, 7283.

Our statute (section 4784, R. L. 1910), being part of the Code of Civil Procedure, is in part as follows:

“No variance between the allegations, in a pleading, and the proof, is to be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits.”

This is declaratory of the common law in both civil and criminal cases, and has been followed in criminal cases, as well as in civil cases. Beberstein v. Territory, 8 Okla. 467, 58 Pac. 641.

The testimony here amply supports the theory of the state that this was. an assault with a sharp and dangerous weapon, without justifiable or excusable cause, of an aggravated character, with no intent to kill. The defendant having waived his right to an election, if any he had, between such an assault with a dangerous1 weapon as charged, and that of assault and battery, and there appearing no other irregularities in the record, it follows that the defendant’s rights were in no way prejudiced by the rulings of the trial court.

The defendant was a small, one-armed man, unable to cope in physical combat with the person assaulted, who was a large, able-bodied man. We cannot say', from this record, that the assault' was without some provocation, and for these reasons, the judgment below is ordered modified to make the term of imprisonment two years, instead of four.

The judgment, as so modified, is affirmed.

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

On Rehearing.

BESSEY, J.

In this case an assault, without intent to kill, was charged. The case was tried on that theory. In. pleading the details of the assault, a battery was also stated; but, in the absence of any objections to these unnecessary details, the assault charge stood unimpaired, and the case was tried on that theory. Not so in the cases of Parks v. State, 14 Okla. Cr. 413, 171 Pac. 1129, and Harris v. State, 15 Okla. Or. 369, 177 Pac. 122, where an assault with firearms was stated, but no battery charged, though the facts showed the shooting of defendant’s adversary, indicating there might have been an intent to kill. Those eases under those facts might come within the purview of section 2336, R. L. 1910, an impossibility under this prosecution.

The statutory provisions of this state relating to the various kinds of felonious assaults are complex and somewhat conflicting. We are sometimes compelled to treat these questions as they arise, without making a clear-cut classification, except that where the record shows that the accused could not have been misled, and that another prosecution growing out of the same transaction is' barred, a conviction will not be disturbed on the ground of duplicity. The reasons for invoking thé rule are two: First, to enable the accused to make a definite defense; second, to protect him against another prosecution for the same offense. Where neither of these reasons applies, the rule should not be invoked.

In this case we- firmly believe the information was sufficient to sustain the conviction of felonious assault, and under the circumstances there was no fatal variance between the allegations and the proof, and that the incidental recital of a battery was mere surplusage. An assault is always included ini a battery. The rights -of the defendant were sufficiently safeguarded, so that he is now immune from prosecution for any other felonious assault and battery growing out of the same transaction.

We .therefore see no reason for reversing our former decision in this case. Mandate forthwith.

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


text:
    FRED WALKER v. STATE.
    No. A-4391.
    Opinion Filed Dec. 12, 1922.
    (210 Pac. 737.)
    Appeal from District Court, ¡Cherokee County; J. H, Jarman, Judge.
    Fred Walker was convicted of the crime of conjoint robbery, and he appeals.
    Appeal dismissed.
    L. C. McNabb, for plaintiff in error.
    Geo. 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 in the district court of Cherokee county for conjoint robbery, with punishment assessed at a term of 12 years’ imprisonment in the state penitentiary.

The Attorney General has filed a motion to dismiss the appeal for the reason that no written, notice of appeal was served upon the county attorney or court clerk of Cherokee county,' nor any summons in error served on the Attorney General or waiver by said officer of the issuance and service of same. In this ease, 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. 514, 197 Pac. 173.

The motion of the Attorney General to dismiss this appeal is sustained, and the appeal is hereby dismissed.