text:
    M. D. CHAPPELL v. STATE.
    No. A-887.
    Opinion Filed December 4, 1911.
    (119 Pac. 139.)
    1. TRIAL — Instructions—Accomplices, (a) Where the state relies upon the testimony of an accomplice to secure a conviction, the court may instruct the jury that the witness upon whose testimony the state so relies is an accomplice.
    (b) Where the court submits the question to the jury as to whether or not a witness for the state is an accomplice, then the court, if requested by the defendant, should go further and instruct the jury what in law constitutes an accomplice.
    2. NEW TRIAL — -Perjured. Evidence. Where, subsequent to a conviction, a witness who testified for the state upon the trial of the case makes an affidavit, stating that the testimony given by such witness for the state was false, and where the testimony for the state, excluding such admittedly false testimony is not conclusive as to the guilt of the defendant, a new trial should be granted.
    (Syllabus by the Court.)

      Appeal from District Court, Pontotoc County; A. T. West, Judge.

    M. D. Chappell was convicted of arson, and appeals.
    Reversed.
    In the trial of this case, the following testimony was admitted :
    Testimony of Mrs. A. C. Inge, for the state:
    “When I am at home, I live at Henryetta; that’s where my daughter lives. Know defendant. Before July 12, 1908, I had been staying with Mr. Chappell part of the time, and with my daughter part of the time, and I think we were at McGee in 1908, I believe; I don’t know. Know when the store was burned out here. I went to Henryetta in November, two or three months just before the time the store was burned. I was staying with Mr. Chappell. He was living out at Blackburn’s gin, I reckon they call it. He was in the mercantile business; he had a country store. Part of the time he lived in the store, in a shedroom at the store. At the time the store was burned, he was living in a house ,on Mr. Davis’ place, not a great ways from the store; reckon it is about 150 yards, or 200, from the store, but I don’t believe it is that far. It was a log house; had been occupied by a man by the name of Moore; had only one room. We .had been there about three weeks — it might have been near on to four, but I think it was about three weeks — before the store burned. I burned the store. I had never talked to anybody myself, but Mr. Chappell had talked to me about it. Pie told me that he had worked hard all of his life, and that he had tried to save up some money, and that he had left home when he was a boy on account of. his brother younger than him. Said that he had lived with his mother and his sister and his brother younger than him. Pie just said that he was going to get back some of the mone3r that he had lost in his time; that he had always worked harch and made a good deal of money, but he didn’t have none now, and he was going to get back some of it. I asked him how he was going to do it. He said he was going to burn the store; that he had it insured for $720 and some cents; and then he told me he was going to- town, and that he intended to burn it Saturday or Sunday night, and he came to town on Saturday, and Friday night he told me he was going Friday night. He told me he was going to burn it Saturday night, and that he wanted to take out what goods he could out of there, and went on, until Saturday morning he told me he was going to town, and Friday night, when he was talking to me, he told me that he was going to burn it. I says: ‘Well, all right'; you can do it if you want to.’ And he said: ‘I don’t want you to tell it.’ I said, ‘I am not in the habit of running around telling news,’ is the answer I gave him. Saturday morning he said he was going to town, and I had to burn the store that night or the next night; but he said it would be better to burn it Sunday night; there would be fewer people around. I told him I would not do it; I was afraid to do it; I wouldn’t jeopardize myself doing anything of that kind, and he had better let it alone. Pie told me I had it to do; that my life was in danger if I didn’t do it. I was nervous and sick, and taken sick up until the house was burned, and I was nervous and afraid. I never agreed to do it, but he told me I had to do it; and I was afraid not to do it, because I was afraid he would kill me. That is just all there- was of it. And then he come off to town, and said he would be back Saturday night, and I said to him when he started, ‘Mack, will you be back?’ he said, ‘Yes,’ but then he told me before that he would not. I asked him if he would be back, a..d he said he would, and then he told me that he would be at home Saturday night, and I said, ‘If you are not going to be at home, I will go get Bonnie Sanders to stay with me.’ He said. ‘No, I don’t want Bonnie Sanders’- — to stay by myself; he would be home. He didn’t come home that night. I stayed by myself. He just told me that he wanted the goods moved, and I had to move all I could, and he moved some of them there before he ever left there — some of them to the house. He took some pants, and he carried his trunk to the house, but there wasn’t anything in the trunk; but he carried some pants and some other things, like shoe strings and such. I don’t believe he carried any there. He carried some shoe strings; he carried a load of pepper and a load of coal oil — two gallon cans of coal oil — and there was a two-gallon jug of coal oil. Then he carried some vinegar to the house, and all of the meat there was there in the store; but then there wasn’t much of that; there wasn’t much meat; there wasn’t much groceries to amount to anything. He carried some nails and a few nails, and some horseshoe nails. I can’t hardly remember all that he did carry there, and what he did carry; it has been so long. John Foster and everybody in that neighborhood — as near as I recollect, John Foster went to High Hill, or some place, to church or singing, or somewheres, and lie came home, and somebody else; I don’t know who it was. They came in there after I had— Yes. I was at home Saturday night. Then there was a man by the name of Burge, I believe; he came about 9 o’clock in the night. I never done nothing Saturday night, but have a big hard chill; that is all I done that night. I was sick all day Sunday, but Sunday night I carried part of the things out of the store, and put them in the house and in his trunk. I put some coffee in the trunk, in a new trunk that he had bought. He had bought a new trunk, and had it taken out there about a month or so before the burning. I carried some snuff up there and put it away, and salmon. I carried some canned goods of one kind and another, and I don’t know what all I did carry; it has been so long Some of the pants I put in the trunk, and coffee I put in the trunk, and some of the pants I put in under the mattress on the bedsprings. Well, John Foster he come home, and I was standing in the store, and I stayed there in the store; stayed there until he turned his horse loose, and they came over there close to the store, and I stayed in the store there, where I could see into Foster’s house. Moonlight;, it was as light as it is now, just as bright as day almost. I reckon I must have stayed there an hour and a half, or maybe two hours, after I saw John Foster come home. I was staying there, waiting for him to get his light put out. Then I carried some more things up to the house and put them away, for I was afraid not to do it; I was afraid of him; afraid not to do it. After I got everything done, and everything taken out that I intended to take out, and I could take out, I just gathered up and went to the house, and fixed everything there just ready to go back to the store; and I went back to the store, and Mr. Chappell had split a lot of boxes, one type and arother, of lighting matter, and put under the counter, and he told me to leave all of the big boxes that set up at the .op of the house, to leave them all there; leave all of the bulky things, like outmeal and breakfast food as such things, leave them in there. We didn’t have any flour or meat to amount to anything; he had left his stock run down, so he wouldn’t lose anything to amount to anything in that line, and for me to put out the report that he would have a lot of 'goods and groceries and things there about Monday. I just put the report out; then I just turned in and took some matches and started a fire. He told me to start a slow fire; that I had to do it, and if I didn’t do it he would settle with me for it; and told me then that he had left that kindling there, and there was oil in gallon cans zmder the counter, and I had better set the whole thing afire about where the scales were, and not to put any blinds or anything on the windows, and leave everything in shape there just like it was all of the time, and that somebody might pass in the night and put it out. And I found out you can’t start a slow fire with coal oil and kindling; I have done found that out. I just lit a match and poured coal oil, fresh coal oil — there was already coal oil on the pieces — and I just poured fresh coal oil on it, and touched a match to it. I locked the doors; the west door was barred. I locked the door as I left. I then went home. Before I went to bed, I took a big dose of laudanum. Mr. Sanders came over Sunday, and I was sick. I told him I was sick, and znade the remark that I wished people would buy their nails and tobacco on Saturday. I didn’t want to have to stay in the store all day through the week and Sunday. A young man came and wanted some candy, and I never went; I couldn’t go. The next time I saw Mr. Chappell after the burning was Monday morning, when I sent after him. I sent a man named Huddleston, that lived at Mr. Herring’s. He came past my house, and I told him to come on to town and round Mr. Chappell up, and tell him to come home. He came home about 10 or 11 o’clock, about 10, I reckon. He didn’t come to the house until he went down and examined where the house had been burned, and stayed down there a while, and after a while he came to the house, and Mrs. Sanders came up to the house before he did. Old lady Sanders come over to my house while he was down there, and she says, ‘Who is the man down there?’ I believe Bonnie Sanders was there; Bonnie was there; I believe she was there; I won’t say positive; I believe she was there. I never had any conversation with him at that time until after he went back; he came here to town, and he went back. After he went back, along in the afternoon, he said to me that it seemed like there was a good many things saved up. That was after he first came out there. I sent for him. He went out there, and he got his insurance back; that is, he got his invoice book. He invoiced his material-in the store. He got that book, and brought it here to town. He came back. He got that book and come to town here, and that evening' he went back home. That time he stayed until the next day, and then he told me. That night I believe he ate supper at home; I don’t remember. He slept at home that night. That day he spent going around collecting bills. That night he stayed at home. Tuesday we. came here to town the next day. He put a lock and key to the house before. He fixed a chain and a padlock to it. He had the key. AVhen I came here, I went to Mr. Dismuke’s. I stayed there until in the evening; we got in here in the morning. Mr. Jared— I don’t know what his name is; it wasn’t Joe Jared. It was a red-complected Jared. Chappell came to town in a wagon. That evening I ■'went to Mr. Jack Brundidge’s. I got there along, I reckon it was, 4 or 5 o’clock in the evening. I stayed at Dismuke’s until it got late; it was very warm.. AVhen I got to Brundidge’s, there was Mrs. Hendrix, Mrs. Frank Hendrix, and his wife, were all staying there, living in the house with Jack. Mrs. Lillie Brundidge was also there. Next I saw Chappell out at the reunion. Fie came to Jack Brundidge’s. Jack Brundidge and his wife, Lillie, were there when he came. Fie asked me for a piece of paper; did not say what he wanted with it. I said to him, ‘Mack, I haven’t got any paper.’ Lillie and Jack were out on the porch. I says, ‘Lillie, you come in here and.get a piece of paper for Mack/ and she came and looked. As near as I can recollect, she didn’t find any. Lie just said: T will get a piece of paper; I have got a piece of paper’- — and he went to the table, and sat down and wrote on a paper. Lie took the paper; have not seen it since. He wrote on the paper, and told me that the things had been found, and said that the only thing and the only way that he knew to get out of it was to just say he did not know anything about it; that I didn’t know anything about it; and that was all of the way he seen to get' out of it; and says, ‘The things have been found.’ And then he wrote on the paper — says, ‘You may be arrested; there is probability of your being arrested.’ Said there was seme men up in town talking about arresting me, and when he said that I just looked at him, and I said, ‘Traitor,’ and he turned right around and rode off, so Pete told me. He didn’t say anything particular about why he wrote. I couldn’t hear a common conversation in a low tone of voice to save my life. There were three rooms and two other rooms in Jack Brundidge’s house. Jack and his wife were out on the porch; that was about eight or ten days after the fire. I don’t say positively it was that; but it was about eight. The burning took place- in Pontotoc county, Oklahoma. The trunk was left in the house. I had a great big large trunk there; don’t know what'became of that trunk. He only had one trunk, and I had one.”
    Cross-examination:
    “I am 66 years old. Two of my husbands are dead, and one of them is divorced. Have been acquainted with Mr. Chappell nine or ten years, or longer. When he got mad at me, he would beat me up. That was at Sulphur, in a boarding house, where I was running a boarding house for him. It was in the dining room. Before the fire, I went out there on the 15th of March, last March. It will be two years this coming March since I went down there, and the fire was in July. He had a very fair stock of general merchandise. He made some money; don’t know how much. He ordered goods every now and then. Lie didn’t have any goods in there for two or three weeks before the fire.”
    Ernest Landrith, on behalf of the state:
    “Live two miles west of Sulphur. I lived in Pontotoc county in July, 1908. Know where Blackburn’s gin was; lived in about 150 yards of the gin. Remember the occasion of the store

      being burned out there. Am acquainted with Mr. Chappell. Saw him on Saturday before the store was burned. He was there around the store part of the time, and at the house. Saw him go from the store to the house. I noticed that him and the Burgess boy, John Burgess, were carrying a trunk from the store to the house. It is a great big — it was a new trunk, and a great big one. Didn’t know at the time what was in the trunk. Next saw the trunk the day. that I helped bring the things up here. Me and. Bud Blackburn brought the things up here to Ada that evening. Chappell was arrested the same evening that we brought the things up here. Got the things out of the little log house where Mr. Chappell lived. I was in company with the sheriff.”
    Testimony of Jamerson, for the state:
    “I was with Mr. Shook when he went out here to the house that the-defendant, Chappell, is said to have lived in. Mr. Shook had a search warrant. I saw it. Don’t know what it called for.”
    Ernest 'Landrith, recalled:
    “There was some coffee in this trunk, about half full of coffee. There was several coffee cups in the trunk. There was some sardines in the house. There was some pants between the matresses bn the bed. Saw Mr. Chappell during the week after the fire, on Sunday evening. He came back up there to that house — him and a fellow in a buggy — and got this lady that was there, and came back tr town, and I don’t remember seeing them any more then. The house was locked with a chain and lock. I never noticed .a lock on it; I never went out there.” Cross-examination : “Found some goods after this house burned, where Mr. Chappell lived. Found them west of the house about 200 yards, out in the woods or bushes. There were just a few things out there. There was some twist tobacco and snuff. I lived there in about 50 yards of the house; I seen the house burn.”
    J. C. Jamerson, for the state:
    “I lived in Oklahoma City. Am state agent for a fire insurance company. AVas in the same business in July, 1908; represented the Palestine and Commercial Union, two companies. Piad a policy on a stock of goods for M. D. Chappell out here at Blackburn’s gin. AVe were duly notified, of the fire. Came to Ada between the 20th and 25th. Saw defendant on that trip; had a conversation with him.- Pie claimed a total loss under his policy of $700; $100 on furniture and fixtures, the $700 stock. He submitted his books and papers as evidence of claim. I asked him if he had any saved goods. He said he didn’t. I drove out to the scene of the fire, and there wasn’t enough debris out there to indicate the stock of goods, to indicate a stock of goods of that size. There wasn’t enough debris left after the fire to indicate the stock of goods of the size that he had claimed; in other words, it didn’t stock up with his inventory. I was with Mr. Duncan when he got this affidavit. Don’t know where Mr. Duncan is now. Don’t know the name of the officer who went out there to execute this search warrant. I have -heard since; understood it was Mr. Shook. Came to town when the Confederate reunion was going on. Found, I think, 85 pairs of pants there in the house, in the bed, between the clothing. Found quite a quantity of canned goods and some tobacco, cigars, and snuff, two or three pound pails of cottolene, and a number of other articles, and a bulk lot of coffee; think that was in the bottom of the trunk. Mr. Chappell furnished a statement to me — an inventory of what he had lost. That statement covered these articles. Mr. Chappell made claim for the same property that I found in this house. After I made this discovery, I didn’t discuss the loss any further; never talked to Mr. Chappell after that with reference to his claim. He also made a claim for some furniture and fixtures that was also claimed by Mr. Foster. He said he didn’t know how the fire occurred. He said he had been in Ada since the fire. He stated he was away from there the night of the fire.”
    John Foster, for the state:
    “It is admitted that this witness owned the building that burned. Mr. Chappell and I are good friends; never had any trouble before.”
    Lillie Brundidge, for the state:
    “I lived on Thirteenth street here in Ada. Lived on Fifteenth street in 1908. Know defendant and old lady Inge; have known her about five years. She was at my house in 1908, in the month of July. She was there during the reunion picnic. Know Mr. Chappell when I see him. Defendant was at my house several times along about the reunion. He was there the day she came up there, was the only time. The day he was there, he asked me for a piece of paper. Did not give it to him. He never got any from me. He had a little old piece of paper; it looked more like a laundry sheet to me than anything else. He and the old lady did not do anything that I saw while they were there. Thej were in the front room. He came in, and said he wanted to say something to grandma, and didn’t care about the whole town hearing it, and wanted a piece of paper. He had done that several times before that I knowed of.”
    Bud Taylor, for defendant:
    “I lived 7 miles east of town in the summer of 1908, about a mile from Blackburn’s gin. Knew the store building where Mr. Chappell had a store out there. I was in the store very frequently. I was in the store Saturday evening before it burned that night. Think I purchased something. Did not see Mr. Chappell there. Grandma Inge was tending to the store. I think I purchased some coal oil. I didn’t notice any difference between the size of the stock that evening and any other time; was in there just a short time, probably 15 or 20 minutes.”
    Frank Williams, for defendant:
    “I lived on Henry Lovelady’s place in the summer of 1908. It was a mile and half east of the Blackburn gin, and about a mile and a half south. Knew where Mr. Chappell’s store was. I was there every few days. I was there on Saturday evening; stopped there as I went home from town. Think I got a bottle of snuff in the store. The old lady waited on me in the store. Mr. Chappell was not there. I didn’t notice any change in the stock. I wasn’t in there but a -few minutes; never noticed any change at all in the goods that was in there.”
    W. N. McClure, for defendant:
    “I live eight miles south of Ada. I was a sheriff in Arkansas. Got acquainted with Mr. Chappell in 1880, in Murfreesboro, Ark. Am acquainted with his general reputation in the community where he resides for truth and morality. It has always been good. Never knew him to be in trouble in my life before.” Cross-examination: “Never have seen any of the people from this Blackburn gin community; was never out in that community.”
    Clint Palmer, for defendant:
    “I live northwest of this place about three miles and a half. Am acquainted with defendant. Heard about his store being ■burned. I saw him here in town on the Saturday evening, and he went out with me and took supper and we went to a speaking at Egypt on Saturday night, and Sunday morning he said he was going to Egypt. Left my house Sunday morning. Saw him again about sundown, or a little after, Sunday evening. Pie was resting right at my house right about sundown. There was a singing at my house Sunday night. Monday morning he said he was going to town and go home. He left my house afoot. He rode in a wagon with me on Saturday. Learned on Tuesday morning that his store was burned, when I came to town. I have known Mr. Chappell ten years or more. The biggest part of that time I think his occupation has been school teaching. I think I am acquainted with his general reputation in the community where he resides for honesty and integrity and. a law-abiding citizen. It is good. (Witness Jamerson, the insurance agent, is brought before the witness.) I think I met him right- along about east of Haynes. Pie asked me — Pete Duncan first introduced me to him — and he asked me if he was out at my place, and I told him that he was on them particular nights, and hé asked me how long I-had knew him. I told him eight or nine years, quite a while. Pie asked me how was he for truth and veracity. I told him it was pretty good. It was pretty good before that. He said, ‘That’s one of the rottenest things I have run up against.’ Pie says, ‘We have got plenty of money, and we will put him where he belongs.’ ”
    J. R. Floyd, for defendant:
    “I live about five miles northwest of here. I am township trustee. As trustee, it is among my duties to assess property in the township in which I live. I performed that duty in 1908. I visited Mack Chappell’s place out there. Somewheres about the 1st of July I assessed his stock of goods for taxes. As well as I remember, that day we went over his invoice; took the figures from his invoice. Don’t remember the date of the burning of the store. Remember the occasion when it occurred. If I am not mistaken, I think defendant was at my house on the Sunday before, on Sunday morning, if I remember right. I let him have a horse to ride up the country some place, -maybe to Mr. Bailey’s, on_ Sunday morning, and he got back with him in the afternoon somewhere. If I am not mistaken, that was the Sunday before the burning. Pláve known defendant some three or four years; that is, personally; I knew of him for quite a while. He was raised in an adjoining county where I was. I knew of him as a hoy, but we have been away from there for quite a while. Only known him in the last three or four years. From what I know, I don’t know anything to the contrary that his reputation in the community where he tesides is good.”
    Viola Bailey, for defendant:
    “I lived at Bebee in 190S'. Remember of hearing of the burning of Mr. Chappell’s store. I saw defendant at my home on the Sunday night of which the store is said to have been burned. It was about 1 o’clock in the afternoon. He stayed until, I guess, between 5 and 6. ' He had been over there several times, about three times.”
    John Martin, for defendant:
    “Know Mr. Chappell. Heard about the time the store was burned. I saw him Saturday and also Sunday night before the burning. Seen him Saturday evening; me and Mr. Palmer and some more parties was going over to a speaking at Egypt, and I seen him Sunday night at a singing at Palmer’s. It was along late in the evening, between sundown and dark.”
    J. R. Floyd, recalled for defendant: (State objected to introduction of tax assessment sheet for property owned by the defendant on the 1st of July, and objection sustained.)
    M. D. Chappell, on his own behalf:
    “I am 39 years ole. Raised in Arkansas. I was a farmer there. Lived in Arkansas about 12 years ago, 12 or 15. My business and occupation in this country has been teaching principally and working in a store. Started business down here in this store that burned up in December, 1907, and ran up until July, 1908, when I burned out. Bought John Foster out when I went into that store. Took an invoice of the goods about the 1st of June some time. I had taken insurance was the cause. I had taken out a policy; had $700 insurance. I owned the fixtures. Got receipt in full from John Foster. I have the receipt. This is an inventory that I got of my goods on June 9th, that is my handwriting. This invoice was correct at the time I made it. Didn’t keep much track of it before that until I took the inventory. After this inventory, I kept the amount of goods I bought after that by entering the invoice from the time I took the inventory; after that I would put it down on the book and get the bill. I kept the bills. Suppose the bills burned. I didn’t see them any more. After June 9tji, I kept a record of my cash sales; was running the store on a cash system. This is the list of my cash sales. From June 9th until July 10th, it amounts to $116.43; that list is correct. [Defendant offers in evidence list, and marks it ‘Exhibit A’; invoice introduced, and marked ‘Exhibit B.’] I was still buying groceries along as I needed them from June 9th until July 10. Didn’t have any conversation with the old lady about that store that morning. I believe I told her I would be back Sunday, some time Sunday. I came to town early in the morning, and went out with Mr. Palmer in the afternoon, and spent the night with him, and went to Mr. Floyd’s the next morning, and went on over to Mr. Bailey’s, and came back to Mr. Palmer’s something near sundown, and stayed all night, and left town early the next morning. It was not an unusual occurrence for me to leave on Saturday morning and return Monday. I left frequently. The condition of my trade was not very different Saturday from any other day, very little. First learned of the fire about 9 o’clock Monday morning. I got a horse from the stable, and rode out there. Did not carry any goods out of the store before I left it on Saturday morning. That new trunk was a trunk I had bought at a sale here. Bought it to put my clothes in it, and the gentleman brought it out for me, and left it at the store, and I got a boy to help me take it to the house. The boy’s name was John Burgess. When I carried it up there, it was empty. That was Saturday morning before the fire Sunday night. Don’t know anything about how those pants got up there in the house. I was out there in that neighborhood from Monday afternoon until Wednesday morning. Tried to get those accounts straightened up, goods that I had sold on a ticket; and Wednesday morning I came to town, and was here the balance of the time. The old lady lived out there; she stayed there. The reason why I put a lock on there was because it was in such a shape; it was just on the inside of the fence, and the floor was right on the ground. Looked like there would have to be something to keep the stock out of it; no other way to fasten it. We were both aiming to leave there, and did leave. I did not carry the goods there and put them in the bed; do not know who did it; did not tell anybody to do it. Did not have any conversation with this old lady about burning this house up before it was burned; didn’t tell her anything in regard to the burning. Did not carry four gallons of oil to the house. Had something like 40 to 50 gallons of oil in the store. Didn’t put any pants in this new trunk at any time. On Wednesday morning after the fire Sunday, the old lady and I left there, and came to town. About a week after that, I think, I was arrested. I stayed here in town at Dismuke’s. Saw the old lady over at Mr. Blackburn’s. She telephoned me two or three times from Mr. Pete Duncan’s. She said she wanted some money that I owed her; that I had been owing her for four or five years; and I went over there to see her to see what it was for, and why she claimed the debt. I called for a piece of paper. I wrote on the paper. I just asked her to make out a statement to make out her account, so I would know what it was for, and when she didn’t make any reply much to it I went away. I didn’t stay there but a few minutes. She did not holler, ‘Traitor,’ at me while I was there. She claimed I borrowed the money; but I don’t know when it was. I submitted my papers to Mr. Duncan, the insurance man, and also the adjuster, together; they were both together. I submitted them myself. The policy was in the papers in the inventory or ledger; don’t know where the policy is. I have asked them for the policy — the agent, Pete Duncan— and I didn’t get it. I didn’t know of any other way to get it. Plave been trying to get that policy to bring suit on it, and they wouldn’t turn it over. I got the goods back; received this letter through the mail, unsigned. (Letter attached to record, and marked ‘Exhibit C’; state objected to introduction of letter, and objection sustained.) Never struck the old lady in my life.” (Tax receipts offered in evidence, and state objected, and objection sustained. Copy of tax receipts are attached to the record, marked “Exhibit E.”)
    Cross-examination:
    “Plave known Mrs. Inge about 10 years. She has been with me part of the time since I have known her. She first lived with me in the Choctaw Nation, in 1905, I believe. Been living with me off and on ever since, keeping house for me. Lived with her people — her children, son-in-law, and daughter — at Henryetta. She lived with my mother and brother and me at Sulphur. We had been living together off and on ever since 1905. Next met her at Oakman. It ha? been about 10 years ago, I suppose; met her first at Henryetta. The day I was arrested, went before Squire Nettles to make a complaint against the old lady for burning this place, because I had heard of remarks she made to the people in town. Mrs. Hendrix told me that Mrs. Morgan had told her. (Defendant introduces record to show that the case against this woman has been dismissed on yesterday.)”
    George Harrison, for defendant:
    “Am acquainted with defendant. Have known him about 11 years. Know his reputation for being an honest, law-abiding citizen in the community where he has resided and is known. It is good. In the last 7 years have been character witness for defendants about 15 or 20 times, as much as for the other side.”

      C. A. Galbraith and Crazuford & Bolen, for appellant.

      Smith C. Matson„ Asst. Atty. Gen., for the State.
   FURMAN, P. J.

(after stating the facts as above). First. Upon the trial of this cause, the judge instructed the jury as follows:

“A conviction cannot be had on the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense., The corroboration is not sufficient if it merely shows the commission of the offense, and the circumstances thereof. That is to say, if you believe that the witness Mrs. A. C. Inge was an accomplice, then you cannot convict the defendant upon her testimony alone, unless you find it corroborated in some material point which tends to connect the defendant with the commission of the offense.”

The defendant excepted to this instruction when given, upon the ground that the court should either have instructed the jury, positively that Mrs. A. C. Inge was an accomplice, and therefore defendant could not be convicted upon her testimony, unless it was corroborated by other evidence which tended to connect the defendant with the commission of the offense, or that, if the court submitted to the jury the question as to whether or not Mrs. Inge was an accomplice, then the court should have gone further, and instructed the jury as to what in law would con.stitute an accomplice. Defendant’s special instructions numbered 3 and 6 attempted to secure instructions from the court upon these two points.

The special instruction No. 6 is as follows:

“You are instructed that the witness Mrs. A. C. Inge is what is termed in law an accomplice, and that you cannot convict the defendant upon the testimony of the witness Mrs. Inge, unless the same is corroborated by other evidence which tends to connect the defendant with the commission of the alleged burning, and convinces your minds, beyond a reasonable doubt, of the guilt of the defendant; and I further charge you that the testimony of other witnesses, proving the burning of the store building in the manner and at the time as described by the witness Mrs. Inge, is not such corroboration as will warrant a verdict of guilty.”

The special'instruction No. 6 is as follows:

“You are instructed that you cannot convict the defendant upon the testimony of an accomplice — that is, a party connected in the commission of the crime — notwithstanding you -believe all of it, and believe from it that he is guilty.”

The court did not err in refusing to give requested instruction No. 3, because it went too far, and was liable to create the impression upon the minds of the jurors that they could not convict upon the testimony of Mrs. Inge, unless it was connected by other evidence, which convinced the jury, beyond a reasonable doubt, of the guilt of the' defendant. This is not the law. It is only necessary to authorize a jury t'o convict upon the testimony of an accomplice that such testimony is corroborated by other evidence, which tends to connect the defendant with the commission of the offense. The court did not err in refusing to give the sixth instruction requested by the defendant, because it would practically have destroyed the testimony of the accomplice, although it might have been corroborated by other evidence tending to connect the appellant with the commission of the offense. While these two instructions, as requested, are erroneous, and were properly refused by the trial court, yet each of them attempted to state a correct principle of law. The court should have modified the requested instructions, and have omitted the incorrect portions thereof, and have given the portions which, were correct. Under the evidence in this case the court would have been entirely justified in instructing the jury that Mrs. Inge was an accomplice, but, as the court did not do so, and submitted that question to the jury, the court should have gone further, and instructed the jury what it took to constitute an accomplice.

Second. In his motion for a new trial, appellant set up the fact that, subsequent to the rendition of the verdict in this case, Mrs. A. C. Inge, the witness on whose testimony he had been convicted, had voluntarily and of her own free will and accord made a sworn statement that she had testified falsely at the trial of said cause, and that the defendant was entirely innocent of the offense charged against him, and of which he had been convicted. He attached to this motion the following affidavit of said witness Mrs. Inge:

“Henryetta, Okla., March 5, 1910. I make the following statement of my own accord for my conscience has not let me rest one moment since I testified against M. D. Chapel of Ada, Okla. I now raise my hand towards high heaven and solemnly swear that he is innocent of the crime as he is of the murder of President Garfield. Pie did not know that his store would be burned when he left home. Rich Sanders and myself entered into a conspiracy to rob the store and then burn it, so on Sat. night his girl Bonnie Sanders stayed all night with me. Sunday night Mr. Sanders said he would keep her at home, she might tell something, so Mr. Sanders and I went to work Sunday night to take the goods out of the store; we put them in the bushes west of the store but after Mr. Chapel and I went to Ada Mr. Sanders and I got uneasy, and Mr. Sanders put them in the little cabin where the sheriff found them. I gave Mr. Sanders a key to the house before I left to go to Ada as that was the agreement to put them in the house where Chapel dived, if we got uneasy for we knew that would shift the suspicion from us to Chapel because he had insured on the goods. Mr. Sanders said after the arrest was made that he would run away. I came to Chapel’s store to work against his will, he never did want me to stay around him when he was in the mercantile business, but I went for I knew his disposition was such that he would not say a word and because he never did mistreat me in any way, he did not like me, and he did not want me to stay with him at all, he never did want me around him but I took advantage of his kindness and easy disposition and stayed with him anyhow. I received through the mail fifty dollars in bills the only things that was in the letter was this give old Chapel the devil when you get on the witness stand its the only way out don’t make any difference whether he is guilty or not, it keeps you out of the pen so take fifty and it will save us six hundred and fifty. Peat Duncan told me he aid not intend to let the company pay Chapel’s policy for he had worked a trick on him and got the policy in his possession he also said that he offered to see that he got the money all right if he would bring the books up to his office that he would have fixed it so they would pay it, but Chapel got offended because I made the proposition so I hope he will go to the pen. I make this statement of my own accord voluntarily and without fear or influence of any person, but that an innocent man might not be wrongfully punished for a crime he did not commit. Mrs. A. C. Inge.
“Subscribed and sworn to before me this 17th day of May, 1910. Hallie Whitaker, Notary Public. [Seal.]”

This affidavit is not in any manner assailed by the state. The contention of the Attorney General in his argument was that under the facts and circumstances in this case the jury would have been impelled by duty to return a.verdict of guilty against appellant, although the evidence of Mrs. Inge had been excluded; and, further, that it would be a dangerous rule to hold that where a witness had testified for the state that he could be permitted subsequently to file an affidavit that his or her testimony, given on the trial in chief, was false, and that such' a rule would place'a premium upon perjury and be an incentive for wholesale bribery of witnesses. Cases might arise in which the argument of the Attorney General might have great force; but in the case at bar a number of reputable witnesses testified on the trial that appellant had always borne the reputation of being an honest and law-abiding citizen. This evidence was not in any manner questioned by any testimony of the state, except the testimony of Mrs. Inge, and testimony as to some facts which, with the ’testimony of Mrs. Inge excluded, Would not be conclusive as to the guilt of the appellant. Under these circumstances, we think that it would be a perversion of justice to allow a citizen, of previous irreproachable character, to be sent to the penitentiary upon the testimony of a self-confessed perjurer. It should never be forgotten that the supreme purpose of the law is to secure the enforcement of justice. We think that the proper way to protect the state against perjury in such cases is to prosecute the party who commits it. In fact, if there were more prosecutions for perjury instituted in the courts of the state of Oklahoma, it would be much better for the administration of justice. A witness has no more right to commit perjury in the prosecution of a case than in the defense of a case. A false statement, sworn to for the prosecution, is just as much perjury, and should be just as vigorously prosecuted, as though it was sworn for the defense. In view of the evidence in this case, and the self-confessed perjury of the main witness of the átate, we think that a new trial should be granted upon both óí the grounds herein discussed.

The judgment of the lower court is therefore reversed, and . the cause is remanded for a new trial.

ARMSTRONG and- DOYLE, JJ., concur.


source: Caselaw Access Project

author: DOYUE, J.

license: Public Domain

text:
    W. H. STOUSE et al. v. STATE.
    No. A-542.
    Opinion Filed December 11, 1911.
    (119 Pac. 271.)
    1. CRIMINAL LAW- — Service of Accusation on Accused — Waiver of Right. Section 20 of the Bill of Rights gives to the accused in a criminal prosecution a constitutional right to have a copy of the accusation against him. The accused may waive this right, and, unless he demands a copy before announcing ready ' for trial, his right to a copy is waived.
    2. HOMICIDE — Evidence—Admissibility—Self-Defense. In a homicide case, where the plea is self-defense, evidence as to whether the accused was intoxicated or under the influence of intoxicating liquors at the time of the homicide is competent for the purpose of' aiding the jury to determine whether or not the accused acted under the influence of a well-grounded and reasonable belief that he was in imminent danger of losing his life, or receiving great personal injury.
    3. WITNESSES — Cross-Examination — Scope and Extent. As the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is permissible upon cross-examination of such witness to show the sources of his information, and particular facts may be called to his attention, and he may be asked if he ever heard of them. This is permissible, not for the purpose of establishing the truth of such facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony.
    4. APPEAL AND ERROR — Writ of Error — Objections to Evidence— Scope and Sufficiency. When objections to a question are sustained, if it is desired to reserve the question as to the competency of the testimony sought to be introduced for the determination of this court, the record must contain some showing as to what the testimony of the witness would have been had he been permitted to answer the question. Otherwise this court cannot determine as to whether the accused has been injured by the ruling of the trial court.
    5. APPEAL AND ERROR — New Trial — Review—Discretion of Trial ' ; \ Court. Where, in a motion to set aside the verdict and grant a new trial, an attempt is made to show that one of the jurors was prejudiced against the accused, and an affidavit is attached to the motion showing prejudgment statements by a juror, and the state files a controverting affidavit of the juror wherein he, denies that he made any such statements, in the absence of a showing of abuse of discretion, the decision of the trial court will not be disturbed.
    6. APPEAL AND ERROR — Review—Harmless Error — Impaneling Jury. As a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause, which existed before the juror was sworn, but which was unknown to the accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the ease.
    (Syllabus by the Court.)

      Appeal from District Court, Coal County; A. T. West, Judge.

    W. H. Stouse and another were convicted of manslaughter in the first degree, and appeal.
    Affirmed.
    The plaintiffs in error were, by indictment, jointly charged as having, on the 25th day of December, 1908, in Coal county, feloniously, without authority of law, and with premeditated design, killed one J. T. Bunch. The record shows that there were some 10 persons who claim to have been eyewitnesses to the tragedy.
    The proof on the part of the prosecution tends to show the following facts:
    Geo. Wheeler, the first witness called for the state, testified: That he was talking to the deceased just before the shooting commenced. That the defendants were passing along the street, and Stouse spoke to Dud Jackson, a cousin of the deceased, and told him to be less boisterous. The deceased was walking across the street at the time, and said to the defendants, “Now, if you fellows are game, go and get him. He has hollowed again.” The defendant Stouse said, “No; we will get you;” and the deceased said, “No; you won’t;” and the defendants both drew their guns and shot the deceased five or six times, killing him instantly. That, when the first shot was fired, the deceased fell, and several shots were fired while he was down. That the defendant Stouse said, “Now you will give up, won’t you.” That he did not see a gun in the hand of the deceased.
    John Adair testified that he went to the defendant Stouse’s house with Geo. Causey and Ed Wooten about 11 o’clock, and both the defendants were there, and Stouse had a bottle of whisky and offered Geo. Causey a drink; that the defendants appeared to be drinking; that he heard the defendant Kennedy make a threat against the life of the deceased, but did not remember whether it was right at that time; that he had heard Kennedy more than once threaten the life of the deceased; that Kennedy told him that he would kill the deceased if he ever got a chance; that such threats were made by Kennedy off and on for a year and a half before the killing; that shortly after the killing Kennedy told him that he hated to have done it, but it did not bother him like he thought it would.
    Dr. Frank Bates testified that he was called as a physician, and found Bunch dead; that he made an examination to see what the cause of his death was; that there was a gunshot wound under the arm which went straight through the body; that there were two wounds in the abdomen and four on the left leg.
    Joe Cathcart testified that in October or November preceding the tragedy the defendant Kennedy stated to him “that he and Bunch were kin folks, and had right smart of trouble, and the last trouble he had he told him if he ever spoke to him again he would kill him.”
    Mrs. Ester Myers testified that she knew the deceased in his lifetime, and the defendants; that her home is about 100 feet from where the killing occurred; that she heard four shots and went to the window, and saw the deceased lying in the middle of the street, and Mr. Stouse standing at his feet with two six-shooters in his hand, and Mr. Kennedy, standing at his side, fired one more shot, the last shot that was fired, and it looked like it might go through Mr. Bunch’s 'side. That she heard Stouse say, “Keep him off, or I will kill him;” that she did not know what he meant unless it referred to Dud Jackson; that the defendants walked away, and she went to where Mr. Bunch was lying; that she did not see anything in his hands.
    Herman Whitt testified that he lived about 100 yards f/om where the killing occurred; that he was looking at the defendants and deceased when the shooting occurred; that the defendants-were both shooting; that the deceased fell down, and that, after •he fell, the defendant Kennedy fired one or two shots; that he could not tell whether the deceased had a pistol or not.
    Frank Bogsden testified that about a year before, he heard the defendant Kennedy say, speaking of the deceased: “We had trouble once. I told him, if he ever spoke to me or came to my house, I am going to throw lead bullets in him, and by God, I mean to make my word live.”
    Guy Bounds testified that he was on the porch of Mr. Acock’s house, about 50 yards from where the killing took place; that the defendants were coming up on the north side of the street when they met the deceased, who was standing in the middle of the street; that the defendant Stouse walked out into the street where the deceased was; that he could not hear what was said, but the deceased hit at him, and Stouse drew his gun, and went to shooting; that Kennedy then commenced shooting; that there were six or seven shots fired.
    Mrs. Freelove Bunch testified that she was the mother of the deceased; that, hearing the shooting, she went- to where her son was and went up to him, and asked him if he could speak, and, when she raised him up, Bill Stouse was standing with both pistols leveled down on him; that Stouse said, “Mrs. Bunch, I hated to do this as bad as you do', but I had to do it”; that some one asked Kennedy who did it, and he said: “I am the fellow that killed him. I am the man that killed him.”
    Several witnesses testified that they had heard the defendant Kennedy at various times threaten to kill the deceased.
    On behalf of the defendants, Jim Skeith testified that he is a brother-in-law of the defendant Stouse, .that he saw the defendants and the deceased when they met; that he saw Bunch strike at Stouse with his fist; that he was looking through a window then, and he stepped out on the porch and saw Bunch strike at Stouse again; that he saw him strike three times; that Stouse said, “Baldy, go on and behave yourself. I do not want to have any trouble with you;” that Bunch stepped back, and said, “You God damn bully sons of bitches. I will kill both of you,” and run his hand in his pants and drew a gun and fired at Stouse; that the next thing all of them were firing their guns about the same time; that Bunch stood until he fired two shots, and then staggered, and fired another shot and fell, and then fired another shot after he fell, that Stouse then threw his gun down on Bunch, and says, “Baldy, don’t fire any more, throw that gun down. I do not want to kill you;” that Stouse picked up a gun from the street and carried it off with him; that the shooting occurred about 1 o’clock.
    Iva Stouse testified that she was a step-daughter of Jim Skeith, and the defendant “W. H. Stouse is my. uncle”; that she was standing on the porch when her uncle and Mr. Kennedy met the deceased, who was in the middle of the street; that he came up near to where the defendants were and said, “Oh, you bullies, you sons of bitches, I am going to shoot you both;” that he drew back and struck three licks at her uncle and jerked his gun and fired two shots; that the defendants drew their guns and fired three shots apiece, and, after he fell, he raised up on his left shoulder and fired two more shots; that the -first and the last shot was fired by the deceased; that she did not hear the defendants say anything.
    Bessie Williams testified that she was at Jim Skeith’s, visiting Iva Stouse, and was on the porch when the shooting took 'place; that she saw the defendants when they met the deceased, and the first thing that happened the deceased pulled a gun out of his right hip or some place on the right side and fired twice; that she did not see any other shooting. On cross-examination she stated that she did not hear more than two shots.
    Delbert Wise testified that he was standing on the street when the defendants came walking up the sidewalk, and Mr. Bunch came walking down the middle of the street, and Mr. Jackson -was going down the street, hollowing, and Stouse said, “Dud, don’t start any disturbancethat* Mr. Bunch then said that, “if you sons of bitches, if you feel like starting it,” and struck at Mr. Stouse; that after he struck him the shooting commenced and he ran; that Mr. Bunch fired the first shot.
    Hilda Robertson testified that she witnessed the tragedy, and when the deceased met the defendants, Mr. Stouse told him that “he did not want to have any trouble with him,” to go on and have a good time, he “did not want to have any trouble with him;” that Bunch said, “You damn sons of bitches, I will kill you,” and then he shot at Mr. Stouse; that she did not see any other shooting, although she stood on the porch until after it was over with.
    'Mr. Trice, counsel for the defendants, then stated: “We have been surprised in this witness. I believe we have a right to lead.” In response to leading questions, she then stated she saw Mr. Stouse shoot once, and that she saw Mr. Bunch shoot twice after he fell, and that the last shot was fired by Mr. Bunch.
    Mrs. Lou Olmstead testified that she saw the defendants and the deceased come together; did not hear what they said, but saw Mr. Bunch hit Mr. Stouse with his right hand; that he struck three times at him, and got his pistol from his bosom and shot at Mr. Stouse; that she could not say how many times Mr. Bunch shot; but he shot twice after he fell; that Mr. Stouse fired a shot, but she did not see Mr. Kennedy shoot; that Stouse picked up a pistol from the street, and then walked back to the sidewalk.
    J. M. Wilson testified that he was a justice of the peace in Coalgate; that Kennedy was his constable and Stouse was his deputy; that Kennedy was a city marshal; that he saw the.two defendants about 11 o’clock, and they were duly sober to the best of his knowledge; that they drank some weak eggnog at his house before noon; that after the shooting they came to his house, and he examined the three pistols they had. Two of the pistols were loaded all around, and one of them had two loads, four empty chambers in it. He also testified as a character witness for the defendant Kennedy.
    J. W. Hurst testified that he met the defendants about five minutes before he heard the shooting, and talked with them; that, if they were under the influence of whisky, he could not tell it.
    Hattie Wise testified that she was the wife of Delbert Wise; that she saw the defendants and the deceased when they met before the shooting; that she did not hear what was said, but Mr. Bunch struck at Mr. Stouse three times; that Stouse pushed him back, and Mr. Bunch fired; that Mr. Stouse then fired; that Mr. Bunch fired two shots before he fell, and two after he fell, one of them being the last shot that was fired; that' her husband was standing on the sidewalk close to Mr. Stouse at the time; that she is the daughter of Mrs. Dou Olmstead;. that the deceased was wearing an overcoat, but she did not see where he took the pistol from.
    W. H. Stouse testified on behalf of himself and his codefendant, that he was 43 years of age; that at the time of the homicide he was city marshal or chief of police of Coalgate; that the defendant Kennedy took dinner with him that day at his home; that they then walked downtown and met Mr. Bunch coming across the street. To use his own language, he then stated:
    “When they got up tolerable close, he made a remark: “There is them two bully sons of bitches; I want both of them;’ and when he said that he grabbed his coat — he had on an overcoat and a dress coat — and started to throw it back, and I laid my hand on his arm. I says, ‘Go on.’ He just threw his hand up like that, and threw his coat backward, and says, ‘God damn you,’ and struck. I just guarded the lick off, and, when I done that he made the next pass, at me, I threw my hand against him, and, when I pushed him back, and when I straightened up the next time he had a gun. I don’t know where he got it. When I first saw it as I straightened up, he had it, and I hadn’t more than saw it till he pulled the trigger.”
    That he then fired another shot toward him.
    “O. What next happened? A. When he fired the next shot, of course, I was getting my gun out, and, when he -fired the next shot, I had my gun out. I dodged back, the smoke and powder in my eyes, and, as I straightened, the three shots, the one I supposed he shot at Kennedy, and my shot and Mr. Kennedy’s shot, I reckon they all three, went together. Q. Then what next happened? A. When I fired the first shot, he staggered back it seemed to me about two steps to the best of my knowledge. The first shot I fired I just jerked my gun, and threw it .right down, and fired. It wouldn’t have hit — in my judgment it wouldn’t have hit him in the body. I didn’t have my gun high enough. As we all three fired, he started and just sort of sank down. I couldn’t tell whether he was falling or squatting, but, as he squatted down, I fifed my last shot. I fired just as he stepped back, before he squatted down. I shot again after he fired a shot, and then you might say we practically all three shot together, and when that shot was fired, he fell to the ground on his left side, and, as he fell, he dropped on the ground like that, and threw his gun on his hip, and fired his gun, and, when he done that, I threw my gun on him, and said: ‘Baldy, drop that gun. I don’t want to kill you, but I will have to.’ He looked at me, and let it go, and it fell, and I reached over him and picked up his six-shooter, and went to the sheriff.”
    On cross-examination he testified that he was duly sober, that he had only drank about half a glass of eggnog at Judge Wilson’s, and a half bottle of beer at home.
    J. E. Kennedy testified on his own behalf and on behalf of his codefendant: That he was a constable of Coalgate township. That on the day in question, when they met the deceased, he heai'd him say: “Both of you bully sons of bitches can’t run me off the street. I am out here to get both of you sons of bitches.” That Stouse asked him to behave himself, and kind of put his hand out, and witness stepped a couple of steps beyond Stouse, and" was standing with his hands behind him, and the deceased, standing in the street, put hi-s right foot on the sidewalk, and says, “God damn you, Bill Stouse,” and struck at him two or three times, and then j erked a gun from somewhere in front of him, “somewhere from his hip like that,” and fired at Stouse; that he stepped up. and says, ‘Baldy, for God’s sake don’t do that,’ and he said, ‘You son of a bitch, I want you, too,’ and flung his gun on me. I reached for my gun, and me and Bunch fired together, and I fired three straight shots as fast as I could;” that the deceased fired one shot after he fell on the ground; that that was the last shot fired; that he shot the deceased in self-defense to save his own life; that his wife and the wife of the deceased were sisters; that, when his wife separated from him, she went to the. home of deceased on their father-in-law’s place; that the next time they separated that his wife went to her father’s; that shortly thereafter she returned to witness; that he did not make the threats to kill the deceased as testified to, but did warn him to keep away from his place.
    Upon the trial the jury returned a verdict finding the defendants guilty of manslaughter in the first degree, and assessing their punishment at -imprisonment in the penitentiary for six years and six months. July 12, 1909, judgment and sentence was pronounced and entered in accordance with the verdict.
    To reverse the judgment and order denying a new trial, the defendants appealed by filing in this court on January 11, 1910, their petition in error with case-made.

      Fooshee & Brunson and George Trice, for plaintiffs in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYUE, J.

(after stating the facts as above). The assignments of error and the questions presented thereon in so far as they seem to warrant discussion and' decision will be considered in the order of time upon the trial.

The indictment was returned and filed in open court on March 12, 1909. The defendants were arraigned March 15th, and were then enlarged on bail. June 30th the case was called for trial. The state and the defendants announced ready, and, after the jury had been impaneled and sworn, .the defendants interposed an objection to proceeding further with the trial for the reason that they had not been served with copies of the indictment as required by the Constitution and laws of the state.

The state called the clerk of the court, who testified that he furnished copies to the defendants’ attorneys, but did not remember who received them; that he made no record of the delivery or receipt of such copies; that he also offered copies to the defendants, and they refused them, saying they had attorneys to attend to their case. Each of the six attorneys appearing for the defendants testified that he had not received a copy of the indictment. The court, after hearing the testimony, overruled the objection, and the ruling is assigned as error.

Our Constitution (section 20, Bill of Rights) prescribes:

“In all criminal prosecutions the accused * * * shall be informed of the nature and cause of the accusation against him and have a copy thereof. * * * ”

The defendants had a constitutional right to have copies of the indictment. It follows that there was error as contended by counsel, unless the defendants could and did waive this right. A defendant in a capital case is not to be presumed to waive any of his constitutional rights, but that he may waive such rights has often been judicially determined. In the case of Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356, it was said that where a constitutional right in a criminal cause is largely for the benefit of the accused, or in the nature of a personal privilege, the law is well settled that an accused may waive such right. Mr. Bishop says:

“Any right given by statute or otherwise to the defendant for his benefit, such as to have a copy of the indictment, or a list of the jurors, or of the witnesses against him, at a particular time Or before trial, may be waived, either in words, or by omitting to apply for the thing. And if, for example, the copy of the indictment furnished him is incomplete, he cannot first object after trial.” (Bishop’s New Crim. Proc. par. 126.)

That there was a waiver by the defendants of this right can be neither doubted nor denied. It appears from the record that the defendants were enlarged on bail more than three months preceding the trial, and they could at any time have demanded copies of the indictment. The record shows no application for the benefit of such privilege. On the other hand, it shows that the clerk tendered the defendants copies of the indictment which they refused to accept. The language of the provision is permissive, “The accused shall have a copy thereof;” that is, he may have if he request. If he does not request, then he cannot complain that a copy was not forced upon him. It was held in the case of Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003, that, unless the defendant demands a copy of the accusation before announcing ready for trial, his right to a copy is waived.

The objection was properly overruled.

Objections were made and exceptions taken to rulings in admitting and rejecting evidence. These rulings are collectively assigned as error.

The first is error in admitting evidence that the defendants were drinking intoxicating liquor shortly before the homicide. We have no difficulty in determining that the ruling of the court was undoubtedly correct. Prof. Wigmore says:

“Intoxication, as a mental condition of temporary stupefaction, may be evidenced circumstantially in the same general modes that are available for mental capacity or condition in general. (1) It may be evidenced by the person’s conduct. (2) It may be evidenced by predisposing circumstances; i. e., by the drinking of intoxicative liquor. (3) It may be evidenced by his prior or subsequent condition of intoxication within such a time that the condition may be supposed to be continuous.”
“Intoxication, if it is of such a degree as to deserve the name, involves a numbing of the faculties so as to affect the capacity to observe, to recollect, or to communicate; and is therefore admissible to impeach.” • (Wigmore on Evidence, §§ 235, 933.)

It is said by„ the Supreme Court of Illinois in, the case of Miller v. People, 216 Ill. 309, 74 N. E. 743 (this was a murder case; Miller as village marshal shot and killed a man, and his plea was self-defense) :

“In order’to arrive at a just and proper conclusion as to the reasonableness of the acts of the plaintiff in error on the occasion in question, we think it not at all improper that the jury should have known that he was intoxicated, if such was the fact. His ability, to see and comprehend what was occurring, and to form therefrom a reasonable and well-grounded belief that,he was in danger of losing his life or suffering great bodily harm, would be affected, in a greater or less degree, by intoxication. A man in a state of intoxication may, because therefrom, misconceive his situation and surroundings, misapprehend the acts and conduct and purposes of others, and arrive at a wholly unfounded, irrational, and unjustifiable belief of personal danger which would not find lodgment in his mind if his mental faculties were ndt in an abnormal condition.”

The defendants claim that as peace officers they were preserving the peace when the deceased made a murderous assault upon them, and in necessary self-defense they killed him. It is a matter of. common knowledge that the effect of intoxicating liquor upon the human mind is to magnify grievances, whether real or imaginary, and this evidence was competent for the purpose of aiding the jury in determining whether the defendants acted under the influence of a well-grounded and reasonable belief that they were in imminent danger of losing their lives or receiving great personal injury, or whether the killing was the result in whole or in part of a drunken disregard for human life.

J. M. Wilson, as a witness for the defendants, testified that he was a justice of the peace in and for Coalgate township, Coal county; that the defendant Kennedy was constable and marshal of Coalgate township and city, and the defendant Stouse was his deputy at the time of the homicide; that Kennedy was a prudent officer, and never drew his gun in making an arrest; that he chided him on different occasions for not using his gun enough; that he had known Kennedy for three years, and knew his general reputation and character for peace and quiet, and as being a l^w-abiding citizen, and that it was^good. On cross-examination he was asked to state if he ever heard any person or persons talking about Kennedy and his mistreatment of his wife, and saying that he had handcuffed her, and whipped her with the belt of his pistol, and he answered, “I have heard it from one or two persons.”

The wife of the defendant Kennedy was next called as a witness for the defendants, and was permitted to testify, over the objection of the state, that the deceased and his family caused her to leave the defendant, her husband, on two occasions, and that the defendant was a good husband to her, and that he did not whip her. On cross-examination she was asked if on one of the occasions of leaving her husband she went to the home of the deceased, and exhibited bruises on her body to her sister, the wife of the deceased, and her mother, Mrs. England, and told them that her husband had whipped her with a pistol belt, and she answered, “No, sir.” We cannot conceive upon what theory the testimony of Mrs. Kennedy was admissible. The inquiry upon the cross-examination of Wilson, the only character witness testifying, was directed to the witness hearing reports of. acts of misconduct, and not of the fact of misconduct.

As the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is permissible upon cross-examination of a character witness to show the sources of his information, and particular facts may be called to his attention, and he may be asked if he ever heard of them. This is permissible, not for the purpose of establishing the truth of these facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony.

The state in rebuttal was permitted to introduce the testimony of Mrs. Bunch, the wife of the deceased, and Mrs. England, the mother of Mrs. Kennedy, to the effect that Mrs. Kennedy on the occasions of leaving her husband came to their home and exhibited bruises, on her body, and said they had been made by her husband whipping her. Counsel insist that the court erred in admitting this rebuttal testimony. We believe that, in view of the fact that the collateral issue w.as raised by the evidence introduced on the part of the defendants, they cannot now he heard to complain of an erroneous ruling of the court thereon.

It is also insisted that the court erred in refusing to permit the defendants to , introduce material evidence in their behalf. From a careful examination of the record we are led to believe that the rulings of the court on the 'admission of evidence were more than favorable to the defendants. It is impossible to determine from the record what evidence was intended to be introduced, because no offer to prove was made.

“When objections to a question are sustained, if it is desired to reserve the question as to the competency of the testimony sought to be introduced, for the determination of this court, the record must contain some showing as to what the testimony of the witness would have been had he been permitted to answer the question. Otherwise this court cannot determine as to whether the defendant has been injured by the ruling of the trial court.” (White v. State, 4 Okla. Cr. 143, 111 Pac. 1010.)

The record shows that the defendants took no exception to any of the instructions given, and the instructions criticised in plaintiffs in error’s brief were not set out in the defendant’s motion for a new trial. The instructions as given by the court fully and fairly present the law of the case.

Error is assigned on the refusal of the court to give a requested instruction on the right of a third person, viewing an attack made by one person on a second person, to slay the attacking party, when it appears necessary to save life or prevent great bodily injury. This instruction was properly refused. It was not in the abstract a correct statement of the law, and neither of the defendants claimed or testified that he shot in defense of the other; both testifying that the deceased shot at each of them before either of them shot the deceased.

Error is assigned upon the order of the court refusing to set aside the verdict and denying a new trial. One of the grounds of the motion is:

“That prior to the time of the trial and subsequent to the time that the crime is alleged to have been committed in this case, Sam McCutchen, one of the jurors who tried the case, was heard to say that he wanted to get on the jury that tided this case, and hoped that he would be able to get on the jury that tried this case, and that these defendants ought to be hung; that if he was successful in getting on the jury that he would hang the defendants, if possible, or that he would give them 99 years in prison or the most severe punishment that he could cause to be inflicted upon them; that he was very bitter in his remarks against them, and he would endeavor to inflict the punishment afofesaid regardless of what the law or the testimony was; that at the time that Sam McCutchen was accepted on said jury,- neither the defendants nor their attorneys knew that he had made such statements, or -that he had formed or expressed any opinion, or had any fixed opinion as to the guilt or innocence of the defendants, or that he had ever expressed any desire to be on said jury; that if said juror made the statement aforesaid, and had a fixed purpose in his mind as aforesaid, that he was at the time that he was accepted on said jury an incompetent juror, and that the defendants could not have been tried by a fair and an ‘impartial’ jury as provided by the Constitution of the state of Oklahoma; that the affidavit of R. O. Parish sustaining the allegations aforesaid is hereto attached, marked ‘Exhibit A.’ ”

In reply to said motion and the affidavit thereto attached, the state filed the controverting affidavit of said juror Sám Mc-Cutchen. On the issue of fact thus raised testimony was taken, and the juror Sam McCutchen testified that he had never made any such statements. It is contended by counsel that:

“It is error in a capital case for the trial court to refuse to grant a new trial when it appears that one of the jurors who tried the case had formed and expressed an opinion adverse to accused, when such juror has qualified on his voir dire, and his disqualification is unknown to the accused or their counsel at the time such juror is accepted.”

The identical question here presented was considered in the case of Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350, wherein this court said:

“These affidavits presented a question of fact which was submitted for determination to the trial court. The judge who tried this case for many years had resided in Coal county, and was in a much better condition to determine as to whether the juror or the parties whose affidavits were filed in behalf of the appellant were the most credible. The mere fact that two parties attempted to impeach a juror does not by any means settle the question of credibility as between such parties and the juror. If it did, but few verdicts could be sustained, because in almost any case it would be possible to find two or more persons who would make affidavits impeaching a juror. In passing upon this very question, the Supreme Court of Texas in the case of Gill eland v. State, 44 Tex. 357, said: ‘It is true that there are two affidavits in support of the motion and one in rebuttal, but we do not think that the decision of the question presented by the motion should necessarily depend upon the mere number of affidavits on one side over the other.’ The question of credibility was one to be determined by the trial court; and, in the absence of a showing that this discretion was abused, it cannot be reviewed here. There is nothing in this record to indicate any abuse of discretion on the part of the trial judge.”

It is well settled that, as a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify on a challenge for cause which existed before the juror was sworn, but which were unknown to the accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the case. The juror denies that he made any such statement, and the verdict .returned, not only corroborates him, but is almost conclusive of the fact that the defendants were tried by a fair and impartial jury.

Upon a careful consideration of the whole case, we find no error prejudicial to the substantial rights of the defendants.

Wherefore the judgment of the district court of Coal county is affirmed.

FURMAN, P. J.,'and ARMSTRONG, J., concur.


author: FURMAN, P. J.

text:
    NEWTON HENRY v. STATE.
    No. A-1465.
    Opinion Filed December 11, 1911.
    (119 Pac. 278.)
    1. WITNESSES — Examination—Cross-Examination—Scope and Extent. On cross-examination a witness may be asked any question the answer to which would tend to test his means of knowledge, his intelligence, the reliability of his memory, or his bias, prejudice, or interest in the case.
    2. WITNESSES — Instructions—Credibility. An instruction is improper which directs a jury that, if they find from the testimony that any witness has wilfully testified falsely as to any material fact, in the case, they are at libert; to disregard the testimony of such witness except in so far as the same may be corroborated by other credible evidence; the true rule being that the jury are the exclusive judges of the credibility of witnesses and the weight of the evidence, and the value to be given to their testimony, and they may, if they think proper, reject the whole

      of the testimony of such witness, who they may find has wilfully testified falsely to a material fact, or may give it such weight where it has been corroborated by credible evidence as they may deem it entitled to have.
    (Syllabus by the Court.)

      Appeal from Superior Court, Oklahoma County; Edward D. Oldfield, Judge.

    Newton Henry was convicted of murder, and appeals.
    Reversed and remanded.

      Forrest L. Hughes and Moman Pruiett, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

First. Appellant, the deceased, and Lucy. Carrington, the prosecuting witness, were all negroes and were acquainted with each other prior to the *date of the homicide. In the city of Oklahoma, in what is called “Packingtown,” there is a negro hotel which had been conducted by the prosecuting witness, but which at the time of the homicide was being conducted by appellant. The state proved that on the day of the homicide Charles Lucas was' at this hotel for his washing; that while there a difficulty arose in which he lost his life at the hands of appellant. There was only one witness to the homicide besides appellant; that was Lucy Carrington. Her testimony, if believed by the jury, made out a case of murder. When she was on the stand testifying in behalf of the state, for the purpose of showing her interest in the trial and thereby affecting her credibility, counsel for appellant attempted upon cross-examination to prove that said witness was a married woman, was living separate and apart from her husband, and that for three weeks prior to the homicide she had been living with deceased, and occupying a bedroom with him as his wife. All this was objected to by counsel for the state upon the ground that it was not proper cross-examination. This objection was by the court sustained, to which counsel for appellant excepted.

The reason why the Constitution of the state provides that in all criminal cases the accused must be confronted by the witnesses who testify against him is that the defendant may exercise the right of cross-examination. The right of confrontation is given for the purpose of enabling a defendant to test the means of knowledge of a witness, his intelligence, the reliability of his memory, and his bias, prejudice, or interest in the case. The right of proper cross-examination is everywhere recognized as one of the most important and valuable rights possessed by a defendant, and is just as important to him as the right to examine a witness against him in chief is to the state. Necessarily the object of cross-examination is to break or weaken the force of the testimony given by the witness on his examination. From this it follows that any matter which would have a tendency to lessen the credibility of a witness is a proper matter of inquiry on cross-examination. The general rule, therefore, is that anything which tends to show bias or prejudice on the part of the witness or anything which shows his friendship or enmity toward either of the parties is commonly a proper subject of inquiry; so, also, is' anything which tends to show that in the circumstances in which he is placed he has a strong temptation to swear, falsely. The situation of the witness in regard to the result of the trial, his interest therein, or inclination for or against either of the parties may be shown. Mr. Wigmore says that the right of cross-examination is “beyond doubt the greatest legal engine ever invented for the discovery of the truth.” In the case at bar the witness, Uucy Carrington, was the only eyewitness introduced for the state. It was principally on her testimony that the conviction of appellant was obtained. If it was true that she had abandoned her husband and was living with deceased as his wife, this fact would have a strong tendency to indicate bias on her part in favor of the deceased, and was therefore a proper subject of inquiry on behalf of appellant. There was error in the action of the court in refusing to allow this inquiry to be made.

Second. Upon the trial of the cause, among other things, the court instructed the jury as follows:

“ * * * The court instructs you that, if you believe that any witness has wilfully testified falsely as to any material fact, you are at liberty to disregard the testimony of such witness except in so far as the same may be corroborated by other credible evidence.”

In the case of Charles Hast v. Territory, 5 Okla. Cr. 162, 114 Pac. 261, a conviction was affirmed where an instruction similar to the above had been given; but in that case no exceptions were reserved to the instruction and the attention of the court was not directly called to it. But, even if this had been done, the conviction would have been sustained, regardless of this instruction, upon the ground of harmless error, because the facts stated in that opinion clearly show that the guilt of Hast was conclusively shown by testimony other than that of the prosecuting witness. This case presents an entirely different question. Here the jury could not legally have convicted appellant, unless they had given full faith and credit to the testimony of Lucy Carrington. This instruction is open to the objection that it might have created the impression upon the minds of the jurors that although they may have found that Lucy Carrington had testified falsely to any material fact in the case, yet if they further found that her testimony was corroborated by other credible evidence, they would be forced to accept and act upon it. In a close case like this we do not think that the above instruction should be given. The better and safer plan would have been to instruct the jury as follows:

If you believe from the evidence that any witness who has testified in this case has knowingly and corruptly sworn falsely to any material fact, then you may, if you think proper, reject the whole of the testimony of such witness, or you may give such weight to the testimony of such witness on other points as you may deem .it entitled to have. You are the sole judges of the credibility of the witnesses and the weight and value, to be given to their testimony.

See Coleman v. State, infra, 118 Pac. 594. Under the evidence in this case we can well see how the jury may have been misled to the injury of appellant by the errors above pointed out, and although it is true that appellant is only a poor, ignorant negro, and is dependent upon-the charity of his attorneys for his defense, yet he is entitled to and will receive at the hands of this court the same consideration as though he were the wealthiest and most influential man in the state.

The judgment of the lower court is therefore reversed, and the cause is remanded for a new tryial.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    CARL RAGLAND v. STATE.
    No. A-851.
    Opinion Filed December 13, 1911.
    (119 Pac. 277.)
    APPEAL AND ERROR — Review—Sufficiency of Evidence. The credibility of witnesses and the weight or value to be given to their testimony is a question solely for the jury’s determination, and to reverse a judgment for the reason that the verdict is contrary to the evidence, this court must find as a matter of law that the evidence is insufficient to warrant the conviction.
    (Syllabus by the Court.)

      Appeal from Texas County Court; W. C. Crow, Judge.

    Carl Ragland was convicted of a misdemeanor, and appeals.
    Affirmed.

      Wiley & Edens and J. C. Breslin, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted in the

county court of Texas county, and on May 10, 191.0, was sentenced to serve a term of three months in the county jail, and to pay a fine of $50, on an information which charged that Carl Ragland, did on or about the 7th day of July, 1909, “commit the crime of carrying a deadly and dangerous weapon openly with the intent and for the avowed purpose of injuring his fellow men in the manner and form as follows, to wit: Did then and there wilfully, maliciously, and unlawfully carry openly a dangerous and deadly weapon, to wit, a shotgun, with the intent of injuring his fellow man, T. H. Latham.” From the judgment and the order denying a new trial this appeal is taken.

The only question presented is: “That the verdict is contrary to the evidence and the law.” The testimony shows that T. M. Latham, sheriff of Texas county, with J. V. Farr, city marshal of Guymon, arrested the defendant while he was driving up and down the streets of Guymon in a surrey with a loaded shotgun; that upon his arrest he stated to the sheriff that he was going to kill him — that they both could not live in the same county. It was further shown that shortly before his arrest he had announced that he intended to kill Sheriff Latham. The defendant,' testifying on his own behalf, denied that he had made any threats to kill the sheriff'; that at the time he was preparing to go upon a hunting trip. Joe Vaney testified that thé defendant called him up by phone and ordered a team to go hunting, and that he delivered the rig to the defendant shortly before he was arrested.

The provision of the Penal Code under which this conviction was had is as follows (section 2751, Snyder’s Stat. 1909) :

“It shall be unlawful for any person in this state to carry or wear any deadly weapons or dangerous instruments, whatsoever, openly or secretly, with the intent or for the avowed purpose of injuring his fellow man.” ' •

There was testimony showing the intent and avowed purpose of the defendant in carrying the shotgun, and, while there is some conflict, the testimony was with proper instructions submitted to the jury, and the verdict of the jury on the questions of fact is conclusive upon this court. It is no more the province of an appellate court than of the'trial court to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the functions of the jury, and neither can substitute its judgment for that of the jury, where there is a conflict in the evidence. The credibility of the witnesses and the weight or value to be given to their testimony is a question solely for the jury’s determination, and to reverse a judgment for the reason that the verdict is contrary to the evidence, this court must find that as a matter of law the evidence is insufficient to warrant the conviction. On the record before us there is nothing for this court to do, other than to affirm the judgment.

The judgment of the county court of Texas county is therefore affirmed.

FURMAN, P, J., and ARMSTRONG, J„ concur. .