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    DOC BEASON v. STATE.

      No. A-3276
    Opinion Filed Feb. 21, 1921.
    (195 Pac. 792.)
    (Syllabus. 1
    1. WITNESS — Impeachment by Showing Conspiracy. In a prosecution for murder the state may, if it can, for the purpose of impeachment and to show bias, introduce evidence tending to show that a witness for the defendant conspired with the accused to aid him in the commission of the offense, although no conspiracy is charged in the information. The fact that such testimony, if otherwise competent, tends to show the commission of another offense, does not make it inadmissible to prove the offense charged.
    2. HOMICIDE — Harmless Error — Evidence. Where certain testimony tending to show a premeditated design to commit murder is admitted over the objection of the accused, and the jury by its verdict, rejects the theory of premeditated homicide and brings in a verdict for manslaughter in the first degree, the admission of such testimony, even though it may have been erroneously admitted, is not prejudicial.

      3. TRIAL — Argument of Prosecution. Tiie county attorney had a right, in his argument to the jury, to state his conclusions drawn from certain portions of the evidence favoring the state’s theory of conspiracy, although the evidence favoring such inference might not be strong nor clear. Assuming that the evidence favoring the state’s theory was slight, it was for the jury to determine what weight should be given it.
    4. SUFFICIENCY OF INSTRUCTIONS. The instructions complained of examined, and held fairly and fully to cover every phase and theory of both parties, as disclosed by the evidence.
    5. HOMICIDE — Admissibility of Dying Declarations. The admissibility of a dying declaration is primarily a queston for the court. Ordinarily, when a dying declaration is offered in evidence, the court should require the necessary preliminary proof of its admissibility in the absence of the jury, but where no objection is made to the preliminary proof being made in the presence and hearing of the jury, its submission to the jury in that manner, if otherwise competent, is not prejudicial.
    6. SAME — Preliminary Proof. The preliminary proof laying grounds for the admission of the dying declaration examined, and found sufficient.

      Appeal from District Court, Greer County; T. P. Clay, Judge.

    Doc Beason was convicted of the crime°of manslaughter in the first degree and sentenced to serve a term of 2'5 years in the state penitentiary, and he appeals.
    Affirmed.

      Garrett & Thacker and Stewart & Edwards, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and Sam Hooker, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiff in error, hereinafter referred to as the defendant, was on the 31st day of January, 1917, informed against in the district court of Greer county for the murder of John W. Stinson on the 18th day of January, 1917. Upon trial in said court the defendant was, on the 2lst day of September, 1917, convicted of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of 25 years. To reverse this judgment the defendant prosecuted this appeal.

The defendant and the deceased were neighbors for several years near Granite, in Greer county. The evidence shows that they had had some trouble in keeping their stock from trespassing upon one another’s land, and that the day before the homicide the deceased had sent one of his little boys to the home of the defendant to request the defendant to come after his horses, which were then trespassing upon a field belonging to the deceased in which he had sown wheat and in which there was a strawstack" from which the horses were feeding. At this time the defendant was not at home, and after the boy returned and reported that fact to his father the deceased started to drive these horses to the home of the defendant, and on the way met the defendant’s wife coming after them. Some words there passed between these two relative to the trespassing of the stock, and it is contended 'by the defendant that the deceased was abusive to defendant’s wife and used profane and violent language upon this occasion. This was denied by the state. Several witnesses testified that the deceased had never been known to use profane or indecent language.

The next morning the defendant and the deceased went to the town of Granite, and, so far as is disclosed by this record, neither knew that the other would be there, although, as is later brought out in the testimony in the case, each carried a gun. The deceased went to the store of Howard & Guthrie, where he was accustomed to trade. The weather was cold, and before making his purchases he went to the stove for the purpose of warming. After some time the defendant came into the store. He was not in the habit of trading there, but he also went up to the stove, and, after warming for a few minutes, 'spoke to the deceased and said to him that he wished to speak with him on the outside. The deceased, on this invitation, went out of the front door of the store with the defendant, where they had some conversation in the vestibule relating to the trespassing stock. From the gestures of the parties and the sound of their voices.the persons on the inside of the store could tell that they were quarreling. 'The deceased then entered the store door and made some inquiry of the defendant as to what the defendant had last stated, whereupon the parties began to fight.

While there is some conflict in the testimony, there were a number of witnesses who testified that the defendant was the aggressor, and that soon after the fight began he struck the deceased with a six-shooter, and that during this difficulty the deceased was backing up and trying to ward off the blows; that these blows, or some of them, stunned the deceased and caused him to stagger; that the defendant was a man 38 or 40 years of age, and weighed about 200 pounds, and that the deceased was a small man, 45 or 50 years of age, weighing about 125 pounds. It ajppears that the first shot fired killed an innocent bystander, and that the deceased, after he had received these blows, was shot by the defendant, and while stunned and partially prostrate upon the floor of the store the -defendant shot him again through the body. At the time the defendant fired the last shot he used some profane language towards the deceased, although the deceased at that time was begging him not to assault him.

There is some controversy as to where these parties were when the first shot 'was fired, but the testimony is convincing that the deceased went out of the store to talk'with the defendant upon the latter’s invitation, and, according to the testimony of a number of disinterested witnesses, the defendant was the aggressor, and the deceased made no attempt to draw a weapon until after he had been struck a number of times by the defendant, and until after the first or second shot had been fired.

There are eighteen assignments of error in this case, but the defendant in his brief complains of only three, viz.:

(1) The introduction of alleged incompetent and prejudicial testimony and the argument of plaintiff’s counsel affecting the same.

(2) Certain alleged erroneous, instructions given by the court and the refusal of the court to give the instructions offered by the defendant.

(3) Error in permitting the admission of the dying declaration of the deceased.

First. The defendant urges in his brief that this judgment -should be reversed for the reason that the court permitted the witness Arley Griffin, on rebuttal for the state, to testify to matters tending to impeach the defendant’s principal witness, Fred Linn, without having first laid a sufficient foundation for such impeachment, and for the further reason that from this and.other testimony the state attempted to show that there wTas a conspiracy between the defendant and Linn to provoke the quarrel. It is claimed by the defendant that this was reversible error because there was no sufficient foundation laid for impeachment and because there was no charge of conspiracy in the information, and that, if testimony tending to show conspiracy wias admissible, it should have been introduced by the state, as evidence in chief, and that its reception as rebuttal testimony was error.

The statements of Fred Linn, witness for the defendant, in his examination in chief, relating to the facts and circumstances leading up to the tragedy and as to what occurred during the progress of the fatal, quarrel, in many particulars differed from the statements of other witnesses. It was the theory of the state that Linn sought in his testimony, so far as he could, to mitigate the offense and to justify the homicide. For the purpose of showing that this witness was biased in favor of the defendant and to lay the foundation for impeaching certain portions of his testimony, the state was permitted to ask him if he did not say to Arley Griffin, at the time the deceased and the defendant were engaged in the fatal quarrel at the front of the store, “Come on; let's go down there and see a fight,” and if he did not say to Arley Griffin at that time, “If Stinson fools with Doc Beason, Doc will not fool with him; he will kill him,” to which the witness answered, “No, sir; Mr. Griffin said to me, ‘What is, the trouble?’ and I said, ‘Something about some stock.’ They kept standing there quarreling, and he says, ‘Wonder if they are going to fight?’ and I says, ‘If he fools with him, Doc ought to slap hell out of him.’”

For the purpose of showing that this witness, Linn, had made other and contradictory statements as to what he said to Griffin, on rebuttal Arley Griffin was asked the following question: “At that time you may state whether or not Fred Linn stated to you that if Stinson monkeyed with Doc Beason that Doc would kill him, or words to that effect” — and over the objections of counsel for the defendant, the witness answered: “That is what he said; that if Stinson monkeyed with Doc that Doc would kill him.”

It was the theory of the state that the defendant had told Linn, before they left home, what he intended to do, and that when Linn made this statement to Griffin he knew the purpose of the defendant in inviting the deceased to step out of the store with him. In this regard Linn had testified as follows:

“Q. When you got the milk buckets, you may state whether or not you heard Mrs. Beason telling about any trouble that she had had with Mr. Stinson that evening? A. I did.

“Q. What did she tell you about it? A. She said .she went over to run the horses home that afternoon, and she said that Stinson abused her something awful.

“Q. What did she say? A. She said Stinson commenced cursing her, and she said she told him he ought to be ashamed to abuse a defenseless woman, and he said that he didn’t have to abuse her; to send that husband of hers over and he would smoke with that son of a bitch. She said she very nearly run herself to death after the stock.

“Q. Did you tell Doc. Beason? A. I told Mm after he came out to the cow lot.”

Under all these circumstances, we cannot say that rebuttal testimony on the part of Arley Griffin was prejudicial. On the contrary, we think it was admissible for purposes of impeachment and to show a premeditated design on the part of the defendant, and as a part of the res gestae. 22 Corpus Juris, 450; Gibbons v. Ty., 5 Okla. Cr. 212, 115 Pac. 129.

The testimony of Fred Linn had a tendency to reduce the crime from murder to manslaughter, and, since the jury had adopted the latter theory, doubtless predicated on the testimony of Linn, defendant has no cause for complaint; otherwise, the verdict would have been for murder. Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 217.

Defendant complains that the argument of the county attorney to the effect that there was a premeditated conspiracy between defendant and linn to provoke a quarrel with deceased was improper and prejudicial. There was some evidence that such indeed was the fact. Defendant’s witness Linn stated that after the deceased had been twice shot and mortally wounded and as he staggered away from the scene of the tragedy the defendant said to his victim, “Well, Stinson, I guess you got what you were looking for.” This, together with the fact that the defendant called the deceased out of the store, armed with a deadly firearm, and commenced to quarrel with and strike the deceased with his pistol, justified the county attorney in drawing the inference that there was a premeditated conspiracy to provoke the fatal quarrel. The county attorney had a right in his argument to the jury to state his conclusions drawn from the evidence, favoring the state’s theory of the case, although the evidence favoring such inference might not be strong nor clear. Assuming that the evidence was slight, it was for the jury to determine what weight should be given it. Douglas Jones v. State, 19 Okla. Cr. —, 202 Pac. 187. But, since the jury, in bringing in a verdict of manslaughter instead of murder, did not adopt the theory of the county attorney that there was a conspiracy or that the homicide was committed with a premeditated design, therefore the defendant was in no way prejudiced by such argument. Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629, supra.

Second. The defendant complains of the language of the introductory paragraph of instruction No. 1, as follows:

“To this charge in the information the defendant has pleaded not guilty, and the court instructs you that you have been impaneled and sworn to try the question of his guilt or innocence and instructs you as to the law in the case as, follows.”

The language “to try the question of his guilt or innocence” was not aptly used, but, taken in connection with the context, it means that the facts are now to be determined by the jurors under the law as given them by the - court, and the jury could not have been misled thereby. -The statement of which defendant complains was clearly qualified and explained by the other instructions following. Gray v. State, 4 Okla. Cr. 292, 111 Pac. 825, 32 L. R. A. (N. S.) 142.

Instruction No. 10 defined the law as to the right of the aggressor in a difficulty to .claim self-defense. Instruction No. 11 was on the subject of premeditated design, and No. 12 was on the same subject, as applied to the evidence in this case. Instruction No. 13 was upon the subjecb of apparent danger to the defendant from an attack upon him by the deceased and his right of self-defense. These, together with other instructions, fairly covered every phase and theory of both parties, as disclosed by the evidence.

Defendant insists, that instructions Nos. 15 and 20 were prejudicial because there was no testimony to justify the giving of such instructions, and that they suggested to the jury a state of facts not warranted by the evidence. 'These instructions are as follows:

“(15) The state of mind of the defendant at the time he invited the deceased out in front of Howard & Guthrie’s store, if you believe he did invite him out there, is a material question for you to determine. If the defendant invited the deceased out of said store with the expectation that there would be trouble, and voluntarily entered into the difficulty armed with a deadly weapon, and the killing resulted after he so voluntarily entered into the difficulty, then the defendant would be guilty of murder; but, if at the said time he hoped and desired that there would be no trouble and went out with the deceased with no expectation of trouble and with no intention of using the weapon with which he was armed except only as a last resort to protect himself, and did not intend to voluntarily enter into the difficulty, and did not enter into it voluntarily, then the homicide would be justifiable, and it would be your duty to acquit the defendant, if you so believe he acted in his necessary self-defense.”

“020) You are instructed, however, that neither threats of themselves nor the bad reputation of the deceased, if such threats were made or if he had such re.putation, will justify homicide in this1 case, if you believe from the evidence beyond a reasonable doubt that the defendant was the aggressor, or that he entered voluntarily into the conflict armed with a deadly weapon.”

According to our view of this record, there was ample testimony calling for these instructions or instructions of like import. This record contains several hundred pages, and to demonstrate our conclusions in this regard by setting out in detail the testimony of the many witnesses supporting this view would serve no good purpose and would extend this opinion to an unnecessary length. Suffice it to say that scattered all through the record appear facts and circumstances calling for instructions upon the question of premeditation and as to whether or not the defendant voluntarily entered into the difficulty. The instructions, as a whole, under the testimony, were very favorable to the defendant. The giving of instruction No. 15, defining murder, was not prejudicial, since the verdict was for manslaughter, and the defendant cannot complain because the jury decided the lesser degree of homicide took place. The theory of the state that Fred Linn was a cocon-spirator and that the homicide was a premeditated murder was not adopted by the jury, as is shown by their verdict, and'the evidence and instructions in support of that theory, even if erroneous, could do the defendant no harm.

Third. Finally, the defendant complains that the dying declarations of the deceased were admitted in evidence without a sufficient preliminary showing that the deceased knew that death was imminent, or that the statement of the deceased was in fact a dying declaration.

Mr. Overstreet, a school-teacher, testified that the night following the tragedy, at about 1 o’clock, the deceased said he did not believe he could live, that he could not live, and witness took down in writing what the deceased said with reference to how the tragedy occurred. At this time deceased seemed to be sound mentally. This written statement was not signed by the deceased, and the court would not permit it to be introduced as evidence, but the witness was permitted to testify orally as to what the deceased said at that time, as follows:

“He said that — Mr. Stinson said that Mr. Beason was a contentious man, and that he told him he never said anything to his wife that ought to have offended her or should, and he went on to state that they were at town and he was in the store at Guthrie & Howard’s grocery store, and Doc Beason came in and told him he wanted to talk to him, and that Mr. Stinson told him that he was not feeling very well and he didn’t want to go on the outside, that they could just talk in there; they was in the grocery store; and Mr. Beason insisted that they go out, and they went out, and on the outside of Guthrie and Howard’s grocery store a few remarks passed, a few words, and he started back into the grocery store, Guthrie & Howard’s grocery store, and about the time they was about to enter the door Mr. Beason struck him with his gun, and that was 'about the last he knew. Those are about the the things he said.”

Dr. Willis, one of the attending physicians, testified in substance that after he had told deceased that he could not get well he heard deceased tell how it happened. He said that Doc ought not to have shot him, that Doc’s stock had been over on his place, and that he had started to take them home and he met Mrs. Beason on the way, and he said Mrs. Beason bawled him out and some words passed, and he said that, while he did not say anything particular out of the way, except one word, that she threatened him with Doc, and that he told her to send the black rascal over and he would settle with him or talk with him. He said that he did not curse Mrs. Bea-son;‘that the next morning- he met Doc in the grocery store, and they went out to talk the matter over, out in the door, in front, and had some words, and that Doc turned, and he thought started off, and he asked him something, and Doc turned around and went to hitting him over the head with his pistol. The witness said that at this time the mental condition of the deceased was fair; that he had been in a sleepy condition from injections of morphine and woke up; that his eyes showed the effect of morphine.

Before this Dr. Lansden had testified that the deceased, in Dr. Willis,’ presence, three or four hours before he died, stated that he thought he would die. For about two hours before he died he seemed to be in an unconscious condition.

The defendant objected to the dying statement as related by Dr. Willis because it did not purport to be all that the deceased said, and for the further reason that it was not shown that the deceased was mentally capable, at the time it was made, of making a correct statement, and moved that the. statement be excluded from consideration by the jury. This was by the court refused and an exception taken and allowed. The evidence above recited amply justified the court in deciding that these declarations should go to the jury for their consideration. Elliott v. State, 18 Okla. Cr. —, 194 Pac. 267; Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030.

Touching this testimony, the court gave the following instruction:

‘(21) Some evidence has been introduced in this case tending to show that the deceased a short time prior to his death made certain statements, after he had given up all hope of recovery and believed he would die, and, should you find that such statements were made, you should determine as to whether or not the deceased was correctly understood by the witnesses, and whether or not what the deceased1 said was correctly detailed by the witnesses, and, should you find and believe that they were so correctly understood and detailed, you should consider such facts so detailed, in connection with all the other evidence in the cause, bearing in mind that you are the exclusive judges of the credibility of the witnesses and the weight to be given to the statements detailed by them.”

Defendant contends that the court did not submit to the jury the question of whether or not the deceased at the time made these statements, had abandoned all hope of recovery, but in effect told the jury that he “had given up all hope of recovery and believed he would die.” We cannot agree that this instruction is susceptible of this interpretation. While this instruction might have been couched in different language, yet the expression “Some evidence has been introduced to show that the deceased, a short time prior to his death, made certain statements, after he had given up all hope of recovery,” etc., imports that the truth of these statements and the hope of recovery were both for the jury to determine. Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561; Willoughby v. Territory, 16 Okla. 577, 86 Pac. 56, 8 Ann. Cas. 537.

Ordinarily, when a dying statement is offered in evidence, the court should require the necessary preliminary proof of its admissibility in the absence of the jury, but where, as in this, case, in the presence of the jury it was shown that the deceased had been informed by his physician, in the presence of other consulting physicians,, that in their opinion his wounds were fatal, and that he had but a short time to live, and that the deceased himself had stated, in their presence, that he believed he would die, and there being testimony tending to show that deceased was rational, and no objections having been made to such testimony being heard in the presence of the jury, it was proper for the court to determine whether an explanatory declaration by the deceased as to how the difficulty occurred should be submitted to the jury for their consideration. Elliott v. State, 18 Okla. Cr. —, 194 Pac. 267; Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030.

We are impressed from this record as a whole that the deceased should consider himself fortunate that the verdict in this case was for manslaughter instead of for murder.

Finding no prejudicial error, 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:
    BENNIE HARRISON v. STATE.
    No. A-3632
    Opinion Filed Feb. 22, 1921.
    (195 Pac. 511.)
    (Syllabus.)
    J. HOMICIDE — Manslaughter in First Degree — Sufficiency of Evidence. Evidence examined, and held sufficient to support a conviction of manslaughter in the first degree.
    2. HOMICIDE — Death from Septic Poisoning After Wound. Where a wound inflicted by defendant resulted in septic poisoning, from which deceased died, defendant is responsible for the death.
    3. TRIAL — Instructions—Technical Incompleteness. When the instructions considered as a whole are as favorable to defendant i'.s the law and the evidence would warrant, a conviction will not he reversed because certain paragraphs of the instructions when considered separately are technically incomplete.

      Appeal from District Court, Wagoner County; Charles G. Watts, Judge.

    Bennie Harrison was convicted of the crime of manslaughter in the first degree, and he appeals.
    Affirmed.
    Bennie Harrison was convicted- in the district court of Wagoner county of the crime of manslaughter in the first degree, and sentenced to serve a term of five years’ imprisonment in the state penitentiary, on an information filed in said court on the 31st day of March, 1919, charging him with the murder of one Luther Barnes.
    The killing occurred on the 27th day of December, 1918, near the home of Manley Thompson, who was a brother-in-law of this defendant, and at whose home the deceased, Barnes, was also staying while working as a farm hand.
    The circumstances surrounding the homicide are, in substance, as follows: Manley Thompson, his brother, Sam Thompson, and defendant, Bennie Harrison, had arranged to go hunting on the day of the killing, and had left the home of Manley Thompson for the purpose of going to Tallahassee to meet some other parties from that town. They had started to walk through the country. After they had traveled a distance of about one-fourth of a mile from Thompson’s place, deceased, Luther Barnes, overtook them, apparently for the purpose of joining them on tjie hunting expedition. Barnes was carrying an old flour sack for a hunting bag, and defendant, noticing this fact, remarked to Barnes that the sack belonged to him (defendant). A quarrel ensued over the ownership of the sack and as to who should have it, resulting in the firing by defendant of two shots from an automatic Remington shotgun, one of which shots struck Barnes in the leg and the other in the shoulder. Neither of these wounds were necessarily fatal, but septic poisoning set up, and Barnes, after lingering until the 18th or 14th of January following, died as a result of the poisoning occasioned by the • infliction of the wounds. It appears that a wad from one of the loads and some shot and perhaps particles of clothing lodged in the wounds and contributed to some extent to the infection.
    Defendant claims that the killing was committed in his necessary self-defense; that when he accused Barnes of having his hunting sack, Barnes replied that he knew it was defendant’s sack, but said, “No damned son of a bitch would get it that day.” Defendant further states that when this remark was made he was looking down, and immediately looked up and saw Barnes starting to his shoulder with his gun; that defendant had his gun under his left arm, and turned as quickly as he could and shot Barnes in the leg; that the shot did not seem to have any effect on Barnes, and he was still coming at defendant with his gun “in a killing position,” pointed at defendant, but that Barnes never got the gun to his shoulder; that Barnes was also carrying an automatic Remington shotgun.
    Nobody but defendant and deceased were at the immediate scene of the difficulty, but Manley and Sam 'Thompson, who were some little distance (approximately 30 yards) ahead of Harrison and Barnes, testified in substance that deceased had a hunting sack, and Bennie said it was his, and Bennie asked him for it and deceased said, “I don’t know whether it is yours or not,” and said:
    “If it is your sack, you are not going to get it today, I am going to'keep it to-day, but you may get it to-morrow.” “We were in front, and had walked fast and gained on them, and as we went across, a field we came to a ravine, and we went across and up the hill, and they were in the center of the ravine, and I heard two shots, one right after the other, and looked around after the last shot and saw deceased falling to the ground, and defendant had his gun in his hand. We went back to where they were, and deceased’s gun was laying on the ground about three feet from him. Deceased had fallen on his right side, and had 'blood on him.”
    There is also some evidence in the record . that deceased and defendant had quarreled some- few days before the homicide, and were not on very friendly terms with each other. There is also evidence that after deceased was wounded, and between the time of the shooting and his death, he sent for defendant, and defendant went to him and assisted others in caring for him.

      E. L. Kirby, for plaintiff in error.

      S. P. Freeling, Atty Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). It is a deplorable thing that a human life should be taken for no other apparent reason than the possession of an old flour sack to be carried on a hunting trip. The evidence discloses that defendant leit home on the occasion of this hunting trip before deceased left the same premises. If defendant was so greatly concerned as to who should carry his hunting sack, it seems reasonable to believe he would have taken it himself. Again, it is unreasonable to believe that deceased would make a deadly assault upon defendant merely because defendant had asked him for the hunting sack. Also, defendant’s story of how the killing occurred does not bear the earmarks of truthfulness when he states that at the time deceased called him a son of a bitch he, the defendant, was looking down, that when he turned and looked up deceased had his gun “in a killing position.” All this occurred before defendant, according to his own statement, made any effort to protect himself against the alleged deadly assault of deceased. Nothing intervened to prevent deceased, if he had his shotgun “in a killing position,” from shooting defendant, yet defendant says, and it is uncontradicted that deceased did not fire a single shot at defendant, although after deceased got his gun “in a killing position,” defendant must necessarily have removed his gun from under his left arm to his shoulder and fired two times at deceased. Again, defendant says the first shot did not seem to have any effect on deceased, and that after deceased was hit in the leg with the first shot he still advanced upon defendant, but failed again to shoot, and defendant then fired the second shot. That the killing occurred under such circumstances is unreasonable. Had sucn been the truth, undoubtedly defendant would not have lived to tell his tale. Both Manley and Sam Thompson testified that the two shots were fired “one right after the other,” and Manley Thompson is the brother-in-law of defendant.

It is contended that the evidence is insufficient to sustain the conviction. .The issue of the guilt of this defendant of the crime of murder was not submitted to the jury. Only the questions of his guilt of manslaughter in the first degree or ¡whether the killing was justifiable in self-defense were submitted. The trial court took the most favorable view to defendant of the evidence in this case in submitting only the question of guilt of manslaughter in the first degree. The jury would have been authorized to infer a design to effect death from the fact of the killing itself, and, further, premeditation sufficient to constitute murder may be formed . instantly before committing the act. The homicide here was committed with a deadly weapon, and defendant must have been presumed to intend the natural consequences usually following the use of such a weapon.

Furthermore, the court instructed by instruction No. 3:

“If you find that deceased made violent epithets at the time of the shooting against defendant, and that because of such words or epithets only defendant drew his gun and shot deceased, and that thereafter deceased died, by reason of such wounds, but that defendant did not intend to kill deceased when he shot him, then and in that event defendant would be guilty of manslaughter in the first degree and in such event you should find him guilty of manslaughter in the first degree.”

We do not understand the law to be that the use of violent epithets or threats, directed by deceased against a defendant, by reason of which, defendant draws his gun and shoots deceased, will mitigate a homicide. Evidence of threats are admissible when part of the res gestae, and also when there is evidence first introduced tending to show that deceased at the time he was killed was making ¡some overt act or demonstration which furnished defendant reasonable cause to believe he was in danger of being killed or receiving great bodily injury at the hands of deceased. But the fact that deceased called defendant a “son of a bitch” would not alone tend to justify the use of a deadly weapon by defendant, nor in any way tend to mitigate the degree of the homicide so as to reduce it from murder to manslaughter.

Apparently the state did not urge a conviction of this defendant of the crime of murder, and the foregoing instruction is only cited for the purpose of showing that defendant got the benefit of a theory in mitigation of the offense much more favorable to him than the evidence or the law warrants, disclosing that if any error was committed in the trial of this case, it was such that resulted to the benefit of defendant.

In connection with the insufficiency of the evidence, it is further urged that defendant ought not to have been convicted, because it is undisputed that neither of the wound's inflicted were necessarily fatal, and that death would not have resulted except for the fact that proper care was not taken of the wounds, and that septic poisoning set up in the wounds, death resulting from the poisoning and not because of the fatal nature of the wounds themselves. The wounds caused the poisoning to set up. Defendant cannot escape responsibility for the death because of the intervening cause of the poisoning. Such is not the rule in this jurisdiction. The rule here is as stated in 21 Cyc. 700:

“If a wound or other injury cause a disease, such as gangrene, empyema, erysiphelas,, pneumonia, or the like, from which deceased dies, he who inflicted the wound or other injury is responsible for the death. * * * He who inflicted the injury is liable even though the medical or surgical treatment which was the direct cause of the death was erroneous or unskillful, or although the d'eath was due to negligence or failure by the deceased to procure treatment or take proper carr of the wound.”

See, also, Bishop v. State, 73 Ark. 568, 84 S. W. 707; Crum v. State, 64 Miss. 1, 1 South. 1, 60 Am. Rep. 44; Kelley v. State, 53 Ind. 311; State v. Foote, 58 S. C. 218, 36 S. E. 551.

The only near exception to the above rule is .found in the state of Texas, where by statute it is provided that upon the infliction' of a wound not necessarily fatal, if by gross negligence on the part of the person who received the wound or persons having his custody, the person Wounded is, permitted to die by gross negligence, the person inflicting such wound cannot be held guilty of homicide. But as there was no showing of gross negligence on the part of the person injured in this case, that rule could not even be invoked were such a statute in effect in this state.. On the contrary, it is shown that deceased was treated by a regularly licensed physician, upon whose suggestion deceased was taken to a hospital in the city of Muskogee for treatment, at which place jhe died.

Certain objections are urged to one paragraph of the court’s instructions. We have carefully examined the instructions as a whole, and find them more favorable to defendant than the law and evidence in this case would warrant. Defendant was found guilty only of manslaughter in the first degree, and the punishment to be imposed was fixed by the jury at five years’ imprisonment in the state penitentiary, practically the minimum for such offense. When the instructions are considered as a whole, if it be admitted that certain paragraphs when considered separately were technically incomplete, it cannot be said that the charge as a whole deprived defendant - of any constitutional or statutory right, or resulted in a miscarriage of justice.

After a full consideration of all points urged by counsel for defendant and assigned as reasons, for reversal of the judgraent, we conclude that none of the errors complained of were such as to deprive the accused of that fair and impartial trial which is accorded under the Constitution and laws of the state.

Judgment affirmed.

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


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    ROBERTA GRAY v. STATE.
    No. A-3531
    Opinion Filed Feb. 22, 1921.
    (195 Pac. 503.)
    (Syllabus:)
    i. TRIAL — Weight of Evidence for Jury. The weight and credibility to be given to evidence are matters exclusively within the province of the jury.
    1. HOMICIDE — Manslaughter in First Degree — Sufficiency of Evidence. Evidence examined and held sufficient to sustain a conviction for manslaughter in the first degree.

      Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

    Roberta Gray was convicted of the crime of manslaughter in the first degree, and she appeals.
    Affirmed.

      Sewell ;& Eylar and Cad Mathis, for plaintiff in error.
    5. P. Freeling. Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

Plaintiff in error, hereafter referred to as defendant, was on the 21st day of October, 1918, in the district court of Pittsburg county, convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years’ imprisonment in the state penitentiary.

An appeal was taken from the judgment, and it is sought to reverse the same on the s,ole ground that the evidence is insufficient to support the conviction.

Defendant killed her husband, Joe Gray; who was an engineer at one of the coal mines at Carbon, in Pittsburg county, by shooting him with a 25-caliber automatic revolver. At the time of the homicide, which occurred about 8:30 or 9- o’clock in the morning, Joe Gray was ar, work in the engine room or boiler shed connected therewith, and defendant, after arming herself with the revolver, went from their home to the place where her husband was working. It appears from the evidence that on the night before the homicide Joe Gray had not returned home, but had spent that night at a residence not far from his home, presumably in the company of a woman other than his wife. Defendant claims to have seen deceased leave this residence about 6 o’clock in the morning, and says that she went down to the engine house to find out why her husband had not returned to his home the night before. After her arrival at the engine house, defendant claims that a quarrel ensued between her husband and her, during the progress of which her husband picked up a heavy piece of iron and struck her, after which she shot him in her necessary self-defense.

To the contrary, of defendant’s testimony the evidence is, on the part of apparently disinterested witnesses who were close to the scene of the trouble, that two or three shots were fired inside the engine house, after which defendant was seen to run from the north door of the engine house followed by deceased, who threw something at her, after which deceased fell, and in a short time died from the effects of a gunshot wound in his right breast, which severed the aorta.

On cross-examination defendant testified in part as follows:

“Q. What is this party’s name? A. This woman?

“Q. Yes. A. Victoria Rignew.

“Q. I thought you said Lewis. A. No; Lewis is the woman in the house. Victoria is the woman that give me trouble.

“Q. Where does Victoria live? A. She lives at Danville, Ark.

“Q. Where does Mrs. Letwis live? A. She lived in Carbon.

“Q. Where? A. Right up from the boiler room.

“Q. How far? A. Well, I don’t just know the distance. About thirty — I don’t know exactly how far it is.

“Q. Did you see him come out of Mrs. Lewis’? A. Saw him come out that morning, out of the yard.

“Q. 'This same morning of the day that you killed him? A. Yes, sir.

“Q. Saw him come out of Mrs. Lewis’? A. Yes, sir.

“Q. At what time? A. About half past 6, as near as I can get at it. I was up at 5.

“Q. It made you awful mad, didn’t it? A. I don’t know that it made me so awful mad.

“Q. That is the reason you put that gun in your pocket, isn’t it? A. No, sir.

' “Q. You were mad and jealous because he had come out of Lewis’?

“Mr. Seiwell: Objected to as incompetent, irrelevant and immaterial.

“The Court: The objection is overruled.

“A. No, sir; I wasn’t mad or jealous. Of course, I was jealous. I don’t want my husband running after no woman.

“Q. Of course you didn’t? A.' Sure not.

“Q. And you took that gun down there. Did you have a full magazine? A. No; I only had three loads.

“Q. Shot them all? A. Yes, sir; all of them.

“Q. Now, you told your husband that you had seen him coming out of Mrs. Lewis’? A. Yes; I told him of it.

“Q. And he cursed you and told you it wasn’t any of your business? A. Yes, sir.

“Q. And then you let down on him with the pistol? A. No, sir; I didn’t let down on him with no pistol until he .commenced following me.”

The entire argument of counsel' for defendant is directed against the weight of the evidence and its credibility — matters exclusively within the province of the jury. It is apparent from an examination of the record in this case that defendant armed herself with a deadly weapon, and sought out her husband at his place of business, in an angry frame of mind. That she was jealous of him and another woman is, admitted. The reasonable inferences are that this trouble was. sought by defendant, and, if the killing was not premeditated on her. part, it was certainly committed while in the heat of passion and under the influence of extreme jealousy.

The punishment imposed is the minimum under the law for manslaughter in the first degree. The fact that the deceased had been unfaithful to defendant and had violated his marital vows, no doubt prompted the jury in dealing so leniently with defendant.

Judgment affirmed.

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


text:
    A. F. HOLMES v. STATE.
    No. A-3481
    Opinion Filed Feb. 22, 1921.
    (195 Pac. 508.)
    (Syllabus)
    1. INTOXICATING LIQUORS — Evidence — Sufficiency. Evidence examined, and held sufficient to support a conviction for unlawfully conveying intoxicating liquor.
    2. WITNESSES — Cross-Examination. For reasons bolding ruling of'1 trial court correct on objections to questions asked of a witness on cross-examination, see body of opinion.
    3. TRIAL — Instructions Covex-ed by General Charge. Where the law contained in a requested instruction is in substance covered in the general charge, it is not error to refuse to give the instruction in the form requested.
    4. APPEAL AND ERROR — Harmless Error — Instructions. Under section 6005, Rev. Laws 1910, this court is not authorized nor permitted to reverse a judgment of conviction based upon overwhelming evidence of guilt merely because of a misdirection of the jury, when it is evident that no miscarriage of justice resulted, and defendant was hot deprived of some constitutional or statutory right.

      Appeal from County Court, Greer County; J. L. Carpenter, Judge.

    A. F. Holmes and another were convicted of the offense of unlawfully conveying intoxicating liquor, and they appeal.
    Affirmed.

      W. C. Stevens and E. L. Richardson, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

Plaintiffs in error, hereinafter designated defendants, were convicted in the county court of Greer county of the offense of unlawfully conveying intoxicating liquor, -and sentenced to pay a fine of $500 and to serve a term of six months each in the county jail. From the judgment rendered against them, they have appealed to this court.

The prosecution is based on section 3605, Revised Laws 1910, making it an offense “to sjhip or in any way convey such liquor [intoxicating liquor] from one place within this state to another place therein except the conveyance of a lawful purchase as herein authorized.”

The information charged defendants with having conveyed 81 gallons of whisky “from the line of Harmon county, Okla., and Greer county, Okla., on the Ozark Trail we'st of Reed, Okla., to a place on said Ozark Trail about three miles west and north of Mangum, Okla., near the farm and home of W. B. Henry.”

The undisputed evidence is to the effect that these defendants, traveling in a Paige automobile, which was loaded with 81 gallons of whisky, were traced from a place in the state of Texas about 18 miles southjwest of Hollis, Okla., along the Ozark Trail to the point last described in the information on said Ozark Trail in Greer county, Okla., and near the farm and home of W. B. Henry where they were apprehended at about 2:30 o’clock in the morning and arrested by the sheriff and other officers of said Greer county. Neither defendant took the witness stand in his own behalf.

The assignments of error (1) that the court erred in refusing to direct a verdict of not guilty; (2) that the verdict is contrary to the law and the evidence; (3) that the judgment upon the verdict is contrary to the law and the evidence, are grouped together, and under these assignments it is contended that, although the information charged an intrastate conveyance of intoxicating liquor, the evidence conclusively shows that it was an interstate conveyance, the liquors having been purchased at a place in Texas where it was lawful to buy and sell whisky at that time.

The only evidence bearing on the question of whether or not this was an interstate conveyance of liquor lawfully purchased in the state of Texas is contained in the following excerpts from the record:

“Q. Now, Mr. Counts, you testified as to what they told you, are you positive Mr. Harris said he got the whisky at Dalhart? A. Yes, sir; Mr. Henry asked them, I think he asked Mr. Holmes first, and then he asked Mr. Harris, and both said they got it at Dalhart.

“Q. Mr. Harris did' not say he got the whisky himself, did he? A. He did not say; s,aid they got it at Dalhart.

“Q. Did he say it came from Dalhart? A. No, sir; he said they got it there. * * *

“A. Yes, they stopped; ¡they could not get across, and when they stopped I got on one side of the car and Mr. Counts got on the other side, and he told them to consider themselves under arrest.

“Q. What was the first thing said by you officers or the men, and what all was, said? A. Mr. Counts said; ‘Consider yourselves under arrest,’ and we told them to hold up their hands. Mr. Holmes was trying to stop the car or doing something to the brakes, and then they put their hands up and got out, and one of them said, ‘You have got us.’

“Q. Do you know which one of them said, ‘You nave got us?’ A. I am not positive; I think it was Mr. Holmes.

“Q. What else was said and done? A. Mr. Henry came up, it was kind of cool, and he had gone to the house to get his coat, and he came up and asked them iwhere they were from. They said they were from Dalhart, and were going to Lawton.

“Q. Which one of them was it said they come from Dalhart? A. Both of them. * * *

“Q. What did they say as to where they came from? A. I asked them, and they said Dalhart. I asked them where they were going, and they said Lawton.

“Q. .Which one said that? A. They both said it; said they were taking the whisky to Lawton/'

All the evidence, therefore, as to this being a lawful purchase of whisky is contained in the statements of these defendants at the time they were apprehended and arrested. They each said they got the whisky at Dal-hart. There is no evidence to show from whom they got or purchased the whisky, whether or not it was a lawful sale made by a person authorized to sell whisky, nor is there a syllable of evidence in the record to the effect that these defendants had purqhased and were conveying this liquor from the state of Texas to the state of Oklahoma for their own personal use. That said whisky was a lawful purchase, intended for personal use, is a matter of defense, and there must be evidence in the record sufficient to create a reasonable douibt of guilt before the evidence would be insufficient to sustain the conviction. Rupard v. State, 7 Okla. Cr. 201, 122 Pac. 1108; Schave v. State, 4 Okla. Cr. 285, 111 Pac. 962; Tolliver v. State, 13 Okla. Cr. 52, 163 Pac. 130. There is no competent evidence that the liquor here conveyed was a lawful purchase; and, in the absence of any proof to the contrary, the amount of liquor possessed was sufficient to raise a prima facie presumption of fact that the liquor was intended to be used for an unlawful purpose. Section 6, chapter 26, Session Laws 1913. The foregoing' assignments of error are wholly without merit. There is absolutely no competent legal evidence in the record to support the contentions urged under these assignments, even admitting the legal proposition urged to be sound, which we do not hold.

It is also contended that the trial court erred in refusing to admit and in ruling out competent and legal evidence offered by defendants on cross-examination, to which defendants duly excepted.- The record in support of this assignment of error is as ..follows:

“Q. Do you know whether he ever handled -any whisky — do you know his, general reputation; it was generally good, wasn’t it?

“By the Court: Mr. Smith, that question should be answered as to yes or no. A. Yes, sir.

“Q. He was a laiw-abiding citizen, wasn’t he? Mr. Mills: Objected to as incompetent, irrelevant, and immaterial, and not the proper method. (Which objections are by the court sustained.)

“Q. Mr. Harris lived in Childress county after you knew him? A. Yes. sir.”

In support of this assignment of error, counsel have the following to say:

“It does seem that this man who was in a county on trial for his liberty where he was unknown should have been allowed to prove that he was a law-abiding citizen.”

No authority is cited in support of the assertion made. The objection was properly sustained: (1) The question was not in proper form; (2) no showing is made as to what the answer of the witness would have been had he been permitted to answer; (8) the witness had previously without objection answered that thé general reputation of defendant Harris was good; (4) it was discretionary with the trial court to exclude such evidence on cross-examination of a state’s witness as not proper cross-examination.

It is also contended that the trial court erred in re-' fusing to give defendant Frank Harris’s special requested instruction No. 1, which is as follows:

“You are instructed that, if you find from the evidence in this case that the car and whisky belonged to the defendant Holmes, and you further find from the evidence that the defendant Harris had no part in the conveyance of the liquor, but was, a mere passenger on the car, or if you have a reasonable doubt as to this fact, then it would be your duty to find the defendant Harris not guilty.”

The foregoing instruction was refused for the reason that the same Was covered in the general charge. An examination of instructions Nos. 8 and 4 of the general charge discloses that the law contained in the foregoing requested instruction, was, in substance, covered therein. In view of the evidence in this case, however, it would not have beep error for the court to have failed to instruct on this question. There is no competent and legal evidence in the record to sustain the giving of the requested instruction.

It is also contended that the court erred in giving certain paragraphs of the general charge to the jury. The court has read the instructions, and, when considered as a whole, they fairly and fully cover the law of the case.

This is a case in which the evidence of guilt is conclusive, and in which no meritorious or substantial defense is made to the prosecution. Under section 6005, Revised Laws 1910, this court is. not authorized nor permitted to reverse judgments of conviction based upon overwhelming evidence of guilt merely because of misdirection of the jury, when it is evident that no miscarriage of justice occurred, and the defendant was not deprived of some constitutional or statutory right.

Judgméht affirmed.

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


author: MAIT'SON, J.

text:
    E. R. WEBER v. STATE.
    No. A-3596
    Opinion Filed Feb. 22, 1921.
    (195 Pac. 510.)
    (Syllabus)
    1. WITNESSES — Perjury as Disqualification. Tbe provisions of section 2225, Rev. Laws 1910, “No person wbo bas been convicted of perjury, or of subornation of perjury, shall thereafter be received as a witness in any action, proceeding or matter whatever upon his own behalf,” was not intended to disqualify a witness convicted of such crime under the criminal laws of a sister state or foreign country.
    SAME. Although a witness, tínder a similar statute, may have been disqualified to testify in the courts of a sister state, such statute should not be given effect beyond the territorial limits of that state.

      Appeal from District Court, Kay County; J. W. Bird, Judge.

    E. R. Weber was convicted of the crime of grand larceny, and apneats.
    Reversed and remanded.

      J. E. Torrance and O. W. Torrance, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   MAIT'SON, J.

This is an appeal from the district court of Kay county, wherein plaintiff in error, hereafter referred to as defendant, was convicted of the crime of grand larceny, and sentenced to serve a term of four years’ imprisonment in the state penitentiary.

Several alleged errors are assigned as grounds for a reversal of this judgment. There being, in the opinion of the court,- no substantial merit in any of the assignments of error save one, and it not being considered probable that the matters referred to in the other assignments will likely arise upon another trial of the cause, we deem it only necessary to consider the question of error presented on the assignment, to wit, whether or not the court erred in refusing defendant the right to testify in his, own behalf.

The Attorney General has filed a confession of error in this case, which is as follows:

“Plaintiff in error was convicted of the crime of larceny of an automobile of the value of $400, and sentenced to four years in the state penitentiary.

“Plaintiff in error took the witness stand on his own behalf and on cross-examination admitted that he had been convicted Of the crime of perjury in a court in Kansas., and that at that time he was out on parole, whereupon on motion of. the county attorney, the entire evidence of plaintiff in error was withdrawn from the jury (R. 68), and in the court’s written instructions to the jury, they were instructed by instruction No. 7 (R. 93) that the testimony of plaintiff in error had been withdrawn from the consideration of the jury, and that the jury should not consider the same.

“We are of opinion that this action and ruling of the court was reversible error. While there is some conflict in the authorities we are convinced that the weight of authority is that a conviction of perjury in one state will not disqualify such person as a witness in another state. The general rule in this regard is laid down in 40 Cyc. 2208, as follows:

“ ‘A person who is offered as a witness in one state is not disqualified ¡because he has been convicted of crime in another state.’

“The Supreme Court of the United States passed upon this question in the case of Logan v. U. S., 144 U. S. 263 [12 Sup. Ct. 617, 36 L. Ed. 429], wherein the court held as follows:

“At common law, and on general principles, of jurisprudence, when not controlled by express statute given effect within the state which enacted, it to a conviction and sentence in another state, such conviction and sentence can have no effect, by way of penalty, or of personal disability or disqualification, beyond the limits of the state in which the judgment is rendered.’

“A collection of authorities on this question is found in L. R. A. 1917A, p. 1138, wherein the author of the note states as follows:

“ ‘With respect to the question whether a conviction of a crime in one state which renders the person convicted incompetent as a witness in that state precludes him from testifying in another state, a conflict exists. By the weight of authority it is held that' such a conviction will not render the person incompetent in the second state, and this result has been reached in both civil and criminal cases. The decisions reaching this conclusion are based mainly on the reasoning that the penal laws of one jurisdiction will not be enforced in another and that one state with, respect to another is a foreign jurisdiction. The view was also taken in the leading case, reaching this conclusion, that the full faith and credit clause of the federal Constitution does, not apply to criminal cases.’

“The following additional authorities uphold the rule herein contended for: Wisconsin v. Pelican Insurance Co., 127 U. S. 265 [8 Sup. Ct. 1370, 32 L. Ed. 239]; Commonwealth v. Green, 17 Mass. 515; Sims v. Sims, 75 N. Y. 466; National Trust Co. v. Gleason, 77 N. Y. 400 [33 Am. Rep. 632]; Story on Conflict of Laws, § 92; 1 Greenleaf on Evidence, § 376; Campbell v. State, 23 Ala. 44; State v. Landrum [127 Mo. App. 653] 106 S. W. 1111.”

Section 2225, Revised Laws 1910, in part provides:

“No person who has been convicted of perjury, or of subornation of perjury, shall thereafter be received as a witness in any action, proceeding or matter whatever upon his own behalf.”

Assuming for the sake of argument, without so deciding, that the evidence in the record before us is competent to show that defendant was convicted in Kansas of the crime of prejury, the question then arising is whether such conviction disqualifies him from testifying in this state under the express provision of section 2225, supra..

Upon this question, there is an apparent conflict of authority, as stated in the confession of error of the At-to.rn.ey 'General, while there are two or three very early decisions to the contrary, we find no sound reason, in the absence of an express statute to that effect, for holding that the conviction of the witness of the crime of prejury in the state of Kansas should of itself disqualify him from testifying as a witness in the courts of this state. Indeed, we "believe that it was not the intention of the Legislature to apply the disqualification in section 2225 to convictions for offenses, committed against the criminal laws of another state or foreign country. Although the avitness, under a similar statute may have been disqualified to testify in the state of Kansas, such statute should not be given effect beyond the territorial limits of that state.

“The weight of modern opinion seems to be that personal disqualifications, not arising from the law of nature, but - from the positive law of the country, and especially such as are of a penal nature, are strictly territorial and cannot be enforced in any country other than that in which they originated. Accordingly it has been held upon great consideration that a conviction and sentence for a felony in one of the United States' did not render the party incompetent as a witness in the court of another' state, though it might be shown in diminution of the credit due to his testimony/’ 1 Greenleaf on Evidence, § 376; 1 Wigmore on Evidence, § 522; Story, Conflict of Laws, §§ 92 and 104; Sims v. Sims, 75 N. Y. 466; Logan v. U. S., 144 U. S. 263 (12 Sup. Ct. 617), 36 L. Ed. 429; Commonwealth v. Green, 17 Mass. 515; Samuels v. Commonwealth, 110 Va. 901 [66 S. E. 222], 19 Ann. Cas. 380; State v. Landrum, 127 Mo. App. 653, 106 S. W. 1111.

We take the view, therefore, that the confession of error .filed herein by the Attorney General is supported by the weight of modern authority, and that the trial court erred in refusing the defendant the right to testify in his own behalf, which right is conferred upon him when he requested it by section 5881, Revised Laws 1910.

Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.

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


author: MATSON; J.

text:
    HARRY MURNAND v. STATE.
    No. A-3463
    Opinion Filed Feb. 26, 1921.
    (195 Pac. 787.)
    (Syllabus)
    1. APPEAL AND ERROR — Review—Conviction on Conflicting Evidence. Where there is some competent and apparently credible evidence in tbe record which would authorize the jury to reasonably conclude that defendant is guilty as charged, this court will not substitute its judgment for that of the jury on the question of the sufficiency of the evidence, even though there be a sharp conflict in the evidence.
    2. TRIAL — Instructions—Sufficiency. Where the instructions as a whole fairly cover the law of the case and are not misleading, although some instructions are inartifieially drawn, the general charge will be held sufficiently comprehensive.
    3. ASSAULT AND BATTERY — Penitentiary Sentence Modified. For reasons given for modifying .the judgment, see body of opinion.

      Appeal from District Court, Cleveland County; F. B. Swank, Judge.

    Harry. Murnand was. convicted .,of the crime- of--assault with a dangerous weapon, and appeals.
    Modified and affirmed.

      J. B. Dudley and Thomas W. Mayfield, for plaintiff in error. ...

      S. P. Freeling, Atty. Gen., and W. G. Hall, Asst. - Atty. Gen., for the State.
   MATSON; J.

Plaintiff in error, Harry Murnand, hereafter - designated defendant, and Johnson and Hudie Philpot were jointly charged by information in the district court of Cleveland county with assaulting one' E. B. Cornelius with a dangerous weapon on- December 17, 1917. A severance was granted' this defendant, and on the 26th day of March, 1918, he was convicted of said crime, and sentenced to serve a term of one year and one day in the state penitentiary. From this judgment.he has appealed to this court.

In substance the facts are as follows: Cornelius, the prosecuting witness, was principal of the high school .at Noble. About two days before the day on which the alleged assault took place, Cornelius had sworn to a complaint charging these two Philpot boys and a brother of defendant Murnand with having disturbed the public peace at a gathering on the school premises in the town of Noble. This action on the part of Cornelius evidently incensed these boys, ¡whose ages ranged from 18 to 20 years, and they went to the railroad station in the town of Noble close to where Cornelius was rooming, and when defendant came to the railroad station about 5 o’clock in "the afternoon to look after a package of express, these boys, according to Cornelius’ testimony, assaulted him, Murnand striking at and striking him with a piece of iron which Cornelius said Murnand carried in his pocket, inflicting certain injuries, which were not, according to the testimony of the attending physician, of a serious nature, on the face and head of Cornelius. Cornelius positively identified this defendant and the two Philpot boys as the ones who assaulted him on that occasion.

Defendant, although admitting his presence at the scene of the alleged assault, denies positively taking any part in it or striking the prosecuting witness with an iron bar or any other weapon, or even with his fists. In this defendant is corroborated by the testimony of the Philpot boys, Who state that the only assault made upon the prosecuting witness was by the defendant Hudie Phil-pot, and that such assault was made only with his fists.

There is certain evidence in the record tending to show that prosecuting witness made contradictory statements as to how the trouble occurred and as to who assaulted him. There is also evidence in the record which tends to support the testimony of the prosecuting witness that this defendant and the two Philpot boys were the identical persons assaulting him.

It is contended that the evidence is insufficient to sustain the conviction.

This contention is.,without merit. While there is a direct conflict in the evidence, the positive testimony of the prosecuting witness that ¡defendant assaulted him with a piece of iron, and the other evidence tending to corroborate his statements, is amply sufficient to sustain a verdici of guilt.. The argument of counsel for defendant in support of' this assignment of error is lodged against the weight of the evidence :and of the credibility of the witnesses — questions exclusively for the determination of the jury; and this court will not substitute its judgment for that of the jury, even though there be a sharp conflict. in the evidence, provided there is some competent and apparently credible evidence in the record which would authorize the jury to reasonably conclude that defendant is guilty as charged. Prather v. State, 14 Okla. Cr. 327, 170 Pac. 1176; Kliensmith v. State, 15 Okla. Cr. 215, 175 Pac. 943; Gunter v. State, 16 Okla. Cr. 476, 184 Pac. 797; Hodges v. State, 16 Okla. Cr. 183, 182 Pac. 260.

It is also contended that the court erred in giving certain instructions to the jury that had the effect of putting the burden upon the defendant to prove himself not guilty of the Crime.

We have carefully examined the instructions complained of, and have considered the same in connection with the other paragraphs of the general charge, and, while some of the instructions are inartificially drawn the charge as a whole in our opinion fairly covers the law of the case, and. cannot be said to be sufficiently misleading to authorize a reversal of this judgment.

iThe brief of counsel for defendant includes (in the event that the court does not consider the evidence insufficient or the instructions materially prejudicial) a request that this court modify the judgment so as to relieve defendant of a penitentiary sentence. The evidence discloses that defendant is a young man only lb years of age, who had prior to this alleged difficulty borne a splendid reputation for peace and quietude and as a law-abiding citizen. He had never been in any other trouble, nor even charged or suspicioned of criminal conduct prior to this time.

Tffie..punishment prescribed for assault with a dangerous weapon is by imprisonment either in the penitentiary or, in the county jail, in addition to which the court would be authorized in the exercise of a sound discretion to impose a fine.not exceeding $200 (section 2812, Revised Law's 1910).

We believe that this is not a case where defendant should be subjected to the odium which wall necessarily follow'from'his incarceration in the penitentiary. However, it is a case deserving of considerable punishment. The assault v'as without apparent provocation.

We believe, however, that the ends of justice will be best subserved by a modification of the judgment to provide a fine of $200 and imprisonment in the county jai! for a period of 90 days, and costs of. the prosecution.

As so modified, the judgment is affirmed.

DOYLE, P. J., and HESSEY, J., concur.


text:
    PETER COLE v. STATE.
    No. A-3532
    Opinion Filed March 5, 1921.
    (195 Pac. 901.)
    (Syllabus.)
    1. APPEAL AND ERROR — Review—Conflicting Evidence — Credibility of Witnesses. It is within the province of the jury to believe the state’s witnesses, to the exclusion of those for defendant. A judgment of conviction, based upon conflicting evidence, will not be disturbed on appeal, where there is competent, legal,, and apparently credible evidence reasonably supporting the verdict.
    2. TRIAL — Instructions on Reasonable Doubt — Repetitions. The principle of “reasonable doubt” is so firmly intrenched in the . criminal jurisprudence of this country, and so well known by jurors generally, as not to require constant repetition of the rule in every paragraph of the instructions, especially where the issues are not involved, and no affirmative defense is interposed.
    3. SAME — Instruction on Credibility of Witnesses. The general instruction on the credibility of witnesses is a sufficient rule for the guidance of the jury. The trial court should not attempt to give the jury an instruction as to whom they should believe, or whom they may disbelieve, but leave this matter to the common sense, sound judgment, and experience of the jurors.
    4. SAME . The trial court gave the following instruction: “If you find that any witness has willfully testified falsely to any material question, then you are at liberty to disregard the whole of the testimony of such witness, except so far as the same may be corroborated by other credible evidence.” Held, said instruction does not amount to a comment upon the weight of the evidence of any witness, nor an invasion of the province of the jury as to the credibility of witnesses, when considered in connection with the general instructions, given in this case, “that the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony.” The decision in Rea. v. State, 3 Okla. Cr. 269, 105 Pac. 381, as to this point, disapproved and overruled.

      Appeal from County Court, Pushmataha County; A. W. Rison, Judge.

    Peter Cole was convicted of pointing a deadly weapon, and he appeals.
    Affirmed.

      Welch.& Welch, for plaintiff in error.

      S. P. Freeling, Atty.- Gen., and W. C. Hall, Asst. Atty. Gen., for. the State.
   MATSON, J.

This is an appeal from the county court of Pushmataha county, in which court- defendant, Peter Cole, was convicted of pointing a Winchester rifle at one S. L. Capps, and sentenced to pay a fine of $250 and to serve three months’ imprisonment in the county jail.

The offense was committed at the home of the prosecuting witness, Capps, on the 1st day of May, 1918, late in, the afternoon of that date, and both the prosecuting witness and his wife testify positively that defendant pointed a Winchester rifle at Capps. Defendant admitted being at the place on that occasion, explaining his .presence there for the purpose of inquiring of Capps about ejecting a tenant of defendant .from certain land that Capps had recently purchased. Defendant admitted having the .Winchester rifle, and said, he had taken it out for hunting purposes. He denied, however, pointing the weapon at Capps.

It is contended that under this state of facts the evidence is insufficient to sustain the conviction. The testimony of the state’s witnesses makes out a clear case of guilt of the crime charged. Defendant flatly denies his guilt. A son of the prosecuting witness, who was working in a field a short distance aiway, says he did not ¡see defendant point any weapon at the prosecuting witness, but saw him go in the direction of the home of the prosecuting witness, carrying a Winchester rifle on his shoulder. A witness by the name of Thomlinson, who was the tenant above referred to, also testified that he did not see defendant point the Winchester rifle at Capps,, and further said that he was in a position to see it if it had occurred.

The weight of this evidence, as well as the credibility of the witnesses, were matters for the exclusive determination of the jury. It was within the province of the jury to believe the state’s witnesses to the exclusion of defendant. There is no «rood reason to disturb tho judgment because of the insufficiency of the evidence. If this judgment of conviction were to be disturbed on that ground, every case appealed to this court based upon conflicting evidence would necessarily have to be reversed.

Secondly, it is contended that the court erred in giving instruction No. 3, which is as follows:

“And vou are further instructed that, .if you believe from the evidence in this case that on or about the 1st day of May, 1918, in this county and state, the defendant, Peter Cole, pointed a deadly weapon, to wit, a Winchester rifle, at S. L. Capps, you should find the defendant guilty as charged.”

A general exception was taken to the foregoing instruction on the ground that it did not state “the lav/ applicable to the case.” No more definite objection was made at the time, nor was any other instruction in more specific terms presented to the court with a request that it be given.

The particular objection here urged against the instruction is that it omits, after the words “if you believe from the evidence in this case,” the words “beyond a reasonable doubt.”

By instruction No. 1, the jury were charged as follows :

“You are instructed, that the defendant is presumed innocent, and that this presumption remains with him during the trial until it has been overcome by legal and competent evidence, sufficient to satisfy your minds of his guilt beyond a reasonable doubt.”

The court also gave the following instruction:

“If, after a careful, and fair consideration of the testimony in the whole case, you have a reasonable doubt of defendant’s guilt, you will resolve that doubt in favor of defendant and return a verdict of acquittal.”

The argument is advanced that instruction No. 8 is the substantive instruction of the whole charge to the jury; that it is the only instruction advising the jury-under what circumstances they should find defendant guilty and upon what degree of proof the conviction should be based; and being the only substantive instruction contained m the general charge, it was particularly prejudicial to defendant to omit the words “beyond a reasonable doubt” from this particular instruction, because the jury without the use of such words would be permitted by said instruction to convict defendant,. were they only satisfied of guilt by a fair preponderance of the evidence.

The contention urged finds some support in the early opinions of this court. On the other hand, there are numerous and later authorities to the effect that the instructions must be considered as a whole, and if, when considered together, they fairly and correctly state the law applicable to the case and are not misleading, they will be sufficient. Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Nutt v. State, 8 Okla. Cr. 266, 128 Pac. 165; Davis v. State, 16 Okla. Cr. 377, 182 Pac. 909; Davis v. State, 15 Okla. Cr. 661, 182 Pac. 909; Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699.

Also:

“Defendant is not permitted to pick, out a certain instruction and ask .the court to pass upon its correctness separate and apart from the instructions as a whole.” Inklebarger v. State, 8 Okla. Cr. 316, 127 Pac. 707.

iThe trial court here gave the benefit to defendant of an instruction on the presumption of innocence, and further told the jury that upon the whole case they must be satisfied of the guilt of defendant beyond a reasonable doubt, else they must acquit.

The issue in this case was not involved. Defendant merely denied his guilt, he interposed no affirmative defense. While instruction No. 3 is incomplete within itself, it is not in direct conflict with instructions Nos. 1 and 6, heretofore referred to, and, when supplemented by said instructions, it is our opinion that the doctrine of “reasonable doubt” was fairly conveyed to the jury. The principle of reasonable doubt at this late day is so finmly intrenched in the criminal jurisprudence of -this country, and is so well known by jurors generally, as certainly not to require constant repetition of the rule in every paragraph of the charge, especially where the .issues are not involved and no affirmative defense is interposed.

In view of the specific provisions of section 6005, Revised Laws 1910 (which was not in force at the time the cases relied upon by defendant’s counsel were decided), that the appellate court shall not set aside any judgment on the ground, among others, of the misdirection of the jury, unless it appears after an examination of the entire record that the error complained of has probably resulted, in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right, it cannot be said that the instruction complained of, when considered in connection with the other instructions given, in any way tended to deprive defendant of proof of his guilt beyond a reasonable doubt, or resulted to his prej^ udice to the extent of depriving him of a fair trial. See, also, Teague v. State, 100 S. W. 401; Edwards v. State, 58 Tex. Cr. R. 342, 125 S. W. 894; James v. State, 74 Tex. Cr. R. 139, 167 S. W. 727; Nance v. State, 126 Ga. 95, 54 S. E. 932; Watts v. State, 9 Ga. App. 500, 71 S. E. 766.

Further it is contended that the trial court erred in giving .instruction No. 8, which is as follows:

“If you find that any witness has willfully testified to any material question, then you are at liberty to disregard the whole of the testimony of such (witness, except so far as the same may be corroborated by other credible evidence.”

The instruction was excepted to at the time as not being the law applicable to the case. It is urged that the instruction is fatally defective, in that it invades- the province of the jury and binds them to believe and act upon the corroborated portion of the testimony of the witness, although the jury may not in fact believe any of it.

The contention urged finds much support in the former decisions of this court, beginning with the case of Rea v. State, 3 Okla. Cr. 269, 105 Pac. 381. The decision in the Rea Case was based upon the decisions of the Supreme Court of Kansas in the cases of Shellabarger v. Nafus, 15 Kan. 547, and State v. Potter, 16 Kan. 99. The instruction disapproved by the Supreme Court of Kansas in the Shellabarger and Potter Cases was entirely different to the one condemned by this court in the case of Rea v. State, which decision was followed in the later cases relied upon. JThe instruction condemnéd in the Kansas case's was.as follows:

“If-.any witness has willfully testified falsely to any material fact in the case, then the jury should disregard all the testimony of such witness.”

That instruction was a plain mandate to the jury to disregard all the testimony of any witness who they believed had willfully testified falsely to any material fact. The jury was left no discretion; they were told they should disregard all the testimony of such a witness. The instruction, therefore, was a plain invasion of the province of the jury to judge of the credibility of the witnesses and the weight to be given to their testimony.

The instruction here given, however, is not mandatory in its terms, but merely tells, the jury that they are at liberty to disregard the testimony of any witness whom they may believe has willfully testified falsely to any material fact, except in so far as the same may be corroborated by other credible evidence. Analyzed, the instruction means that, if the testimony of a witness whom the jury believes has willfully testified falsely to a material fact is corroborated by other credible evidence, then the jury should not arbitrarily disregard it.

Some courts hold that it is proper to instruct the jury that they may disregard the entire evidence of a witness who they believe has wilfully sworn falsely to a material fact; on the other hand, the holding is, and we think supported by the weight of authority and by better reasoning, that, while a witness may intentionally swear falsely to some material fact, nevertheless he might, from motive, or lack of motive, or some other reason, swear truthfully as to other facts, and therefore it would not be proper to instruct the jury to disregard his entire testimony, but hold that, where the testimony of such witness is uncorroborated, the jury may disregard it, but, if his testimony is corroborated, they may not disregard it arr bitrarily, but must nay heed to and consider and weigh it as they would the testimony of other witnesses.

The instruction here complained of, we believe, attempts to tell the jury that, although they may believe a 'witness has willfully testified falsely to a material matter in issue, they are not at liberty to arbitrarily disregard the testimony of such witness, if the same be corroborated by other credible evidence. Nowhere is the jury told that they must accept, act upon, and believe the testimony of such witness in any particular. In this respect the instruction is materially different from that condemned in the Kansas cases, upon which the decision 'in the case of Rea v. State is based.

In the case of Faulkner v. Territory, 6 N. M. 464, at page 486, 30 Pac. 905, at page 911, the Supreme Court of New Mexico, construing an identical instruction applicable alone to defendant’s testimony, said the following:

“By another instruction the jury were told that, ‘if you believe from the evidence that the defendant, as a witness, * * * has willfully sworn falsely in this trial as to any matter or thing material to the issue in this case, then you are at liberty to disregard his entire testimony, except so far as it has been corroborated by other credible evidence, or by facts and circumstances proved on the trial.’ It is urged that this is erroneous, because it is not the law in civil cases, much less in criminal, that the testimony of a party must be corroborated in order to be believed by the jury. While this is true, we fail to see the applicability of the objection to the instruction before us. The court does not say that the defendant’s testimony, as such, must be corroborated, but, if they believe that he has willfully sworn falsely to material matters, that they are at , liberty to disregard that. portion unless corroborated. The instruction was fa-, vorable to him rather than otherwise,' as it protected testimony favorable to him from other witnesses, even., though he might have discredited it by his false swearing, if the jury found that he had sworn falsely. That this is a correct instruction is fully sustained by adjudi- , cated cases. Some judges ha;ve directed juries to dis- . regard such testimony, and the appellate tribunals have said it was error. In this case, however, the judge gave them the law, and said they were at liberty to disregard it unless corroborated. Jones v. People, 2 Colo. 351; Mead v. McGraw, 19 Ohio St. 55; Senter v. Carr, 15 N. H. 351; 10 Crim. Law Mag. p. 167, § 10.”

Other decisions in principle substantially the same are as follows: Churchwell v. State, 117 Ala. 124, 23 South. 72; Wynne v. State, 155 Ala. 99, 46 South. 459; Seawright v. State, 160 Ala. 33, 49 South. 325; Rider v. People, 110 Ill. 11; Niezorawski v. State, 131 Wis. 166, 111 N. W. 250.

The reasons stated for holding it to be reversible error in the Rea Case, and those cases which follow the line of reasoning given in the Rea Case (upon more mature reflection, and in view of the fact that the Rea Case was based upon two decisions of the Kansas Supreme Court reversing cases upon an entirely different instruction), we think should not be followed at this time, and; for reasons here given, the holding in the Rea Case, and the others following it, is disapproved and overruled.

The learned judge who wrote the opinion in the Rea Case evidently appreciated the fact that this court had overstepped the bounds of propriety in holding the giving of such an instruction reversible error, for, in the later case of Williams v. State, 9 Okla. Cr. 206, 131 Pac. 179, he stated:

“We do not think, however, that the giving of this instruction is necessarily reversible error, because cases may arise in 'which such an instruction would be beneficial to the defendant, or in which the evidence was so clear and conclusive as to the guilt of the defendant that there could' be no question that he was not injured by such instruction. The better plan is for the trial court not to attempt to give the j ury an instruction as' to whom they shall believe or whom they may disbelieve, but to leave this matter to the common sense, sound judgment, and experience of the jurors.”

This court has held .that the general instruction on the credibility- of witnesses is a sufficient rule for the guidance of the jury. Munson v. State, 13 Okla. Cr. 569, 165 Pac. 1162; Darneal v. State, 14 Okla. Cr. 540, 174 Pac. 290, 1 A. L. R. 638. In the instant case the trial court also gave such general instruction in its usual form.

The prosecuting witness, Capps, testified that defendant pointed a Winchester rifle at him. In this he was corroborated by the testimony of his wife. Defendant denied pointing the Winchester rifle at Capps. In this he was corroborated by the testimony of his tenant, Thomlinson. The material question to be determined was whether or not defendant had pointed the Winchester rifle at Capps. The instruction complained of appears to have been equally as applicable to the prosecution’s evidence as to that of the defense. We fail to see wherein it worked harm to defendant, without harm to the state. On the other hand, it was beneficial to the state, it was equally beneficial to defendant. Impartially considered, however, we believe that the instruction was not a comment upon the weight of the evidence of any witness, nor an invasion of the province of the jury as to the credibility of the witnesses, especially when considered in connection with the general instruction usually given as to the credibility of witnesses heretofore referred to.

Finding no reversible error in the record, the judgment is affirmed.

DOYLE, P. J„ and BE'SSEY, J., concur.