Schmitt v State

Annotate this Case

Schmitt v State
1935 OK CR 46
47 P.2d 199
57 Okl.Cr. 102
Decided: 05/03/1935
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Homicide -- Conviction for Manslaughter in First Degree Sustained. The evidence upon a trial on an information for murder considered, and conviction of manslaughter in the first degree affirmed.

2. Trial -- Right to Fair and Impartial Trial. A defendant in a criminal prosecution is entitled to a legal trial according to the due and orderly course of the law, and however strong the evidence tending to show his guilt may be, he is entitled to a fair and impartial trial.

3. Criminal Law -- Presumption That Person Intends All Natural and Probable Consequences of His Act. The presumption of law is that a person intends all of the natural, probable, and usual consequences of his act, and this presumption of law will prevail, unless from a consideration of all the evidence the jury entertain a reasonable doubt whether such intention existed.

4. Homicide -- Presumption of Intention as to Taking Life Where Deadly Weapon Used not in Self-Defense. The general rule is that if a man uses a deadly weapon, not in self-defense, and life is taken, he is presumed to intend the natural and

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necessary consequence of his own act. However, the presumption arising from the character of the weapon used is not conclusive as to his intent.

5. Same -- Offense Against Property Inadequate Provocation to Reduce Intentional Homicide to Manslaughter in First Degree. An offense against property does not, in the absence of other circumstances, constitute adequate provocation to reduce an intentional homicide to manslaughter in the first degree. The rule applies where the homicide was intentionally committed with a deadly weapon, although the trespass or larceny could have been prevented in no other way.

6. Same -- Extent to Which One May Resist Trespass on His Property. A person may resist a trespass on his property, real or personal, not amounting to a felony or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it and there is no felony attempted, he must suffer the trespass and the loss of property and seek redress at the hands of the law, rather than commit homicide.

7. Trial -- Right of Court to Interrogate Witness. A trial court is not required to be a mere umpire, but in the interest of justice, and to see that both sides have a fair and impartial trial, may interrogate a witness; but in so doing must refrain from allowing his action or words to indicate to the jury his opinion of the guilt or innocence of the defendant or the credibility of any witness.

8. Same -- Scope of Interrogation. A trial judge has the right, in the exercise of his discretion, to ask of any witness such questions as will tend to elicit the truth, and so long as the judge does not, by his questions or conduct, indicate his views as to the matters at issue, a defendant will not be heard to complain of any question asked by him which is reasonably calculated to elicit the truth:

9. Same. For the trial judge to ask questions of witnesses which tended to elucidate the matter, and were not objectionable unless asked by him, is not error.

10. Same. While it is the right of the trial judge to interrogate witnesses, when essential to the due administration of justice, yet it is better practice for him not to do so unless it is necessary.

11. Trial -- Harmless Remarks of Judge not Assignable as Error Because of Emphasis and Manner Used. Remarks harmless in themselves, made by the trial judge during the progress of

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the trial, are not assignable as error on the ground that the emphasis, and manner with which they were made, prejudiced the defendant with the jury,

12. Trial -- Refusal of Requested Instructions not Error Where Those Given Fully Covered Law of Case. Instructions submitting the issue of self-defense examined in connection with other instructions given and refused, and held, that the instructions given fairly and fully cover the law of the case, and that no prejudicial error occurred in refusing to give instructions requested.

Appeal from District Court, Tulsa County; Thomas D. Lyons, Judge.

G.C. Schmitt was convicted of manslaughter in the first degree, and he appeals. Affirmed.

The information charged the defendant with having, on the 11th day of September, 1933, in Tulsa county, killed and murdered one Wayne Hernden by shooting him with a rifle.

Upon the trial of the case the defendant was convicted of manslaughter in the first degree, the jury fixing the punishment at confinement in the penitentiary for four years.

To reverse the judgment rendered in accordance with the verdict, he prosecutes this appeal.

The defendant committed the killing, but contended that the killing was justifiable on two grounds: First, that it was necessary to prevent the commission of a felony; and, second, that the same was done in his necessary self-defense.

The theory of the state is that it was a deliberate, wanton murder.

At the outset, it may be stated that a clear understanding of the facts in the case is the best explanation of the questions presented by appellant. It appears that

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appellant at the time of the killing owned and operated a seventy-acre truck farm near Garden City, a suburb southwest of the city of Tulsa. The east side of his land abutted the section line that runs south from Garden City, and was a little less than a quarter of a mile wide. His house was located on the northwest corner of the tract. There was a three-acre watermelon patch on the side next to the river; extending across from the road was a cornfield about one hundred yards wide, and the land south of the cornfield was in millet and alfalfa.

The deceased, a, young man living in Tulsa, was at that time out of employment, and on the morning of the 11th of September,1933, he and his friend, Harry Hubbard, drove in Hubbard's Ford car to Sapulpa, to visit one of the glass factories, to see about work. Being unable to obtain work at Sapulpa, they returned to Tulsa, arriving there about the noon hour. They came by the home of Harry Baker, commonly called "Bus." He got in the car, and they drove out to the salt plant in West Tulsa, to inquire there about getting work. When they arrived at the salt plant, they decided to drive around awhile and come back later. Taking the section line highway, which leads south from the salt plant, they drove through Garden City, and along the west side of appellant's farm.

Harry Hubbard testified in part as follows:

"We went through Garden City, took that road out by Mr. Schmitt's house that leads south. One of the boys suggested that while we were over here we might find a watermelon patch; so, we were watching for it and didn't see any watermelons and we drove by a little road leading into Mr. Schmitt's property. There was no wire and no fence across this road and there were tracks where cars had been going through. We were going so fast we passed the road but stopped and backed up and turned in.

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We went through there about two blocks. There was a corn field on the north side of us. We turned around and headed back, stopped the car and all of us got out and started through the corn field. Wayne Hernden started first, 'Bus' Baker second and I was third. I had gone about 100 yards, my feet were hurting and I hollered to the boys and told them I wasn't going on, that I would stay with the car; so I went back, sat down on the running board of the car about five minutes. They had not returned so I walked to the edge of the corn field and picked about a half dozen ears of corn and put it in the rumble seat of the car. I waited about another five minutes and Wayne Hernden came back with a small watermelon and he put it in the back end of the car. 'Bus' Baker had not got back yet and we sat in the car waiting for him. In about two minutes he came out of the cornfield. He didn't have a thing. He asked us if we were ready to go. We said we were. He got in the car and I drove out of this field onto the highway and turned south. Just as we pulled out into the middle of the road, Wayne, who, was sitting in between us, turned around and said 'Someone is hollering at us,' and he said 'Go ahead,' and about that time he said, 'They are shooting at us,' so we all ducked. I gunned the car as hard as I could. There was a manifold gasket blowed on it, it made a lot of noise; we couldn't hear the shooting but he said they were shooting. We had probably got about 100 feet when I felt him stiffen. He didn't make a sound, groan or anything, but he stiffened out. I hollered and said: 'Bus, Wayne is shot.' 'Bus' grabbed Wayne and pulled him up on the seat. We had gone on probably, I imagine, a quarter of a mile and I told 'Bus': 'Throw that watermelon, those things out of the back end of the car.' We didn't stop; he crawled back there and threw those things out. We went to the end of that road and turned west.

"There was a car stalled in the middle of a bridge there, so we hollered at the fellows to get in and steer the car and we would push them out of the way. None of us got out of the car at that time. We pushed them out of the way and went right on in to Red Fork and there

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we stopped at a doctor's office. He wasn't in and some fellows there told us to take him to the fire station, so we took him there and waited for the ambulance. 'Bus' went with Wayne to the hospital and I stayed for the officers. When the officers came I went back out with them and found Mr. Schmitt and his nephew putting the fence up across that road."

Harry Baker testified that he first saw the other two boys in front of his home about 12:30 that day:

"I got in the car and they drove through West Tulsa towards the Texas Salt Plant; they were going there to apply for a job. I just went along with them to ride in the car. We arrived at the salt plant about 12:50. We went on past the salt plant in the direction of, and through Garden City. As we passed a corn field one of the boys said 'There is a watermelon patch around here some place, let's stop and see if we can get a watermelon.' There was a fence down and one of the boys said, 'I believe we can drive in there.' We backed up and drove in a short distance. All three of us got out of the car, and started through the corn field. Hernden and I got through the corn field, Hernden got a small melon, and started back to the car. We got separated in the corn field, and he beat me back to the car. I did not get any watermelon. I did not see any corn or roasting ears in the car at that time. Later on, about quarter of a mile from the place where Hernden was shot, I saw about half a dozen. We drove out of the field and turned south and had gone about 100 feet when we heard someone shouting. One of the boys said, 'They are shooting at us.' I looked back and saw two men in the road, then I ducked down in the seat. We went on, I would say, a little less than a quarter of a mile and Hubbard said, 'Wayne is shot.' I did not hear any shots due to the fact that the muffler on the car was broken. Hubbard was driving, Hernden in the middle and I on the outside. I didn't know Hernden was shot until Harry told me. He was bent over back of Harry. I lifted him up and laid his head back on the seat. Hubbard then said, 'Throw that stuff out of the back.' I reached

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over back of the seat and threw the watermelon and the corn out along side of the road. That was the first time I had seen either. We went on directly to Red Fork. We thought we might get a doctor there."

On cross-examination he testified:

"Q. Did you see any revolver in that car from the time you got in at your house? A. No, sir. Q. Did anyone in that car fire a pistol at the man who had the gun? A. No, Sir. Q. Are you sure of that? A. Yes, sir."

Dr. Charles Maben testified that he was called to St. Johns Hospital to attend Wayne Hernden about 1:30 o'clock, and found him suffering from a bullet wound about an inch and a half back from, and about half an inch above, the upper part of the ear, from the effects of which he died an hour and a half later.

A.M. Smith testified that he was the police officer who answered the call to Red Fork; that he received the call shortly after 1 o'clock; that with M.L. Lairmore he went out to investigate the case and was present at a conversation Tony Benson had with the defendant. Benson asked him if there had been some shooting out there, and Schmitt said that he had shot at some boys that were in his watermelon patch; that he tried to stop them as they came out of the field, but they put their car in gear and sped down the road, and that he fired in the direction of the car; that the car was about 100 yards down the road; that he fired two shots.

M.L. Lairmore testified that he was a police officer and was present when the arrest was made by Deputy Sheriffs Tony Benson and Forrest Kramer; that they went to the defendant's farm; that the defendant and the boy were working on the fence; that "We asked them if they had some trouble out here and if he did some

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shooting." The defendant said they had some trouble and he did do some shooting. He said when the boys came out of his field they tried to stop them at the gap where they drove out onto the road and they would not stop, and they fired a few shots; that at the time he fired they were going up, the section line something like 100 yards; that before leaving Red Fork to go over to Schmitt's he examined the car that the boys were riding in at the time the shooting occurred; the car was near the doctor's office; that he found blood about the center of the back of the car; it was a Ford roadster, had no top on it, and just over to the right of this blood on the back of the car was where a bullet had struck.

On cross-examination he was asked:

"Q. Now, who was Schmitt talking to at the time you say he made these statements? A. Well, he was talking to all of us, I suppose. Q. Had you asked him any questions? If not, who had asked him any? A. I believe Mr. Benson was the one. We had a police car. All four of us were in the car. Mr. Benson was up in front with Mr. Smith who was driving."

Forrest Kramer, deputy sheriff, testified that with the other officers he went out to Mr. Schmitt's home; that they went first to the doctor's in Red Fork; that from there they took one of the boys and went to the scene of the shooting and there found Mr. Schmitt and the younger Schmitt fixing a wire fence. They told him that he had killed one of those boys and he said, "I didn't know that." He said: "I fired at them, they were in my field stealing watermelons and I told them to stop and they didn't do it and I shot them with a 22 rifle." He said they were in the road when he shot them.

On cross-examination, he testified that one of the Schmitts told them they had borrowed the guns a day or two before to go squirrel hunting. He was then asked:

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"Didn't they tell you that they had been down there in that field shooting hawks just before these fellows went into this patch, did he tell you anything like that?" And answered: "No, sir."

At the close of the state's evidence, counsel for appellant moved the court to advise the jury "to acquit the defendant and say by your verdict 'not guilty'." The motion was overruled; exceptions reserved.

Crittenden Schmitt, codefendant, testified that:

"George C. Schmitt is my uncle. I borrowed two guns Saturday night and Sunday morning went hunting with Eddie Fowler. Sunday night I left the guns in the back end of my Ford. The next day after dinner my uncle said there was a hawk after his chickens and asked me if I had a gun there. I told him I had those two 22's, and he said 'Let's go over there and see if we can kill the hawk.' We went over to the barn lot and we both shot at him. I saw three fellows in the watermelon patch. Each had a watermelon on his shoulder. We went down through the field and I told my uncle I was going to climb up on the old house on the west side of the field near the wood and see where they went. When I got up on the house, I saw that car. It was headed west toward the road. I saw them get in the car, drive along down the corn field and stop. One of them started to get out, and I crawled down and walked towards the car and I heard four shots, two of them a whole lot louder than the other two. The first report was a loud one; then the next a little one; next, another loud one; next another little one. I did not fire any shot. After the shots were fired I went out into the open. The car was then going towards the road, and was about 50 yards from the road. I got to where my uncle was and we went down to see what they had done to the fence; then we went to the house to get some staples and a hammer; my uncle said he would get more wire and fix it up."

On cross-examination he stated:

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"I was there when the officers came out. They asked how many shots were fired. I told them three or four: I didn't tell them hardly anything. I did not tell them that these men in the car fired some shots. I did not tell the officers there was any difference in the reports made by the guns when they were asking me something about the shooting. By the Court: Q. How did it come you didn't tell them? A. Well, they didn't ask me. Q. Oh, that was not your only reason. What was it? A. They didn't ask me nothing about it. Q. Well, are you sure it happened the way you tell it? A. I am sure it happened the way I tell it. Q. And you did not tell the officers of that circumstance? Mr. Ward. We object to the questions asked by the court and except."

He further stated:

"At that time Rived 50 feet back of my uncle's house in the upper story of the garage. When I was up on the house I could not see my uncle after he went into the corn field."

Scott Lynch testified that he knew the defendant George Schmitt for six or seven years and lived about a half a mile southwest of him; that he was driving south on the road west of Schmitt's place with Andiss McDonald, and saw the shooting, which occurred right at the edge of the cornfield; that his car was due west of the car in the field when the shooting occurred; that his car had just about stopped when the shooting started; that one gun roared loud and one light. The loud gun fired first; then the little one, then the big gun, then the little one. The shooting was pretty fast. Then they drove on and stopped about a mile down the road on a bridge, and the same car that he saw in the field came along, and had to push his car off of the bridge to get around; that he did not have any conversation with the occupants of the car; Mr. McDonald did.

On cross-examination he was asked:

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"Q. How many men were in the car when you saw the shooting? A. When the shooting started, there was two men in the car. Q. Two men in the car? A. Yes, sir. Q. Which one of these two men was doing the shooting? A. The one that was under the steering wheel. Q. The car was headed west? A. Yes, sir. Q. That is, towards the road? A. Yes, sir. Q. And you were still west of the car or out on the road? A. Yes, sir. Q. Where was Mr. Schmitt? A. Well, he was back behind the car, right at the edge of the corn. Q. He was east of the car, is that right? A. Yes, sir. Q. Then the man under the wheel, in order to do the shooting, turned around, didn't he? A. Yes, sir. Q. Turned to his right? A. Yes, sir. Q. Now, you were driving down the road, weren't you? A. Yes, sir, Mr. McDonald was driving, I was sitting in the car. He done the driving. Q. About how far was Mr. Schmitt east of that car? A. Something like about: oh, 40 or 50 steps. Q. Now, the first shot: did you see the first shot fired? A. Yes, sir. Q. You were looking right at the car when the first shot was fired? A. Right at the car. Q. Had anything happened there to attract your attention? A. This car and this one-armed man was on the ground and the car was in the field. Q. That is what directed your attention there? A. Yes, sir, and this man in the field. Q. From the time you first saw it, you continued to watch it until it got out of your way? A. Yes, sir, I watched it until they pushed me out of the road. Q. You mean to say, you saw the car all the time from the time you saw it in the field until they came down to the culvert? A. Yes, sir. Q. You never lost sight of the car at all? A. No, sir. Q. You saw it come out of the field? A. Yes, sir. Q. Did you see them throw anything out of the car? A. Yes, sir. Q: Where were they when they were throwing things out? A. They stopped about, I will say, 300 yards, and they throwed same watermelons, roasting ears and they tied a handkerchief or something around this man's -- I thought it was his neck. Q. How many shots were fired? A. There were four shots, to my best knowledge. By the Court: Q. How far off the road in the field was the car with these two men in it, one standing on the

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ground, when you first saw them? A. I will say it was about like 100 steps; maybe 125. Q. It was a block over in the field? A. No, it wasn't quite a block. Q. How far is 100 steps? A. It was around 300 feet. Q. How long did you see it there until something happened? A. Just a couple of seconds. Q. What was the posture of the parties -- did you see the defendant there then? A. I seen him come out of the cornfield just behind them, just done like that; then this guy turned back and shot, and this here guy shot towards us and I told this fellow with me, 'go on' "

Redirect examination by M. Ward:

"Q. You say you saw them stop and put some watermelons out? A. Yes, sir, and some roasting ears. Q. Now, where was that, Mr. Lynch? A. That was down about 300 yards from where the shooting took place. Q. Was this wounded man tied up, you say? A. Yes, sir, he had a necktie, or handkerchief, or rag, I could not distinguish whether it was a handkerchief or what, but I was about as far from here to you and he was bleeding. By the Court: Q. Where was he bleeding? A. Looked like the neck. Q. Shot in the neck, was he? A. I think he was. He had a bloody rag tied on him. By Mr. Ward: Q. Did you know where he was shot? A. No, sir. Q. Did you mean to tell the court and jury that he was shot in the neck or that he was bleeding? A. No, sir, I didn't tell him that. Q. Now, you say that you had stopped for the purpose of seeing who those parties were? A. Yes, sir. Q: Where were you going, Mr. Lynch? A. I was going right down there to Mr. Sam Vance's place. Q. What for? A. To rent the place. Q. After this happened, did you go on and look at the place or not? A. No, sir, we went next day, or something like that. Q. Where did you go immediately after these parties passed you? A. Turned around, came back home and came over to town to see Mr. Vance. Q. Did you see George or Crittenden Schmitt either about where this shooting occurred as you came back? A. Yes, sir. Q. Just tell the court and jury what they were doing, if you please? A. Well, George Schmitt

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was standing over on one side where this wire was broken; seems to me like he had his hand on the post. Crittenden Schmitt was standing against a light post; they were standing something like 20 feet apart. Q. Did you talk to them? A. No, sir. By Mr. Ward: That is all. By the Court: Q. Did you recognize that that was the same man you had seen in the shooting? A. Yes, sir. Q. And you did not stop to talk to him? A. No, sir, just spoke and went on."

Recross-examination:

"Q. You knew that a man in that car was injured, didn't you? A. Yes, sir. Q. And you had just seen this shooting? A. Yes, sir. Q. And you say now that you turned around and went back home? A. Yes, sir. Q. Did you report it to the officers that you saw a man shot? A. No, my daughter-in-law came down there -- By the Court: Never mind about your daughter-in-law; answer the question. A. No, sir, I didn't report it."

Andiss McDonald testified that he left Scott Lynch's place in Mr. Lynch's car and they drove by defendant Schmitt's place; that as they passed the cornfield he saw a car in the field back about 150 yards. Scott said, "Wait a minute, Mac," and he practically stopped the car; that Schmitt hollered, "Halt," or "Hold up," to the man under the steering wheel, and he hollered back but he doesn't know what he said. The man under the steering wheel turned around to his right, threw his hand out with a gun, and shot. There were three shots fired in about five seconds. He threw the car in second and drove down the road about a mile. The boys came on down behind, and he suggested to Scott that they block the road to see who the boys were, and when they came up he was on the ground and hollered to them, "Hold up." He talked with the boys and told them to take the rag from the man's neck and let him bleed, he was better off bleeding, but they were scared and didn't do it. He told Scott to get

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out of the road, a man was shot bad, and Scott asked him if he got the car number. He said he didn't need any number; that he stood on the running board of the boys' car and could see a six-shooter on the seat lying between the two men; it looked like a 38 Smith & Wesson; he didn't say anything to them about the pistol; that they turned around and drove straight back to where the shooting occurred; that "Crit" and George Schmitt were standing there by the fence; that he recognized Schmitt as the man who had hollered, "Halt"; that he did not stop and talk to him, just drove right on by; that Schmitt when he fired shots was shooting right in his direction and he heard the bullets whistling. One , bullet sounded like it was about 20 feet from him; he had heard bullets whistling before; that he did not talk to any one about this case except the lawyers in their office; that he did not talk with Scott Lynch about what he was going to testify; that the first shot was loud, and there were two small ones; the pistol shot first.

On cross-examination, he was asked:

"Q. You could not see the car until you got up to the edge of the corn, could you? A. Something like right at the edge of the corn. Q. Now, how far from the edge of the corn there did you see the car? How far was that down to where this gap was that you saw when you came back there? A. Well, now, I think it was something like 200 feet. Q. About 200 feet? A. Something like that; I could not be positive. Q. You were driving the car at the same time you were looking back over there at the shooting, were you? A. We were practically stopped and I looked around at that times yes, sir. Q. All right, now you say Schmitt put the gun up to his shoulder, didn't you? A. No, sir. Q. What? A. I would not be positive about Schmitt's gun. Q. Did you see Schmitt fire any shots? A. Schmitt fired shots, yes, sir, because there was bullets coming right over our head. Q. He was shooting right in

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your direction, wasn't he? A. Yes, sir. By the Court: Q. Did you hear the bullets whistling? A. What bullets came close to us. Q. How many times do you say he shot? A. I heard three shots fired -- two small ones, one loud one. Q.. You heard one bullet whistle around you? A. It sounded like it came within 20 feet of us. Q. Do you know what kind of a sound a whistling bullet makes? Did you ever hear one whistle before? A. Yes, sir. By Mr. Simms: Q. You have known Schmitt for a long time, haven't you? A. Yes, sir. Q. You live there by him, do you? A. Yes, sir. Q. Close to him? A. No, sir. Q. You drove back past there and Schmitt was standing there by the fence? A. Yes. Q. You did not stop at all? A. No, sir, I did not stop. Q. Have you ever talked to Schmitt about this since then? A. No, sir, nothing any more than he told me he was going to have me summoned. Q. That is all he told you? A. Yes, sir. Q. Did you ever talk to anyone about what you saw there? A. Well, if I did, I don't recollect it. Q. You never talked to anyone until you came here in the courtroom? A. Oh, well -- sure I talked to someone, but not discussing the case. Q. Not about what you would testify to here? A. No, sir. Q. Never talked to a single one about that? A. Well, not by in any open or anything like that. By the Court: Q. Whereabouts outside of in the open, did you talk about it? A. I talked to the lawers in the lawyers' office, is all that was said. By Mr. Simms: Q. You have never talked to Lynch about it from that day to this day? A. Not discussed the case or anything like that, no. Q. When you saw the car in the field, how many men did you see in it? A. There was two men in the car and the little one-armed man was back next to the corn from the car. Q. Did you see him get in the car? A. No, sir, I did not. Q. When that bullet came over your head, was this the first shot fired? A. The big gun opened first."

Redirect, Mr. Ward:

"Q. Now, as a matter of fact do you know whether that bullet you heard was in your direction or you heard some other bullet? A. That bullet was coming directly

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towards us. Q. You think it was? A. Yes, sir. Q. Are you sure it was? The Court: Don't argue with the witness; objection sustained. Mr. Ward: Exception."

Recross-examination:

"Q. Did you report this to any officers? Mr. Ward:

We object to that as incompetent. The Court: Overruled. Mr. Ward: Exception. A. No, sir, we did not because in a few minutes -- Mr. Ward I except to the ruling of the court."

Joseph T. McCulley testified that he had lived on the defendant Schmitt's farm for the last three years; that he was coming through Scott Lynch's field on the west side of the road from Mr. Schmitt's farm about 1 o'clock and heard four shots fired; one was a heavy shot like a revolver and the other like a small target or a small rifle. The heavy gun fired first, then the other, then back and forward; I think there were only four shots; that immediately after the shooting he saw two automobiles on the road going south; one of them was a Chevrolet, the other an open car; I thought it was a Ford. The Chevrolet was ahead and the Ford was about 150 yards behind.

On cross-examination he said he was probably 100 yards from the nearest car; that he never did tell any one about it until about two weeks ago he told the defendant Schmitt; that he saw the defendant Schmitt that morning when he helped him to do up his chores, but did not see him any more that day.

"By the Court: Q. See him doing the chores every day? A. Yes, sir. Q. Every morning? A. Yes, sir, out together every morning." '

Hawley Stanley testified that he lived three-quarters of a mile south and a little bit west of George Schmitt's house; that he had known the defendant since he was big

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enough to know anybody; that he was working on his house on September 11, 1933, and about 11 o'clock in the forenoon two boys in a Ford car stopped at his place, and he went to within six or eight feet of the car and talked to them; that Harry Hubbard, the boy that testified in this case, was driving the car and had on a coat; the other boy had on a light sweater. He further testified:

"Q. How long did they stay at your house? A. Just a few minutes. Q. Did you get close enough to where they were to see whether or not they had a pistol? A. Well, I wasn't very close but I could see something in the boy's right hand coat pocket. Q. Could you see that instrument, or whatever it was, or just see the imprint of it? A. I could only see a little bit of the handle. Q. What part oaf the handle did you see? A. The top part of it. Q. What color was it, Mr. Stanley? A. It was dark brown. Q. What did either of them say to you at that time? A. I said, 'What are you boys looking for?'; they said, 'we are looking for a man by the name of Johnson, do you know where he lives?' And I said 'no'."

Cross-examination:

"Q. You didn't see Hubbard at the preliminary, I believe you say? A. I wasn't there. Q. You hadn't seen him from the day you saw him at the house until you saw him here today? A. That is right. I saw him yesterday. Q. You say he had a coat on that day? A. He did. Q. That was an extremely hot day, wasn't it? A. This was in the morning and he could have worn the coat. By the Court: Q. Didn't you say it was 11 o'clock? A. Yes, sir. Q. Wasn't that a very hot day? A. I don't know how hot it was, but the boy had on a coat. Q. Did you see anybody else wearing a coat? A. No, sir. Q. You saw other people in those days around the first two weeks in September? A. I might have. Q. Did you see people wearing coats around in cars working? A. Not that that I recall. By the Court: Go ahead. By Mr. Ward: Your honor, may I have an objection and exception to each one of your questions

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that you asked without interrupting and making objection? By the Court: Yes, every one."

As a witness in his own behalf, G.C. Schmitt testified:

"Crittenden Schmitt (codefendant) is my nephew; he had two 22 rifles and I said let's go over and kill or shoot at the hawk. We took the guns and went over to the barn. I fired three shots at the hawk and Crittenden fired some shots, I don't know how many. I didn't think we hit the hawk. It was about 1:15 o'clock when we stopped firing at the hawk. Immediately thereafter, I saw these people in the watermelon patch; they were about a quarter of a mile away when I first saw them. They were pulling watermelons and I could see them carrying the melons through the corn field. I went down through the field in that direction. There was an old building, over next to the road and Crittenden said he would climb up on that and see if he could see them. I went right on down through the corn and came out of it about fifty yards east of the car. There were two men in the car and one just stepping up on the running board. I hollered 'halt,' then the man under the steering wheel just turned around and began shooting at me with a pistol. I was then about fifty yards away from and a little northeast of the car. The car was headed west when I told them to halt."

He further testified as follows:

"Q. Well, when he presented that gun and commenced firing what did you do, if anything? A. I commenced firing, too. Q. Why did you commence to fire? A. Well, I was afraid he would kill me and I -- Q. What did you want to halt him for? A. I wanted to halt them and talk to them about stealing my stuff, was what I -- Q. Did either of them say anything to you when you told them to halt? A. No, sir, nothing only this one turned around and began to shoot at me. Q. What position did you hold your gun in when you shot? A. Why, I put it up to my shoulder -- well, not to my shoulder either, but pretty

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near it. Q. Did you get it to your shoulder before you fired? A. No, I did not. Q. Did you fire as quickly as you could after he presented his pistol? A. Yes, sir, I did. Q. Did you have an opinion, at the time he presented his pistol, as to whether or not he was trying to kill you? A. I thought he was aiming to kill me. Q. Is that why you shot? A. Yes, sir. Q. How many shots did you fire? A. I fired two. Q. How many did the man with the pistol fire? A. He fired two. Q. Who were you firing at, Mr. Schmitt? A. I was firing at the one that was shooting at me. Q. Were you firing at, or intending to fire upon anyone else except that man who had the pistol? A. No, sir. Q. Is that the man you were intending to fire upon? A. Yes, sir. Q. Did you see any other car in the road at that time or not? A. Well, I could not say whether I did or not. Q. Well, now, what did you do after the car left? A. I went on down to the fence to where they came in, and then went on up the road to the house and 'Crit' taken the guns and put them up and we got a hammer and staples and we went back to fix the fence. Q. Mr. Schmitt, you heard some of these officers say that you said you shot these boys in the road. Just tell the court and jury if you said that or not, and what, if anything, you did say? A. I told them I shot about 100 yards down in the field, is what I told them. Q. You didn't tell them you shot about 100 yards down the road? A. No, sir."

Cross-examination:

"Q. Did you tell the officers this man fired at you first? A. No, sir. Q. Why didn't you? A. I didn't tell them nothing about it. Q. Why didn't you? A. Because I thought they would know it. By the Court : Q. How did you think they would know it; they were not there, were they? A. No, they wasn't there. Q. Why did you think they would know it if you did not tell them? A. I didn't think it was my place to tell them. By Mr. Simms: Q. What did you tell the officers? A. I told the officers that I -- they came up and asked me, said: 'You had a little trouble here -- I heard you had a little trouble here. Did you know you had killed a man?' And I says, 'No, sir.'

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He says, 'Well, you have. Who done the shooting?' I says 'I done the shooting.' Q. Is that all you told them about the shooting? A. I think that is all I told them about the shooting. Q. Are you certain that is all you told them? A. Yes, sir, that is all I told them. Q. Now, did one of the boys have a coat on? A. The one under the 'steering wheel. Q. You were going up there to try to catch those fellows before they got away? A. I was wanting to see them and talk to them. Q. You say you don't remember seeing any other car? A. No, I don't remember seeing any other car."

Redirect examination:

"Q. I will ask you to state to the court and jury, whether it would be possible for them to get out, an account of the river, the other way? A. It is absolutely impossible; they had to get out that way. Witness excused. By Mr. Ward: I tender this motion in the record. By the Court: Let it be filed in the record."

The motion, omitting title, is as follows:

"Comes now the defendant on the 2d day of the trial, and before the testimony in behalf of the defendant is closed and moves the court to discharge the jury and declare a mistrial for the following reasons:

"1. Because of the erroneous and prejudicial acts upon the part of the court in propounding questions to the defense witnesses in such a manner and under such circumstances as to create the impression in the minds of the jury, that the court is hostile to the testimony of the defense witnesses and to the defense in this case, and by making remarks during the examination by the court of the defense witnesses as shown by the record in this case, which amount to comments upon the weight of evidence, all of which conduct upon the part of the honorable trial court is well calculated to and probably has convinced the jury that the court was of the opinion that the defense witnesses were swearing falsely in behalf of the defendant. That the defendant was guilty and that he should be convicted

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and thereby highly prejudiced the rights of the defendant before the jury.

"John L. Ward,

"Attorney far Defendant.

"The Court: It is the duty of the court to see that both sides have a fair trial, and the actions of the court are pursuant to that rule. Motion overruled.

"Mr. Ward: Exception."

A number of witnesses, asked if they knew the general reputation of the defendant in the community in which he lived as to being a quiet, peaceable, inoffensive, law-abiding citizen, or otherwise, answered that they did; asked, "Is it good or bad?" they replied, "Good."

Sixteen witnesses were called and asked if they knew the general reputation of the defendant for truth and veracity in the community in which he lived, answered that they did; asked what it was, they replied that it was good.

In rebuttal, A M. Smith, recalled, testified:

"I first saw Harry Hubbard at the doctor's office next to the fire station, in Red Fork. He had on a white shirt and brown trousers. I didn't see any coat. I examined the car and did not find anything in the car. Hubbard went with us out to Schmitt's place. The defendant, Schmitt, showed us where he was standing at the time he fired the shots. It was in the public highway, about twenty yards, I should judge; north of the gap, and he said the car was about one hundred yards beyond where it came out of the field."

M L. Lairmore, recalled, testified:

"I was one of the officers that went to Red Fork to investigate this shooting. I saw young Hubbard there at the doctor's office. He was in his shirt sleeves. I examined the car and found only some tools in the back

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end. I did not see any coat, or gun, or shells, or anything of that kind in there. I went with officer Smith and Henry Hubbard to the defendant's place. He said he was just north of the gap, where they came out of the field. He just pointed and said, 'I was out there and hollered at them to stop and they wouldn't stop as they came out of the gap'; he pointed north of where he was standing. He said they would not stop, and when they started down the road, he started firing. He didn't say anything about anybody shooting at him. He said he was the only one that fired a shot, and that is what he said."

Henry Hubbard, recalled, testified:

"I wasn't wearing a coat that day. It was real hot weather. I didn't have a gun or a pistol that day. Never in my life have I owned a pistol."

On cross-examination he was asked:

"Q. Didn't you have a pistol in your pocket when you were at Mr. Hawley Stanley's house where he was repairing that house? A. I did not."

G.C. Schmitt, the defendant, recalled in surrebuttal, testified as follows:

"Q. Did you tell either one of these officers, Smith or Lairmore, that you shot that man while he was in the road? A. I did not. Q. Did you tell either one of them that you fired that shot at them when they were one hundred yards down the road? A. I told them I shot at them when they were in the field. Q. Did you tell either one of them that you were twenty feet or twenty yards north of the gap when you saw them? A. I did not. Q. Did you show either one of them that you were in the field, out of the field, or where you were when you fired the shots? A. No, Sir. Mr. Ward: Comes now the defendant at the close of all the testimony, and tenders the following as his requested instruction No. 2. Gentlemen of the Jury, you are advised by the court to acquit the defendant and say by your verdict, not guilty. The Court: Overruled. Mr. Ward: Exception."

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The transcript of the testimony covers more than four hundred pages, but the foregoing is, in substance, the material testimony in the case.

Ed L. Jones and John L. Ward, for appellant.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, J. (after stating the case as above).

Taking up the errors assigned in the order in which appellant presents them, the first question arises on the refusal of the trial court to give certain instructions.

No. 1 and No. 2 are both peremptory instructions to return a verdict of "not guilty."

No. 1 was asked when the state rested its case; and No. 2 was asked at the close of all the evidence.

Requested instruction No. 3 concludes as follows:

"Gentlemen of the Jury, you are further advised that if you believe from the evidence introduced in this case or if you have a reasonable doubt thereof, that the deceased or state's witnesses Hubbard or Baker, acting with the deceased took watermelons and roasting ears from the possession and premises of defendant without the consent and against the will of the defendant, then and in that event, you are instructed that said taking was wrongful and was a trespass and an injury to the defendant's property, and an offense such as would authorize him under the law of this state to use such force as was necessary to prevent the perpetration or completion of said wrongful injury to his property or larceny thereof, and trespass upon his said premises to the extent of taking the life of the party or parties perpetrating the offense, if it reasonably appeared necessary, viewed from defendant's standpoint at the time to prevent the completion of said injury and offense."

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In this connection, the trial court gave instruction No. 8, which is as follows:

"No. 8. You are instructed that the taking of roasting ears and watermelons by the deceased and his companions, Hubbard and Baler, from the premises of the defendant, George Schmitt, in the maximum amount referred to in the testimony, does not constitute a felony, and said acts alone on the part of the decedent and his companions would not constitute sufficient justification, or excuse, to authorize the shouting by the defendant of any one of said persons by a deadly weapon.

"Given and excepted to by defendant.

"Thomas D. Lyons, Judge."

Counsel in their brief say:

"We contend that the killing of the deceased by the plaintiff in error was justifiable, upon the ground that it was necessary to prevent deceased and his co-conspirators from stealing and taking away the property of the plaintiff in error.

"Under the plain statutes of our state, the plaintiff in error was justified in firing upon the deceased, even as the witnesses for the state say he did, because of the fact that the said parties were stealing his property. The several statutes which are quoted below, give to the plaintiff in error this right to protect his property, and that too, without any regard to whether the act or acts, upon the part of the party slain, was of a grade of felony or misdemeanor.

"Under the authority in the case of Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923, and many others in this state; we contend that the honorable trial court committed reversible error, as shown in this assignment, in refusing to give defendant's requested instruction No. 3 and in giving instruction No. 8."

Our Penal Code provides that homicide is justifiable when committed by any person in either of the following cases:

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"First. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is; or,

"Second. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished." Section 2237, Statutes 1931.

Construing this section in Jackson v. State, 49 Okla. Cr. 337, 293 Pac. 567, 568, it is held:

"A person may resist a trespass on real property in his possession, where such trespass does not amount to a felony, and may eject the trespasser therefrom by the use of any reasonable force short of taking or endangering human life; but if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking or endangering human life, he must suffer the trespass and seek redress at the hands of the law rather than commit homicide." And see Garrison v. State, 19 Okla. Cr. 3, 197 Pac. 517.

In the Dickinson Case cited, this court said:

"A mere trespass upon the land of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner to use a dangerous or deadly weapon to resist the trespass. * * * The putting in use of a deadly weapon shows a wanton disregard of human life. Clark in his work on Criminal Law, at page 145, lays down the proposition in this terse and explicit language:

" 'A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but; if he is unable to prevent it; and there is no felony attempted, he must suffer the trespass and the

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loss of property, and seek redress at the hands of the law, rather than commit homicide'."

In the case of Marshall v. State, 11 Okla. Cr. 52, 142 Pac. 1046, syllabus 2, this court said:

"A landowner is not justified in making an assault upon another with a dangerous or deadly weapon in resisting a trespass on his premises, when no felony is attempted."

This principle is as old as the common law, and is found whenever the principles of justifiable homicide are discussed.

The rule laid down in Corpus Juris is:

"An offense against property does not, in the absence of other circumstances, constitute adequate provocation to reduce an intentional homicide to manslaughter, although there is some authority to the contrary. The rule applies where the homicide was intentionally committed with a deadly weapon, although the trespass or larceny could have been prevented in no other way." 29 C.J. 1145.

Our Penal Code provides:

"A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed." Section 2217, Okla. St. 1931.

The presumption of law is that a person intends all the natural, probable, and usual consequences of his act; and this presumption of law will prevail unless from a consideration of all the evidence the jury entertain a reasonable doubt whether such intention existed.

The general rule is that if a man uses a deadly weapon, not in self-defense, and life is taken, he is presumed to intend the natural and necessary consequence of his own act. However, the presumption arising from the character of the weapon used is not conclusive as to intent.

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If there is a conflict in the evidence or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts.

The irresistible inference from the testimony on the part of the state is that the killing was a felonious homicide, and we think there was sufficient evidence before the jury to justify a verdict finding the defendant guilty of murder, because according to his own voluntary statements to the officers, admissions deliberately made within an hour after he fired the fatal shot, there was no pretense or claim on his part that the shooting was done in self-defense. Considering this, together with the testimony of the witnesses for the state and the physical facts, the killing was wholly without justification.

Upon the whole case, the evidence is in direct conflict as to who was the aggressor. In this conflict of evidence it became the duty of the jury to determine which of the versions given by the witness was the true one.

As to whether the act was done with deliberation or under such sudden excitement of passion or provocation as would reduce the offense of killing from murder to manslaughter of the first degree, it was the duty of the jury to determine.

It follows that there was no error committed in overruling the motions for a directed verdict, nor in refusing to give the instructions asked for by the defendant, presenting the same theory of the case.

Without a doubt the contention made is without merit in any view of the case.

It is next contended that the defendant did not have a fair trial, by reason of the alleged misconduct of the

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trial judge in making prejudicial remarks when ruling upon matters presented to him during the course of the trial, and in making remarks on his cross-examination of some of the defendant's witnesses, as shown by the record in the case, and that the judgment of conviction "should be reversed because of the prejudice of the honorable trial judge against the plaintiff in error," and because the court erred in overruling the defendant's motion for a mistrial.

Upon a careful examination of the record, we fail to find that the trial judge made any remarks which were prejudicial to the defendant. The record, however, clearly shows a course of conduct on the part of the defendant's counsel, during the course of the trial, that would have justified the court to admonish, rebuke, or censure counsel for irregularity of practice or misconduct.

It appears that a large number of frivolous objections were interposed to the evidence on the part of the state, and when the state rested, the motion for a peremptory instruction was made, which was without even the semblance of merit, a course of conduct tending to provoke some unguarded expression which might possibly violate some rule of propriety on the part of the court.

And during the progress of the trial, a motion for a mistrial based an alleged bias and prejudice, and alleged misconduct of the trial judge, was made in the presence of the jury; thus it seems that the trial judge himself was virtually placed upon trial by the defense.

We here quote with approval the language of Judge Philips, in case of Miller v. Oklahoma, 149 F. 330, 334, 79 C. C. A. 268, 9 Ann. Cal. 389:

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"It is a method sometimes resorted to, as reprehensible as it ought to be infrequent, that in defenses deemed possibly desperate, for counsel by their course of conduct to so annoy and exasperate the judge as to make him, now and then, forget the pedestal on which he sits, and by retaliation display an unjudicial temper and lose his equipoise, in the expectation that thereby he may be led into the commission of some reversible error. One of the surest methods for counsel to inspire a proper dignity on the part of the court and to obtain fair treatment is by their own respectful deportment and fairness to impress the court with a belief in their intellectual honesty and sincerity, rather than by persistent contention, contradiction, and wrangling with the court, and at times injecting improper matters into the trial, invite antagonism from the court and drive it from its propriety."

In the same case, Miller v. Territory, 15 Okla. 422, 85 Pac. 239, 240, Justice Burwell speaking for the court said:

"It is the duty of trial courts to guard well their expressions, and to act with dignity and discretion, to the end that the jurors may not be influenced by anything except the evidence, and they should be left to make their own deductions therefrom. Attorneys also owe an equally high duty to the court. They should not be permitted to enjoy the benefits derived from questionable conduct unnoticed; for, if such were the case, then the services of the lawyer who acts from a high sense of duty would be unsought, and the lawyer who adopts unprofessional means would be able to render his client the more valuable service. A defendant is entitled to a fair and impartial trial; but this does not mean that the prosecution alone shall be fair, and the defendant left to take advantage of every cunning within his power. And where he, or those who represent him, with his knowledge, do wrongful acts, while engaged in his defense, which reflect discredit upon him or his witnesses, it is only just that he should suffer the consequent inferences flowing therefrom, should those facts became known to the jury."

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And concluding, said

"The court may, in its discretion, ask proper questions of witnesses for the purpose of eliciting the-truth; and it is not only proper, but conditions arise sometimes wherein it becomes its absolute duty, to do so. A court should never assume the attitude of a prosecutor, nor should it indicate to the jury by its manner or the form of its questions what it thinks of the merits of the case on trial; but a case will not be reversed on this ground, except where there has been a clear abuse of judicial discretion."

Corpus Juris states the rule as follows:

"For the purpose of eliciting evidence which has not otherwise been brought out, it is proper for the judge to put questions to a witness either on his examination in chief or on cross-examination, and where anything material has been omitted, it is sometimes his duty to examine a witness. The judge may recall and examine a witness in order to supply an omission of proof on a material point. But he must conduct his examination in such a manner as to impress the jury with the idea that he is entirely impartial, and he must also conduct the examination in such a way as not to indicate his opinion on the merits or any doubt as to the credibility of the witness." 16 C.J. 831.

In the case of Calloway v. State, 38 Okla, Cr. 418, 262 Pac. 696, 698, this court said:

"It is not every improper remark of a trial court that will justify a reversal. If the remarks are such as might reasonably influence the jury against the defendant, a new trial should be granted; but, if after a full consideration of the entire record, it is clear that the verdict is right, and that, even if the remark had not been made, the jury could not have reasonably returned a different verdict, the judgment will be affirmed."

In Jones v. State, 20 Okla. Cr. 154, 201 Pac. 664, 672, it is said:

"The remarks of the court were unfortunate, but the attitude of the attorneys was in some measure responsible

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for this. The defendant and his attorneys, cannot be heard to complain of matters brought on by their own wrong. If the rule were otherwise, any defendant in a criminal case would have it within his power to inject reversible error into his case and so defeat the ends of justice."

And see Nix v. State, 20 Okla. Cr. 373, 202 Pac. 1042, 26 A. L. R. 1053.

In the case of Lacy v. State, 33 Okla. Cr. 161, 242 Pac. 296, this court said:

"A trial court is not required to be a mere umpire, but in the interests of justice, and to see that both sides have a fair and impartial trial, may interrogate a witness but in so doing must refrain from allowing his action or wards to indicate to the jury his opinion of the guilt or innocence of the defendant or the credibility of any witness."

In support of this contention counsel cite and rely upon the cases of Harrison v. State, 11 Okla. Cr. 14, 141 Pac. 236, and Jones. v. State, 20 Okla. Cr., 233, 202 Pac. 187.

A careful examination of the record leads to the conclusion that the alleged misconduct complained of in this case does not fall within the condemnation of this court as expressed in the cases cited.

In both of these cases the witnesses were examined and cross-examined by the trial court in a way which clearly indicated that the court discredited their testimony, and there could be no doubt that the conduct of the court constituted comment upon the testimony of the witnesses, and was an abuse of judicial discretion that was highly prejudicial to the substantial rights of the accused.

Upon the record before us, we are unable to say that the judge who tried this case transgressed the proper limits of judicial discretion in his examination of certain witnesses

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on his own motion, with a view of eliciting certain facts not fully brought out by questions of the respective counsel.

Our conclusion is that the conduct and action of the trial court in the foregoing respects in no way invaded the right of the defendant to a fair trial.

A number of errors are assigned on rulings of the court in the admission and exclusion of testimony. We have examined and considered the same and find in them no reversible error. In this connection it may be observed that the trial court admitted evidence to sustain the defendant's reputation for truth and veracity, and placed no limit upon then number of witnesses called by him to corroborate his own testimony, by testifying that his general reputation for truth and veracity was good.

It was held by this court in Kirby v. State, 25 Okla. Cr. 330, 220 Pac. 74, 33 A. L. R. 1212, that:

"When a defendant elects to testify in his own behalf, he occupies a double position. As a defendant his character cannot be attacked by the state; as a witness he puts his credibility at issue like any other witness." Syl. 3.

"In a criminal trial where the defendant testifies as a witness in his own behalf and is not impeached, and his credibility is not attacked, except by contradiction of his testimony by other witnesses, evidence sustaining his reputation for truth and veracity is not admissible." Syl. 5.

And see Wigmore ( 2d Ed.) vol. 2, par. 1104.

That rule is the logical result of the other one, that the law presumes every person to be reputed truthful until evidence has been adduced to the contrary; therefore, there is no reason why time should be spent in proving that which may be assumed to exist.

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Exception to the refusal of the court to give certain instructions asked for by the defendant, and exceptions taken to the instructions given by the court, are called to our attention and assigned as error.

We have carefully read and considered the instructions given by the court, together with the instructions requested and refused, and our conclusion is that those given, considered as a whole, fully covered, under the evidence, every phase of the case, and included all that was properly contained in those refused.

Upon the whole record, we find no errors which would authorize this court to reverse the conviction. The punishment fixed by the jury is tempered with mercy, as the minimum punishment allowed by law is fixed as the term of imprisonment.

Our conclusion is that the defendant had a fair and impartial trial, with every right accorded to him that the law justifies or requires.