Edwards v State

Edwards v State
1935 OK CR 121
48 P.2d 1087
58 Okl.Cr. 15
Decided: 09/06/1935
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Trial -- Guaranty of Fair and Impartial Trial. Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.

2. Appeal and Error -- Discretion of Court as to Granting Continuance. An application for a continuance is addressed to the sound discretion of the trial court, and a ruling of the trial court denying a continuance will not be disturbed by the appellate court, unless an abuse of this discretion is clearly shown, but where such an abuse is manifest, especially in a capital case, it is the duty of the appellate court to interfere, in the furtherance of justice.

3. Homicide -- Corpus Delicti. In a prosecution for homicide the corpus delicti consists, first, in the proof that the deceased died

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from the effects of a wound, and, second, that the wound was unlawfully inflicted.

4. Homicide -- Self-Defense -- Evidence of Acts of Violence by Deceased. Where, in a homicide case, self-defense is pleaded, and there is evidence tending to support the same, specific acts of violence on the part of the deceased may, if known to the defendant prior to the homicide, be shown in evidence.

5. Evidence -- Extrajudicial Confessions -- Admissibility. ExtraJudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person and such confessions, in order to be admissible, must be entirely free and voluntary.

6. Homicide -- Self-Defense -- Evidence of Deceased's Character and Reputation for Violence. In a prosecution for murder, it is only when a showing of self-defense is made that evidence of the character and reputation of the deceased for violence and turbulency and of threats made by the deceased becomes relevant and material.

7. Same -- Burden of Proof on State. The presumption of innocence fixes the burden of proof in the first instance, and, on the issue of self-defense, the burden of proving beyond a reasonable doubt that the defendant was at fault in the first instance rests on the prosecution.

8. Evidence -- Relevancy -- Prejudicial Error in Exclusion. Any legal evidence from which a jury may legally adduce guilt or innocence is admissible if, when taken with other evidence in the case, its relevancy appears, and the rejection of competent and material testimony offered by the defendant constitutes prejudicial error.

9. Homicide -- Conviction for Murder not Sustained. In a prosecution for murder, the evidence reviewed, and held insufficient to warrant the verdict convicting the defendant of murder and assessing the death penalty.

Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.

Willie Edwards was convicted of murder and sentenced to death, and he appeals. Reversed and remanded, with direction.

Plaintiff in error, Willie Edwards, was tried and convicted of murder in the district court of Pittsburg county,

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and his punishment fixed at death, upon an information filed in said court July 25, 1934, charging him with the murder of Louis Spaunherst in said county on or about September 27, 1933, by stabbing him with a knife, thereby inflicting a mortal wound of which the said Louis Spaunherst did, on January 3, 1934, die. A motion for a new trial was filed, presented, and overruled. In pursuance of the verdict, he was sentenced to suffer the punishment of death by electrocution. The judgment was rendered October 3, 1934. From the judgment and sentence, the defendant appeals.

The record shows that defendant, Willie Edwards, a negro, is a convict in the penitentiary at McAlester, serving a term of forty years. Louis Spaunherst was an employee of the Seminole Manufacturing Company, contractor for the labor of convicts employed in the prison factory, where the defendant was working at the time the alleged crime was committed.

A substantial statement of the evidence is as follows:

E.C. Parks, the first witness for the state, testified that he is a guard at the penitentiary and had been for about five years. That the first he knew about the matter was when Mr. Spaunherst came towards him from where the negro worked, and he led him out and turned him over to Mr. Roselle, another instructor, then went back, took defendant Edwards to the deputy warden's office and turned him over to Mr. Dunn. That defendant had no weapon; that later a knife was found, he did not know where, by Mr. Turner; that the difficulty was between 8 and 9 o'clock in the morning; that defendant did not make any statement; that he saw Mr. Spaunherst at the hospital a few days later, and the next time he saw him was in the prison factory some ten days or two weeks before he died.

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W.C. Turner, the second witness, testified that he is a guard at the penitentiary, in the Seminole Manufacturing Company factory; that Mr. Spaunherst was an instructor; that he recalled the time of the stabbing and it was directly after noon; that after the affray Mr. Spaunherst came to where he was standing, and he noticed blood on his clothes; afterwards he found a knife with blood on the blade and turned it over to Mr. Parks; that he asked Willie Edwards if he cut Mr. Spaunherst and he said he did; that he asked him why, and he made no answer, and he asked him if that was his knife, and he said it was; that he had worked there with Mr. Spaunherst about 13 months.

J.W. Phillips, third witness, testified that he is assistant deputy warden; that in the presence of Mr. Dunn he asked defendant Edwards why he cut Mr. Spaunherst, and defendant answered it was because Mr. Spaunherst had changed his work; that when the county attorney came there the defendant refused to make a statement. The county attorney asked defendant what he had to offer for a defense, and defendant said he did not care to make a statement. That Mr. Painter brought the knife to his office and gave it to him, and that Mr. Turner took the knife and turned it over to the county attorney.

Jess Dunn, fourth witness, testified that he is deputy warden; that after defendant was brought to his office he called Mr. Phillips, then asked was brought why he stabbed Mr. Spaunherst, and defendant stated that it was because Spaunherst had changed his job from pressing pants to picking pants; that Mr. Phillips handed the knife to him and he showed the knife to defendant and asked him if that was the knife he cut Spaunherst with, and he said, "Yes"; that it was a pocketknife. Thereupon, over objection,

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the knife was received in evidence and presented to the jury for examination; that pressing pants was different from picking pants, and they picked pants in a different place from where they ironed them.

On cross-examination, he was asked if it was not a fact they search convicts every morning, noon, and night to see whether they have knives on them. Objected to as not proper cross-examination.

"By the Court: Sustained. (Exception.)"

H.H. Sherrill, fifth witness, testified that as deputy sheriff of Pittsburg county he went with the county attorney to investigate a stabbing and was present in the warden's office when Frank Watson, county attorney, asked defendant, Edwards, to state what he had to say concerning the case, and he said he did not have anything to say. He asked if the man was dead yet. The county attorney told him it was no time to make a statement after the man died, and he said if he did he would probably want to talk then. That the county attorney showed defendant a knife and asked him if that was the knife he stabbed the man with, and defendant said he never saw the knife before; that Deputy Warden Dunn, Assistant Jessie Phillips, Frank Watson, county attorney, and his stenographer were present at the time.

E.B. Painter, sixth witness, testified that he has been employed at the penitentiary about fifteen years; that he recalled the stabbing affray and Mr. Parks, a guard, gave him the knife, a pocketknife, and he turned it over to Mr. Phillips.

The name of the last witness called in chief was not indorsed on the information and notice had not been given. No objection was made, and counsel for defendant agreed that Dr. J.H. Munn could testify.

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Dr. Munn testified that he is and had been for seven years physician at the penitentiary; that he gave first aid to Mr. Spaunherst at the penitentiary hospital and assisted Dr. Parks in the operation; that there was a stab wound in the left side in the border of the sternums about an inch in width. He was handed Exhibit A, the knife, and asked if in his judgment it could have caused the wound and answered, "I think it could"; that Mr. Spaunherst died some time in January; that he thought his death was due to infection following a stab wound.

He further testified as follows:

"Q. You would say the death of Louis Spaunherst was due to an infection caused by a stab wound? A. Yes, sir, there was an abscess formed below the diaphragm around the stomach there and caused infection."

That the deceased was Dr. Parks' patient from the time he was first taken to the hospital until his death.

That after Mr. Spaunherst came out of the hospital, he saw him a time or two; that was some time before he died and he did not remember the number of days he worked.

On cross-examination he testified:

"Q. How soon after he was wounded did you discover the abscess? A. It was after he came back from Springfield, and after he had gone to work."

That he did not know all of the causes that would form an abscess and could not enumerate them offhand:

The state rests.

On behalf of plaintiff in error, Jim Thompson testified that Mr. Spaunherst was instructor in the prison factory, "and the nine months I worked there; I was his guard." He was then asked:

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"Q. You had some trouble with Mr. Spaunherst in this department where he was instructor? ( state objects.) By the Court: If it was an act of violence, it would be admissible, but any other trouble wouldn't be. ( The jury was excused in charge of the bailiff.) By the Court: Now I permit you in the absence of the jury to inquire of witness along that line to ascertain whether it comes within the rule of an act of violence."

The witness then testified:

"Well, in regard to these numbers, I don't know whether it was Mr. Spaunherst or who it was, but the numbers were laid out and the garments also were numbered and the numbers are supposed to correspond with the numbers that were on the pants there. This prisoner at the time called my attention to it that they were being put on wrong, that is, the numbers ought not to be put on different size pants from that the number indicates. I don't recall whether it was Mr. Spaunherst or Mr. Phillips now, that wanted the man punished, and I refused to punish him. We didn't have no difficulty over that transaction. That work is all done out there by piece work. It is drawn up to show what each man done; it showed up on his work sheet and they have that out there for the guidance of the guards to see that each prisoner's work showed up on his work slip just exactly what he was doing; so you could keep track of what he did. About that time the work began to slow up a little bit slack and they were changing the men, Mr. Spaunherst had made one of his own slips different from the one that was sent out from the warden's and he was having them do this work and had made it equal to the work that was shown on the work sheet and I would not stand for it. I tore it down and didn't let them work under that and forced him, or attempted to force Mr. Spaunherst to do the work as it was outlined and sent out by the warden's office, and that was what they had the difficulty over; that Spaunherst told him, 'I want you to keep your damn head out of my business.' And I slapped him and told him it was my business. Mr. Spaunherst was trying to force different rules of work other

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than what was sent out from the warden's office; that he worked there nine months with Mr. Spaunherst. He was then asked:

"Q. He was easily excited and high tempered, was he? Mr. Watson: Object to that as incompetent, irrelevant and immaterial. By the Court: Sustained. Mr. Watson: We ask that the testimony of this witness not be allowed to go before the jury because it doesn't show any act of violence on Mr. Spaunherst's part at all. By the Court: Sustained. (Exception reserved.)"

Thereupon the jury is returned to the jury box.

Albert Ellison testified that he is an inmate of the penitentiary and knew Mr. Spaunherst, an instructor at the factory. He was then asked if he had difficulty with Mr. Spaunherst over a machine that was out of order. (State's objection sustained.)

He was then asked of trouble he had with other inmates.

"A. Yes, some. (State's objection and motion to strike answer. Stricken. Jury instructed not to consider it.) "

He was then asked:

"A short time before that did you hear Mr. Spaunherst say that he was going to kill some of these niggers for talking back to him? (state objects.) The Court: Well, it would be improper at this time, until there is some showing as to the defense. Mr. Roberts: We will connect that up and show that the defendant knew about it. Mr. Watson: We insist that the connection should be made at the proper time. By the Court: Well, I think if you are going to show self-defense, Mr. Roberts, you would have to have some evidence of that before this would be competent."

Paul Johnson testified that he was an inmate of the penitentiary and on September 27th was working in the

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pants factory near Willie Edwards and was attracted by hearing a scuffle; that the defendant was backed up against his iron near the wall, and Mr. Spaunherst was between the defendant and himself, and Mr. Spaunherst turned and walked right by him towards Mr. Parks and stopped there with the guard.

He was then asked the following question:

"Q. Now after Mr. Spaunherst started away, did he make any attempt to strike him or follow him? (Objection that it is leading. Sustained by the court.) Q. Well, what did Willie do if anything, when Mr. Spaunherst started away? A. He just stayed there by his iron with his back up against his iron and Mr. Spaunherst walked on by me. Q. Do you know of Mr. Spaunherst having trouble with any other inmates, jumping on any other inmates and --. The Court: Objection sustained, jury instructed to disregard it at this time."

Plaintiff in error, Willie Edwards, as a witness in his own behalf, testified that he was working in the penitentiary pants factory. Just after noon, Mr. Spaunherst came to him and said he was going to give him another job and he said:

"Mr. Louis, I'd appreciate it very much if you would leave me on the job I am on. I have been here two years. I understand the job."

"And Mr. Spaunherst said, 'Don't try to tell me what to do, you black son of a bitch, I know what I want to do.' And he pulled a knife on me. I grabbed the knife and took it away from him, then he pulled his scissors out of the scabbard and said, 'I'll get you with these,' and I began cutting at his arm. It was only my intention to cut his arm, not harm him in any way, not to cut his body, just to keep him from harming me, and all at once he whirled and run. That was all the difficulty. I did not intend to kill Mr. Spaunherst. I struck at him because he pulled a pair of scissors on me and was attempting to

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stick me with them. After Mr. Spaunherst turned away, I just stood there at my iron. A short time before that I had some difficulty with Mr. Spaunherst. I was ironing a bundle of britches and laid them down on the table and he picked them up and hit me in the face with them and I asked him what was the matter and he said, 'Don't ask me what is the matter.' And he pulled the scissors on me and said, 'Next time I will get you with these.' I had not said or done anything to him to cause him to do that. I had been working there something better than two years."

He was then asked:

"Q. Did you know about Mr. Spaunherst having difficulty with other inmates? A. Yes, sir, I think three of them, three other boys, Ted Gatford, Jesse Jones and * * *."

Mr. Watson objected to this as incompetent, irrelevant, and immaterial, and the question is leading and suggestive.

"By the Court: Sustained. It isn't just any difficulty that would be competent. It would have to be some act of violence. Q. At the time Mr. Spaunherst struck you, tell the court of his attitude, as to whether or not he was mad or in a good humor. A. I suppose he was mad, he was going to attempt to hurt me. Q. I hand you state exhibit A and ask you, have you ever seen that knife before? A. I have. Q. Do you know who the owner of that knife is? A. Mr. Louis Spaunherst, the instructor. Q. Is that the knife he had that day? A. Yes, sir. Q. What are you serving time for in the penitentiary? A. Manslaughter, 40 years. Q. When was the first time that you seen that knife, Willie? A. On September 27, 1933. Q. Can you state to the jury that this is the knife that Mr. Spaunherst struck at you with? A. Yes, sir, that is the knife; that is Mr. Spaunherst's knife; that is the one he had."

He further testified:

"After I taken the knife away from him, I wouldn't have cut at him with the knife if he hadn't pulled the

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scissors on me and I cut at his arm to keep him from sticking them in me. Q. Why did you cut at his arm? A. Because he attempted to stick the scissors in me and had the scissors in his right hand. Q. Had you heard from other inmates about Mr. Spaunherst attacking them? A. Yes. sir. Q. Had you heard from other inmates; was it general talk in the penitentiary that he would cut inmates with his scissors? A. Ted Gatford, a boy that was working by me, when Mr. Louis hit me in the face with them britches and pulled his knife out; Ted Gatford told me after the instructor came to me that day and picked up the britches off the table and hit me in the face with them and pulled out his scissors, and says, 'The next time I will hit you with these,' told me I had better watch him because he pulled the scissors on him one time. Mr. Sparks arrested me and left me in Bill Turner's charge for a short period. Later he came and carried me to the rotunda and there we met the assistant deputy warden and he put me in the receiving cell. Later the sergeant came and took me to the deputy warden's office."

That at the time he took the knife from Mr. Spaunherst, it cut his finger; that he heard the testimony of Mr. Turner; that at the time he took him in charge, Mr. Turner said something to one of the inmates and at that time he said he made a statement, "not to bother the other fellow that I had done it." "I did not make that statement." That he laid the knife down on the table. Ola Pope was working near him and Ola Pope took the knife and threw it away.

On cross-examination he stated: That he was formerly in the Granite Penitentiary; that Mr. Spaunherst said:

" 'I am going to put you on another operation,' and I said I would appreciate it if he would not put me on another job; I saw the open knife in his right hand. He was a taller man than I am but I managed to take the knife away from him, I twisted it out of his hand. We had a little tussle, then he pulled his scissors from the

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scabbard he wore on his right side. I never saw the knife until he got angry. When he pulled the scissors, he said, 'I'll put these to you.' When he pulled them back I began to hit at his arm. He whirled and walked off from me and I laid the knife on the table. Ola Pope testified on the preliminary that he picked it up. The blood was running out of my finger all over the knife. Today is the first time I ever saw the knife since then. I never had a knife since being in the penitentiary and I did not tell Mr. Dunn it was my knife. He never showed me any knife at all; you (the county attorney.) showed me the knife. He said, 'You black son of a bitch, I have told you not to say any more to me.' I never refused to be changed, I only asked him to give me the accommodation of leaving me on the job where I was at, because I had been on the job and understood the operation. I never refused to obey. Q. Did you ever report the threat he made that he would stab you with the scissors? A. That wouldn't do any good either. I never reported either one of them. They never do anything to an employer for what he does to a prisoner, anything they do is all right."

Jess Evans testified:

"I work in the pants factory. I saw a struggle between a colored boy and the instructor. The instructor had a knife in his hand and the boy had hold of his arm. It looked to me like the instructor was trying to cut the negro. I saw the negro take the knife away from him, then the instructor pulled a pair of scissors from a scabbard in his belt, and I saw the instructor hold his belly and run out."

On cross-examination he stated that he was serving a sentence of 35 years for robbery, had been convicted of burglary and of the Dyer Act. Age, 26 years.

Cecil Harris testified:

"I heard them arguing and I heard Mr. Spaunherst say, 'You black son of a bitch, I am going to give you to understand that I am running this place up here. I don't

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want any of your assistance or any of the rest of these convicts' assistance. I am running this place.' And he struck at the boy with a knife in his hand. The boy grabbed the knife and took it away from him saying, 'No you don't.' Mr. Spaunherst said, 'Well, you black bastard, I'll give you these.' And he pulled a pair of scissors and hit at the boy two or three times. The boy backed away from him, backed up against the table. Mr. Spaunherst turned and ran, you could tell he was hurt."

On cross-examination he stated he was serving a term for robbery, had been convicted of car theft. Age, 26.

Frank Rhinehart testified:

"I was working in the pants factory when the difficulty occurred. Well the instructor came over there. I don't know what their conversation was. I was standing about five feet from there and I heard the instructor call him a black son of a bitch and pulled a knife. Then I jumped back behind a table there and squatted down because I thought there was going to be some shooting."

On cross-examination he stated he was in for auto larceny.

Luther Miller testified that he was a mechanic and had sharpened knives for the instructors. Handed Exhibit A, he was asked:

"Did you ever see that knife before?" And answered, "Yes, sir, I have. That is a knife I ground for Mr. Spaunherst, the instructor. I can tell the knife by the way it is ground off here (indicating). I ground it off on the emery wheel. That was Mr. Spaunherst's knife."

On cross-examination he stated:

"I guess I have sharpened that knife 50 times."

That he had been in the penitentiary six years and nine months serving a sentence for robbery with firearms.

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Robert Poindexter testified that Mr. Spaunherst drew a pair of scissors on him in "32," and he grabbed his hand and hit him, and he dropped the scissors.

On cross-examination he stated that he was then put on high for assaulting an instructor. That he is serving a term for car theft. Age, 22 years.

Jess Jones testified that:

"Mr. Spaunherst drew a pair of scissors on me. I was sewing some overalls. He walked up behind my machine and said: 'Boy, what the God damn hell is the matter with you? You have been over here long enough to know how to do this work.' I taken the pants out of his hand and looked at them and said: 'Well, Mr. Louis, we all make mistakes once in a while. We can't make them perfect all the time.' He said: 'Look here, you sorry son of a bitch, you are like all of the rest of these convicts. You don't give a damn.' I said: 'I don't care what you say to me but I would like for you to leave my mother's name out of it.' He says: 'So you are a tough guy, are you?' He pulled his scissors out and says: "I'll cut your God damn guts out.' He says, 'If you don't believe it, just try me.' "

State's rebuttal:

Ed Rozelle testified he was employed as an instructor nine years in the same factory with Mr. Spaunherst. Handed Exhibit A, he was asked if he ever saw Mr. Spaunherst use that knife or have it in his possession. Answered, "Never did." That Mr. Spaunherst had a pearl-handled pocketknife like that a day or two before the stabbing. That he never before heard of Mr. Spaunherst's drawing knives or scissors on prisoners. That Mr. Spaunherst had a scabbard on his belt to carry scissors eight or ten inches in length. That he talked to Mr. Spaunherst after he was stabbed, but he did not say how it happened.

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John D. Debo testified that he was superintendent of the Seminole Manufacturing Company; that Mr. Spaunherst worked for the company nine years here and five in Jefferson City. Never knew of his using profane language. Asked if he knew the reputation of Mr. Spaunherst among the prisoners in the factory as being a good, kind-hearted instructor, answered, "Well, I think I do." Asked if that reputation was good or bad, he answered, "Good."

On cross-examination he stated he did not talk with the inmates or with other persons there in the factory about his reputation. Asked, "Then what you are testifying to about his reputation is from your own personal knowledge of him?" Answer, "Absolutely." That since this thing happened "we might have discussed it a little bit." That he had no occasion to discuss it before.

Defendant moved that the testimony be stricken.

"The Court: Overruled."

C.A. Sparks testified that he was employed by the Seminole Manufacturing Company for the past five years. Asked if he knew the reputation of Mr. Spaunherst among the prisoners in the factory as being an easy-going, kindhearted instructor, answered, "Yes, and that reputation was good."

Cross-examination: "Are you stating from what you know or what others have said?" Answer, "What I know myself."

H.N. Duncan testified that he has been employed by the Seminole Manufacturing Company five years as an instructor. That Willie Edwards worked for him when he first came there, and that he refused to work for the first ten days and he put him to picking pants for at least six months, then put him on the press.

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The defendant's motion to strike the testimony was by the court overruled.

The case was orally argued and submitted on briefs at the May term of this court.

J.M. Roberts, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Frank Watson, of counsel), for the State.

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

This appeal is from a judgment of the district court of Pittsburg county, pronounced and entered October 3, 1934, in pursuance of the verdict of the jury finding defendant Willie Edwards guilty of murder and assessing his penalty at death.

The first assignment challenges the sufficiency of the information. The charging part of the information is as follows:

"That Willie Edwards did, in Pittsburg county, and the state of Oklahoma, on or about the 27th day of September in the year of our Lord, One Thousand Nine Hundred and Thirty-three and anterior to the presentment hereof, then and there unlawfully, willfully, wrongfully and feloniously, without authority of law and with a premeditated design to effect the death of one Louis Spaunherst, make an assault in and upon the said Louis Spaunherst with a certain weapon, to wit, a pocket knife being then and there a sharp instrument and weapon then and there had and held in the hands of him, the said Willie Edwards, and did then and there with said knife and weapon so had and held in his hands as aforesaid, unlawfully, willfully, wrongfully and feloniously and without authority of law, and with a premeditated design to effect the death of the said Louis Spaunherst, strike, stab and force said knife weapon, at, into and upon the body of him, the said Louis Spaunherst, then and there and thereby inflicting

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certain mortal wounds in and upon the said Louis Spaunherst of which said mortal wounds so inflicted as aforesaid, the said Louis Spaunherst did then and there on the said 3rd day of January, 1934; die, as was intended by the said Willie Edwards he should do, with the unlawful, wrongful and felonious intent then and there on the part of him, the said Willie Edwards to kill and murder the said Louis Spaunherst."

To this information the defendant demurred upon the statutory grounds for demurrer, and that it is ambiguous and is void for uncertainty, which demurrer was overruled by the court.

The information is in the ordinary form often approved by this court. It might possibly be improved in form by insertion after the words "then and there" and before the words "on the said Third day of January, 1934" the words "languish and languishing did" and by striking the word "said."

From the language used no person of common understanding could be mistaken as to what charge was intended to be made against the defendant.

Under our Criminal Code, no information is insufficient by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Section 2892, St. 1931.

The information is sufficient, and the demurrer thereto was properly overruled.

The second assignment is error in overruling the defendant's motion for a continuance.

When the case was called for trial, the defendant filed a motion for a continuance. His motion and affidavit contained

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all the formal allegations required by law, and the following statement: That he is unable to proceed to trial at this time for the want of the evidence of one Ola Pope, a material witness. That a subpoena duly issued for said witness was returned by the sheriff with notation that witness cannot be found in this county, and the defendant has just been informed and believes that he is somewhere in Lincoln county, Okla. That defendant expects to prove the following facts by this witness:

That said Ola Pope was an eyewitness. That his attention was attracted by a loud voice and he turned and saw Mr. Spaunherst striking at Willie Edwards; that he saw the defendant strike back. That he heard Mr. Spaunherst holler and saw him turn and go away; that the defendant did not follow or make any attempt to strike him again. That at the time Mr. Spaunherst was striking at the defendant, said defendant was backed up against the machine at which he worked; that said witness does not know whether or not Mr. Spaunherst had anything in his hand. That defendant believes the above to be true, and that said evidence cannot be furnished by other witnesses; that this affidavit for continuance is not made for delay, but that substantial justice may be done.

The state, in resistance to the motion for a continuance, filed affidavit of the county attorney wherein affiant states that: Ola Pope would not testify in the trial of this cause as alleged by defendant in said affidavit; that affiant herein heard the testimony of Ola Pope at the preliminary hearing in this cause; that Ola Pope then testified under oath that he did not see Louis Spaunherst, deceased, hit or hit at the defendant, Willie Edwards, at any time; that this affiant took a statement of Ola Pope immediately after the stabbing involved in this case; that said statement

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is attached hereto, and it shows that Ola Pope would not testify as defendant now declares that he would testify. That this affiant has had a search made for Ola Pope in Lincoln county by officers of the State Penitentiary, and it was reported by said searchers that Ola Pope could not be found in said county; that Ola Pope's testimony is not material to the case of defendant. The excerpts from the testimony of Ola Pope as a witness for the state and whose name and post-office address are indorsed on the information in this case wherein said witness refused to answer as to where he threw the knife, and wherein he stated, "I don't know anything," is attached to the county attorney's affidavit.

When application for a continuance has been denied, this court will look to the entire record with a view of determining whether an abuse of discretion is shown. The information was filed July 23, 1934. The list of witnesses to be called in chief together with their post-office addresses was served the 20th day of September, six days before the case was called for trial. The theory of the prosecution was that the defendant stabbed Spaunherst without any provocation. It appears that on the day of the affray the county attorney investigated the matter; however, no prosecution was instituted before Mr. Spaunherst's death fourteen weeks later. It also appears that there was no proof of the corpus delicti independent of the defendant's admissions, and if counsel for the defendant had not waived his constitutional right to notice of the name and address of the medical witness whose testimony tended to prove the corpus delicti, the prosecution would have failed. The defendant is a convict; all the witnesses called by the state were officers of the penitentiary and employees of the Seminole Manufacturing Company, all residents of McAlester, and could be called at any time.

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Every person charged with crime is entitled to a fair trial according, to the due and orderly course of the law. The right of every person charged with crime to have compulsory process for obtaining witnesses in his own behalf is guaranteed by the Constitution ( Bill of Rights, § 20 ); and this involves, as a matter of course, the time reasonably necessary to prepare for trial and to find and produce testimony in his defense. It is not, however, a matter of which the defendant can complain that the trial is speedy, if he has had time for preparation and is ready for his defense. Continuances ought always to be granted, when, from the showing made, justice requires it; this to enable the defendant to procure all legal and competent evidence necessary for the fair presentation of his defense, if he has used due diligence to obtain the same. Noel v. State, 17 Okla. Cr. 308, 188 P. 688; Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464.

The defendant made every effort possible to secure the attendance of the absent witness, and he was not allowed the time reasonably necessary to prepare for the trial which resulted in his conviction. In view of the materiality of the testimony of the absent witness and on account of the peculiar circumstances of the case, we are convinced that the denial of the defendant's motion for a continuance was in manifest abuse of judicial discretion.

A number of alleged prejudicial errors are assigned upon exceptions taken to rulings of the court upon the admission of evidence, and the exclusion of evidence. However, the main question in this case is whether there was upon the whole sufficient evidence to warrant a conviction for murder.

The testimony of the witnesses for the state tended to show admissions or alleged confessions on the part of the

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defendant that he struck the deceased with a pocket-knife.

Turner, the second witness for the state, testified that after the affray he found a knife and turned it over to Mr. Parks; that he asked the defendant if he cut Mr. Spaunherst, and he said he did; that he asked him why, and he made no answer, and he asked him if that was his knife, and he said, "Yes."

J.W. Phillips testified that in the presence of Jess Dunn, deputy warden, he asked the defendant why he cut Mr. Spaunherst, and the defendant answered because Mr. Spaunherst had changed his work. That the county attorney asked the defendant what he had to offer for a defense, and the defendant said he did not care to make a statement.

Jess Dunn, deputy warden, testified that he asked the defendant why he stabbed Mr. Spaunherst, and the defendant said it was because Mr. Spaunherst had changed his job; that he showed the pocketknife to the defendant and asked him if that was the knife he cut Spaunherst with, and the defendant said, "Yes."

H.H. Sherrill testified that he was present in the warden's office when Frank Watson, county attorney, asked the defendant to state what he had to say concerning the case, and the defendant said he did not have anything to say. Then he asked if the man was dead, and the county attorney said it was no time to make a statement after the man died; then the defendant said if he died he would probably want to talk then; that the county attorney showed the defendant a knife and asked him if that was the knife he stabbed the man with, and the defendant said he never saw the knife before; that the defendant practically admitted that he did it, but would not make a statement until after the man died.

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Doctor J.H. Munn was the last witness called in chief; his name was not indorsed on the information, and his name and post-office address had not been furnished to the defendant. This witness was called to prove the corpus delicti.

Counsel for the defendant waived objection; thereupon he testified that he gave first aid to Mr. Spaunherst in the penitentiary hospital; that there was a stab wound in the left side on the border of the sternum; that Mr. Spaunherst died some time in January; that he thought his death was due to infection following the stab wound.

In every criminal prosecution the burden rests upon the state of proving the corpus delicti beyond a reasonable doubt. In prosecution for homicide the corpus delicti consists of two fundamental and necessary facts: First, the death; second, the criminal agency of another as the cause; as applicable to this case, it was necessary to show, first, that the deceased died from the effects of a wound, and, second, that the wound was unlawfully inflicted by the defendant.

It is well settled that extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person, and such confessions in order to be admitted must be entirely free and voluntary.

The general rule is that in the absence of other evidence that a crime has been committed, it is improper in the trial of a homicide case to admit in evidence a confession of the defendant.

In the case of Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064, 1068, it is said:

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"This court adheres to the rule that a conviction cannot be had on the extrajudicial confessions of the defendant without independent evidence of the corpus delicti, and, before such confessions should be admitted, there should be evidence prima facie sufficient to show that the offense to which the confession relates has been committed. The court must decide in the first instance this question. However, the decision of the court does not bind the jury, as the province of the court in such particular is only to determine whether sufficient evidence has been adduced to go to the jury for their determination. In passing upon the evidence submitted to them the jury must first determine beyond a reasonable doubt that the crime has been committed; then they are at liberty to give the alleged confession such weight as it is entitled to, taking into consideration the circumstances surrounding it and the extent to which it has been corroborated."

Deputy Warden Dunn, on cross-examination, was asked if convicts working in the factory were searched every morning, noon, and night to see if they had knives on them. The court sustained the state's objection as not proper cross-examination. This evidence was proper and competent to be considered by the jury for the purpose of tending to show that the defendant did not have the knife when the altercation started. It was proper cross-examination, and its exclusion was error.

Assistant Deputy Warden Phillips, on cross-examination, identified the book of rule and instructions to convicts to show that under the rules convicts must be obedient and answer questions of officials and that if they fail or refuse to answer, they are punished. The court sustained the state's objection and excluded the rules. The defendant moved to strike the testimony of the officials showing admissions or confessions by the defendant because same were not voluntary because under said rules the defendant's answers to the questions asked were given

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in duress. We think the court erred in excluding the book of rules; however, the motion to strike was properly overruled. Whether or not the alleged confessions of the defendant were voluntary was for the jury to determine.

The defendant contends that the court erred in excluding the testimony of the first three witnesses called on the part of the defendant, Jim Thompson, Albert Ellison, and Paul Johnson, respecting the disposition of the deceased to become violent without provocation, and the reputation of the deceased for being turbulent and quarrelsome and testimony tending to show that he had difficulties with other inmates and to show that the deceased had threatened "to kill some of the niggers for talking back to him," and to show the defendant knew about said threats.

Generally speaking, where a homicide occurs under such circumstances that it is doubtful whether the act was committed maliciously or from a well-grounded apprehension of danger, testimony tending to show the general reputation of the deceased as becoming violent and quarrelsome or of threats made by the deceased is always admissible in order to determine whether the defendant had reasonable cause to apprehend great personal injury to himself. The defense interposed and relied upon by the defendant was that he acted in his necessary self-defense. If there had been some evidence tending to show self-defense at the time this testimony as to the reputation borne by the deceased was offered, and as to having made threats against the defendant, then it was manifestly error to exclude this testimony. Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532.

On the other hand, if the defendant had not offered any evidence tending to support his claim of self-defense,

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then there could be no prejudicial error in denying the introduction of that testimony until the defense upon which the defendant relied was sufficiently developed to authorize its admission for the purpose of added support to the defendant's plea of self-defense. It is only when a showing of self-defense is made that evidence of the reputation of the deceased for violence and turbulency and of threats made by the deceased become relevant and material.

It is strenuously urged that the verdict is manifestly contrary to law and to the evidence and is a gross injustice which should be righted by this court.

Our Code .provides that a plea of not guilty puts in issue every material allegation in the information. Section 2962, St. 1931. It also provides that a defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. Section 3064. It further provides: "Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." Section 3076.

Under this provision, if the prosecution proves the death of the deceased and the fact that he was killed by the defendant, without proving circumstances of mitigation or tending to show justification or tending to show that the crime committed only amounted to manslaughter, then the burden is upon the defendant, if he contends that he was justifiable, of producing evidence showing that fact. The quantum of evidence necessary for that purpose

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is fixed by-law and is such as is sufficient to raise reasonable doubt upon that issue.

No witness for the state heard the altercation or saw the affray. The case against the defendant rested solely on circumstantial evidence, including certain admissions made by him on the day of the affray together with his testimony as a witness in his own behalf. The defendant's admissions as testified to by the witnesses for the state were, when asked if he cut Mr. Spaunherst, he answered, "Yes"'; asked why he cut Mr. Spaunherst, he answered, "Because he had changed his work"; asked if that was his knife, he answered, "Yes."

Mere admissions of inculpatory facts are not necessarily confessions, and when a person only admits certain facts from which the jury may or may not infer guilt, there is no confession. The facts the defendant admitted could have been true and not be inconsistent with his innocence of the crime of murder; he made the admissions, not for the purpose of conceding that he was guilty or with any view to confess his guilt, but in the line of a denial of guilt, not an express, but an implied, denial.

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, St. 1931.

The burden of proving intent to kill on the part of the defendant is upon the prosecution. 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, probable and usual consequences of his act. However, the presumption arising from the character of the weapon used is not conclusive as to intent. The information does not charge the use of a deadly weapon; the words used are:

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"With a certain weapon, to wit, a pocket knife, being then and there a sharp instrument and weapon." Considering the character of the assault and the weapon used and the fact that the deceased did not die until fourteen weeks after the affray, we think the evidence on the part of the state was insufficient to show an intent to kill and murder and was prima facie sufficient. only to show manslaughter in the first degree.

It follows that the burden was not on the defendant to show affirmatively that he was free from fault in bringing on the difficulty, and when the ingredients of self-defense have been established, the burden is on the state to show that the defendant was not free from fault, unless it has been shown that the killing was unnecessary for self-defense.

The testimony on the part of the defendant, and it is uncontradicted, overwhelmingly established the fact that the deceased was the aggressor. The testimony of the defendant that the deceased provoked the difficulty and during the altercation assaulted the defendant with a pocketknife and that the defendant wrested the knife from him, that the deceased then pulled from the scabbard on his belt a pair of scissors, and attempted to strike the defendant with them, and that then the defendant struck the deceased with a pocketknife, is uncontradicted.

The testimony of every eyewitness supports the defendant's testimony, and it is not disputed. The defendant testified that when the deceased struck at him with the scissors he struck back with the knife; that his intention was to hurt and not to kill.

In rebuttal, the state called Ed Roselle, an instructor in the prison factory, who testified that he never saw Mr.

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Spaunherst use the knife, Exhibit A, or have it in his possession, but he did have a pearlhandled pocketknife like it a day or two before the affray. That Mr. Spaunherst carried scissors, eight or ten inches in length, in a scabbard on his belt. Three other witnesses testified that Mr. Spaunherst's reputation was that of being a good kind-hearted instructor. There is not a scintilla of evidence in rebuttal tending to traverse or contradict the testimony on the part of the defendant.

We have carefully examined the record, and in the consideration of this case, we have tried to exercise that degree of care that the due administration of justice demands in all cases where the death sentence is imposed. It is apparent from the record before us, and we see no escape from the conclusion, that the evidence is wholly insufficient to sustain the conviction. Upon such evidence, it is difficult to understand upon what ground the jury could render a verdict of guilty and assess the death penalty.

A fair trial is guaranteed to all persons, whether guilty or innocent, regardless of race or color, free from any appeal to prejudice, and it is the duty of the courts to uphold this guaranty, and this duty is emphasized in a capital case, where a colored man is placed upon trial before a jury of white men.

Upon the record before us, and for the reasons hereinbefore stated, we are clearly of the opinion that the defendant did not have that fair and impartial trial to which he was entitled under the law. The spirit of unfairness throughout the trial is apparent, and our conclusion is that it would be a reproach to our criminal jurisprudence if the judgment were permitted to stand.

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