Henderson v State

Henderson v State
1936 OK CR 45
56 P.2d 915
59 Okl.Cr. 86
Decided: 04/04/1936
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Homicide -- Conviction for First-Degree Manslaughter Sustained. In prosecution for murder, evidence considered, and conviction of manslaughter in the first degree affirmed.

2. Evidence -- Evidence of Accused's General Good Character -- Rebuttal Evidence by State. A defendant's general good character or reputation as to the trait involved in the charge against him is always admissible in his favor to evidence the improbability of his doing the act charged, and, where a defendant offers testimony to show his previous good character, the state may in rebuttal offer evidence of his bad character.

3. Witnesses -- Scope of Cross -- Examination of Accused's Character Witnesses in Homicide Case. On cross-examination of witnesses as to defendant's character and reputation as a peaceable

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and law-abiding citizen, it is proper to inquire as to knowledge of alleged acts of violence committed by the defendant at various times prior to the time of the killing on others than the deceased.

4. Witnesses -- Evidence -- Status of Accused Taking Stand. 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.

5. Homicide -- Information for Murder -- Conviction Under Other Subdivisions of Statute. -- Where an information charges murder under the first subdivision of section 2216, St. 1931, perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, a conviction, if warranted by the evidence, may be had under either of the other subdivisions of said section.

Appeal from District Court, Atoka County; P.L. Gassaway, Judge.

D.J. Henderson was convicted of manslaughter in the first degree, and he appeals. Affirmed.

It appears from the record that an information was filed in the district court of Atoka county, October 23, 1934, charging that in said county, on or about the 22d day of September, 1934, the defendant, D.J. Henderson, did kill and murder Hayden Norris by shooting him with a pistol.

On the 5th day of December, 1934, he was placed on trial. On December 8th the jury returned their verdict finding the defendant guilty of manslaughter in the first degree and fixing his punishment at imprisonment in the state penitentiary for a period of 99 years. On, December 14th, after motion for new trial had been duly filed, presented, and overruled, the court rendered judgment, and he was sentenced to imprisonment in the state penitentiary at McAlester for the term of 99 years. From this judgment he appeals.

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Upon the trial the defendant admitted the killing, but claimed that the homicide was justifiable in self-defense.

In order to better understand the errors assigned, the following brief statement of the facts disclosed by the testimony is made; also excerpts from the testimony of certain witnesses for the state and of the defendant.

The deceased lived with his mother 10 miles southeast of the ciky of Atoka. The defendant, a young man 20 years of age, lived with his mother in the town of Caney, Atoka county.

It appears from the testimony that on Sunday morning, September 23 1934 two boys, Robert Merritt and Oscar Dowd, were hunting, and left highway 75 about a mile north of the town of Caney and proceeded east on what is known as the Bentley road. About a quarter of a mile east of said highway it appeared that something had been dragged from the road through the fence and into the weeds on the north side of the road. Investigation showed this to have been a dead body which was at that time discovered, and identified as that of Hayden Norris.

The testimony of Sam Howard, Oscar Dowd, and C.G. Maxwell, sheriff, showed the following facts in reference to the condition of the ground where the body was found: The body was found about 12 feet inside the fence. A short distance from the body was discovered the empty billfold belonging to the deceased. The right-hand pants pocket was turned inside out. The left-hand pants pocket was half-way out. There was no money on the body of deceased. On the north side of the Bentley road, across the fence and in the weeds, were found seat covers which were identified as the seat covers from the Chevrolet car belonging to the deceased, and the right-hand

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front seat cover was covered with blood. An examination of the ground showed only one set of footprints.

The testimony of Dr. J.S. Fulton, Dr. C.C. Gardner, and the undertaker, J.A. Wagner, shows the nature of the wounds that caused the death to be as follows: Two bullet holes in the back of deceased; one in the face and one through the hand. Each testified positively that one of the bullet holes in the back was an entrance. The undertaker testified positively that the other bullet hole in the back was an entrance, and the doctors were of the opinion that it was an entrance.

The testimony of Earl Norris, Jim Peel, and Pawnee Dandridge showed that the defendant was in the city of Atoka late in the afternoon of Saturday, September 22, 1931; that he had several conversations with Hayden Norris, and finally Norris, in the presence of Jim Peel, made the following statement to the defendant: "I'll take you down there for that," to which the defendant replied: "We'll leave Jim here until you come back"; that Hayden Norris, in company with the defendant, left the city of Atoka going in the general direction of the town of Caney, and that that was the last time Hayden Norris was seen alive; that the departure from Atoka was between 7 and 8 o'clock.

The testimony of Ray Hall shows that the defendant came into the Hall's store at Caney and had a $5 bill changed about 8 o'clock on the night of the killing.

W.D. Black testified:

"I live 21/2 miles north of Caney, one-fourth of mile west of the raiIroad and highway. On leaving the highway there is an underpass. I heard three shots between 8 and 9 o'clock that night in the direction of the highway leading from Atoka to Caney, from the underpass. The

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first shot had a deadened sound, then it seemed a minute, maybe two, before I heard the other two, after the shots I heard a car running south."

On cross-examination he stated:

"I know where the iron stob, the marker of the township corner is; it is 21/2 miles from my house, from the place I heard the shots to the iron stob is 13/4 of a mile."

Sam Walker testified:

"I live a mile and a half north of Caney, near the highway, 9 or 10 miles from Atoka. I heard three shots; it was between 8 and 9 o'clock. I would say they were this side of Boggy, near the underpass."

The testimony of Sheriff Maxwell and John Shoemake shows that defendant's mother, about a year prior to the tragedy, borrowed a 32-20 Colt's pistol from the sheriff, and that about 60 days prior to the tragedy the defendant's mother reported that the pistol which she had borrowed from Sheriff Maxwell had been taken from her home.

Mr. Shoemake testified that the description of this pistol exactly described the pistol which the defendant surrendered to the officers as being the one with which he shot and killed Hayden Norris. Sheriff Maxwell could not positively identify the gun.

Miss Virginia Akers testified:

"My home is on Northeast Ninth street, Oklahoma City; the defendant's sister, Mary Henderson, has lived with me since July; the Sunday morning on which Hayden Norris' body was found the defendant appeared at my home. Mary asked him, 'How are all the folks?' and she asked him whose car he was in, he said 'Hayden's'; he said he left Tulsa at 4 o'clock, that he went to see his girl friend Lois. Mary asked him, 'Where is Hayden?' he said, 'In Atoka.' We told him he had better go to bed

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and get some sleep. He said he didn't have time, he had to bring Hayden Norris' car back to him."

Mary Elizabeth Henderson, sister of the defendant, testified that she had been living in Oklahoma City since about the middle of July with Miss Akers. "My brother D.J. came there 7 o'clock Sunday morning. He said he had been to Tulsa to see his girl friend, Lois Hall, and thought he would come by see me a few minutes. He went out and backed his car into the driveway." She asked him if it wasn't Hayden's car, he said "Yes," and, asked where Hayden was, he said, "At Atoka." When leaving, She went out to the car with him and got in the car. He had a shaving kit, pair of blue overalls, and underwear in the car; that she never knew of her brother D.J. and Hayden Norris having any trouble.

On cross-examination she stated that the last time Hayden Norris had come to Oklahoma City to see her was September 3d; that she and Hayden had planned to get married.

The testimony of John G. Alexander shows that the deceased's car was left at his place at Altus, Okla., by the defendant, and that the route of travel from Altus to Atoka is by the way of Lawton, Duncan, Sulphur, Ada, and to Atoka.

The testimony of Claude Collier and Henry Savage show the deceased's car had blood in the right front seat and on the right-hand door and that there was an impression on the left end of the dashboard which appeared to have been made by a bullet.'

J. Lee Mann, undersheriff, testified that he went with Ralph Mitchell and John Alexander to Altus, and Henry Savage, sheriff, turned a 1934 Chevrolet car to him; that he compared the tag number and title papers and they

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showed the car belonged to Hayden Norris, and he brought the car back to Atoka; that there was some blood on the right seat of the car, and a little blood on the door and a dent just below the windshield, that he found in the receptacle on the dashboard some papers and anticaps; that Ralph Mitchell delivered to him the gun introduced in evidence.

Mrs. Nancy Dandridge, the mother of the deceased, testified:

"I live 10 miles southeast of Atoka. I saw the defendant at my house on Wednesday before the Saturday my son died. I was in town with my son Hayden on the date of his death. I gave him $15 about 3:30, and he had three $1 bills in his shirt pocket. I stayed in the car until about 4 o'clock; he drove us home. Jim Peel was with him. Then he came back to town. He never did own or carry a pistol."

The testimony of the defendant, as a witness in his own behalf, is substantially as follows:

"I live at Caney; on September. 22d I left Caney about 4 o'clock and went to Atoka; I saw Hayden Norris get out of his car; he asked me how I was up here, and I said I was afoot. He said, 'Do you want me to take you home?' I said Raymond Graham would take me, and he asked me if I had any money. I had borrowed $1.50 from him and I told him no, but I could get it at home if he was caring for it. I told him if he wanted to go down there and get his money we would go. I got in his car with Jim Peel and Henry Bond, Hayden drove. We went to Henry Bond's; he got out; We came back to town and let Jim Peel out, and told Jim Peel he would be back in about thirty or forty minutes; when Peel got out, I got in the front seat. On the road, just below Tushka, he asked, 'Have you heard from Mary?' I said, 'No, sir,' and he said, 'Do you know when she is coming down here?' I said, 'No, when she does I rather you would

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not go with her.' He said 'Why?' I said, 'Because of your character, what I have heard of you.' He said, 'What do you mean?' I said, 'Well, in the first place I know that you were expelled from school, you have been arrested several times for being drunk, and, I heard you have been tried for rape, therefore I don't think it is right.' He said, 'The hell you don't.'

"He commenced slowing down where the road turns off to Bentley, and he said, 'I am going over here to see a man.' I said, 'Well, I will get out here and go on home.' He said, 'You are not, you are going out here with me.' I said, 'All right.' About half a mile east of the subway he stopped the car right quick and the next thing I know I felt a gun against my leg; he opened the right door and kept the gun against my leg; I grabbed the gun, turned it, and it went off; I think that is the gun right there, pointing to state's Exhibit 'A.' I pulled the trigger several times; I don't know how many times; the next thing I realized he was dead. I decided I would go home. I drug him by his feet south through a fence. I walked out to the car and I took the seat covers off; I could tell there was blood on them; I threw them over the fence on the north side of the road. I got in the car, the lights were already on, and I drove home. I took off my shirt, threw it in a box on the back porch, and went in the back door. I decided I would not tell my mother; she had been sick I wanted to go see Ralph Mitchell. I picked up a pair of trousers and shirt and undershirt and a little blue box that I kept my shaving equipment in, and I asked my mother to give me some money. She said, 'How much.' I said a dollar would be all right. She said, 'I have got a five dollar bill.' I took the bill and went across the street to Ray Hall's store. He gave me five $1 bills, I went back and handed her four. She asked me where I was going, I told her to Atoka. She asked me whose car I was going in. I said Hayden Norris'. I drove to Atoka, on to Coalgate, stopped at a filling station and got 90 cents worth of gasoline. I asked the man what time is it; he said, twenty minutes until nine. I decided I would go by Oklahoma City. I drove on out the road;

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there was a yellow sport model car with couple of women in it, and I followed them until I found that I was in Tulsa. I didn't know where I was. I asked a fellow if I was in Oklahoma City and he said, 'No, you are in Tulsa.' I drove around it seems like an hour to find 1102 South Carson street; there I asked for Lois Hall, a girl friend; they said she had gone to a show. I waited sometime, then walked out, got in the car and drove on down the road, stopped at a place, and told the fellow to give me some gasoline; he put in ten gallons; I looked at the gauge; it was three-fourths full; I told him I wanted some more; he put in three or four more gallons. I got in the car and drove off. I picked up a hitch-hiker and he went on with me to Oklahoma City. I stopped at Virginia Akers, rang the bell; my sister Mary came to the door, she greeted me and asked me how everybody was, asked me where Hayden was. I said, 'Atoka,' she said, 'Isn't that Hayden's car?' I said, 'Yes'; she asked me where I had been. I said, 'I went to Tulsa to see Lois.' I ate breakfast. Mary said, 'You look like you want to sleep.' I said, 'Have you got any money, Mary,' and she gave me $2.

"I told them I was going home, Mary walked out to the car with me and opened the door, and I scooted in on the right side. I drove off, following Highway 77 to Sayre, turned south to Vinson, went on to Martha; it was noon; I stopped with a friend there, Bert Myers. I stretched out on a box and went to sleep; when I woke up it was late. I told him I was going home. I got in the car and drove on to Uncle Ralph's, six miles south of Duke; they were eating supper. I had not been there long until John Alexander told him he had a phone call. When he got back he told me they were looking for me, I said 'Yes, I guess so, I had a fight with Hayden and he got killed.' I told him I wanted to come back if he would give me the money; he said, 'No, I think it would best to leave the car here.' I got in the car with Ralph Mitchell and John Alexander; we came on through Ada; there Ralph got out and talked to you, and you told me to give myself up and not to say anything, which I did. I

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was in the CCC camp this summer and served five or six months. In August, Hayden came to our place; he said, 'I come to see Mary, and I am going to see her.' I said 'She is not here.' He said, You are a damned liar.' I said, 'Now, Hayden, you go on, I don't want to have trouble with you,' and I grabbed his arm and led him on out the door and through the gate; then he said, 'Your mother thinks she is damn smart getting you up to run me off.' He got in his car and said, 'If it is the last damn thing I do, I will kill you.' Mother said: 'You better watch out.' I said, 'He is drinking, just forget about it.' I was never arrested before or questioned in my life, I was never on the witness stand before. I heard Willie Johnston testify that I told him that I was going to get a gun and car and quit work. I never made such a statement. I looked in the pocket of the car on my way to Altus and found some papers and a box of anti-caps, I didn't put them in there, I never owned such a thing in my life, I didn't look into Hayden's pockets, and I didn't see the billfold. I have my discharge from the CCC camp. (Identifies the same and it is offered in evidence. State's objection sustained.)"

T.B. Akers, the second witness called on the part of the defendant, testified:

"I live 111/2 miles south of Atoka. I was informed about the dead body being found down near Caney. I went down there with my mother and Jack Merritt; we found the body of the boy near the iron stob, east of Caney, over the fence, about 10 or 12 feet in pasture. I looked at him, the right-hand pocket was partly turned wrong side out, and the left-hand pocket was natural; we went to town and called the sheriff. I have known the defendant all his life. I know his reputation as to being a peaceable law-abiding citizen. It is good so far as I know."

Buck Reid testified:

"I heard a conversation between Hayden Norris and some man I don't know in front of the First Bank Building

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here in the latter part of August. Hayden said: 'If D.J. don't quit monkeying with him, or leave him alone he was going to bump him off."'

On cross-examination he stated:

"I have known the defendant all his life and his father before him, and I am a good friend of D.J. I never told D.J. about this and never did tell anybody else about it."

B. Evans testified:

"I saw the defendant Saturday, September 22, at Caney; he asked me for a ride to Atoka; he got out here at Partians Service Station; it was near 5 o'clock."

Mrs. Lacy B. Anderson, mother of the defendant, testified that Hayden Norris called at her home frequently to see her daughter, Mary:

"The last time was in August; it was near 2 o'clock after midnight; I asked him what he wanted, he said he wanted to see Mary. I told him, 'Mary is not here.' He said, 'You are a damned liar.' I said 'Mary is not here, please leave my house.' He jerked the hook off the screen door and said, 'I came to see Mary and I am going to seeher.' My son D.J. told him Mary was not there. Hayden said, 'You are a damned liar, she is here, she told me she was coming.' D.J. said 'Now, go on home, Hayden, go on out of my house, I don't want to have any trouble with you, Mary is not here.' Hayden said, 'You can't make me leave here, and I am not going until I see Mary.' I walked out on the parch, and D.J. took Hayden by the arm, led him to the gate and told him to go on. Hayden said, 'She thinks she is awful damn smart getting you up to run me off; I will kill you if it is the last thing I do." He was either drunk that night or he was awful mad about something. I am engaged as a case worker for the FERA. I borrowed a pistol from the sheriff of the county. I missed this pistol about six weeks before the death of Hayden Norris, and I reported

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the loss to Sheriff Maxwell and Mr. Shoemake. The last time I saw my son D.J. before his return and surrender to Sheriff Maxwell was near 8 o'clock. Saturday evening before Hayden was found the next morning. He came in the house and seemed to be in a big hurry and asked me for some money; I handed him a $5 bill and told him go to Mr. Hall's across the street and get it changed. He went out, was back in a minute or so, and handed me four $1 bills, I said, 'Where are you going?' He said to Atoka."

Twelve witnesses were called and asked if they knew the general reputation of the defendant in the community in which he lived as to being a peaceable, law-abiding citizen, or otherwise; each answered, "Yes"; asked, "Is it good or bad?" they replied, "Good."

In rebuttal Hayden Jackson testified:

"I live at Atoka; I was sitting in a car with the defendant in front of the house about the first of August; we were looking through a detective magazine, and discussing different crimes; he said, 'If I was to start I know where I could get a car.' I said, 'Where at?' and he said, 'Hayden Norris' car.' I said, 'How could you get it?', He says, 'With the extra key my sister has.' I said, 'Has your sister got the key?' He said, 'Yes, Hayden gave it to her.' I was with D.J. in the CCC camp and he stole about four shirts and traded them for whisky.

"Mr. Linebaugh: We move to strike all the testimony of this witness for the reason that it is incompetent, irrelevant, inadmissible, and immaterial.

"The Court: Let the record show that the defendant placed his character on record while a member of the CCC camp, and that the court overrules the motion to strike. (The defendant excepts.)

Juanita Adair testified:

"I live at Caney. On the morning of the day Hayden Norris was killed the defendant came to my house about

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9 o'clock and asked me his sister Mary's address. I said, 'D.J., I don't know, I had a letter from her but I lost it.' I said, 'Why are you going up there.' He said, 'I haven't made up my mind whether I am going or not; Hayden thinks he is going up to the city, but I don't know if he will or not."'

The other testimony on rebuttal was on minor issues and for the purpose of impeachment of the defendant's witnesses.

The transcript of the testimony covers over 400 pages, but the foregoing is the material testimony in the case.

J.W. Clark, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen ( I.L. Cook and Rowe Cook, of counsel), for the State.

DOYLE, J. (after stating the facts). Appellant, D.J. Henderson, was convicted of manslaughter in the first degree, and in pursuance of the verdict of the jury was sentenced to 99 years' imprisonment in the state penitentiary. In this case there is no controversy about the fact of the killing. Appellant testified in his own behalf on the trial, and admitted the killing, and undertook to justify it upon the plea of self-defense.

The assignments of error are based upon certain rulings of the court in the admission and the rejection of evidence.

The rulings of the trial court upon the admission of evidence were more than fair to the defendant, and we find few assignments meriting consideration.

Considering the assignments in the order in which they appear in the record, the first is based upon the action of the court in permitting the witness Sam Howard

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to testify as to the condition of the ground near where the body was found.

The record shows that several witnesses, some on the part of the state and some on the part of the defendant, testified as to the condition of the ground on the highway and inside the fence where the body was found, and the defendant testified that there was a struggle between him and the deceased at this point, but, regardless of that, there can be no doubt but that it is competent for the persons first appearing at the scene of the crime to describe the surrounding conditions, and such testimony is not inadmissible as opinion testimony but as showing, or tending to show, physical facts, and is always competent and admissible for that purpose.

Complaint is made of testimony being admitted as to the prior relationship as to friendliness or enmity between the deceased and the defendant.

The defendant testified that some time prior to this tragedy the deceased had threatened his life, and the defendant's witness Buck Reid testified that he overheard the deceased make a threat against the life of the defendant; therefore one of the issues in the case became and was the previous relations existing between the deceased and the defendant, in explanation of their conduct and motives, and the testimony showing such relations was competent. In every instance the trial court required the state to show that the witness testifying, had some knowledge of the relations existing between the two before allowing the state's witness to testify as to whether or not the relationship was friendly.

Complaint is also made of the following questions asked the defendant's character witness G.M. Taylor on cross-examination:

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"Q. Did you know Mr. Walter Jarnagan? A. I know him when I see him. Q. Did you ever hear of his being robbed down there -- either one of the Jarnagan boys? Mr. Linebaugh: We object, Your Honor, that is highly prejudicial and we now move the court to declare a mistrial and discharge the jury. The Court: I will sustain the objection as to the question and overrule you as to the mistrial. Mr. Linebaugh: We except and ask the court to instruct the jury to disregard the question. The Court: At this time, I admonish you, gentlemen of the jury, to pay no attention to the question asked the last witness about a man named Jarnagan being robbed, that has nothing to do with this case and I do not want you to take it into consideration in summing up the evidence in arriving at a verdict."

It is urged that, even though the defendant's objection to the last question was sustained, it brought into the record prejudicial error.

We think this contention is not only without merit, but under a well-settled rule the court erred in sustaining the defendant's objection.

In the case of Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271, this court held:

"As the general reputation of any person-is established by the opinions of witnesses as to the general estimation of his character, it is permissible upon cross-examination of such witness to show the sources of his information and particular facts may be called to his attention, and he may be asked if he ever heard of them. This is permissible, not for the purpose of establishing the truth of such facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony." And see Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242.

In the case of Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797 this court held:

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"On cross-examination of witnesses as to defendant's character and reputation as a peaceable and law-abiding citizen, it is proper to inquire as to knowledge of alleged acts of violence committed by the defendant at various times prior to the time of the killing on others than the deceased." Teel v. State, 53 Okla. Cr. 200, 11 P.2d 197.

The defendant further complains that prejudicial error was committed by allowing on rebuttal the witness Jackson to testify relative to the defendant stealing some shirts, and trading them for whisky at the CCC camp.

The record shows that, before the testimony complained of was admitted, Buster Slack had testified that he was in the CCC camp with the defendant for about 5 or 6 months, and the defendant's reputation in the camp as a law-abiding citizen was good.

The question presented is, Does this testimony come within any of the well-known exceptions to the general rule in criminal cases that, when a defendant is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows he is guilty of that offense alone? This rule is tersely stated by Mr. Bishop, who says:

"The state cannot prove against a defendant any crime not alleged, either as foundation for a separate punishment, or as aiding the proofs that he is guilty of the one charged, even though he has put his character in issue." Bishop's New Crim. Proc. § 1120.

See Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383.

In the numerous cases cited by counseI for appellant, where the fundamental rule of evidence of another crime being inadmissible is applied, we find the prosecution was relying upon evidence of similar crimes in its case in chief to obtain a conviction. In this case it is evident that the

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only purpose of the state in offering the testimony complained of was to impeach the credibility of the witnesses who had testified as to the good character and reputation of the defendant at the CCC camp.

A defendant in a criminal case is entitled to the privilege of putting his character in issue, and his good character or general reputation as to the trait involved in the charge against him is always admissible in his favor as tending to show the improbability of his committing the offense charged, and, where a defendant offers testimony to show his previous good character, the state may in rebuttal offer evidence of his bad character. Kirby v. State, 25 Okla. Cr. 330, 220 Pac. 74, 33 A. L. R. 1212; Alexander v. State, 35 Okla. Cr. 89, 248 Pac. 873.

The instructions given by the court to which no objection was made nor exception taken submitted the issue of murder under the first subdivision of section 2216, St. 1931, but did not submit the issue of murder under subdivision 3, which provides homicide is murder "when perpetrated without any design to effect death by a person engaged in the commission of any felony."

By numerous decisions of this court it is held, where an information charges murder under the first subdivision of section 2216, St; 1931, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, a conviction, if warranted by evidence, may be had under either of the other subdivisions of said statute. Evinger v. State, 57 Okla. Cr. 63, 45 P.2d 552.

It appears from the record that it was the theory of the state that this homicide was committed in the perpetration of a robbery, and there is ample proof of circumstances from which a reasonable and logical inference

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arises that the defendant committed the homicide for the purpose of robbing the deceased of his money and his automobile However, the record shows that no request was made on the part of the state for instructions to the jury upon that theory.

Counsel for the defendant states in his brief that, if the defendant was to be convicted, he should have been convicted of murder, or the jury should have turned him loose; however, no objection was made or exception taken to the instructions submitting the issue of manslaughter in the first degree.

Where one has taken a human life the law does not presume the homicide was justified, but presumes the contrary.

After a most careful review of the record, we have been unable to discover any prejudicial error.