Methvin v State

Annotate this Case

Methvin v State
1936 OK CR 105
60 P.2d 1062
60 Okl.Cr. 1
Decided: 09/18/1936
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Homicide -- Aider and Abettor in Murder Guilty as Principal. One who is present, aiding and abetting in perpetrating a murder, is guilty as a principal, although another does the killing.

2. Criminal Law -- Two Persons Acting in Concert to Commit Crime Alike Guilty as Principals. It is a rule of law that, where two persons act in concert with a common design to commit crime they are both alike guilty as principals.

3. Homicide -- Crime not Necessarily Reduced to Manslaughter Because Defendant in Assisting in Killing Acted Under Threats of Death From One Assisted. The fact that the defendant, in assisting in the killing of another, acted under a fear of death imposed by the threats of the person he assisted, does not necessarily eliminate the elements of malice and premeditation so as to reduce the crime to manslaughter.

4. Homicide -- Murder of Peace Officer by Fugitive From Justice in Resisting Arrest Without Warrant. A peace officer has the right without a warrant to arrest a fugitive from justice. The officer being in the right and in the discharge of his duty, the person resisting arrest does so at his peril, and in so doing, if he kills the officer, he is guilty of murder if he knew that the person attempting to make the arrest was an officer.

5. Appeal and Error -- Conclusiveness of Trial Court's Finding of Fact on Motion for Now Trial. As a general rule, the finding of the trial court upon an issue of fact, arising upon affidavits and evidence adduced on a motion for new trial, will not be disturbed by this court on appeal, where the evidence reasonably tends to support such finding.

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6. Appeal and Error -- Power of Appellate Court to Reduce Sentence. Under section 3204, St. 1931, Procedure Criminal, this court, exercising its revisory jurisdiction, has the power to modify any judgment appealed from in furtherance of justice by reducing the sentence.

7. Homicide -- Conviction for Murder Sustained but Sentence of Death Reduced to Life Imprisonment. In a prosecution for murder, evidence held sufficient to warrant a verdict convicting the defendant of murder, but insufficient to warrant the extreme penalty of the law, and the judgment and sentence of death is modified to imprisonment at hard labor in the state penitentiary for life.

Appeal from District Court, Ottawa County; Ad V. Coppedge, Judge.

Henry Methvin was convicted of murder and sentenced to death, and he appeals. Conviction affirmed, and sentence of death modified to imprisonment for life.

This was an information in the district court of Ottawa county, Okla., for the murder at Commerce in said county on April 6, 1934, of Cal Campbell, by shooting him with an automatic rifle.

It is alleged in said information:

"That said defendant, on or about said date, within said county and state, while acting conjointly with Clyde Barrow and Bonnie Parker, and with a premeditated design to effect the death of Cal Campbell, did unlawfully, willfully, and feloniously shoot and discharge from a Browning automatic rifle, then and there had and held in the hands of the said defendants, loads and bullets upon and into the body of the said Cal Campbell, and thereby inflict a mortal wound from which the said Cal Campbell immediately died, as the said defendants intended he should so do, contrary to," etc.

It appears the cause was first tried in said court in March, 1935, which trial resulted in a mistrial; the jury having failed to agree.

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On the second trial the jury returned their verdict on September 20, 1935, finding the defendant guilty of murder and assessing his punishment at death. A new trial having been denied, he appeals from the judgment rendered October 2, 1935, in accordance with the verdict.

It appears that a few weeks after the information in this case was filed, two of the defendants, Clyde Barrow and Bonnie Parker, were killed in Louisiana by federal officers, co-operating with state officers of Louisiana and Texas.

It was admitted that the defendant Methvin was present when the murder of which he was convicted was committed. The state's evidence shows that between 9 and 10 o'clock a.m. on April 6, 1934, Clyde Barrow, Bonnie Parker and the defendant, Henry Methvin, fugitives from justice, were in a Ford car parked on the road running West from Highway 66, south of the city of Commerce. Cal Campbell, the deceased, and Percy Boyd, city marshal of Commerce, were informed that they were there and together drove south on Highway 66, and a quarter of a mile west found the reported car. When they stopped and left their car, the parked car started backing up; Campbell started to follow the car; then started back to his car. The parked car was backed up about 100 yards and backed into the ditch, and stuck in the mud. A man jumped out of the car with a Browning automatic rifle and commenced shooting at the officers; then the other man got out of the car. Percy Boyd received a gunshot wound in the side of his head and fell; Cal Campbell received a gunshot wound about the center of the body, resulting in almost instant death.

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Percy Boyd testified that he was city marshal of Commerce; that with Cal Campbell, constable, he went out on Highway 66 and found the reported car parked west of the railroad tracks; that when they stopped and as they got out of their car, the parked car started backing up, and after backing about 100 yards got stuck in the mud by backing into the ditch. The shooting commenced from the car; then a man jumped out of the car with a Browning automatic rifle; he commenced to shoot at them and they returned the fire. That he did not know whether or not the defendant, Methvin, was the man in the road shooting at them. Witness was hit on the head and knocked down. Campbell was shot and fell dead. The defendant, Methvin, came up with a rifle in his hand, pointed it at witness, and took his pistol from him and said, "Get up and come with me." Witness got up, put his hands up, and with the defendant behind him walked to the car. On the way to the car the defendant said "Hurry up! We are going to take you with us." Bonnie Parker was sitting at the wheel in the car. Barrow was getting a car from a place across the road, in which he drove back to his car, and attempted to pull his car out of the ditch, but the tow rope broke. A truck came by and Barrow ordered the driver to attach a chain to the bandit car and pull it out of the ditch. When this was done, the defendant got in the car and Barrow ordered witness to get in the back seat, then took the wheel and drove off. That they drove to Fort Scott, Kan., where the defendant left the car four or five times; once to get a road map, once to go in a drug store for a newspaper, once at a suburban grocery store to get food, and twice to look at cars which Barrow pointed out and told the defendant to steal. That witness was released about 10 o'clock that night some eight miles from Fort Scott by

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Barrow, who told him to stay at the spot until he drove over the hill, stating that he generally tied them up, but believed witness would do what he was told. That he saw two Browning automatics, two sawed-off single-barrel shotguns, and four or five pistols in the car. That the next time he saw this defendant was at Shreveport, La., about a year ago.

On cross-examination witness stated that there was only one man shooting and only one man in the road prior to the time he was hit; that after Campbell was shot, witness heard the man who was doing the shooting order the other man "to bring him up"; that everything the defendant did during the time witness was with the fugitives was done at the command of Barrow; that after they obtained the newspaper in Fort Scott, Barrow made the statement that he was sorry he had to shoot the old man, or something like that.

Charley Dodson testified he lived in Commerce; that he was driving west on Highway 66 and saw Cal Campbell lying dead in the road; that Clyde Barrow ordered him to drive up and pull the car out of the ditch and he did so; that the defendant and Barrow both had rifles.

Jack Boydson testified that he drove out west of Commerce in a car, and after crossing the railroad he saw a man lying in the road dead; that he recognized him as Cal Campbell; that he stopped and started to back up and get away, but two fellows came down the road both holding rifles, and Clyde Barrow ordered him to drive on up there; that witness obeyed, and Barrow told him to get out of his car and help get the car out of the ditch, and he did so; that Percy Boyd was there and there was a woman in the car; that afterwards Charley Dodson and others came up, Dodson driving a truck with

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which he helped pull the car out of the ditch; all of this time the defendant was standing in the road armed with a rifle, and the people there were trying to help get the car out; that when they got the car out of the ditch they turned it around and headed it west; that then one of the men told Percy Boyd to get in the car, and it was then driven away by Clyde Barrow.

Mrs. May Phelps testified that she lives near the Lost Trail Mine, and another mine north across the road called the Crab Apple Mine; that her home was about a block south of the road where the shooting occurred; that she knew Cal Campbell in his lifetime and knew Percy Boyd; that she heard the shooting and stepped out on the porch and saw two men with something in their hands which she supposed were guns, which they were waving around; then she noticed a man traveling east with a gun in his hand; that she saw a woman dressed in red in the car that was in the ditch.

Everett Green testified that he was working at the Crab Apple Mine, about 350 feet from where the shooting affray took place; that he saw the bandit car back into the ditch, and he saw two men get out of the car with guns, and the shooting started.

William F. Hughes testified that he is a farmer, living in the vicinity where the shooting occurred; that Clyde Barrow and the woman and the defendant were all armed; Barrow, the little man, was giving orders, and the defendant was in the road stopping all cars; that some seven or eight people were stopped; that he heard Barrow say to them, "Boys, one good man has already been killed, and if you don't obey orders others are liable to be"; that the defendant at all times co-operated in the use of the pistol and the automatic rifle and commanded

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Percy Boyd to get in the car and held the gun on those stopping at the scene of the killing at all times while they were getting the car out of the mud and until they left the scene of the killing.

When the state rested, the defendant interposed a demurrer to the evidence on the ground that the same was insufficient to show that the crime of murder charged in the information was committed by him. Which demurrer was overruled.

On the part of the defendant, Albert 0. Lewis testified that he was working in the blacksmith shop of the Crab Apple Mine; when he heard the first shot, he stepped out of the shop and ran up on the boulder pile where he could see the shooting; that he saw two men near the car in the ditch; that one was shooting with an automatic rifle, and the other man was walking around the car apparently examining the tires. He identified the defendant as being the man who was walking around the car while the shooting was going on.

As a witness in his own behalf, Henry Methvin testified: He was 22 years old at the time of the trial. That with Clyde Barrow and Bonnie Parker he arrived at the place where Mr. Campbell was shot and killed about 2:30 o'clock that morning in a car driven by Barrow. That he was asleep in the back seat of the car and was awakened by sounds of shots. The first thing he saw was Clyde Barrow out in the middle of the road shooting; that when Barrow stopped shooting he told him to get out of the car, and after he left the car there was no shooting. That he never at any time fired a shot while he was with Clyde Barrow and Bonnie Parker, and did not fire a shot in the battle which resulted in the death of Cal Campbell. That Clyde Barrow did the shooting. That there

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was no prearrangement or concert of action between them. That about the first of March, 1934, he had made arrangements with his parents at Castor, La., whereby they were to get in touch with the sheriff of their parish and tell him that he would deliver Clyde Barrow and Bonnie Parker into the hands of the officers under certain conditions. That he knew from talking with Sheriff Jordan of the parish where his parents lived the plan had been communicated to the sheriff. That pursuant to this plan, he had arranged with Clyde Barrow and Bonnie Parker to visit his parents. After the shooting at Commerce, he persuaded Barrow and Parker to take him back to see his parents in Louisiana, and on the occasion of that visit, May 21, 1934, he learned from his mother that the arrangements had been made, and he told her that the fugitives were going to Shreveport, La., and that he would try to get away from Barrow and Parker while there, and they would come back to his parents looking for him. That pursuant to the agreement between the three that if they became separated, they would meet at the home of his parents, he did leave Barrow and Parker at Shreveport. On the morning following his escape from them, they went back to his parents' place in search of him and a short distance from the Methvin's home they were killed by officers of the law. That after the killing of Barrow and Parker, he stayed at his parents' home, working for local people, until he was arrested on the charge of murdering Cal Campbell. That as a result of his assistance in turning Barrow and Parker over to the officers, he was granted a pardon from the state of Texas, from the charge against him in that state.

The instrument, admitted in evidence, dated August 14, 1934, signed, "Miriam A. Ferguson, Governor of Texas," authenticated under the great seal of state, con-

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tains the following recital: "He gave to the authorities in Louisiana valuable information that lead to the justifiable killing by officers of one Clyde Barrow and one Bonnie Parker, who murdered two state highway patrolmen."

On cross-examination he testified that on January 16, 1934, he was an inmate of the Texas prison farm. On that date Clyde Barrow and Bonnie Parker engaged in a shooting affray with the prison guard, during which he and some other prisoners escaped; that he ran with the other prisoners, and happened to run across Barrow's car; he entered it and was driven to Dallas, where he remained about three days, after which he left and went to Hasland, Tex., where he obtained work for about three weeks; that Barrow and Parker hunted him up and Barrow forced him to go with him; that during the month of February the fugitives drove through several states, and about the first of March they drove to the home of his parents near Castor, La., at this time he made arrangement with his parents to turn Clyde Barrow and Bonnie Parker over to the officers of the law; that he was in constant fear of Barrow, who had repeatedly threatened to kill him; that leaving Louisiana the fugitives drove through Arkansas, Oklahoma, and Texas, then back, and arrived for the second time at the home of his parents in Louisiana. Upon leaving there they drove to Fayetteville, Ark., from there into Oklahoma, arriving near Commerce about 2:30 on the morning of the shooting; he went to sleep in the back seat of the car at that time, and didn't awaken until he was aroused by the sound of the shots. That Barrow ordered him to get out of the car, go down and get the officers, and bring them up to the bandit car; Bonnie Parker handed him a gun and he obeyed Barrow's orders; that he did not advise, aid, or assist Clyde Barrow to take the life of Cal Campbell; that he heard Barrow

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say to Percy Boyd that night at Fort Scott, "I am sorry I had to kill that old man."

On redirect he testified: That Barrow was at all times in command of the car, and that he was not permitted to have a gun with the exception of the time they were at Commerce, and thereafter. That he was with Clyde Barrow on compulsion. That he obeyed Barrow's orders because he was afraid of him.

"That he did not tell persons in the various stores in which he was sent that Clyde Barrow was in the car outside, for the reason that it would have probably meant the killing of every one in the store."

That Clyde Barrow ordered him on two occasions at Fort Scott to get out and steal a car, which Barrow pointed out. That both of the cars indicated were unlocked and could have been taken, but he told Barrow that they were locked because he did not want to steal the cars.

John Joiner testified that he lived near Castor, La.; that he made arrangements through the Methvins to contact the officers of his local parish; that the arrangement was made some time about the first of March, 1934; that at the direction of the Methvins, he went to see Sheriff Jordan on two different occasions; that at the second conversation there were present, besides himself, Sheriff Jordan, Lester Kandale, a Department of Justice man from New Orleans, Frank Hamer, a Texas ranger, and Bob Alcorn, deputy sheriff from Dallas county, Tex.; that he told the officers that Henry Methvin was willing to put Clyde Barrow and Bonnie Parker "on the spot" for his freedom; that Mr. and Mrs. Methvin had directed that any arrangement made must be in writing; that Kandale, Hamer, and Jordan said they would draw up a writ-

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ten agreement, which they did; that the witness saw this written agreement, which was turned over to Sheriff Jordan for safekeeping; that the document was signed by Miriam Ferguson, then Governor of Texas, the superintendent of the State Penitentiary of Texas, and Sheriff Jordan, and provided that if Henry Methvin delivered Clyde Barrow and Bonnie Parker over to the authorities, he was to have his freedom from the state of Texas; that on the 21st day of May, he received word from the Methvins that Clyde Barrow and Bonnie Parker would be there the next morning, and he so notified Sheriff Jordan, who, in turn, notified the officers at Dallas, Tex.; that Barrow and Parker, driving there the next morning, were stopped by the defendant's father, who was there for that purpose with officers nearby. In resisting arrest they were both shot and killed by the officers.

Mrs. Ave Methvin, the defendant's mother, testified that he came to her home about the first of March, 1934, with Clyde Barrow and Bonnie Parker; that at that time he talked to her and his father about making arrangements with the authorities for the apprehension of Clyde Barrow and Bonnie Parker; that thereafter she and her husband talked with Sheriff Jordan of their local parish, Frank Hamer, a federal man, and Bob Alcorn, a sheriff from Texas; that she next saw the defendant about the first of April and she told him the arrangements with the officers had been made; that the night before Clyde Barrow and Bonnie Parker were killed by the officer they came with her son, the defendant, to her home, and after a short stay left for Shreveport, saying they would be back the next morning; that she and the defendant's father went that night and told the sheriff that Barrow and Parker would be back there the next day; that they

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did come back the next morning, and the officers ambushed them and shot and killed them.

In rebuttal Joe Gunn testified:

"Galena, Mo., is my post office; on February 12, 1934, I met a car on the road near Reed Springs, the driver asked me the way out to Highway No 13, I told them they would have to turn back, and one of the men stepped out with a pistol in his hand and told me to get in the car and show the way out, and I went with them. While I was in the car they engaged in a shooting affray with officers, one being Ernest Hayes, that this defendant took part in that shooting, using a high-powered rifle of some kind, there was a woman in the car. It was a Chevrolet four-door car."

Ernest Hayes testified that "on or about February 12, 1934, I was deputy sheriff under Seth Tuttle, sheriff of Stone County, Mo., and on that day about two o'clock in the afternoon on a road half a mile west of Highway No. 13 in attempting to stop a car we engaged in a gun fight, there were five persons in the Chevrolet car, three engaged in this shooting, using rifles." That he was unable to say that the defendant was one of the three men.

In sur-rebuttal the defendant, Methvin, recalled, testified that he heard the testimony of the witness Joe Gunn; that he was not at the time and place stated by him engaged in combat with the officers as testified to by him; that he was at Hasland, Tex., at that time working at a lumber camp.

There are other facts and circumstances in the record of the evidence unnecessary to detail as they have but slight bearing upon the issues presented. The record is very voluminous, covering over 700 pages, but the foregoing statement is considered sufficient for the purpose of this opinion.

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Frank Nesbitt, J. J. Smith, and J. G. Austin, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.

DOYLE J. (after stating the facts as above). Appellant, Henry Methvin, was convicted in the district court of Ottawa county of the crime of murder, and in pursuance of the verdict of the jury was sentenced to suffer death by electrocution.

The errors assigned and argued will be considered in the order presented in appellant's brief. The first assignment is that: "The evidence is insufficient to sustain a conviction."

It was the theory of the state that the defendant, Methvin, is guilty of murder for the reason that he either actually shot and killed Cal Campbell, or aided and abetted Clyde Barrow in the shooting.

The defendant's theory was that while he was present when the murder of which he was convicted was committed, he was there in the company of Clyde Barrow by compulsion; that he did not fire a shot during the affray which resulted in the murder of Cal Campbell; and that he in no wise aided, abetted, or assisted in the shooting.

It was admitted that the defendants Clyde Barrow, Bonnie Parker, and Henry Methvin were outlaws and fugitives from justice, having escaped from a Texas state prison, and that Cal Campbell, the deceased, was murdered in the manner charged while attempting with another officer to apprehend the aforesaid outlaws and fugitives from justice.

The evidence shows that the fatal shot was fired either by the defendant or by his codefendant, Barrow.

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The defendant testified that Barrow did the shooting; that he did not fire a shot. One witness for the state, whose attention was attracted by the noise of the first shots fired and saw the shots afterwards fired, stated that both men near the car in the ditch were shooting. However, assuming that the fatal shot was fired by Barrow, then there is still ample testimony from which the jury could find that the defendant, Methvin, was present aiding and assisting in the commission of the murder. If he were present as an aider and abettor in the commission of the crime, he would be a principal, although the other did the killing.

Our Penal Code, section 1808, St. 1931, provides:

"All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals."

It is urged that the defendant was present at the time under compulsion and that he acted under the impulse of fear that he would himself be killed by his codefendant, Barrow, if he did not obey his orders.

In People v. Repke, 103 Mich. 459, 61 N.W. 861, a threat made three days before a murder, that the respondent would himself be killed if he did not go and assist, was held to be no defense.

In Leach v. State, 99 Tenn. 584, 42 S.W. 195, 197, a request to charge that if the defendant was forced by fear of coconspirators to commit the murder in order to save his own life, he would not be guilty of murder, was held to be properly refused. The court said:

"He could not with any degree of legal palliation elect a course absolutely safe to himself, and slay an in-

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nocent man, rather than take some risk to himself in an equal combat with a relentless companion."

In State v. Nargashian, 26 R.I. 299, 58 A. 953, 106 Am. St. Rep. 715, 3 Ann. Cas. 1026, the Rhode Island Supreme Court held:

"The fact that the accused, in assisting in the killing of another, acted under a fear of death imposed by the threats of the person he assisted, does not necessarily eliminate the elements of malice and premeditation so as to reduce the crime to manslaughter."

In the opinion it is said:

"It would be a most dangerous rule if a defendant could shield himself from crime by merely setting up a fear from a threat of a third person."

When the accused is present, aiding and abetting another in the commission of crime, he may be considered as expressly assenting thereto, so where he has entered into a conspiracy with others to commit a felony or other crime under such circumstances as will, when tested by experience, probably result in an unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the aiding of whatever should reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life.

From a careful review of the evidence, our conclusion is that in view of the undisputed facts and circumstances in the case the same does not show any foundation for the defense by reason of fear, even if it could have availed.

In the case of Hargus v. State, 58 Okla. Cr. 301, 54 P.2d 211, 212, this court held:

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"For the purpose of preserving the peace and to prevent crime, a peace officer or private citizen may make reasonable inquiry of persons coming under his observation or brought to his knowledge under circumstances which reasonably suggest that a crime has been or is about to be committed."

In the case of Davis v. State, 59 Okla. Cr. 26, 57 P.2d 634, this court held that:

"A peace officer has the right without a warrant to arrest a fugitive from justice. The officer being in the right and in the discharge of his duty, the person resisting arrest does so at his peril, and in so doing if he kills the officer, he is guilty of murder if he knew that the person attempting to make the arrest was an officer."

The credibility of the witnesses and the weight to be given their testimony was for the determination of the jury, and in weighing the evidence the jurors must be satisfied beyond a reasonable doubt that it establishes the guilt of the defendant. Evidently the defendant's account of the tragedy did not raise in the minds of the jurors a reasonable doubt of his guilt.

It is a rule of the law that, where the parties act in concert with a common design, they are both alike guilty as principals, and we see no reason to doubt that this conviction was justified and sustained by the evidence.

The second assignment of error is that:

"The court erred in permitting the direct examination of the witness, Percy Boyd, to be read to the jury without reading the testimony of said witness given on cross-examination. "

Procedure Criminal, section 3085, St. 1931, provides:

"After the jury have retired for deliberation, if there be a disagreement between them as to any part of the

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testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called."

It does not appear from the record that the jury were returned into court and asked to have the testimony of the witness Percy Boyd read. There is no recital in the record proper, or in the case-made, showing that this was done. It appears from the testimony of certain jurors that after having retired for deliberation they were brought into the courtroom and the testimony of the witness Boyd was read by the reporter. There is nothing in the record tending to show that the defendant and his counsel were not present when this information was given, and it does not appear that any objection was made or exception taken.

All presumptions are in favor of the regularity of the proceedings. There being nothing in the record in this case to show irregularity, or, if any, that any objection was made or exception taken, it follows that on the complaint made there is nothing before this court to be reviewed.

This brings us to the only remaining proposition presented in appellant's brief.

It is contended that the defendant did not have a fair and impartial trial, in that the juror John Mayes had formed, and on several occasions expressed, his opinion as to the guilt of the defendant by remarking that in his opinion Henry Methvin ought to get just what Clyde Barrow and Bonnie Parker did, and that was death, and if ever he sat on a jury trying Henry Methvin on that

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charge that is what he would give him; that if he were a juror on the trial of said cause that he would give Methvin the electric chair; and other similar remarks at other times. This was one of the grounds of the motion for a new trial as follows:

"That on his voir dire examination said juror stated that he had neither formed or expressed an opinion theretofore as to the guilt or innocence of the defendant on the charge of murder herein made, and had no such opinion at that time; that on general inquiry made by the court if any member of said panel knew of any reason whatsoever that would prevent him from sitting as a qualified juror and giving the defendant a fair and impartial trial in said cause the said juror did not make known his disqualification as hereinafter stated, but proceeded to take the oath as juror in said cause, and participated in the rendition and return of the verdict of 'guilty' in said cause and the return of the death penalty. That in truth and in fact said juror, John Mayes, had formed and many times expressed his opinion that the defendant, Henry Metlivin was guilty of murder as charged in the information herein, and further stated in substance that if he ever sat on a jury trying said defendant on said charge he would not only find him guilty but would insist on the 'death penalty'. And defendant alleges that said juror had said opinion at the time he qualified as said juror and failed to disclose that fact to the court or counsel, and that neither the defendant nor his counsel knew the substance of the statements so made by said John Mayes, nor did they know that he had in fact formed and expressed an opinion as to the guilt or innocence of the defendant and had such opinion at the time the jury was sworn in said cause.

"In support of which allegations on this ground contained the defendant hereto attaches the affidavits of 'Sam Stewart, Otto Cooper, B.0. White, W.M. Thomason, T.C. Womeldroff, S.L. White, W.S. Potts, Noble Anderson, P.E. Cundiff, M.T. Hall, Carl Lindsay, Maudie

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Potts, Harvey Partian, Henry Methvin, J.J. Smith, J.C. Austin, and Frank Nesbitt, and makes the same a part of this motion."

Upon the hearing on the motion for new trial the juror John D. Mayes testified:

"I am 54 years old. I was one of the jurors qualified and accepted on the trial of Henry Methvin, I was in charge of relief work at the time of the first trial and I did not attend and was not in the court room during the first trial; I knew nothing about the case of Henry Methvin and never remarked to any person that if I sat on a jury in the trial of the case that I would give him the electric chair, I never formed nor did I express an opinion as to the guilt or innocence of the defendant, Methvin, to any person or persons, I never did make any statements as set forth in the affidavits or any such in substance to any person at any time; that the jury were out deliberating on their verdict about twenty six hours and it was on the last ballot taken that I voted guilty."

The testimony of the juror Mayes, as to not being present in the courtroom during the first trial, was corroborated by the testimony of the officer acting as doorkeeper during the first trial, and was corroborated by the testimony of five jurors as to being one of the three last jurors voting for a conviction.

The state called and examined the persons who made the corroborating affidavits, and also called witnesses to impeach the testimony of said affiants. The transcript of the testimony taken on the hearing is voluminous, consisting of over 200 pages.

It is a settled rule of this court that the finding of the trial court upon a question of fact arising upon affidavits and evidence adduced on a motion for new trial will not be disturbed where the evidence reasonably tends to support such finding. Owen v. State, 13 Okla. Cr. 195,

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163 Pac. 548; Horton v. State, 10 Okla. Cr. 294, 136 Pac. 177; Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350.

Without going into a detailed analysis of the testimony taken on the hearing, we hold that the trial judge did not abuse his discretion in refusing to grant a new trial.

The instructions given by the court fully covered the law of the case as applicable to the evidence and were more favorable to the defendant than the law requires.

It is also urged that the punishment assessed and sentence of death imposed is excessive and was the result of passion and prejudice on the part of the jury.

Under the following provision of our Penal Code the punishment to be inflicted for the crime of murder is left to the discretion of the jury:

"Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury." Section 2222, St. 1931.

The verdict of the jury is conclusive upon the trial court, and the court below is without power or authority to render judgment and sentence except in accordance with the verdict. On appeal, however, our Procedure Criminal provides that:

"The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial." Section 3204, St. 1931.

In the case of Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613, 620, it is said:

"By this provision it seems to have been the intention of the Legislature to vest this court with power to modify the judgment, when such a course would be in furtherance of justice and conduce to the humane administration of the law. In a capital case it is the duty of

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this court to examine, with the greatest care, the whole record in favor of life, and review the case upon the merits to determine whether justice requires a modification of the judgment to imprisonment for life."

And see Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170; Anthony v. State, 12 Okla. Cr. 494, 159 Pac. 934; Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464; Chambers v. State, 16 Okla. Cr. 238, 182 Pac. 714; McConnell v. State, 18 Okla. Cr. 688, 197 Pac. 521; Young v. State, 19 Okla. Cr. 363, 200 Pac. 260; Phillips v. State, 27 Okla. Cr. 108, 225 Pac. 180.

The law regards human life as the most sacred of all interests committed to its protection; and no more solemn duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. To take the life of a human being is an awful thing even when it is taken by the law in the due administration of justice.

In this case it appears that on the defendant's first trial the jury failed to agree, and while we think the defense by reason of fear entirely failed and was properly discredited by the jury, yet it appears that the defendant had agreed with the authorities in Louisiana to aid and, assist federal and state officers to apprehend his codefendants, Clyde Barrow and Bonnie Parker, and in pursuance of said agreement did give to the authorities in Louisiana information that lead to their justifiable killing by officers of the law.