The plaintiffs in error, George Norton and Jim Norton, were convicted in the district court of Cleveland county of the crime of murder in the killing of Pat Urkheart, and the punishment of each fixed by the jury at imprisonment in the state penitentiary for life.
The evidence of the state was that Jim Norton, who was about 56 years of age, was the father of George Norton, who was 17 years of age; that the Nortons lived in a house upon some premises which deceased claimed to have rented; that defendants at about 6 o'clock in the evening had gone to the home of one B. Scott nearby and borrowed a No. 10 gauge shotgun, as they said, to kill rabbits with; that as they reached their home deceased called to George Norton and wanted to talk to him; that *Page 334 the Nortons went on in the house, and as deceased approached the porch George Norton fired the gun, a load of shot striking deceased about three inches below the right nipple; that Jim Norton was in the room with George when the shot was fired; that deceased immediately fled from the scene and fell a short distance from the house and died in a few minutes, after making a statement that George Norton had shot him; that the Nortons were arrested about midnight and taken to the county jail; that the officers found the gun at the home of George Norton's cousin; that the next day George Norton told the officers he traded for the gun about two years ago, in the eastern part of the state, and kept it about the house to shoot rabbits with; that he always loaded the gun in the evening and set it by the wash stand, and that he did so on that evening; that later in the day Jim Norton told the officers they had had the gun about three months, but when the officers told him they knew who owned the gun and where they got it, he admitted they borrowed it from Scott and said they were expecting trouble with Urkheart and got the gun and aimed to use it on him if he tried to put them off the place; that later in the day George Norton made the same admissions and practically the same statements.
Defendants testifying for themselves said that deceased approached the house cursing and threatening to kill them; that he pulled a pistol from his hip pocket and threatened to shoot them; and that George fired the fatal shot in self-defense.
In rebuttal the state showed by the officers that no pistol was found on deceased nor about the premises; that the coveralls deceased wore had no hip pockets; that the ground where deceased stood was about fourteen inches lower than the porch; that deceased was not on the porch *Page 335 but out in the yard; and that the shots which killed him ranged downward, showing that the one who did the killing had stood much higher than deceased.
In the oral argument in this court, counsel for George Norton admitted the evidence was sufficient to sustain the verdict of the jury as to him, but contended in the argument, and now contend in their brief, that it was wholly insufficient to sustain a conviction as against Jim Norton.
The existence of a conspiracy in any particular case is an inference to be drawn by the jury from all the facts and circumstances in evidence. The state may either prove the conspiracy which renders the acts of the conspirators admissible evidence, or it may prove the acts of the defendants, and thus prove conspiracy. From evidence proving that two or more persons aided by their acts toward the accomplishment of the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected and co-operative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred, though no actual meeting among them to concert means is proved. The details of a conspiracy need not be proved.
When in a criminal case the inference of guilt can be reasonably drawn from the evidence, this court will not interfere with the verdict on the ground of want of evidence to sustain it. There is a direct conflict in the testimony for the state and that for the defense. Upon the testimony of appellants and their witnesses the jury could have acquitted them. On the other hand, the testimony on the part of the state if credited, as it was, was amply sufficient to sustain the conviction. It appears from all the evidence in the case that defendants were acting *Page 336 in concert and with a common purpose and intent in the commission of the offense charged.
It is next contended the trial court erred in overruling the challenge for cause of the prospective juror Rushing.
The entire examination of the juror on his voir dire does not appear in the case-made, but enough of the examination does appear to show that the juror had never talked with any witness in the case nor with any person who pretended to know any of the facts surrounding the killing. He had some impression as to the guilt or innocence of the defendants from reading newspaper reports, but said he had no opinion at that time as to what should be done in the case, and that the opinion he had from reading the newspapers would yield to evidence.
The action of the trial court on a question of this kind is largely one of discretion, and there must appear a manifest abuse of such discretion before the court will set aside a verdict, even if it were shown that the juror sat in the trial of the case, which does not appear in this instance. This rule is supported by: Turner v. State, 4 Okla. Cr. 164,111 P. 988; Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Agent v. State, 18 Okla. Cr. 282, 194 P. 233; Harper v. State,20 Okla. Cr. 43, 200 P. 879; Littrell v. State,21 Okla. Cr. 467, 208 P. 1048.
There is another reason why there is no merit in this contention. There is nothing in this record to show that by the overruling of this challenge defendants failed to get a fair and impartial jury. If they did get a fair and impartial jury, that was all they were entitled to, as they had no vested right to have any particular juror sit in the trial of the case until after the jury had been sworn. Coatney v. State,52 Okla. Cr. 70, 2 P.2d 604. *Page 337
There is still another reason why there is no merit in this contention. The record does not show that defendants exercised all of their peremptory challenges.
In Davis v. State, 53 Okla. Cr. 411, 12 P.2d 555, this court said:
"Even though the trial court may improperly overrule a challenge for cause and the challenged juror permitted to sit on the panel, if it appears that defendant did not exhaust all of his peremptory challenges the error is waived."
So, viewed from any angle, there is no merit in defendants' contention.
No sufficient reason for reversal appearing, the cause is affirmed as to each of the defendants.
EDWARDS, P. J., concurs.