First. After the jury had been impaneled and when the first witness was placed upon the stand by the state, the appellant Joe McDaniel offered the following objection to the admission of any testimony against him:
"(1) Because the information presented by the state herein is insufficient in law upon which to base a prosecution. (2) Because said information is void ab initio, is contrary to the Constitution of the state of Oklahoma, is contrary to the *Page 220 Constitution of the United States of America, and is contrary to the statutes in such cases made and provided. (3) Because there is no allegation in said information relative to the defendant Joe McDaniel, other than a mere conclusion of the pleader thereof, in this: that said information nowhere alleges that the defendant Joe McDaniel was present, acted, aided, or abetted his codefendant, Andrew McDaniel, in the commission of said alleged offense, as set up in said information. Said information among other things alleges that the defendant Andrew McDaniel shot and killed the deceased, Bill Smith, but fails to allege in what particular, if any, the defendant Joe McDaniel was connected with said alleged offense. (4) Because the mere statement and conclusion of the pleader that the defendants `acted together' in no wise apprises the defendant Joe McDaniel of what time, or place, or in what manner the state will seek to prove that he acted with said Andrew McDaniel, and said allegation is so vague, uncertain, and ambiguous that it does not apprise the defendant Joe McDaniel of what he is called on to meet."
We fail to discover any insufficiency in the information. Instead of being contrary to the Constitution of this state, it is expressly authorized by that instrument. Section 25 of Williams' Const. of Okla. is as follows:
"No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint."
See, also, In re McNaught, 1 Okla. Cr. 528, 99 P. 241.
It is true that the information does not allege that there had been a preliminary examination of appellants before an examining magistrate, or that they had waived such preliminary examination, as the Constitution provides shall be done. It cannot be doubted but that a defendant has a right to insist upon such an examination before he can be called upon to answer an information, but the Constitution provides that he may waive such examination, and we think that he may waive it when called upon to plead to the indictment or information as well as when brought before a magistrate for examination. This is not a matter which *Page 221 goes to the merits of the trial, but only to the regularity of previous proceedings.
If he makes no objection on the ground that such examination has not been had or waived, he must be understood to admit that it has been had, or that he waived or now intends to waive it. If he intends to insist upon the want of an examination, he should by plea in abatement set up the fact that it has not been had. We do not think it is necessary that an indictment or information should charge that the defendant has had an examining trial, or that he has waived the same. This question has repeatedly been passed upon heretofore and always adversely to the contention of appellant. See Wood v. State, 3 Okla. Cr. 563, 107 P. 937;Caples v. State, 3 Okla. Cr. 72, 104 P. 493, 26 L.R.A. (N.S.) 1033; Canard v. State, 2 Okla. Cr. 505, 103 P. 737, 881, 139 Am. St. Rep. 949. If it is necessary to allege in an information that there had been a previous preliminary examination as a result of which the defendant was held to answer the accusation against him, or that the defendant had waived such preliminary examination, then it would be necessary to prove these allegations. This would place an unjust burden upon a defendant, because it might create the impression upon the minds of the jury that in the opinion of the examining court the defendant was probably guilty, or if he had waived such preliminary trial the jury might consider this as an admission or plea of guilty on his part. In either event, he would have to combat one or the other of these impressions in addition to the testimony offered against him upon his final trial. Therefore the safest and fairest plan is to omit such allegations from the information. So far as the information being contrary to the Constitution of the United States is concerned, there is nothing in that instrument which in any manner prohibits a state from prosecuting a felony by information. This question has been so often decided by every court to which it has been presented that it is useless to cite authorities in support of it. Counsel will look in vain for a single authority supporting their contention.
Counsel for appellants in their brief say:
"Before any testimony was admissible against the plaintiff in error Joe McDaniel, said information should have contained *Page 222 the allegation of in what manner and by what means the plaintiff in error Joe McDaniel aided and abetted his codefendant in error, Andrew McDaniel."
We cannot agree with this contention. All that is necessary for an indictment or information to allege is the ultimate facts to be proven. The information in this case charged that said Andrew McDaniel and Joe McDaniel, acting together, did then and there, feloniously, etc. So far as Joe McDaniel was concerned, the ultimate facts to be proven against him were that he acted with Andrew McDaniel with a premeditated design to effect the death of the deceased, and in pursuance of such design Andrew McDaniel shot and killed the deceased. It would be multifarious and bad pleading for an information to attempt to state the evidence upon which the pleader relied. We think that the information in this case was sufficient if attacked by demurrer or motion to quash. Even if we were in doubt about this matter, we could not sustain the contention of counsel, because their attack upon the information was made for the first time by objection to the introduction of testimony.
When an objection to an information is presented for the first time upon a motion to exclude testimony, the motion should be overruled, if by any intendment or presumption the information can be sustained. See Edwards v. State, 5 Okla. Cr. 20,113 P. 214; White v. State, 4 Okla. Cr. 143, 111 P. 1010. The court therefore did not err in overruling the motion to exclude testimony as against Joe McDaniel.
Second. Appellants complain that the court erred in permitting the state's witness Zack Williams to testify as to threats made by Andrew McDaniel, upon the ground that the said threats were vague and indefinite, and were not proven to have been directed toward the deceased. The testimony upon this subject is as follows:
"Q. State your name to the jury? A. Zack Williams. Q. Where do you live? A. Finley. Q. Are you acquainted with the defendants in this case? A. Yes, sir. Q. Were you acquainted with the deceased in his lifetime? A. Yes, sir; I had known Mr. Smith about two years. Q. Were you in Poteau in November of last year? A. Yes, sir. Q. Under what circumstances were you there? A. I was there as a witness. Q. In what case? *Page 223
"Defendant: We object.
"The Court: The objection is overruled.
"A. In the case of the state against Henry McDaniel. Q. Who is Henry McDaniel? A. He is a brother of these two boys. Q. Were they there at that time? A. Yes, sir. Q. Was the deceased there? A. Mr. Smith? Q. Yes. A. Yes; he was there. Q. Was he a witness in the Henry McDaniel case? A. Yes; I think so. That was my understanding. Q. What was Henry McDaniel charged with?
"Defendant: We object because it is immaterial, irrelevant, and inadmissible, and because it is not the best proof.
"The Court: Your contention is that it should be proven by the record?
"Defendant: Yes, sir.
"The Court: I don't think it is necessary in this case.
"A. The prosecuting attorney in making his statement said he was charged with larceny. Q. Whose cattle was it alleged that he stole, Mr. Smith's, the deceased's? A. Yes, sir. Q. Did you hear a statement made by either of the defendants?
"Defendant: I do not want to take the time of the court, but I want to object to all this testimony. It is immaterial, hearsay, not the best proof, and for the other reason that I have mentioned.
"The Court: All right, sir.
"Q. Did you hear any statement made by either of these defendants at Poteau in regard to the Henry McDaniel case? A. Oh, yes; we talked a great deal about the case. Q. After the verdict of the jury was there any statement made by either of the defendants at the hotel in Poteau? A. Yes, sir. Q. By which one? A. By Andrew. Q. Under what circumstances and what was the statement? A. I just went in the hotel. Andrew was sitting nearly in front of the door. I was sitting on the left of Andrew, and Mr. Kemp, a brother-in-law of Andrew, was sitting about here, and there were two other witnesses from down in the country. I believe their names are Lunsford and Connelly, and I do not know whether the hotel man was there just at that time or just before or after. He was showing people their rooms, and sometimes he was there and sometimes he was not. I was sitting right in front of the stove in the Commercial Hotel and Andrew made the remark: `They have got Henry in jail. That's what they wanted all the time, but they swore damned lies to put him there, and I'll kill the son of a bitch that put him there as sure as powder will burn.' That is the exact language." *Page 224
Henry McDaniel had been tried and convicted for the larceny of cattle owned by deceased, and the deceased had testified against him on said trial. We think that the threat made by Andrew McDaniel clearly included the deceased, as the deceased was the prosecutor in said case. The modern rule is to admit generic threats or threats directed toward a class and leave their weight for the jury. On this subject Prof. Wigmore says:
"It has been noted (ante, sec. 103) that the more specific a design is the greater its probative value. There may come a point at which the design is too indefinite in its indications to be of any probative value; but the mere fact that it is generic —i.e., points towards a class of acts — however broad, does not in itself destroy its relevancy, provided the purpose might naturally include the act charged." (1 Wigmore on Evidence, sec. 106.)
Mr. Wigmore cites an unanswerable array of authorities in support of this proposition. If the deceased was not personally threatened, he at least belonged to the class who were referred to, and he was therefore necessarily included in the threat made. It is true that Joe McDaniel was not present when Andrew made this threat, but this is immaterial, because the testimony shows that he had made similar threats himself, and that during this entire transaction he was acting with Andrew. Therefore the threat of one was the threat of both of them. The court did not err in admitting this testimony.
Third. Appellants next complain that the court erred in permitting the state's attorney to require the defendant Joe McDaniel to testify while upon the stand on cross-examination that he had been convicted in Texas of murder in the second degree and sent to the penitentiary for this crime; he having already testified that he had been convicted of a felony. We think this contention is without merit. In the case of Slater v.United States, 1 Okla. Cr. 275, 98 P. 110, this court held:
"Upon cross-examination for the purpose of affecting the credibility of a witness, he may be asked if he has ever been convicted of a felony or of any crime which indicates a want of moral character."
The law classes all felonies as infamous, but in everyday life we know that different degrees of infamy attach to different *Page 225 felonies, and we think that the jury had a right to know of what particular felony the witness had been convicted, for the purpose of affecting his credibility.
A number of other questions were presented in the assignment of errors and discussed in the brief of counsel for appellants, all of which we have carefully considered, and we are of the opinion that they are immaterial, and did not in any manner affect the final decision of this case. We have frequently stated that, when a defendant was properly indicted and fairly tried and proven to be guilty, we will not reverse a conviction upon light and trivial grounds. This court is not trying to build up a complicated scientific system of criminal jurisprudence. Our entire effort is to give the laws of Oklahoma a common-sense construction, and to place them upon the basis of reason and justice. We care absolutely nothing for fine-spun theories and speculations. These men have been fairly tried, and the testimony proves conclusively that they are guilty. Why put the people of Oklahoma to the expense of a second trial? The charge of the court is a model one, and, if all of the trial judges had the faculty of stating the law in their charges in the concise and logical manner expressed in the court's charge given in this case, there would be fewer reversals of convictions in Oklahoma. Neither would this court be called upon continually to apologize for the harmless errors committed by our trial judges. The reporter will incorporate the instructions in full in connection with this case, as they completely cover the law applicable to the facts proven. We think that under the evidence both of the appellants acted together and they sought, provoked and without necessity or apparent necessity voluntarily entered into a combat with deceased with a premeditated design to effect his death, and that their conviction was a proper vindication of law and justice. We regard this as the clearest case of mutual combat that has ever been presented to this court.
We find no material error in the record. The judgment of the lower court is in all things affirmed.
ARMSTRONG and DOYLE, JJ., concur. *Page 226