Defendant under his first assignment of error, contends that he could not be placed upon trial charged with a felony by information. We have read with a great deal of interest the ingenious argument presented by counsel for defendant in support of this contention, but are unable to agree with their reasoning. This question was decided adversely to the contention of defendant by this court, in Re McNaught, reported in1 Okla. Cr. 528, 99 P. 241, and again by the Supreme Court of this state in the case of Ex parte McNaught, 1 Okla. Cr. 260, 100 P. 27. It is well settled in this state that a person charged with a felony may be tried in courts having jurisdiction of such offense by information properly verified, having first had a preliminary examination before an examining magistrate, or having waived such preliminary examination.
Defendant assigns as his second assignment of error that *Page 563 the information does not conclude, as required by that portion of article 7, § 19, of the Constitution, which provides, "All indictments, informations and complaints shall conclude `against the peace and dignity of the state,'" and is therefore void. Counsel for the defendant in their argument contend that the information is in violation of that portion of the Constitution just quoted, in that stating the offense of which the defendant was charged, "contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma," contains before the name of the county attorney, the following:
"The defendant, Ran Wood, having on the 4th day of April, 1908, had a preliminary examination on said charge before E.E. Tracy, a duly elected, qualified and acting examining magistrate of Roger Mills county, state of Oklahoma, and he, said Ran Wood, was by said E.E. Tracy on the 4th day of April, 1908, ordered committed and held in the county jail of said county and state to await the action of the district court on said above charge."
The contention of counsel for defendant is wholly without merit. The information in this case in a clear, concise and specific manner charges the defendant with the crime of murder, stating in detail the manner in which such homicide was committed, and charges that the killing so alleged by the defendant was contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.
In the case of Canard v. State, 2 Okla. Cr. 505,103 P. 737, decided by this court July 27, 1909, it was held:
"In the prosecution of a defendant by information for a felony it is not necessary that the information should allege that there was a preliminary hearing before a committing magistrate, or a waiver of the same, although such facts must exist in order to authorize the filing of such information."
Again in the case of Caples v. State, ante, p. 72,104 P. 493, decided by this court October 18, 1909, it was held:
"It is not necessary for an information charging a felony to allege that the defendant has had a preliminary examination before an officer authorized by law to hear the same, and has been *Page 564 bound over to await final trial thereon, or has waived such examination. If these things have not been done, the defendant can present this question to the court by plea in abatement."
If it is not necessary for an information charging a felony to allege that the defendant has had a preliminary examination before an officer authorized by law to hear the same, and has been bound over to await the final trial thereon, or has waived such examination, then the question arises: Does such an allegation to an information as in this case render it in conflict with article 7, § 19, of the Constitution of the state, which provides, "All indictments, informations and complaints shall conclude `against the peace and dignity of the state'" such as to render said information void, or is such allegation mere surplusage? The question, therefore, arises: What constitutes surplusage?
Mr. Bouvier, in volume 2 of his Law Dictionary (page 699), defines surplusage to be:
"Allegations of matter wholly foreign and impertinent to the case. All matter beyond the circumstances necessary to constitute the action is surplusage. When the whole of an allegation is immaterial to the plaintiff's right of action, it may be struck out as surplusage."
Rapalje Lawrence's Law Dictionary (page 1245), says:
"Surplusage is where there is something in excess. In pleading surplusage is the allegation of unnecessary matter, and is forbidden. In most cases such matter will not vitiate the pleading, but will be disregarded."
Anderson's Law Dictionary (page 997):
"Matter, in any instrument, foreign to the purpose; whatever is extraneous, impertinent, superfluous, or unnecessary. Whatever may be stricken from the record without destroying the plaintiff's right of action, as, in a suit for a breach of warranty, that goods were not such as the defendant warranted them, * * * `and that he knew this.'"
Cyclopedia Law Dictionary (page 888):
"Allegations of matter wholly foreign and impertinent to the cause. All beyond the circumstances necessary to constitute the action is surplusage. Cowp. 683; 5 East, 278; 10 East, 205; 2 Johns. Cas. (N.Y.) 52; 1 Mason (U.S.) 57; 16 Tex. 656."
Black's Law Dictionary (page 1143) says. *Page 565
"Allegations of matter wholly foreign and impertinent to the cause. All matter beyond the circumstances necessary to constitute the action."
Broom's Legal Maxims (8th Ed.) p. 626, says:
"It is a rule of extensive application with reference to the construction of written instruments, and, in the science of pleading, that matter which is mere surplusage may be rejected, and does not vitiate the instrument or pleading in which it is found. * * * `Surplusagium non nocet' is the maxim of our law."
In Commonwealth v. Peto, 136 Mass. 157, the Supreme Court of that state said:
"The second ground assigned in the motion to quash should not have been sustained. If the complaint was defective, it was so in form only, and the motion was filed too late. Pub. St. c. 214, § 25; Commonwealth v. Emmons, 98 Mass. 6; Commonwealth v.Blanchard, 105 Mass. 173; Commonwealth v. Doherty, 116 Mass. 13. But we do not perceive that the complaint was legally defective, even in form. It averred the keeping of intoxicating liquors with intent to sell the same, without being authorized so to do by virtue of St. 1869, c. 415, an act which was then repealed; but it further averred that these liquors were thus kept without any legal authority whatever. The allegations as to St. 1869, c. 415, were therefore superfluous, and might properly be treated as surplusage."
In State v. Elliott, 14 Tex. 426, it is said:
"But it is objected in effect that too much was attempted, and that the indictment is bad by reason of the recitals. If these contained anything contradictory or repugnant to the body of the indictment, or were of a character to render unintelligible any of the material, traversable matters constituting the charge, there might be force in the objection. But such manifestly is not the case. The grand jury have undertaken, very needlessly, it is true, to recite the history of the lost indictment. And it is also true, as suggested in the argument, that this was quite foreign to their appropriate province. It was matter wholly foreign and irrelevant. And that it was so brings it, in the strictest sense, within the definition of surplusage, which does no injury. For, in general,`surplusagium non nocet,' according to the maxim `Utile per inutile non vitiatur.' Matter which is merely useless never vitiates." *Page 566
In State v. Sarlls, 135 Ind. 200, 34 N.E. 1130, the Supreme Court of Indiana said:
"If the language quoted could be treated as surplusage, the motion to quash should not prevail. By statute, `surplusage' or `repugnant allegation' does not render an indictment insufficient, `when there is sufficient matter alleged to indicate the crime and person charged.' Clause 6, § 1756, Rev. St. 1881; State v. McDonald, 106 Ind. 233 [6 N.E. 607]; Myers v.State, 101 Ind. 379; State v. Judy, 60 Ind. 138."
"It is a general rule, irrespective of statute, that surplusage does not vitiate, and, to aid the sense, it may be rejected. (State v. Judy, supra.)
In State v. Pierce, 8 Nev. 296, the court aid:
"It is again objected that the indictment is insufficient. A careful perusal satisfactorily shows it to be perfectly good, though, perhaps, through excess of caution containing more than the statute demands; but in this superfluous matter, if so it be, there is nothing to perplex one of ordinary understanding, nor to injure this appellant."
In Travis v. Commonwealth, 96 Ky. 77, 27 S.W. 863, the court said:
"The indictment reads as follows: `The said Travis and Hendricks heretofore, to wit, on the ____ day of December, A.D. 1893, in the county aforesaid, did unlawfully and feloniously take, steal, and carry away, with the intent to convert to their own use, from J.L. Ewell, $30 in good and lawful currency of the United States of Kentucky, a better description of which is not here given because the same is to the grand jury unknown, said $30 then and there belonging and was in the possession of said J.L. Ewell, and the said Travis and Hendricks did feloniously convert the same to their own use, and deprive the said Ewell of same,'" etc.
The court then proceeds as follows:
"In an indictment for the larceny or embezzlement of money or United States currency or bank notes, it is sufficient to allege the larceny or embezzlement of the same, without specifying the coin, number, denomination, or kind thereof. Section 135, Criminal Code. The indictment meets all the requirements of the Code, and the offense is specific and complete; the words `of Kentucky' being mere surplusage and meaningless, and in no way calculated to mislead defendant to his prejudice." *Page 567
In State v. Noble, 15 Me. 477, the court said:
"It may be regarded as a general rule, both in criminal prosecutions and in civil actions, that an unnecessary averment may be rejected, where enough remains to show that an offense has been committed, or that a cause of action exists."
In State v. Webster, 39 N.H. 96, the court said:
"All unnecessary words in an indictment may, on trial or arrest of judgment, be rejected, as surplusage, if the indictment will be good upon striking them out. State v. Bailey,31 N.H. 521; Wharton's Cr. Law, 165; 1 Ch. Cr. Law, 238; Rex v. Edwards Morris, Leach, 127; Commonwealth v. Arnold, 4 Pick. [Mass.] 251; Commonwealth v. Hunt, 4 Pick. [Mass.] 252. By striking out in this indictment the words, `certain persons unknown, of whom,' and the words `was one,' and again the words, `said persons unknown, of whom,' and `was one,' and the indictment is in proper form, as founded upon section 5, c. 217, Rev. St., for assaulting and obstructing the officer."
In Castles v. McMath, 1 Ala. page 328, the court said:
"The duplicity complained of in the declaration is that, after setting forth that the bill was protested for nonacceptance, it goes on to allege a protest for nonpayment also. In Evans v. Watrous, 2 Port. 205, it was determined `that under our statute, which prohibits special demurrer where there is a clear and substantial cause of action set forth in a declaration, though it may contain irrelevant or superfluous matter, or though it may contain duplicity, yet the defendant shall be held to answer it.' It is not pretended that the declaration does not contain a good cause of action; but the objection is that some of its allegations are superfluous, and consequently affords no cause for reversal."
In Commonwealth v. Rowell, 146 Mass. 130, 15 N.E. 155, the court said:
"The complaint must allege all the material elements which constitute the offense charged, and they must be proved. And if the complaint unnecessarily alleges anything which is descriptive of the identity of the offense, it must be proved as alleged. But any allegations not descriptive of the identity of the offense, which can be omitted without affecting the charge against the defendant, and without detriment to the complaint, may be treated as surplusage, and need not be proved." (Commonwealth v. Pray, 13 Pick. 359; Commonwealth v. Cooley, 10 Pick. 37; Commonwealth v.Lewis, 1 Metc. 151.) *Page 568
We could multiply authorities to the same effect without limit upon this question, but we deem the foregoing to be sufficient. So far as the information against the defendant in this case is concerned, charging the offense, it closes with the words "against the peace and dignity of the state." The allegation following this was matter wholly foreign and irrelevant to the information. It neither added to nor took from any of the material matters constituting the charge. It is therefore surplusage pure and simple. It constitutes no part of the information. Under the authorities above cited, it should be disregarded and treated as a nullity.
The third assignment of error is that the court erred in overruling defendant's challenge to the panel of jurors. Chapter 89, art. 8, of Snyder's Comp. Laws Okla. provides the manner in which a challenge to the petit jury may be made. Section 6795 provides that:
"A challenge to the panel can be found only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn from, which the defendant has suffered material prejudice."
Section 6796 provides:
"A challenge to the panel must be taken before a jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge."
Section 6799 provides:
"If the challenge is denied, the denial may, in like manner, be oral, and must be entered upon the minutes of the court, and the court must proceed to try the questions of fact."
Section 6800 provides:
"Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of challenge."
It will be seen from section 6795 of this act that the challenge to the panel must be founded on facts from which the defendant has suffered material prejudice. In this case the challenge simply charges that the jury commissioner Joe Moad was *Page 569 interested in the prosecution of this case, and undertakes to set out to what extent he was so interested. It nowhere charges that any member of the jury taken from the jury list selected by him as such jury commissioner was in any way biased or prejudiced against the defendant, or that the jury commissioner Moad had, at any time prior to the selection of them for jury service, ever conversed with them concerning this prosecution, or otherwise attempted to any way influence their action. While it is the duty of the trial court, when a challenge to the jury panel is presented to it, to try the issue of fact when the same is properly denied, yet it is not error for the court to overrule such challenge where it fails to state facts sufficient to justify the court in discharging the jury, if true. The grounds of challenge in this cause were insufficient to warrant the court in discharging the jury. Therefore no error was committed in overruling the challenge.
The court charged the jury in part as follows:
"Thirteenth. If you believe from the evidence in this case beyond a reasonable doubt that the killing of Jesse Hungate by the defendant was not justifiable, as justification and self-defense are explained in these instructions, it will then be your duty to determine the degree of the felonious homicide. It you believe from the evidence beyond a reasonable doubt that the defendant in the county of Roger Mills and state of Oklahoma, on the 29th day of March, 1908, shot the deceased and wounded him, from the effects of which he soon thereafter died, and that the defendant fired the fatal shot at the deceased with the premeditated design to effect the death of said Jesse Hungate, you will then find the defendant guilty of murder and fix his punishment at death, or by imprisonment in the state penitentiary at hard labor for life, at your discretion. But if you have a reasonable doubt, after considering all the evidence in the case, as to whether the killing was perpetrated with a premeditated design to effect death, and do find and believe from the evidence beyond a reasonable doubt that the killing was done in the heat of passion by means of a dangerous weapon, then you will find the defendant guilty of manslaughter in the first degree. Or if you find that the killing was unlawful, and that it was neither murder, manslaughter in the first degree, nor justifiable homicide, you will find the defendant guilty of manslaughter in the second degree." *Page 570
"Sixteenth. The defendant has interposed the defense of justifiable homicide or what is commonly known as self-defense. It, therefore, becomes my duty to instruct you in relation to this defense. If a person is assaulted in such a manner as to produce on the mind of a reasonable person a belief that he is in actual danger of losing his life, or suffering great bodily harm, he will be justified in defending himself, though the danger be not real, but only apparent. Such person will not be held responsible criminally if he acts in self-defense from real and honest convictions as to the character of the danger reasonably induced by reasonable evidence, though he may be mistaken as to the extent of the real danger; and, where one without fault is attacked by another, and kills his assailant, if the circumstances furnish reasonable ground for apprehending a design to take his life or do him some great bodily harm, and if he believes the danger imminent and such design will be enforced, homicide is justifiable.
"Seventeenth. In considering the evidence in the case for the purpose of determining whether or not the defendant acted in good faith and fired the fatal shot under the belief that he was in danger of losing his life or receiving great personal injury, it will be your duty to view the circumstances and the evidence from the standpoint of the defendant and as they reasonably appeared to him at the time he fired the shot that killed the deceased."
"Nineteenth. If you find and believe, however, from the evidence that the defendant on the morning of the killing overtook and rode with him in the public road without any intention of provoking a difficulty with the deceased until they arrived at the place of the killing, and that the defendant on turning to leave the deceased heard the deceased using insulting words towards him, and at the time the deceased used such insulting words, if you find such words were used, the defendant had no intention of provoking a difficulty with the deceased, but upon hearing such insulting words, if any, from the deceased was angered by the same, and halted and challenged the deceased to mutual combat, and if you find that the deceased responded to such challenge in the affirmative, whereupon the defendant dismounted from his horse, and in good faith intended to combat or fight the deceased without using any deadly weapon, when he discovered a pistol in the deceased's hands, and that then and there the defendant stepped behind his horse and drew his pistol and fired at the deceased, and at the time of so firing from the attitude and *Page 571 manner of the deceased the defendant had reason to believe, and did believe, that the deceased was about to take his life, and that the defendant fired the fatal shot under these circumstances, then he would be justifiable regardless of which shot of the defendant killed the deceased, and it will be your duty to acquit him. If, however, you should find from the evidence that the defendant challenged the deceased to mutual combat with their revolvers, and pursuant to such challenge several shots were fired by the deceased and the defendant towards each other, one of which struck and killed the deceased, then the defendant would be guilty of murder, and it would be immaterial as to which one of the combatants fired the first shot, and you should say so by your verdict."
Counsel for the defendant contend that the thirteenth instruction is erroneous in that it practically directs the jury, if they found that the defendant killed the deceased while in a heat of passion and by means of a deadly weapon, then the defendant would be guilty of manslaughter in the first degree. This position of counsel is wholly untenable. The court in this instruction, in its beginning, charged the jury:
"If you believe from the evidence in this case beyond a reasonable doubt that the killing of Jesse Hungate by the defendant was not justifiable, as justification and self-defense are explained in these instructions, it will then be your duty to determine the degree of felonious homicide."
This instruction must be considered as a whole, and, construing it as such, the court properly charged the jury that they must consider the other charges relevant to the justification and self-defense as explained in the instruction. Reading this instruction in connection with the other instructions, the jury could not have been misled. There was no error in giving this instruction.
Counsel for defendant criticizes that portion of the sixteenth instruction which says:
"If a person is assaulted in such a manner as to produce on the mind of a reasonable person a belief that he is in actual danger of losing his life, or suffering great bodily harm, he will be justified in defending himself, though the danger be not real" — and contends that it is erroneous in that it consists in substituting the mind of some hypothetical reasonable person for the mind *Page 572 of the person assaulted. This instruction is somewhat inaccurately drawn, but in view of the other instructions, we cannot hold, as a matter of law, that it is erroneous. This instruction must be considered in connection with the other instructions. The court in the seventeenth instruction charged the jury that they must view the circumstances and the evidence from the standpoint of the defendant as they reasonably appeared to him at the time he fired the shot that killed the deceased. It will be seen from this instruction that the jury was directed not to consider the facts and circumstances from the standpoint of a reasonable person, but from the standpoint of the defendant alone. We find no error in this instruction.
Counsel for defendant, in criticizing the nineteenth instruction, says:
"From the entire instruction, it will be seen the court made the right of defendant to self-defense, depend upon the absence of any intention to provoke a difficulty. It thus would say to the jury, in substance: `If you do not believe that he was without intention to provoke a difficulty, whatever else transpired, you cannot give him the benefit of the law of self-defense.' Besides, it would say that if this defendant intended to have a fist fight with the deceased, he could not defend himself against the most deadly, sudden, and violent of assaults."
We have carefully examined this instruction of the court, and have reached the conclusion that it is far more liberal to defendant than the law demands. Under this instruction, if the jury found and believed from the evidence that the deceased spoke insulting words to the defendant, and the defendant, being angered thereby, challenged the deceased to a mutual combat, without intending to use any deadly weapon, but intending merely an ordinary battery, and the deceased responded to such challenge with a pistol, and from his attitude and manner led the defendant to believe that deceased was about to take his life, defendant would, under these circumstances, be justified in killing the deceased. This is not the law. A person cannot challenge another to a mutual combat, although without intending to kill, but intending an ordinary battery merely, and avail himself of the right of self-defense, *Page 573 even though his adversary may respond to such challenge with a deadly weapon, and cause him to believe that his life is in danger, or that he is in danger of great bodily harm, without first notifying him by word or act that he intends to abandon the combat; and, if he kills his adversary without notifying him by word or act that he intends to abandon the combat, such killing constitutes manslaughter.
In this case the defendant himself admitted that, while armed with a 45-calibre revolver, he challenged deceased to fight him, got down off his horse for that purpose, and, seeing the deceased with a revolver in his hand, and in an attitude which caused the defendant to believe he was about to be killed, drew his revolver and commenced firing at the deceased. Defendant may not have intended to draw his revolver when he challenged deceased to fight him, and may have intended only an ordinary battery, yet this intention did not give him the right to invoke the law of self-defense, because at the very time he fired the fatal shot he was carrying out his design and purpose to fight the deceased. He had not, by word or act, given the deceased reason to believe that he intended to abandon the combat. Conceding that defendant, at the time he fired the fatal shot, believed he was in danger of losing his life or suffering great bodily harm, he is estopped, under his own version of the affair, to invoke the law of self-defense, because he did that which in the very nature of things was calculated to induce the deceased to do just what he did do, and the defendant must have known, and did know, that his own conduct caused the deceased to act as he did, and this was known to defendant before he shot. Therefore, if the defendant provoked an altercation between himself and the deceased, or challenged the deceased to a mutual combat, without intending to kill deceased, but intending an ordinary battery merely, and the deceased assaulted defendant, or by some act done gave defendant reasonable apprehension of loss of life or great bodily harm, and the defendant killed the deceased to protect himself from the apprehended danger, the killing under such circumstances would not be justifiable, but would be manslaughter. *Page 574
In the twenty-eighth assignment of error defendant complains of the conduct of counsel for the state, in that Hon. W.I. Gilbert, who assisted in the prosecution, in his closing argument to the jury (addressing defendant) said:
"You know you shot poor Jesse Hungate in cold blood, and committed cold-blooded murder. What did he say? You know that he made a statement there that you have not told. Oh, you may sigh and swallow, but you know that it is so."
That further in said argument, counsel stated:
"Gentlemen of the jury, it has come to a point when murder must be stopped in this country; murders have been altogether too frequent. I will tell you of a case where a man committed cold-blooded murder and was released by a jury."
And that further in said argument the said W.I. Gilbert argued to the jury that the defendant had applied for bail, and that it had been refused. To these remarks defendant duly excepted, and it is now claimed that this argument constituted such misconduct on the part of the state as to cause a reversal of this cause. This court has repeatedly held that as to remarks of counsel in the course of their arguments, objected to as improper, in order to constitute reversible error, the impropriety indulged in must be such as to influence the verdict. Section 6957, Snyder's Comp. Laws Okla., is as follows:
"On an appeal the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties."
The letter and spirit of this statute is that if this court can say, after carefully considering the entire record in the case, that the conviction is sufficiently supported by competitive evidence, and that the verdict was not reached by error or as a result of passion and prejudice, the conviction should be affirmed. From a careful investigation of the record in this cause this court cannot come to any other conclusion, considering the version of the facts from the standpoint and testimony of the defendant alone, but that he was guilty of manslaughter. The jury were jutified under his own statement in rendering the verdict which they did. In view of this statute and defendant's testimony we *Page 575 are compelled to hold that the remarks of counsel did not in any way or manner influence the verdict of the jury; and, while such remarks were highly improper, yet they will not work a reversal of this cause.
After a careful consideration of all the other assignments we are of the opinion that no error was committed affecting the substantial rights of the defendant.
For the reasons herein given, the judgment of the lower court is affirmed, with directions to the sheriff of Roger Mills county to carry the same into execution.
DOYLE, and OWEN, JUDGES, concur.
FURMAN, PRESIDING JUDGE, having been of counsel in the case, and being thereby disqualified as one of the judges to hear and determine the same, and this fact being duly certified to Governor C.N. Haskell, he thereupon appointed E.G. McADAMS as special judge of the Court of Criminal Appeals for the hearing and determination of this case.