W. C. (Bill) Jenkins was convicted of the crime of manslaughter in the first degree and appeals. He does not deny that he shot and killed the deceased, one Roy Bradburn, but insists that such killing was in his necessary self-defense. Certain legal propositions, hereinafter discussed, are presented which make it necessary to consider the relationship existing between the defendant and the deceased prior to the fatal difficulty.
In June, 1930, the defendant, a negro, married Sukie Seavers, the daughter of one Nancy Seavers, a full-blood Creek Indian. Nancy Seavers lived on her allotment about two miles north and two miles east of the city of Weleetka, and the defendant following his marriage took up his residence with his wife, Sukie, in a small house on his mother-in-law's farm, which was located about 40 or 50 feet south of the principal dwelling house. In 1935, the deceased Bradburn married Nancy Seavers and thereafter lived with her in the larger of the two dwelling houses on said farm. As a result of this arrangement, the defendant and the deceased lived practically in the same yard together for a period of about six years preceding the fatal shooting which occurred at approximately 7:00 o'clock p.m., August 11, 1941, near a barn lot about 200 feet west and south of the two dwelling houses above mentioned. *Page 332
The defendant testified that on the morning of August 11th he rode to Weleetka in a coupe automobile operated by the deceased. That the deceased appeared to be very angry and during the trip charged the defendant with having gone to Muskogee to employ a lawyer "to fight him and Herb House at Muskogee, something about his wife's money." That at the time he made this accusation the deceased held a pistol in his hand and "said if I had anything again him to get on him, we could get it over with." "I told him I was 21 years old and I could get on if I wanted to and he kept holding the gun and telling me to crawl on him." And "he told me I had caused him more trouble than anybody in the world and he was tired of it." "He said there was a bunch of long-tailed rats at Weleetka he was going to get even with and that I was one of them. He said I used to think you would do; but I found out you won't, and don't come back to the house or I will kill you; and don't tell anybody what I said to you . . . I mean don't tell anybody what I said to you." The defendant then testified that as soon as he and the deceased reached the city of Weleetka he got out of the car and went to Okemah for the purpose of telling the county attorney about the threats being made by the deceased, but that the county attorney was away on vacation and he did not contact him. That he did not wait to see the assistant county attorney, who would have been available in a short time, nor did he go to the sheriff's office.
On cross-examination, the defendant was interrogated as to whether he and the deceased had been on good terms prior to the altercation above mentioned and in that connection testified:
"Q. You and he were good friends so far as you knew at that time in the morning, 6:30 o'clock, on August *Page 333 11th, when you started to town with him? A. I couldn't say. Q. So far as you were concerned? A. Yes, sir. Q. You were not mad at him? A. No, and I didn't know he was mad at me."
Defendant also stated that he was 30 years of age and weighed 235 pounds, while the deceased was 60 years of age and weighed 160 pounds. That the deceased did not actually point the gun at the defendant but held it in his left hand while driving his car with the right hand.
The defendant next testified that after he left the county attorney's office he went to see his attorney, Mr. Clem Stephenson, of Okemah; that he arranged through his attorney to purchase an automobile which was to be delivered at the defendant's home about 5:00 o'clock p.m. of the same day, but that he did not tell his attorney about the trouble between himself and Roy Bradburn. That after he made arrangements to purchase the car he rode back to Weleetka with Mr. Lee Carter, a deputy sheriff, but said nothing about the trouble he had had with Roy Bradburn, his explanation being "I didn't think it would do any good." That he did tell Austin Webb and his wife, who were good friends of his, that Bradburn had threatened to kill him and that he also told one Taylor Lockhart about it.
The defendant next testified that after his return to Weleetka from Okemah he went to the place of business of one Max Scott where he had previously pawned a pistol; that he owned two pistols, one of which was pawned to one Carol White and the other to Scott. That he redeemed the pistol pawned to White and then exchanged that. pistol with Max Scott for the one previously pledged to Scott, which was a 32-20 automatic. That he wanted an automatic because "I didn't want to carry a gun that *Page 334 people could see." That thereafter he returned to his home arriving there about 5 o'clock in the evening. That he looked for his wife and found her at the home of her mother, Nancy, and at his request she accompanied him to his own home. That he went with her to the upstairs room of the house and told her what had happened between himself and Roy Bradburn that morning. That he remained in the house about one hour and 40 minutes when he heard Bradburn calling hogs. That he went to the upstairs window of his home and observed the deceased as "he went down to the tank where he fed the hogs at." That he then went and sat on the bed with his wife for some five or six minutes, after which time "I got up and went to the window and seen him walk away from the scene where he was feeding the hogs and started back to the house." As to what transpired from then until the shooting, the defendant testified:
"A. I had my pistol laying up on the side-board where we keep the clothes and one of the kid's shirts laying over it and I reached under the shirt and got my gun and stuck it right here (indicating) and went on downstairs and went in the east gate at the lot and went on out on the south side, and when I got to that gate I pushed the safety off the gun and went on down the trail and Roy Bradburn was coming facing me. We were meeting each other face to face and I didn't want Roy to see this gun, because he knowed I didn't tote a gun and if he saw it he would have knowed I wanted trouble; and when I got pretty close, about to those first people standing up there, I kind of hunkered down in the road with my hand over the gun and picked up a little chunk and went to pecking on the ground in the middle of the road. Roy came up and when he got about as close as this gentleman stepped aside to the right and I said, 'Roy, why did you abuse me this morning.' And he looked at me and I said, 'Did you mean what you said this morning?' *Page 335 And he said, 'Yes.' I said, 'You think I am going to leave my wife and babies?' He said, 'You come down for trouble and you can get it.' He had a sack in his left hand and throwed this sack down and made two steps backwards and went for his right side, and I went to firing and didn't quit, pulling the trigger as fast as I could. Q. How many shots did you fire? A. Six. Q. Then what did you do? A. I turned around and went back to the house. My wife was upstairs and I told her to come down and take me to town. I wanted to give up, that I had killed Roy."
Immediately following the shooting, the defendant went to Weleetka, surrendered to the officers and was taken to the county jail at Okemah, where he first made an oral statement and later a written statement in question and answer form which he signed and verified. The written statement was admitted in evidence during the trial at the request of both the state and the defendant.
As previously stated, the defendant returned him from Weleetka at about 5 o'clock in the evening and had a conversation with his wife concerning the difficulty between himself and Bradburn. In that connection, the defendant's statement is as follows:
"Q. What did you tell her was liable to happen? A. I was liable to kill him or he would kill me, she said, 'You haven't got nothing to kill him with.' I said, 'That's what you think.' I had laid by gun under a shirt on the dresser, and I pushed the shirt back and said, 'There it is.' Well, I stood there with my head down and thought a long time. She said, 'Rather than for you and Roy to have trouble, I'll kill him when he's asleep.' Q. Sukie said that? A. Yes, I said 'No, you are a woman and me a man.' I said 'I'll do it, I don't care what kind of punishment they put on me.' When Roy come in she went to crying and I went out the door and she said 'Where you going?' I said 'Going down here.' She said, 'Roy's liable *Page 336 to kill you.' I said, 'I don't care if he do.' So I went on down there to the pasture. Q. Where was that? A. Down in the pasture. Q. Did you watch Roy go feed his hogs? A. He went down to the tank, I was standing upstairs, you can see all over the place, so I waited till he started back, didn't want to walk up behind him, when he started back I stepped downstairs and went on, meeting him, when he got pretty close, well I sat down, had the gun sticking in my belt with the safety off, sat down just like that (hunkered down) when Roy got about as far as here to that man. Q. About eight feet? A. Yes, I said why did you abuse me this morning, and he pitched another fit. I told him, I said, 'Well, I guess you think I'm going to get up and walk off and leave my wife and babies?' Q. You still sat there? A. Yes, he stepped back and run his hand in his pocket and said, 'We'll get this over right now, I told you not to come back.' When he stepped back and put his hand in his pocket I just up and shot as I was getting up. Q. How many times? A. Six, the first time shot him right here (left temple) next time right here, I thought (under right eye.) — Q. You told Sukie before you went down there you was going to kill him? A. Or him kill me one. Q. You was going down there and have it out? Yes. . . . Q. Did you discuss this trouble with L. L. Puckett? A. No, sir. Q. Discuss it with Lee Carter? A. No, sir. Q. You knew Lee was an officer, you knew where Mr. Kennedy's place of business was here, you, Clem was your lawyer, did you discuss it with him? A. Didn't discuss it with anybody but my wife. Q. Just your wife? A. That's all. Q. When did you make up your mind to kill him? A. I had it in my mind, but didn't exactly make up my mind till my wife said what she did about killing him in his sleep, I said 'no, I'm a man.' Q. That's when you told her you would do it regardless of the punishment they gave you? A. We was going to have it out, either him or me. Q. What about that statement you made just awhile ago about the punishment you might get, you just told us, what were your words? A. I meant he might get me, he's better on the trigger than I am. Q. In other words, what you *Page 337 said, or what you had in mind was to go down there if necessary and shoot it out with him, and the best man win? A. Yes. Q. You told Sukie you were going down there to kill him? A. I said him or me."
The evidence shows conclusively that the deceased was not armed.
For reversal, it is urged, first, that the court erred in excluding proof of certain threats made by the deceased against the defendant.
The defendant offered to testify that in the year 1936 Roy Bradburn went to Okemah and attempted to have the defendant prosecuted under the miscegenation statute and undertook to have his children brought before the juvenile judge of Okfuskee county in a proceeding to decree the defendant's children dependent and neglected for the purpose of having them placed in an orphan's home for negro children. The court, over the objection of the defendant, excluded this offer of proof.
The defendant next offered to prove by his own testimony and by the testimony of one Lester Ganns that in the spring of the year 1936 Ganns, while working for the deceased, told the defendant that the deceased had hired him, Ganns, to kill the defendant and had promised to give him an interest in a ranch if he would do so; that Ganns told the defendant that he wasn't going to kill him because he had known him for a long time and that he was going to take the gun which Bradburn had given him back to Bradburn and that he did return the gun and told Bradburn that he was not going to carry out his agreement to kill the defendant. This offer of proof was likewise excluded.
The defendant also offered to testify that in the year 1939 he had a conversation with one Otto Strangfield in *Page 338 the course of which he told the defendant that Roy Bradburn had approached him, the said Strangfield, and offered to pay him in money and political favor if he would kill the defendant; that Strangfield refused to have anything to do with such proposition. This offer of proof was likewise objected to and the objection sustained. However, Otto Strangfield was later called as a witness by the defendant and denied that he had ever had a conversation of any kind with Bradburn concerning the defendant, Jenkins.
The defendant next attempted to testify that in the spring of 1941 he rode to Oklahoma City with one Frank Mason, and that during this trip, Mason told him Roy Bradburn had tried to hire him, Mason, to kill the defendant and that he refused to do it and that Mason told him to be careful when he was around Bradburn, that he wanted to kill him. The court sustained an objection to this offer of proof but later permitted Frank Mason to testify to the foregoing facts. In addition, the defendant and numerous witnesses were permitted to testify that the deceased was a dangerous, overbearing, turbulent person; that he carried a pistol on his person and in his car and that in the year 1934 he shot and killed two men and wounded another.
Inasmuch as Otto Strangfield denied that he ever had a conversation with the deceased concerning the defendant and Frank Mason was permitted to testify, the only offers of proof wholly excluded were with reference to conversations between the deceased and Lester Ganns in the year 1936, and the effort of deceased to have the defendant prosecuted under the miscegenation statute, which was also in the year 1936.
On a trial for murder, where the plea is self-defense *Page 339 and where there is some evidence other than threats tending to support the plea, proof of threats, communicated or uncommunicated, is admissible; the latter as a circumstance to be considered in connection with all the other evidence in the case in determining the state of the deceased's feeling toward the defendant and who was the probable aggressor in the fatal difficulty and for no other purpose; the former, not only for that purpose, but also as a circumstance in determining what the defendant might reasonably have apprehended from the overt act and demonstration of the deceased, if he made any, at the time of the fatal difficulty. Saunders v. State,4 Okla. Cr. 264, 265, 111 P. 965, Ann. Cas. 1912B, 766; Foster v. State,8 Okla. Cr. 139, 126 P. 835; Rogers v. State, 8 Okla. Cr. 226,127 P. 365.
In Rhea v. Territory, 3 Okla. Cr. 230, 105 P. 314; Saunders v. State, 4 Okla. Cr. 264, 266, 111 P. 965, Ann. Cas. 1912B, 766, it was held that the defendant was not justified in killing the deceased because he had made threats against him. It must appear that the deceased was attempting to carry such threats into execution. In this case, the defendant, under his own testimony, was the aggressor and intended to either kill or be killed. One who seeks and brings on an affray cannot shield himself under a plea of self-defense. Young v. State,11 Okla. Cr. 22, 141 P. 285.
The law of self-defense is solely and emphatically a law of necessity; it does not imply the right of attack and could not avail the defendant if he was the aggressor, or if the fatal difficulty was sought for by him, or was provoked by him by any wilful act of his own reasonably calculated to bring it about, or if he voluntarily or of his own free will entered into it, no matter how hard he was *Page 340 pressed or how great his danger became during the progress of the difficulty. Rollen v. State, 7 Okla. Cr. 673, 125 P. 1087; Moutry v. State, 9 Okla. Cr. 623, 132 P. 915.
It has also been held that where a defendant seeks or provokes a difficulty without any intention of killing or doing serious bodily injury to the deceased and a conflict results and the defendant, being hard pressed, kills the deceased, then he will be guilty of manslaughter. Koozer v. State,7 Okla. Cr. 336, 123 P. 554.
Proof of threats is admissible only after evidence tending to show some overt act on the part of the deceased at the time of the killing sufficient to furnish a predicate for a plea of self-defense.
Assuming the defendant's testimony that at the time of the shooting the deceased took a couple of steps backward and made a motion with his hand to his right side accompanied by the statement, "You come down here for trouble and you can get it," would constitute such a predicate, and the trial court should have admitted the excluded evidence, it does not follow that the error was a material or reversible one. The defendant's own testimony shows conclusively that he deliberately armed himself and went out to meet his adversary for the purpose of killing or being killed. Thus entering into a mutual combat, he deprived himself of the right to plead self-defense. Johnson v. State, 69 Okla. Cr. 51, 111 P.2d 265; Green v. State,54 Okla. Cr. 450, 23 P.2d 506; Riley v. State, 40 Okla. Cr. 323,268 P. 996; Crowell v. State, 42 Okla. Cr. 392, 276 P. 518. Also, as previously observed, the defendant was permitted to show that the deceased was a dangerous, quarrelsome, turbulent person, that he carried a pistol, that in the year 1934 he shot and killed two men and wounded another and that he had *Page 341 made threats against the defendant. Therefore, the rejected evidence was largely cumulative.
On the question of mutual combat, the facts in this case have heretofore been stated. We are at a loss to understand how under these facts the position can be taken that it does not come clearly within the law as to mutual combat under the many decisions of this court. The law is so clearly stated by Presiding Judge Furman in the early case of Koozer v. State,7 Okla. Cr. 336, 123 P. 554, that we quote the syllabus:
"Where a defendant without real or apparent necessity voluntarily enters into a mutual combat with another, in which he takes the life of his antagonist, such killing will not be in self-defense, but the defendant will be guilty of either murder or manslaughter, according to the circumstances and nature of such combat.
" 'Where a defendant has sought or provoked a difficulty with the deceased, in order that he might have an opportunity or pretext for killing or inflicting serious bodily injury upon him, and in such combat does kill the deceased, the defendant is guilty of murder, it matters not how hard pressed he may have been in the conflict, unless after such provocation had been given, and before the fatal blow was struck or shot was fired, it appears from the evidence that the defendant abandoned such intention and in good faith sought to withdraw from the conflict. If this appears from the evidence, then the defendant's right of self-defense would revive, and he would have the same right to defend himself as though he had not furnished such provocation.
"Where a defendant seeks or provokes a difficulty without any intention of killing or doing serious bodily injury to the deceased, and a conflict ensues, and the defendant, being hard pressed, kills the deceased, then appellant will be guilty of manslaughter, unless before the fatal blow was struck or shot was fired the defendant *Page 342 sought to withdraw from the combat as explained in syllabus 5 (above).
"No man can take advantage of his own wrong and plead as a defense for taking human life a necessity which arose from his own intentional wrongdoing. The line of demarcation between murder and manslaughter is the character of the intention with which the defendant seeks, occasions, or provokes a fatal difficulty, and this intention is to be gathered from the facts and circumstances in evidence."
This case has been followed by many decisions of this court where the facts were very similar to those in the case at bar, and in many instances the facts here are much stronger than the case cited.
In the case of Evans v. State, 8 Okla. Cr. 78, 126 P. 586, Judge Doyle, in rendering the opinion of the court, says:
"Where the killing was done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the defendant cannot justify on the ground that it was committed in self-defense, and it will be manslaughter at least, unless the defendant can prove that before the mortal stroke was given he had refused any further combat and retreated as far as he could with safety, and that he killed his adversary of necessity to save his own life or his person from great bodily harm."
And, in the body of the opinion, says:
"The threats testified to, and the altercation in the forenoon followed by fencing out the horses of the deceased, which no witness denies, and the defendant arming himself with a deadly weapon, and going to where the deceased was tearing down the fence, at least could be but a challenge to mutual mortal combat. And where the killing is done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death *Page 343 to one or the other of the combatants, the slayer cannot justify on the ground that it was committed in self-defense.
"Says Mr. Wharton:
" 'If the defendant in any way challenged the fight, and went to it armed, he cannot afterward maintain that in taking his assailant's life he acted in self-defense. "A man has not," as is properly said by Breese, C. J., "the right to provoke a quarrel and take advantage of it, and then justify the homicide." Self-defense may be resorted to in order to repel force, but not to inflict vengeance. "Non ad sumendam vindictam, sed ad propulsandam injuriam." There is certainly no law to justify the proposition that a man may be the assailant and bring on an attack and then claim exemption from the consequence of killing his adversary on the ground of self-defense. While a man may act safely on appearances, and is not bound to wait until a blow is received, yet he cannot be the aggressor and then shield himself on the assumption that he was defending himself. "And an adulterer caught in the act by the husband is guilty at least of manslaughter, if, in repelling a murderous attack by the husband, he kill the husband. But where the defendant, without an intent to take the deceased's life, provoke the quarrel, this, while it destroys the excuse of self-defense, does not, if the deceased's attack put the defendant's life in danger, militate against reducing the offense to manslaughter." ' . . .
"Where the killing is done in mutual combat, it will be manslaughter at least, unless the survivor can prove that before the mortal stroke was given he had refused any further combat and had retreated as far as he could with safety, and that he killed his adversary from necessity, to save his own life, or his person from great bodily harm.
"If the defendant acts from fear of death or great bodily harm, he must be free from fault in bringing on the difficulty. The defendant in this case by his own *Page 344 unlawful acts brought on the difficulty, and, if there was a hostile demonstration on the part of the deceased, it was the duty of the defendant to employ all reasonable means within his power, consistent with his own safety, to avoid the danger and avert the necessity of taking the life of his assailant. This is the law, and it is so stated in the instructions given. If we consider the matter in the most favorable aspect for the defendant, he is upon his own testimony guilty at least of manslaughter in the first degree."
See, also Johns v. State, 8 Okla. Cr. 585, 129 P. 451; and Wadsworth v. State, 9 Okla. Cr. 84, 130 P. 808.
It will be noted that in the instant case, defendant armed himself and went to the place where he knew deceased would pass, after telling his wife: "I was liable to kill him, or he would kill me." And testifying, said:
"Q. When did you make up your mind to kill him? A. I had it in my mind, but didn't exactly make up my mind till my wife said what she did about killing him, I said no, I am a man."
In the case of Larry v. State, 10 Okla. Cr. 340, 136 P. 596, 597, Judge Doyle, speaking for the court, says:
"In the view we take of this case, we do not think it necessary to discuss the questions raised by the defendant. The testimony of the state shows a case of deliberate assassination. While the defendant's own testimony shows a case of killing in mutual combat, willingly entered into by the defendant, if we consider the case in its most favorable aspect for the defendant, he is upon his own testimony guilty at least of manslaughter in the first degree.
"Where the killing is done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the slayer cannot justify on the ground that it was committed in self-defense, and it will be manslaughter at *Page 345 least, unless the survivor can prove that before the fatal shot was fired he had refused any further combat and had retreated as far as he could with safety, and that he killed his adversary of necessity to save his own life or his person from great bodily harm. Evans v. State, 8 Okla. Cr. 78, 126 P. 586."
In Moutry v. State, 9 Okla. Cr. 623, 132 P. 915, it is said:
"Where a defendant seeks or provokes a difficulty with deceased in order that he may have a pretext for killing or inflicting serious bodily injury upon him, and in such conflict does kill the deceased, the defendant is guilty of murder, it matters not how hard pressed he may have been in the conflict, unless after such provocation has been given or difficulty sought or provoked and before the fatal blow is struck or shot is fired the defendant in good faith abandons such intention, and seeks to withdraw from the conflict."
And in the body of the opinion:
"The only question presented in the brief of counsel for appellant is that the court erred in its instructions as to the law of self-defense. We think that the court did err in giving this instruction, because self-defense was not a possible legitimate deduction to be drawn from the evidence offered. Under these conditions, the court should not have instructed upon this issue at all, and any errors which the instructions may contain could not have possibly injured appellant. The error, if any, was in favor of, and not against, appellant. We think that the evidence offered makes out a case of murder, and that the jury in finding appellant guilty of manslaughter in the first degree were probably misled by the too favorable instruction toward appellant which was given by the court."
See, also, Dodd v. State, 25 Okla. Cr. 263, 219 P. 952; Driggers v. State, 1 Okla. Cr. 167, 95 P. 612, 129 Am. St. Rep. 823; Weatherholt v. State, 9 Okla. Cr. 161, *Page 346 131 P. 185; Phelps v. State, 64 Okla. Cr. 240, 78 P.2d 1068.
The facts in this case are well illustrated by the words of Presiding Judge Furman in the case of Lumpkin v. State,5 Okla. Cr. 488, 115 P. 478, 482, when he said:
"Strike from the record every word of evidence on behalf of the state except that of Dr. Weber, which is not denied, and it must be taken as an admitted fact that the deceased was powerless to harm the appellant and was in a defenseless condition when he received the last shot. In connection with this, take the admission of the appellant that he fired all the shots that were fired during the difficulty, and the proof amounts to demonstration of the fact that the appellant shot the deceased while he was lying in a helpless condition on the floor, when the glamor of death was in his eyes, and the rattle of death was in his throat, just as John Fitzpatrick testified that appellant did do. Connect this with the testimony of Jesse Boright, a witness for the appellant, to the effect that the appellant had stated to him that he had killed the deceased with his own pistol, and there is absolutely no rational escape from the conclusion as to the guilt of the appellant. Even if appellant was mistaken in saying that he had killed the deceased with his own pistol, it is clear that appellant knew when he fired this shot he killed an unarmed and defenseless man."
The contention that the question of murder should not have been submitted to the jury under the evidence in this case is clearly untenable. Under the law and the evidence, a judgment and sentence for murder would have been upheld. The fact that the deceased was a bad man and had previously killed other parties cannot be considered by this court, and by the jury only in consideration of the question of who was the probable aggressor. *Page 347 It was evidently by reason of this fact that the jury returned a verdict of manslaughter and assessed his punishment at a term of only 15 years in the penitentiary. Judge Furman in the case of Thompson v. State, 6 Okla. Cr. 50, 117 P. 216, 226, stated well this proposition when he said:
"We think that the fact that both Gillstrap and appellant were not sentenced to be hanged on account of their part in the brutal and cowardly assassination of the deceased is the highest possible tribute that could be paid to the zeal and ability of their counsel. That the deceased may have been a bad man cannot for one moment be considered. In the eyes of the law this would not afford the least justification or mitigation for the crime committed. No man has the right to take the law in his own hands and constitute himself sheriff, judge, jury, and executioner, and of his own motion arrest, try, convict, and execute another man, simply upon the ground that the man so executed was a bad man. If this was the law, no one would be safe. Every man who amounts to anything has enemies, and it could always be proven by them that he was a bad man. Even if the deceased was a bad man, it is certain that appellant and those acting with him did not give him a dog's chance for his life. Deceased was unarmed and in a defenseless condition at the time that he received the fatal wound. It was proven that at this time his pistol was at the house and in the possession of Mrs. Clark, who tried to be a swift witness for appellant, and it was also proven that the appellant knew this. Appellant and those acting with him laid in wait for an unarmed man, and finally killed him, without giving him any warning, or giving him the least chance for his life. We are only surprised that the jury did not inflict the extreme penalty of the law in this case."
Many of the facts in the Thompson case are similar to the facts in the instant case. *Page 348
Justifiable homicide is defined by the Oklahoma Statutes, Tit. 21, O. S. 1941 § 733, as follows:
"1. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is; or,
"2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or,
"3. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping . . . the peace."
The mere statement of this statute is sufficient to show that under the facts of the case at bar and under the testimony of the defendant himself, he does not come within its terms. Defendant and deceased both resided upon the property where the killing occurred. Defendant testified that there had been no ill feeling between them prior to the morning of the tragedy. He testified that deceased on that morning threatened to kill him and told him not to come back to the premises, and that was his reason for taking his gun and going in search of the deceased at the time of the fatal difficulty, claiming that his action was in defense of his home and family.
The question of the defense of his home is not presented in this case. Mere threats do not justify action unless there is an attempt on the part of the party making the threats to carry them into execution. It has been held in many cases in this state that one may resist trespass upon his property, not amounting to a felony, by any use of reasonable force, but he must suffer a trespass *Page 349 and loss of his property where a felony is not attempted, rather than to commit a homicide. Jones v. State,59 Okla. Cr. 53, 56 P.2d 423; Hare v. State, 58 Okla. Cr. 420, 54 P.2d 670; Dyer v. State, 58 Okla. Cr. 345, 53 P.2d 700; Schmitt v. State,57 Okla. Cr. 102, 47 P.2d 199.
In the case of Armstrong v. State, 11 Okla. Cr. 159,143 P. 870, and the case of Collegenia v. State, 9 Okla. Cr. 425,132 P. 375, there was an attempt to enter the home of the defendant and the defendant repelled this invasion of his home. In the instant case, the deceased lived upon the same premises with the defendant, but in a different house. He had a perfect right to be there. There was no attempt to carry out any threat he may have previously made against the defendant. He in no wise attempted to enter or molest the home of the defendant. On the other hand, all the advancement was made by the defendant himself, and at a time when the deceased was unarmed, and in no position to do bodily harm to the defendant. The evidence revealed that deceased's gun was in the pocket of his automobile at a great distance from where the difficulty occurred, and he was in his shirt sleeves, so that it could have been easily observed by the defendant that he was unarmed. We are at a loss to understand how it can be maintained that the deceased was the aggressor from the start.
This court has frequently stated, as set forth in Thacker v. State, 55 Okla. Cr. 161, 26 P.2d 770, 774:
"Before this court can reverse a conviction upon the ground that the trial court erred in the admission or rejection of evidence, . . . it must further find, from an examination of the entire record, that the appellant was injured thereby; and to determine this issue the *Page 350 court must consider the question as to whether the appellant is guilty or innocent of the offense charged."
Under the defendant's own testimony, his guilt of the crime of manslaughter is clearly and conclusively established and there is no good reason to believe that upon a second trial a jury could or would arrive at any other verdict than of guilt.
It is next urged that this case should be reversed because the defendant was denied a constitutional right by reason of the fact the record does not affirmatively disclose that he was served with a list of witnesses expected to be called in chief to prove the allegations of the information, together with their post office addresses, at least two days before said case was called for trial, as provided by article II, sec. 20, of the Constitution of this state.
To sustain this contention reference is made to the cases of Sutton v. State, 35 Okla. Cr. 263, 250 P. 930, 934; Goben v. State, 20 Okla. Cr. 220, 226, 201 P. 812; Ex parte Barnett,67 Okla. Cr. 300, 94 P.2d 18; decided by this court; and the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357, and other cases referred to in the dissenting opinion filed in this case.
Before referring to these cases we note that the record discloses that the crime with which defendant was charged was committed on August 11, 1941. At his preliminary hearing he had eminent counsel of his own choice. The information in the district court was filed September 9, 1941, and his trial, at which he was represented by attorneys of his own selection, was had on September 24, 1941. The record also discloses that he was arraigned in the presence of his lawyers on September *Page 351 10, 1941, and given until September 11, 1941, to plead, and on that date he "waived the reading of the information, and enters plea of not guilty." Also, the record discloses that on September 24, 1941:
"State appearing by county attorney Roy Parham and Assistant County Attorney, Dane Seran; Defendant present in person and by counsel Stephenson and Walter Billingsley. Both sides announce ready for trial, and the clerk of the court ordered to draw a jury."
The record does not disclose that defendant or his counsel ever at any time suggested that the list of witnesses to be used by the state had not been served. When the case was ended and the verdict was rendered, a motion for new trial was filed, but nowhere in this motion was it stated that the names of the witnesses to be used by the state had not been served upon the defendant. The first time this question is raised is on the appeal in this case.
In Baker v. State, 65 Okla. Cr. 136, 83 P.2d 586, 587, and numerous other cases, this court has held:
"Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed."
In the case of Sutton v. State, supra, the facts were very different to the facts here presented. In that case the crime was committed on December 30, 1925. The defendant was arrested on January 4, 1926. He was immediately taken before the county attorney and signed a written confession. A complaint was filed on the same date, and he immediately waived preliminary examination, and was held to the district court. About one hour *Page 352 thereafter, he was taken from the county attorney's office to the district court room. He was served with a copy of the information, and a list of the state witnesses, with their post office addresses. He was arraigned and court recessed until one o'clock in the afternoon of the same day, at which time he entered a plea of guilty and was by the court sentenced to be electrocuted. He had no counsel appointed to represent him, and the record discloses that he was ignorant of court procedure, and did not understand the effect of his plea of guilty. He immediately made a motion to vacate and set aside the judgment, and to withdraw his plea of guilty, and he be permitted to enter a plea of not guilty. This motion was denied, and an appeal was had to this court, and the judgment reversed. A statement of the facts is all that is necessary to show the difference in the cases. The case was reversed because the defendant did not have counsel appointed by the court, and was not apprised of his rights by the court, and the shortness of the time between his arrest, his arraignment, and his plea of guilty. The court states:
"Held, that under this provision of the Constitution the defendant in a capital case does not have to demand a list of the witnesses to be called in chief, because the Constitution makes the demand for him, and the trial court is without authority to force him to trial until this provision has been complied with, unless the defendant has waived thisright."
It will be noted that the court used this expression: "Unless the defendant has waived this right." Reference will hereafter be made to cases directly referring to the "waiver" by a defendant of this provision.
In the Goben case, supra, the facts were almost identical with the Sutton case. The defendants were arrested *Page 353 on March 31, 1921, in Texas, and brought to Oklahoma county jail, and on the 8th day of April taken to the town of Fletcher, in Comanche county, for a preliminary examination. An information was filed in Commanche county on April 12, 1921, and the defendants were taken to Lawton and arraigned. The court at this time appointed an attorney to represent the defendants, and William Tait, a codefendant, on the same day entered a plea of guilty, and the court fixed April 14, 1921, as the date of sentence, and on that date a sentence of death by electrocution was entered. On April 12, 1921, defendant filed a demurrer, which was overruled, and exception allowed. He then entered a plea of not guilty, and the case was called for trial. The defendant filed a motion for continuance, which was overruled. He was convicted and sentenced to death by electrocution. This case was reversed because the defendant was forced to trial without being given sufficient time to prepare for trial. It is unnecessary to go into detail. The facts justified this decision. The court, in the second paragraph of the syllabus, announced the same rule of law as referred to in the Sutton case.
In the Barnett case, and the Johnston v. Zerbst case, supra, the facts are in nowise identical to the facts in the instant case.
This court has on numerous occasions had under consideration the construction of the constitutional provision above referred to. The early cases are: State v. Frisbie, 8 Okla. Cr. 406,127 P. 1091; Blair v. State, 4 Okla. Cr. 359, 111 P. 1003; Starr v. State. 5 Okla. Cr. 440, 115 P. 356; Spess v. State,13 Okla. Cr. 277, 164 P. 131; Polk v. State, 26 Okla. Cr. 283,224 P. 194; Galbert v. State, 12 Okla. Cr. 571, 160 P. 332; Franklin v. *Page 354 State, 9 Okla. Cr. 178, 131 P. 183; Walker v. State,10 Okla. Cr. 533, 139 P. 711; and Ross v. State, 34 Okla. Cr. 363,246 P. 645.
And the later cases are Smith v. State, 69 Okla. Cr. 17,99 P.2d 527; Denton v. State, 58 Okla. Cr. 275, 55 P.2d 1136; Coatney v. State, 52 Okla. Cr. 70, 2 P.2d 604; Van Brunt v. State, 62 Okla. Cr. 188, 70 P.2d 1103; Ferguson v. State,53 Okla. Cr. 317, 11 P.2d 211; McKee v. State, 38 Okla. Cr. 132,259 P. 607; Strong v. State, 46 Okla. Cr. 167, 287 P. 1091; In re Opinion of Judges (In re Tuggle), 70 Okla. Cr. 83,104 P.2d 726; Tuggle v. State, 73 Okla. Cr. 208, 119 P.2d 857; Ex parte Gilbert, 71 Okla. Cr. 268, 111 P.2d 205; Ex parte Meadows,70 Okla. Cr. 304, 106 P.2d 139; Ex parte Wooldridge,72 Okla. Cr. 292, 115 P.2d 284; Ex parte Bradley, 72 Okla. Cr. 107,113 P.2d 611; Hudson v. State, 78 Okla. Cr. 160, 145 P.2d 774; Ex parte Gault, 78 Okla. Cr. 172, 146 P.2d 133.
In the Frisbie case, supra, Presiding Judge Furman, speaking for the court, said:
"A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, where it can be relinquished without affecting the rights of others and without detriment to the community at large.
"A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, either by express agreement or by conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.
"A narrow, technical rule of construction should never be applied to any provision of the Constitution, but it should be construed in its reason and spirit. *Page 355
"Any person prosecuted in Oklahoma for a capital offense has the constitutional right to have furnished to him, at least two days before the trial begins, a list of the witnesses to be produced against him in chief by the state, and it would be error to force him into trial and allow such witnesses to testify against him whose names have not been so furnished, if he seasonably asserts his rights. But if he fails to object to going to trial on this ground, but announces ready for trial, he cannot afterwards avail himself of this objection, and the constitutional right given him by this provision will be waived."
And in the body of the opinion:
"The principles announced in these cases (Blair v. State,4 Okla. Cr. 359, 111 P. 1003, and Starr v. State,5 Okla. Cr. 440, 115 P. 356) meet our entire approval, and they are here reaffirmed. It is a well-settled principle of law, recognized by all appellate courts, that every one may waive a right intended for his own benefit if it can be relinquished without affecting the legal rights of others and without detriment to the community at large. See Reid v. Field, 83 Va. 26, 1 S.E. 395. The right of waiver extends to and includes all descriptions of contractional, statutory, and constitutional rights, except such as are inalienable. An examination of the following cases will show that they fully support the preceding statement: State v. Mitchell, 119 N.C. 784, 25 S.E. 783, 1020; Butler v. State, 97 Ind. 378; Williams v. State, 61 Wis. 281, 21 N.W. 56; Allen v. State, 16 Tex. App. 237 [16 Tex.Crim. 237]; State v. Olds, 106 Iowa 110, 76 N.W. 644; State v. Sackett, 39 Minn. 69, 38 N.W. 773; State v. Polson, 29 Iowa 133; People v. Murray, 52 Mich. 288, 17 N.W. 843; Commonwealth v. Dailey et al., 12 Cush., Mass., 80; State v. Fooks,65 Iowa 196, 452, 21 N.W. 561, 773; Connelly v. State, 60 Ala. 89, 31 Am. Rep. 34. . . .
"That the provision of the Constitution requiring that in capital cases a defendant shall have the right to have at least two days' notice of the list of witnesses to be used in chief against him, together with their post *Page 356 office addresses, confers a valuable right upon a defendant in a capital case cannot be denied. It gives him an additional opportunity to make inquiry as to the character, bias, and antecedents of the witnesses against him, and to learn something of their testimony and thereby better enable him to prepare for trial. He is not required by law to announce ready for trial in a capital case, and it would be error to force him into trial if he makes seasonable objection unless he has had this notice and this opportunity to make these investigations, and even after the two days have expired, if he can show that as the result of such notice, and as a result of such investigations, he has made discoveries as to matters not previously known to him, which will require him to make additional preparations for trial, upon such a showing under oath the court, in its discretion, may grant him a further postponement or continuance in order that such preparation may be made. It is the duty of the courts to protect a defendant in a capital case in the full enjoyment of this right. This is the substance and essence of the right conferred by the constitutional provision under discussion. This court has heretofore clearly laid down the rules by which it will be governed in construing constitutional provisions involving the rights of a defendant in a criminal case. . . .
"The public policy of this state as evinced by the Constitution of the state, the legislative enactments, and the repeated decisions of this court is to the effect that the spirit and reason of the law should control rather than that the cold, technical letter of the law should be enforced. We cannot bring ourselves to believe that a provision of our Constitution which was intended solely for the purpose of assisting a defendant to prepare for trial in order that justice might be done should be so construed as to make it a means for the defeat of justice and a refuge for criminals and a protection for crime. A little reflection will show that the construction placed upon this provision of the Constitution by the trial judge would have directly the opposite effect from that intended. *Page 357 A defendant and his attorneys must of necessity know, when they announce ready for trial, as to whether or not a copy of the list of witnesses with their post office addresses, intended to be used by the state in chief, has been furnished to the defendant or his counsel. If they were permitted, when no such list had been furnished them, not only to remain silent on this question, but announce ready for trial, and permit a jury to be empaneled and sworn and jeopardy to attach, and then object to the reception of any testimony because they had not been served with a copy of the list of such witnesses, it would enable them to take advantage of their own wrong, and it would work the rankest kind of injustice to the state. When a defendant voluntarily announces ready for trial, this operates as a waiver of all preliminary steps prescribed for preparation for trial."
In this case (State v. Frisbie) the Blair and Starr opinions, by Judge Richardson and Judge Doyle, respectively, are quoted from with approval. Of the Blair case, it is said:
"After the state and the defendant had each announced ready for trial, and after the jury had been empaneled and sworn for the trial of the case, the defendant objected to proceeding any further and to the introduction of any evidence by the state on the ground that no copy of the information had been served upon him. This objection the court overruled, and the ruling is assigned as error. There was no error. Under the Constitution, the defendant is entitled to a copy of the accusation; but if he be at large so that he can go to the clerk's office, call for, and examine the original accusation and copy it for himself, if he desires, the state is under no obligation to make and serve a copy thereof upon him. Stack v. State, infra,4 Okla. Cr. 1, 109 P. 126. In such case, the defendant may 'have a copy thereof' whenever he wants it. But, if the defendant be in custody and demands a copy of the accusation, the state must furnish it; but unless the defendant demands it before announcing *Page 358 ready for trial, which he did not do in this case, his right to a copy is waived. (Citing a number of cases.) If the defendant be in custody, has not a copy of the information, and desires one, his demand therefor should be made in open court before announcing ready for trial; and the fact of the demand and the court's ruling thereon should be made a matter of record, or shown by proper recitals in the case-made."
And in the Starr case, it is said [5 Okla. Cr. 440,115 P. 368]:
"Where a constitutional right in a criminal cause is largely for the benefit of the accused or in the nature of a personal privilege, the law is well settled that an accused may waive such right. In the case of State v. Adams, 20 Kan. 311, Mr. Justice Brewer said: 'So far as the provision in the Bill of Rights is concerned, there are two questions: (1) Is it anything more than the grant of certain privileges, which an accused may waive? And, where the record shows an application for the benefit of such privileges, and no refusal of the court to grant them, and no objection to any action of the court thereon, is there any error? (2) Does the sending of a jury to view the place of the alleged crime, in the absence of the defendant, trespass on any of its guaranties? First. The language is permissive. "The accused shall be allowed", that is, he may have if he wishes. If he does not wish he may forego. If he does not wish, then he cannot complain that they were not forced upon him. Generally that which is mere personal privilege, which is not essential to jurisdiction, which is not absolutely and peremptorily required by statute or public policy, may be waived. In the case of State v. Polson, 29 Iowa 133, the defendant consented that a copy of the testimony given in a former trial might be read as evidence instead of an oral examination of witnesses, and he was held concluded by such consent. His right to meet the witnesses face to face he had waived. So, while he is entitled to have counsel, he is not compelled to have them. He has a right to a subpoena for his witnesses, but he is *Page 359 not obliged to have one issued. And the record need not show that these privileges or rights were formally tendered to him and formally declined, or that an express waiver was signed. It is enough if it does not appear that they were denied when he applied for them.' "
In the case of Walker v. State, 10 Okla. Cr. 533, 139 P. 711, 713, Judge Doyle, speaking for the court, said:
"Where a constitutional right is largely for the benefit of the accused, or in the nature of a personal privilege, the law is well settled that an accused may waive such right," citing with approval the cases of Blair v. State, and Starr v. State, supra.
Further along in the opinion, it is said:
"In the case of Logan v. United States, 144 U.S. 263-304, 12 S.Ct. 617, 630, 36 L.Ed. 429, it is said:
" 'The defendant, if indicted for treason, is to have delivered to him three days before the trial "a copy of the indictment, and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment;" and if indicted for any other capital offense, is to have "such copy of the indictment and list of the jurors and witnesses" two days before the trial. The list of witnesses required to be delivered to the defendant is not a list of the witnesses on whose testimony the indictment has been found, or whose names are indorsed on the indictment; but it is a list of the "witnesses to be produced on the trial for proving the indictment." The provision is not directory only, but mandatory to the government; and its purpose is to inform the defendant of the testimony which he will have to meet, and to enable him to prepare his defense. Being enacted for his benefit, he may doubtless waive it, if he pleases; but he has a right to insist upon it, and if he seasonably does so, the trial cannot lawfully proceed until the requirement has been complied with.' " *Page 360
In Ross v. State, 34 Okla. Cr. 363, 246 P. 645, 646, the exact question here presented was considered and decided adversely to defendant's contention. This court said:
"It is contended next that a new trial should be granted because the defendant was deprived of his right to be furnished with a list of the witnesses to be used by the state, in chief, with their post office addresses. Upon this point the record is silent. The presumption is therefore that the defendant was either served with such list of witnesses, or went to trial without objecting to not having been served with the list, and so waived this right. In either event he cannot now be heard to complain. Error must affirmatively appear from the record. Every presumption favors the regularity of the proceedings had upon the trial, and the accused must affirmatively show prejudicial error. Killough v. State, 6 Okla. Cr. 311,118 P. 620; Wallace v. State [29 Okla. Cr. 197], 233 P. 241."
The contention of the defendant that he did not at any time announce ready for trial is refuted by the record, which recites: "Both sides announce ready for trial, and the clerk of the court is ordered to call the jury."
It is true that defendant made a motion for continuance, but this application was based solely upon the absence of a witness, to which reference will hereafter be made. At no time did the defendant or his counsel demand a list of the witnesses, together with their post office addresses. The defendant had theretofore had a preliminary examination. He had been represented by counsel of his own choosing. He had been arraigned in open court and given time to plead. Under the authority above cited, the defendant is not permitted to sit silent, and after his conviction raise this question for the first time on appeal. *Page 361
Under assignment of error No. 8 it is contended the court erred in refusing defendant's request for time in which to examine the court's instructions and settle and take exceptions thereto before the same were read to the jury. On the question of the right to examine the instructions it is provided by 22 O.S. 1941 § 831[22-831], as follows:
"5. When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. If the questions of law involved in the instructions are to be argued, the court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions, and may give or refuse any instructions asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by the judge, if modified, modification shall be shown in the instruction. When the instructions are thus settled, the jury, if sent out, shall be recalled and the court shall thereupon read the instructions to the jury."
The construction of this statute, where the identical question was raised as is here being considered, was before this court in the early case of Thompson v. State,6 Okla. Cr. 50, 117 P. 216, 221. Presiding Judge Furman, in delivering the opinion of the court, expressed the rule which has been followed since that time:
"The only serious question in this case grows out of the following statement which we find in the record:
" 'Now, on this, the 28th day of October, 1910, the evidence in the case of the State of Oklahoma v. Robert Thompson was concluded, and whereupon the court immediately commenced reading his charge to the jury, and thereupon the attorneys for the defendant asked permission of the court to be allowed to examine and inspect the charge for the purpose of objecting and excepting to such part thereof as they might deem objectionable, whereupon *Page 362 the court informed the attorneys for the defendant that they could take a general exception to the charge as a whole, and did not submit said charge to the attorneys for the defendant.'
"Section 20 of article 2, of our Constitution provided, that in all criminal prosecutions the accused 'shall have the right to be heard by himself and counsel.' This clearly means that in criminal prosecutions in Oklahoma the defendant has the right to be heard upon all matters and questions which are material to his defense, and that it is error for a court to refuse to allow counsel for a defendant in a criminal case to be heard upon the law of the case, as well as upon the facts of the case. In the case of Boutcher v. State, 4 Okla. Cr. [585], 586,112 P. 762, this court said:
"Counsel for the defense have the right to be heard in the trial court upon the law, as well as upon the facts. This is fair to all parties concerned, and is necessary to the proper administration of justice. It gives the judge an opportunity to correct any errors which he may have made, and it gives the county attorney an opportunity, if he thinks the charge of the court is erroneous, to join with the defendant in requesting that such error be corrected. If counsel desire to make objections to the instructions which the court propose to give to the jury, and requests permission to do so, it would be error on the part of the trial court to refuse to give counsel such opportunity.'
"But, even if it were not for the constitutional provision above quoted, paragraph 5 of section 6823 of Snyder's Comp. Laws of Okla. 1909, (Tit. 2, O. S. 1941 § 831) clearly contemplates that counsel for a defendant, whenever they so desire, should be given by the trial court an opportunity to be heard upon the questions of law involved in the instructions of the court to the jury. Said section is as follows: (Statute quoted as above.)
"We believe that the administration of justice would be greatly promoted by the recognition on the part of *Page 363 the trial court of the constitutional and statutory right of a defendant to be heard upon questions of law, as well as upon questions of fact, and that thereby the reversal of many cases would be avoided, and much time and expense would be saved to the state. Experience teaches that even the wisest and best men are sometimes mistaken in their views. It matters not how able and learned a judge may be, he cannot always, without the assistance of counsel prepare instructions which will fully and correctly present all the issues involved in a case to a jury. Independently of the constitutional and statutory provisions above quoted, prudence and justice would suggest that it would be safest and best, before submitting instructions to a jury to call upon counsel for both sides to point out specifically what objections, if any, they may have to such instructions, and to request them to suggest such additional instructions as they may think are necessary. It is true that this will take a little time in the trial of each case, but we are of the opinion that it would save a great deal more time by preventing mistakes and the reversal of convictions, which would thereby be avoided. But, even if this is not true, the question of time should not be considered where the administration of justice is at issue. We must all concede that no man knows everything, and that even the most humble and ignorant man we may meet on the street knows more about some things than we do. It is within the experience of all judges that valuable suggestions often come from the most unexpected sources. When a man is on trial for his liberty or life, there should be no undue haste. The proceedings should be conducted with deliberation, and every opportunity should be afforded both parties for furnishing information as to the matters involved, either as to facts or law. We therefore earnestly recommend that the trial court of this state in criminal cases, before instructing the jury, afford counsel for the defense a reasonable opportunity to be heard upon the law, as we are of the opinion that the refusal to do this when requested is error; and we also suggest that whenever the right to be heard upon the law is refused counsel for a *Page 364 defendant, that this should appear by proper recitals in the records as was done in this case. It does not, however, necessarily follow that a failure to comply with such a request should in every case result in the reversal of a conviction. Two things must concur before this court will set aside the judgment of a lower court: First, there must be error in the proceedings of the lower court; second, it must appear from the record that the defendant has suffered some injury from such error. This is our settled policy. See Byers v. Territory, 1 Okla. Cr. [677], 698, 100 P. 261, 103 P. 532. The effect of the refusal to allow counsel for the defendant to be heard upon the law of the case, when they request this right, will be to cause this court to carefully scrutinize the instructions given, and if we find that the trial court has omitted to correctly and fully instruct the jury as to every principle of law applicable to the case, or that any of the instructions given by the court to the jury are erroneous and may have misled the jury in arriving at a verdict, to the injury of appellant, then the judgment of the lower court will be set aside and a new trial granted. In other words, where the trial court refuses to permit counsel for the defendant to be heard upon the law of the case, the instructions given will by this court be carefully examined for errors, both of omission and commission, and if any such errors are found, they will be ground for a reversal of the judgment, whether excepted to or not, if in the light of the entire record it appears that such errors may have operated to the injury of the appellant; we will therefore treat such paragraph of the instructions given as though exceptions had been properly saved to it. Save in one instance, we regard the instructions given as an admirable exposition of the law applicable to the facts of this case."
This rule has been followed in the cases of Fowler v. State,8 Okla. Cr. 130, 126 P. 831; Russell v. State,17 Okla. Cr. 164, 194. P. 242; Inman v. State, 22 Okla. Cr. 161, 210 P. 742. Two of these were homicide cases, and *Page 365 one a rape case. The judgments and sentences were each affirmed.
With this statement of the law in mind, we examine the record in this case with reference to the request to examine the instructions. It reveals:
"Mr. Billingsley: Now comes the defendant and moves the court to recess long enough for his counsel to see the instructions and to determine whether or not he desires to offer additional instructions. The Court: Overruled; and let the record show that I have told counsel for the defense heretofore to present any instructions they wanted me to give and I would look them over and that up to this time, when both sides have rested, none have been presented to me. Mr. Billingsley: I want the record to show that immediately upon the state's closing that the court started to read the instructions and that immediately we asked for permission, and that just three minutes before the state closed that counsel for the defendant asked permission of the court to see the instructions to see whether or not he desired to offer additional instructions and that we had had no opportunity to see the instructions before they are read or to determine whether or not we think additional instructions should be given. The Court: All right, gentlemen: (Thereupon the court reads the instructions to the jury.) Mr. Billingsley: Comes now the defendant and requests the court to instruct the jury that if they find the defendant guilty of either murder or manslaughter in the first degree they shall fix his punishment in accordance with these instructions. The Court: All right, I am glad to do that. Mr. Billingsley: Comes now the defendant and requests time to prepare and submit a requested instruction on self-defense and at this time excepts to the instructions Nos. 8, 12, and 17. The Court: All right. Mr. Billingsley: We ask the court for an exception on those and move for time to prepare an instruction on self-defense. The Court: The last request is refused. The first one is granted. Mr. Billingsley: Exception. The Court: *Page 366 Gentlemen of the jury, the law, as I understand it, is just as I have given you in these instructions in regard to fixing the punishment, unless there is a request by the defendant otherwise. It has been requested by the defendant otherwise, which I am glad to give you. I am glad to comply with it. In these instructions I have told you that if you find the defendant guilty of manslaughter and cannot agree upon the punishment that you can return your verdict into open court so stating and that then it will be the duty of the court to fix the punishment. But a request has been made that I don't do that, and that the jury fix the punishment in any event. I am glad to do that. You will fix the punishment if you find the defendant guilty. The Court: Gentlemen, can you agree on your time to argue this case? Mr. Billingsley: I think so. The Court: Gentlemen of the jury, I am told that you have asked for a recess. I will give you ten minutes. Go with the bailiff and stay together and don't talk about this case or allow anybody to talk to you about it. Be back here in ten minutes. (Thereupon a short recess is had and thereafter the following proceedings are had, to wit:) The Court: Gentlemen of the jury, since you have been out the defendant has offered an instruction; the first he has offered is good and the second he has offered I have already given you. I will read you that instruction which you will consider along with the other instructions: 'No. 7 1/2. Gentlemen of the jury, you are further instructed that every person has a right to fight in his own necessary self-defense and to meet force with force and use whatever force is apparently necessary to repell an assault or threatened assault against him and in this connection you are instructed that the defendant is not required to retreat or run away but has a right to stand his ground and repel any assault or threatened assault against him by whatever means is apparently to him necessary, even to the extent of taking human life.' The Court: Now, this other I have already given you, but I am going to give it again: 'You are further instructed that in your deliberations to determine who was the aggressor in the fatal difficulty *Page 367 that resulted in the death of the deceased you should, as nearly as possible, place yourself in the condition of the defendant and view the facts and circumstances surrounding the homicide from his standpoint and if, after a fair consideration of all the evidence in the case you believe or have a reasonable doubt thereof that the defendant acted in his own necessary self-defense then it would be your duty to acquit him and so say by your verdict.' The Court: Now I will just sign this and insert it in the instructions. Mr. Billingsley: That is agreeable with us."
From this record it will be noted that the court took a recess and counsel for defendant prepared instruction No. 7 1/2, and another instruction, which are quoted above. They were given to the jury at the request of the defendant. Instruction No. 7 1/2, in a very favorable manner to the defendant, presented the issue of self-defense. At the time this requested instruction was given to the jury, the court reread an instruction as above quoted, which dealt with the question of probable aggressor, and which was very favorable to the defendant. An examination of the instructions reveals that they covered every issue involved in this case, including the right of self-defense, and in terms that were very favorable to the defendant.
In view of the foregoing record, we are of the opinion that this case should not be reversed by reason of the proceedings of the trial court with reference to the examination of the instructions, as above set forth.
The defendant also insists that the court committed error in giving grammatical paragraph 2 of instruction No. 8, which is as follows:
"When the killing is proved beyond a reasonable doubt, or admitted by the defendant, and the plea of self-defense is interposed, as in this case, it then devolves *Page 368 upon the defendant to show any circumstances to excuse or justify it by some proof strong enough to create in your minds a reasonable doubt as to whether the defendant acted in his real or apparent necessary self-defense, unless the proof on the part of the state shows that the defendant was justified in committing the act."
— and urges that by the foregoing instruction the court imposed the burden upon the defendant of establishing his innocence beyond a reasonable doubt. With this contention we cannot agree. The foregoing instruction was first approved in Culpepper v. State, 4 Okla. Cr. 103, 104, 111 P. 679, 31 L.R.A., N.S., 1166, 140 Am. St. Rep. 668. In Proctor v. State,22 Okla. Cr. 445, 211 P. 1057, 1059, it was held:
"Where the killing is admitted, as in this case, the claim of self-defense is an affirmative defense, requiring testimony to support it. This, in a sense, is a shifting of the burden of evidence, but is not inconsistent with the presumption of innocence as applied to all criminal cases." Jones v. State,20 Okla. Cr. 233, 202 P. 187, 189; Culpepper v. State,4 Okla. Cr. 103, 104, 111 P. 679, 31 L.R.A., N.S., 1166, 140 Am. St. Rep. 668."
In Morris v. State, 35 Okla. Cr. 5, 247 P. 418, the instruction here complained of was given in substance and approved.
When this case was called for trial on the 22nd day of September, 1941, an affidavit for continuance was filed by the defendant, because of the absence of one witness, Vess Fugquay, whom it was alleged was a resident of Oklahoma City, Okla., and that if present, he would testify that about 20 minutes prior to the killing of deceased, he talked with him on the road from Weleetka to his home and that he had a short barreled 38 caliber pistol in his right-hand front pocket. That he would also testify *Page 369 with reference to the mashing down of certain weeds near the scene of the difficulty by himself and deceased and a 400-pound hog; and that about 60 days prior to the killing he saw deceased, Roy Bradburn, pull a gun upon a group of persons at his home, and that defendant was in this group, and that the deceased threatened to kill the parties at that time, and that he persuaded the deceased to quiet down. He further alleged that he had sent persons to Oklahoma City to try and locate the witness. He prayed for a continuance of the case for the term.
The record does not disclose that this motion for a continuance was ever passed upon by the court. The following minute is noted in the record as of September 22, 1941:
"State announced ready for trial and defendant announces they are not ready for the reason they are unable to locate material witness.
"Court passes said cause until Sept. 23, 1941, at nine o'clock a.m."
It is then revealed by the record that the case was not called for trial until the 24th day of September, 1941. At this time the record reveals that "both sides announce ready for trial, and the clerk of the court ordered to draw a jury."
It will thus be noted that this case was not called for trial until two days after the motion for continuance was filed. There is nothing in the record to show that the motion for continuance was overruled. When the case was called for trial on the 24th of September, the defendant did not present the motion for continuance, but announced ready for trial. There is nothing in the *Page 370 record to show diligence on the part of the defendant with reference to the securing of this witness. It would have taken only a few hours after the filing of this affidavit on September 22nd to have had some one come to Oklahoma City and secure this witness. It is provided by Oklahoma Statutes 1941, Tit. 22, § 715, as follows:
"No person is obliged to attend as a witness, before a court or magistrate out of the county where the witness resides or is served with the subpoena, unless the judge of the court in which the offense is triable, upon an affidavit of the county attorney, or of the defendant or his counsel, stating that he believes that the evidence of the witness is material and his attendance at the examination or trial necessary shall indorse on the subpoena an order for the attendance of the witness."
The subpoena issued in this case is not attached to the motion for continuance, and no affidavit was filed by the defendant or his counsel, and no order was procured from the judge of the court in which the offense was being tried, directing or ordering the attendance of the witness. This was imperative, and it was a part of the duty of the defendant or his counsel to see that this was done. Hudson v. State,20 Okla. Cr. 435, 203 P. 482.
In view of the above statement, certainly the court did not err in proceeding with the trial of the case on September 24, 1941. How any one can take the position that the action of the trial court was in violation of the due process clause of the Constitution of the United States or of the Bill of Rights is beyond our comprehension; or how it could be maintained that the defendant was deprived of having the right to obtain compulsory process for obtaining witnesses in his behalf.
It has so many times been held by this court that the overruling of a motion for a continuance is within *Page 371 the sound discretion of the trial court, and unless this discretion has been abused, a case will not be reversed for this reason that the citation of authority is unnecessary. Certainly this court did not abuse its discretion in this case.
Lastly, it is argued that the county attorney, by asking leading, improper, incompetent and prejudicial questions of certain of the state witness, deliberately sought to prejudice the minds of the jurors against the defendant and that such conduct on the part of the county attorney was prejudicial to the rights of the defendant. We find no merit in this contention, particularly in view of the fact that during the trial no objection was made to the questions of the county attorney complained of.
Finding no prejudicial error, the judgment of the trial court is affirmed.
BAREFOOT, P. J., concurs. DOYLE, J., dissents.