While the evidence is in conflict as to the facts of the difficulty between the deceased and the defendant, and also as to whether or not the knife wounds inflicted by the defendant upon the deceased caused his death, and whether the defendant acted in self-defense, the determination of the facts was exclusively for the jury, and there being evidence — though the evidence was in conflict — to reasonably support the verdict rendered, this court, as held by an unbroken line of its decisions, is precluded from disturbing it.
The eighteenth instruction of which the defendant complains correctly states the law, and is free from error. *Page 20
Conceding that the deceased brought on the difficulty by striking the defendant with a wrench, if the deceased in good faith thereafter withdrew from the difficulty and fled from the defendant, and the defendant pursued, overtook, and inflicted upon the deceased the fatal knife wound, and, at the time said fatal wound was inflicted the defendant was in no danger, either real or apparent, of death or great bodily harm, at the hands of the deceased, he certainly could not successfully invoke the doctrine of self-defense. The law of self-defense is a rule of necessity, and can only be invoked in the justification of a homicide in order to prevent an actual or reasonably apparent infliction of death or great bodily harm upon the slayer, and the necessity must be imminent at the time of the killing and not prior thereto. Marshall v. State, 11 Okla. Cr. 52, 142 P. 1046.
If the deceased abandoned the difficulty in good faith and fled, and the defendant pursued, overtook, and inflicted upon him a fatal wound, the defendant became the aggressor, and could not successfully plead self-defense. Smith v. State,14 Okla. Cr. 250, 174 P. 1107.
"Where the assailant retreats in good faith, and the assaulted person pursues and kills him with a deadly weapon, the killing cannot be justified as in self-defense." Gransden v. State, 12 Okla. Cr. 417, 158 P. 157.
In the case of Smith v. State, 5 Okla. Cr. 283, 114 P. 355, it is said:
"The mere fact that two parties attempted to impeach a juror does not by any means settle the question of credibility as between such parties and the juror. If it did, but few verdicts could be sustained, because in almost any case it would be possible to find two or more persons who would make affidavits impeaching a juror. In passing upon this very question, the Supreme Court of Texas, in the case of Gilleland v. State, 44 Tex. 357, said: `It is true that there are two affidavits in support of the motion and one in rebuttal, *Page 21 but we do not think that the decision of the question presented by the motion should necessarily depend upon the mere number of affidavits on one side over the other.' The question of credibility was one to be determined by the trial court, and, in the absence of a showing that this discretion was abused, it cannot be reviewed here."
The only remaining question presented by this appeal is upon the motion for new trial. Is Wheat shown to have been such a disqualified juror, or that others than the jurors being in the jury room, or phoning from the jury room, as shown by the evidence, to so prejudicially affect the defendant as to work a reversal of this case? It is certainly true that under the Constitution and laws of this state the defendant must be accorded a fair and impartial trial, and the impartiality of the jury goes to the very foundation thereof, but in order to prevail in a motion for a new trial on account of the prejudice of a juror serving on the jury in the trial of the case, it must not only be shown that the juror was prejudiced against the defendant, but it also must be made to appear from the whole case that the defendant suffered an injustice from the fact that the juror so served. There is evidence, though in conflict, sufficient to establish the guilt of the defendant beyond a reasonable doubt of the offense of which he was properly convicted, and we are unable to see that it appears from the whole record that the defendant was denied a fair and impartial trial by reason of Wheat having served upon his jury.
In the case of Horton v. State, 10 Okla. Cr. 294,136 P. 177, it is held:
"As a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause, which existed before the juror was sworn, but which was unknown to the defendant until after conviction, unless it appears from the whole case that the defendant suffered injustice from the fact that the juror served in the case." *Page 22
"As a general rule, the finding of the trial court upon an issue of fact arising upon affidavits and evidence adduced on a motion for a new trial will not be disturbed, where the evidence reasonably tends to support such finding."
In the case of Smith v. State, 5 Okla. Cr. 283, 114 P. 350, it is held:
"Where, in a motion for a new trial, an attempt is made to show that one of the jurors who sat in the case was prejudiced against the defendant, and affidavits are attached to the motion for a new trial supporting this charge, and the state replies with affidavit from the juror denying such prejudice and controverting the statements made in the affidavits filed against him, this presents a question of fact to be determined by the trial court, and in the absence of a showing of abuse of discretion in this matter the judge's determination of this question of fact will not be disturbed by this court upon appeal."
The evidence discloses that those temporarily in the jury room — other than the janitors — were there by authority of the court and the consent of the defendant and certainly the defendant cannot consistently urge as reversible error that which he consented to be done. Evidently the janitors, who were temporarily in the sleeping room of the jurors, could not, under the evidence, have in any way aided in causing the conviction of the defendant, or resulted in injury to him. While we do not approve of jurors while held in their room communicating with outside persons by phone, or with others than the jurors being in the jury room without the authority of the trial court and consent of the defendant, we are unable to see how, under the evidence in this case, the phone conversation had resulted in such injustice to the defendant, and to be such a denial of a fair and impartial trial as to entitle the defendant to a reversal.
In Coats v. State, 101 Ark. 51, 141 S.W. 197, it was held: *Page 23
"It was not misconduct for jurors to hold conversations with outside persons where nothing was said about the case."
It has been uniformly held by this court that on matters of discretion the decision of the trial court will not be set aside unless there appears to have been a manifest abuse thereof. Spradlin v. State, 13 Okla. Cr. 376, 164 P. 990; Monagham v. State, 10 Okla. Cr. 89, 134 P. 77, 46 L.R.A. (N.S.) 1149; Bethel v. State, 8 Okla. Cr. 61, 126 P. 698; Perkins v. Territory, 10 Okla. 506, 63 P. 860.
The evidence in support of the motion and in opposition thereto was directly in conflict and it was peculiarly within the province of the trial court to determine who he would believe and who disbelieve. All the witnesses appeared in open court and testified, and it would be presumptuous upon this court to substitute its judgment on the weight and credit to be given to evidence where the same is conflicting and a less opportunity is afforded to judge of the surrounding circumstances under which such evidence was adduced. We cannot say, therefore, that there was a manifest abuse of discretion upon the part of the trial court in overruling this motion such as should result in a reversal of this judgment of conviction.
We are of the opinion that the court did not abuse its discretion in overruling the motion for a new trial.
The judgment of the trial court is affirmed.
DOYLE, P.J., and MATSON, J., concur.