The plaintiff in error was convicted of murder, and sentence of death by hanging was duly pronounced.
There are two questions presented on the appeal in this case. The first contention is that the court erred in admitting in evidence dying declarations. That the declarations of Will Crocket, the deceased, were properly admitted there can be no doubt. That he was dying at the time is admitted, and that he was conscious of impending death is undisputed. There is no testimony tending to show that he had any hope of recovery. The admissibility of dying declarations has repeatedly been passed upon by this court. In the case of Morris v. State,6 Okla. Cr. 29, 115 P. 1030, it is said:
"It is essential to the admissibility of dying declarations, and is a preliminary fact to be proved by the prosecution, that they were made under a sense of impending death. This may be made to appear from what the injured person said, or where from the nature and extent of his injuries it is evident that he must have known that he could not survive. It is sufficient if it satisfactorily appears that they were made under the sense *Page 79 of impending death, whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical attendants, stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declarations and his death, and the fact that the declarant was so weak that he could not sign his name and so affixed his mark, all of which are resorted to, in order to ascertain the state of declarant's mind."
See, also, Ryan v. State, 8 Okla. Cr. 623, 129 P. 685;Offit v. State, 5 Okla. Cr. 49, 113 P. 554; Blair v. State,4 Okla. Cr. 364, 111 P. 1003.
The second contention is that the evidence is insufficient to support the verdict, and because the evidence of his codefendant, Lewis Price, as a witness in his own behalf, as set forth in his affidavit offered in support of the supplemental motion for a new trial, so affects the proof relied upon by the state as to make it probable that upon another trial a different verdict would be rendered. We think the foregoing statement of the facts which were brought out at the trial is sufficient to demonstrate that there is no merit in this contention.
In Drew v. State, 6 Okla. Cr. 348, 118 P. 667, it was held that:
"A motion for a new trial upon the ground of newly discovered evidence, made before judgment, or after the term at which the judgment was rendered and sentence pronounced, is addressed to the discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of discretion; the presumption being that the discretion was properly exercised."
The whole method and manner of this killing shows that it was a cruel and deliberate murder. It appears from the evidence that the motive that actuated this defendant and his codefendant, Price, to perpetrate the murder was to secure undisturbed possession of the wife and daughter of the deceased. It is manifest from a careful inspection of the whole record that the defendant has had a fair and impartial trial, and, in obedience to the mandates of the law, he ought to suffer the extreme penalty assessed by the jury.
The judgment is therefore affirmed. *Page 80
It appears from the record that while this appeal was pending the act of March 29, 1913, regulating the infliction of the death penalty, became effective. As the day fixed for the execution of the judgment and sentence has passed, the cause is remanded to the district court of Creek county for the purpose of appointing another day for the execution of the judgment, as provided by sections 5979 and 5980 (Rev. Laws 1910), Procedure Criminal; proceedings to be had in accordance with the rule prescribed by this court in the case of Alberty v. State, 10 Okla. Cr. 616,140 P. 1025.
The warden of the penitentiary will surrender the defendant to the sheriff of Creek county, who will hold him in custody pending the proceedings in the trial court, or until his custody is changed by due course of law.
ARMSTRONG, P.J., and FURMAN, J., concur.