manner and form as charged in the indictment." The court therefore did not err in giving the instruction permitting the jury to find the defendant guilty of manslaughter. Third. Counsel in their brief say: "Plaintiff in error next complains that the court erred in giving the following instructions: "The jury are instructed that by the laws of the territory a wife is not a competent witness against her husband in a criminal case, and that the territory has no power to compel her to testify, nor will she be allowed voluntarily to do so; but she can be used in behalf of the defendant when called by him, the defendant having that right if he desires to use the same.'" The record shows that the above instruction was given by the court after the prosecution had closed its opening argument, and while defendant's counsel was making his closing speech to the jury. It was contended, and the appellant now contends, that the giving of the instruction was inopportune and constitutes prejudicial error. In support of this contention, counsel cite State v. Hatcher, 29 Or. 313, 318, 44 Pac. 586, 587, from the Supreme Court of Oregon. The Supreme Court said: "The record discloses that the defendant's counsel, in their argument to the jury, maintained that the deceased was killed while attempting to commit a forcible felony on the defendant's wife. The district attorney, replying thereto, said in substance: "There were but three persons present at the tragedy-the defendant, his wife, and the deceased. That the voice of the deceased was hushed in death. That the state could not call Mrs. Hatcher as a witness, and it was in the power of the defend fendants may be convicted of different degrees, and a verdict in a prosecution for murder of guilty as charged of manslaughter is sufficiently certain to warrant a judgment and does not find the accused guilty of two offenses. This rule applies to a verdict in a prosecution for murder of involuntary manslaughter, consisting of a killing in the commission of an unlawful act not amounting to a felony, or of a lawful act done in an unlawful manner or without due caution or circumspection. And a person charged with murder may be convicted of negligent homicide. And a conviction of involuntary manslaughter, consisting of the killing of a white person, though it does not apply where the involuntary manslaughter has special statutory ingredients which must be alleged, and which are not included in a general charge contained in the indictment, or where such manslaughter is regarded as a misdemeanor only. And a verdict for manslaughter may be returned in a prosecution for murder under a statute declaring an attempt to produce an abortion, which causes death, to be murder, as well as in the case of an indictment for any other kinds of murder. This question has been passed upon by the Supreme Court of Oklahoma Territory in the case of Jones v. Territory, 4 Okl. 47, 43 Pac. 1073. Judge Burford, in rendering the opinion of the court, said: "The appellant, Tom Jones, was prosecuted in the district court of Payne county for the crime of murder, tried by jury, convicted of manslaughter in the first degree, and sentenced to 50 years in the territorial penitentiary at Lansing, Kan. He brings the cause to this court upon certified copies of the indictment and journal entries embracing the trial, verdict of the jury, judg-ant to have produced her. That she could ment, and sentence of the court. No other parts of the record or proceedings of the trial are before this court. The assignment of error contains 13 alleged errors, the first of which is as follows: "The verdict of the jury finds the defendant guilty of two offenses, both of murder and manslaughter in the first degree.' The verdict as set out in the journal entry is as follows: "Territory of Oklahoma v. Tom Jones. Verdict of Jury. We, the jury, in the above-entitled cause, do upon our oaths find the defendant guilty in manner and form as charged in the indictment of manslaughter in the first degree. N. S. Davis, Foreman.' There is no merit in the contention that this verdict finds the defendant guilty of two crimes. The indictment charged murder in the usual form and embraces within its terms the charge of manslaughter in the first degree. It was proper on a trial of the charge of murder for the jury to find the defendant guilty of any charge necessarily embraced within that contained in the indictment, and the jury in their verdict makes certain that which they intended to do by finding the defendant guil have told all about the affair. That, if present, her testimony would have been adverse to the defendant, otherwise he would have secured her attendance; but failing to do so is proof that her testimony would have been against the defendant.' The defendant's counsel objected to this language, for the reason that the absence of the defendant's wife was no evidence of his guilt; but, the objection having been overruled, an exception was allowed." In passing upon this question, the Supreme Court said: "First, the record fails to disclose that the defend: ant's wife was, at the time of the trial, within the reach of the process of the court; and, second, it is also silent as to whether she had consented to become a witness for her husband, for without such consent upon her part she could not be compelled to testify. Hill's Ann. Laws Or. 1892, § 1366. In criminal ac tions the accused shall, at his own request, but not otherwise, be deemed a competent witness, provided his waiver of said right shall not create any presumption against him; but when he offers himself as a witness he becomes subject to the ordinary rules would blow his brains out. She could have testified, perhaps, to many other facts which would have shed light upon this horrible transaction. It was not within the power of the prosecution to adduce her testimony, because, being the defendant's wife, she was not permitted under the law to testify against him in this case. He alone could call for her testimony, and compel its production. Her knowledge of the facts, whatever that knowledge might be, was at his commandwas within his reach; and without he produced it, or consented to its production, it was a sealed book, which no human tribunal has the power to open against him. Under these circumstances, we think the prosecuting attorney was justified in the remarks complained of, and that the court did not err in its action in relation thereto." Abrams, 11 Or. 169, 8 Pac. 327, supra. If no | daughters when he got his gun and said he presumption of the defendant's guilt can be invoked by reason of his failure to testify in his own behalf, how can such a presumption be created in his failure to produce his wife as a witness, when she cannot be compelled to testify without her consent?" Upon this ground this decision was correct, because under the statute of Oregon the right of the husband to use his wife as a witness depended upon her consent. We have no such statute. Therefore upon this ground the case cited has no application. Section 5495, Wilson's Rev. & Ann. St. 1903, is as follows: "Except as otherwise provided in chapters 68 and 69, of the statutes of Oklahoma, the rules of evidence in civil cases are applicable also in criminal cases; provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other." From this it is seen that no restriction or limitations are placed upon the right of the husband to place his wife upon the stand to testify in his behalf. She has no more right or power to refuse to testify when so placed upon the stand than any other witness would have. Counsel in their brief say: "It is true that where a party suppresses testimony, induces the witnesses to leave the jurisdiction of the court, to swear falsely, or suppress some fact in his knowledge, or commits other acts of bad faith in connection with his cause, the same may be considered as a circumstance in the case; but never can the reliance of the defendant upon a legal right be impugned as bad faith or be distorted into evidence against him." The instruction given simply informed the jury that the defendant had the legal right to call his wife as a witness in his behalf, if he so desired. We cannot see how this could have injured the defendant. Telling a jury what the rights of a defendant are cannot deprive him of them; but counsel contend that it pointed out a defect in the defendant's case. They say: "Coming from the bench, a solemn declaration of law which they must consider in their deliberations, it was particularly harmful to the defendant, and, while it came in the form of an instruction of the court, the purpose that it really served was that of an argument to the jury pointing out a defect in defendant's case." In a number of states the husband is denied the right to place his wife on the witness stand in his behalf in a criminal case. This was the law in that part of the state which was known as Indian Territory, prior to statehood. This often caused juries to sympathize with a The statute of Texas is similar to ours. defendant upon trial, because he was deprivUnder that statute the Texas Court of Ap-ed of the testimony of his wife. It was peals, in Mercer v. State, 17 Tex. App. 476, said: "We do not think the remarks of the prosecuting attorney, in his closing argument to the jury, which are complained of by the defendant, were beyond the scope of the legitimate argument. It was disclosed by the evidence that the defendant's wife must have known important facts bearing directly upon the issue in the case, and that she was within easy reach of the process of the court. She could have explained fully The other ground upon which the decision in Hatcher's Case is based is not supported by reason. The attempted analogy between the failure of the husband to call his wife as a witness in his behalf, and his failure to take the stand as a witness for himself, fails because in the latter instance there is a mandatory, arbitrary statute forbidding that any reference shall be made to such failure or that any inference of guilt shall be drawn therefrom. There is no such provision in the statute making the wife a competent witness for her husband. We decline to be bound by a precedent which is based upon an attempted judicial amendment of a statute. For these reasons we do not recognize the case of Hatcher v. State as an authority in point. therefore only fair to the territory that the jury should have been informed that if the wife of the defendant was not placed upon the witness stand, or if no effort to have this done had been made, it was not the fault of the territory, but was because the defendant did not desire it to be done. If inferences might be drawn, unfavorable to the defendant, from this failure to place his wife upon the witness stand or his failure. to make any attempt to secure her testi This is the principle upon which the case of Mercer v. State, 17 Tex. App. 452, hereinbefore quoted, was affirmed. In fact, the principle is of universal application. In Wigmore on Evidence, vol. 1, § 285, we find the following: "The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's claim. Even since the case of the chimney sweeper's jewel, this has been a recognized principle (1722, Armory v. Delamirie, 1 Strange, 505): 'A chimney sweeper's boy, finding a jewel, took it to the defendant, a jeweler, for appraisal; but the defendant would not restore it. In an action of trover, in proving the value, 'the Chief Justice (Pratt) directed the jury that, unless the defendant did produce the jewel and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages, which they accordingly did.'" Mr. Wigmore then cites an unanswerable array of authorities to support the principle announced. It would have been improper, under our practice, for the court to have suggested to the jury what inferences they might draw from the failure of the defendant, to place his wife upon the witness stand or to attempt to do so. The duty of the court ended in stating the law. Argument upon the law and the facts is always for counsel. The instruction complained of was given before the argument on behalf of the defendant was concluded. Of course, it is better for all of the instructions to be given before the argument is begun. Section 5518, Wilson's Rev. & Ann. St. 1903, is as follows: "In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charges, and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused." If, before the jury have retired and begun the consideration of their verdict, the court thinks that it is necessary for their information to give them additional instructions, it has the power to do so, and, in the absence of a clear showing of abuse of this power, a reversal will not result therefor. Under some conditions it might be proper to give counsel for the defendant an opportunity to structions to the evidence in the case when given after they had concluded their argument. The instruction complained of stated the law correctly, and we fail to find any abuse of discretion upon the part of the trial court in submitting it to the jury. Fourth. Counsel in their brief say: "Appellant also contends that it was error for the court to refuse the defendant's request to instruct the jury as prayed for in the sixth instruction requested by the defendant and refused by the court, which was excepted to; same being as follows: 'In determining the question of whether the defendant believed that he was in imminent danger of losing his life or receiving great bodily harm, you will take into consideration the threats, if any, made by deceased against the defendant, the feeling existing between the deceased and the defendant, the enmity of the deceased toward the defendant, if any, and all facts and circumstances surrounding the immediate transaction as well as all which preceded it.' It is a well-settled rule of law that, when the question is as to whether the defendant believes himself to be in danger, communicated threats is a proper matter for the due consideration of the jury in determining that question. It is so apparent that the refusal of this instruction was error that we will not make further comment." This instruction does not state the law correctly. It is not true that the defendant had the right to kill the deceased because the deceased may have threatened the defendant, or on account of any feeling which may have existed between the deceased and the defendant. If this was the law, then malice would be an element of self-defense, and a premium would be placed upon assassination. No matter what threats may have been made by the deceased against the defendant, no matter what the state of feeling between the deceased and the defendant may have been, the defendant did not have the legal right to kill the deceased, unless at the time of the homicide, by some act then done, the deceased manifested a purpose of then carrying such threats into execution. This all-important condition is ignored and left out of the requested instruction, but was clearly stated in the general instruction given by the court to the jury. The trial court did not err in refusing the special instructions requested. The principle therein announced is repugnant to reason, and, so far as we have been able to find, is not supported by a single authority. Fifth. Counsel for the defendant complain of the action of the court in refusing to strike out the testimony of Charles L. Engle, to the effect that, soon after the defendant left El Reno, the Christian church took up the matter of the support of the wife and children of the defendant and assisted them in this respect, and to the further effect that of the wife of the defendant called into question until the deceased was killed by the defendant. The objection urged to this testimony is that stated by counsel to "the tendency of the evidence, and the purpose for which it was offered was to show that the defendant was worthless and profligate and had failed to support his family; that Mrs. Rhea was a worthy woman of good character, that had been slandered by the defendant." It is true, as a general rule, a defendant is entitled to be tried on legal evidence alone; but from this it does not necessarily result that a reversal should follow the reception of incompetent testimony in every case. The Court of Criminal Appeals of Texas has time and again decided that the admission of incompetent evidence, which could not have prejudiced the defend ant, is not cause for reversal. Avery v. State, 10 Tex. App. 199-212; Post v. State, 10 Tex. App. 579-595; Logan v. State, 17 Tex. App. 50-57; Bond v. State, 20 Tex. App. 421; Hooper v. State, 29 Tex. App. 614616, 16 S. W. 655; Sargent v. State, 35 Tex. App. 325-337, 33 S. W. 364; Shaw v. State, 39 Tex. App. 162, 45 S. W. 597; Roberts v. State (Sup.) 16 S. W. 255; Lettz v. State, 21 S. W. 371. In the case of Stephens v. State, 26 S. W. 728, it is held that, although evidence may be improperly admitted against a defendant, if he takes the stand and testifies to the same thing, the error is harmless. In this case the defendant, while on the stand, testified that for many months before this homicide he had spent but little of his time with his family and had contributed very little to their support, and that during this time his wife had taken in washing to support herself and children. He also testified to his confidence in his wife until he became suspicious as to her relations with the deceased. His own evidence was to the same effect and was much more damaging against himself than was the testimony of the witness Engle. Therefore, even if Engle's evidence was improperly admitted, the error was harmless. Counsel for the defendant make no objection as to the sufficiency of the testimony. It is therefore not necessary for us to discuss the evidence further than to say that the guilt of the defendant was the only rational conclusion at which an intelligent and honest jury could arrive. In fact, we see no rational escape from the verdict rendered. The defendant in this case having been sentenced by the trial court to confinement in the penitentiary at Lansing, Kan., said judgment is amended and reformed, and said sentence will be changed to imprisonment in the penitentiary of Oklahoma at McAlester, and, as so amended, the judgment of the lower court is affirmed. DOYLE and OWEN, JJ., concur. STACK V. STATE. (Criminal Court of Appeals of Oklahoma. Dec. 7, 1909.) 1. CRIMINAL LAW (§ 897) - TRIAL-OBJECTIONS WAIVED. After a defendant has voluntarily gone to trial, it is too late to make the objection that he has not been informed of the nature and cause of the accusation against him, and has not been served with a copy thereof. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2117; Dec. Dig. § 897.*] 2. CRIMINAL LAW (§ 1144*)-PROSECUTION FOR MISDEMEANOR-ARRAIGNMENT. A new trial will not be granted in a misdemeanor case because the record does not show that the defendant was arraigned, or that he waived arraignment. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3019; Dec. Dig. § 1144.*] (Syllabus by the Court.) On motion for rehearing. Denied. PER CURIAM. In their motion for a rehearing, counsel complain that in the original opinion this court overlooked two of the propositions relied upon by the defendant and presented in their brief as grounds for the reversal of the judgment of the lower court, viz.: (1) That the record does not show that the defendant was ever furnished with a copy of the information; (2) that the record does not show that the defendant was ever arraigned and entered his plea to the information, or that arraignment and plea were waived. First. It is true that section 20 of the Bill of Rights (article 2) of the state Constitution, among other things, does say: "He shall be informed of the nature and cause of the accusation against him and have a copy thereof." The defendant voluntarily went to trial without objection upon the ground that he had not been informed of the nature and cause of the accusation against him. It is now too late to raise this question. Even if this were not true, the record shows that the defendant demurred to the information. This conclusively shows that he did know the nature and cause of the accusation against him, and had access to a copy thereof. The other ground is equally as unfounded. The clerk's minutes of the trial are made a part of the record by our statute. These show that the defendant was arraigned and plead not guilty. But, even if this were not so, a new trial would not be granted in a misdemeanor case upon the ground relied upon. In Markinson v. State, 101 Pac. 353, Judge Doyle, speaking for this court, said: "The first question that is presented by defendant for our consideration is that 'defendant was never arraigned, or even entered any plea, or was given any opportunity to tain laws of Arkansas extended in force in said Banking, Dec. Dig. § 181;* Usury, Cent. Dig. plead.' The record does not show that the defendant was arraigned and pleaded to the amended information. No objection appears to have been made upon this ground in the court below. The record shows that on March 31, 1908, after a demurrer to the original information had been sustained, an amended information was filed, and on April 1, 1908, defendant filed his demurrer to said amended information, which demurrer was by the court overruled. Whereupon defendant filed his motion to quash the panel and array of jurors, which motion was by the court overruled. The case proceeded to trial without further objection, and the defendant was duly tried. We cannot reverse a judgment in a misdemeanor case for the reason alone that the record does not show an arraignment and plea by the defendant. SecThis action was begun in the district court tion 5307, Wilson's Rev. & Ann. St. 1903, pro- of Murray county on the 25th day of Novemvides: 'An information may be amended in Error from District Court, Murray County; R. McMillan, Judge. Action by the Sulphur Bank & Trust Company against J. R. Medlock and others. Judgment for defendants, and plaintiff brings error. Affirmed. ber, A. D. 1907, by the plaintiff in error, the lock and C. W. Medlock, on the 1st day of October, 1907. The note represented a loan made by plaintiff in error to J. R. Medlock, and in order to secure the indorsement of his codefendants, who were merchants matter and substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant, no amendment shall cause any de-sory note in the sum of $250, dated Janulay of the trial, unless for good cause shown lock Bros. in said sum, with interest at ary 21, 1907, payable to the order of Medby affidavit.' And section 5380, Wilson's Rev. the rate of 8 per cent. per annum from said & Ann. St. 1903, provides: 'If the indictment date until paid, and being payable to Medis for a felony the defendant must be person-lock Bros., a firm composed of W. M. Medally present, but if for a misdemeanor only, his personal appearance is unnecessary, and he may appear upon the arraignment of counsel.' Under this provision of our statute, the personal appearance of the defendant in a misdemeanor is unnecessary for the purpose of arraignment and plea. Where the record does not, as in this case disclose an arraignment and plea, unless there is something to show affirmatively that the defendant was not arraigned and did not plead, such arraignment will be presumed; and where the record fails to show any objection to proceeding to trial, the question will not be considered by this court when raised for the first time in the petition in error." The motion for a rehearing is denied. SULPHUR BANK & TRUST CO. v. MED- in error. The cause trading under the firm name of "Medlock Cottingham & Bledsoe, for plaintiff in er ror. WILLIAMS, J. (after stating the facts as above). The question here raised is whether or not the contract is rendered usurious and void by the plaintiff in error charging $25 interest for the use of $225 for 8 months and 10 days. This case is controlled by the law as it existed in the Indian Territory at the time of the admission of the state into the Union. Chapter 109, Mansf. Dig. Ark. (chapter 50, Ind. T. Ann. St. 1899), was extended over the Indian Territory by Act The 8 per cent. rate of interest prescribed by the proviso to Act Cong. February 18, 1901, c. 379, § 8, 31 Stat. 795, entitled "An act to put in force in the Indian Territory certain provisions of the laws of Arkansas relating to corporations, and to make said provisions applicable to said territory," is restricted to banks or trust companies organized under the laws of Arkansas or any other state and transacting business in the Indian Territory as foreign corporations by virtue of said section, and does not apply to a bank organized as a domestic corporation in the Indian Territory under cerFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |