If all these circumstances are prov-1 finding was made indicates that the defense ed, the contract will stand; if not, it will be was abandoned. In view of all these cirdefeated or set aside." The presumption does cumstances and this condition of the record, not apply to a transaction in which the at- we do not think it would be fair to the plaintorney openly assumes a hostile attitude to tiff to hold that the error in considering the his client. Johnson v. Fesemeyer, 3 DeG. & decree of distribution as a bar was harmless J. 22. Nor is it applicable to a contract by because a presumption against the validity of which the relation is originally created and the grant would arise from the relations of the compensation of the attorney fixed. The the parties shown upon the face of the inconfidential relation does not exist until such strument, a presumption not pleaded as a contract is made, and in agreeing upon its cause for declaring the grant void. Justice terms the parties deal at arm's length. El- requires that the case be remanded for a more v. Johnson, 143 Ill. 513, 32 N. E. 413, new trial so that the parties can intelligently 21 L. R. A. 366, 36 Am. St. Rep. 401. state and meet the issue of undue influence if they so desire.

The record does not contain the answer in full, but merely states its substance. It recites: That a separate affirmative defense was presented averring that Campbell was attorney for the German heirs at the time of the execution of Exhibit B; that it "was without consideration and was obtained by said Campbell by the undue use of his influence as such attorney; that the same was intended only as a mortgage to secure the payment to said Campbell of his compensation as such attorney; that said compensation had been fully paid"; and that they offered in this separate defense to pay Campbell or the plaintiff any sums the court should find to be due from the German heirs for such compensation, and asked "that said mortgage be adjudged to be satisfied and that the same be delivered up and canceled." This is all that appears on the subject of undue influence. It is not claimed or asserted that the grant was void because obtained by undue influence. Its cancellation was not asked on that ground, but solely upon the ground that it was really a mortgage. Undue influence seems to have been averred in support of the claim that it was only a mortgage and as a fact tending to show the intention, rather than as a separate and independent defense. No evidence was given by the defendants in support of such a defense. They here rely wholly on the bare presumption aforesaid. The agreement of January 6, 1888, was introduced by the plaintiff. It created the relation of attorney and client between Campbell and the German heirs and fixed his compensation. It declared that for his services, when completed, he should receive the identical three-hundredths interest which the second agreement, Exhibit B, conveyed to him. It is admitted that all the services contracted for have been performed by him. The first agreement, to which no undue influence attaches, constitutes an admission by the German heirs that the value of the services to be performed equaled the value of the interest they afterwards granted to him, and it goes far to remove the presumption of undue influence in obtaining the grant. In order to lay a foundation for the affirmative relief of cancellation asked for in connection with this separate defense, it was necessary that a finding be made upon the

In view of the necessity of a new trial, it may be well to add that the part of the second agreement providing for the reimbursement to Campbell of his "outlays" did not materially change the obligations of the clients in respect to such outlays. The language should not be construed more liberally toward the attorney than its ordinary meaning requires. In the absence of a special agreement to the contrary, a client is bound to repay his attorney for all outlays made by him in the payment of the expenses of carrying on the litigation, and an attorney is bound to bear his own personal and traveling expenses. The word "outlays," when used in that connection, does not ordinarily mean the personal or traveling expenses of the attorney, but refers to costs of suit and other expenses paid to third persons for similar purposes. It should be so construed in this agreement.

The order denying a new trial is reversed.

PER CURIAM. The petitions for a rehearing are denied. In response to the points urged therein, we will say: That the opinion in the case upon the question of the construction and effect of the instrument referred to as "Exhibit B," and upon the question of undue influence, is predicated upon the facts stated in the opinion; that it appears that the case was tried and decided in the court below upon the theory that the plaintiff was barred by the decree of distribution; and that the facts, aliunde, shown in the record, bearing upon the construction and effect of that instrument and undue influence in relation to it, are such facts only as were incidentally shown in the course of the trial of the other question. If the case is to finally rest upon the questions last mentioned, it is more in consonance with the correct administration of justice in a case involving, as

-HANDLING WEAPONS-INSTRUCTIONS.

"The law imposes upon people controlling or
The court in this case instructed the jury:
handling dangerous instruments or agencies the
duty of exercising some care or caution in the
manner of using the dangerous agency, and in
the law imposes criminal as well as civil lia-
case of gross or culpable neglect of this duty
bility." Held, error for the reason that it does
not define the degree of care or caution to be
used, or gross neglect, such as would render
the defendant guilty of criminal negligence.
[Ed. Note.-For other cases, see Homicide,
Cent. Dig. § 636; Dec. Dig. § 304.*]
6. CRIMINAL LAW (§ 722*)-TRIAL-MISCON-
DUCT OF PROSECUTING ATTORNEY-ARGU-

MENT.

questions be determined upon a new trial, | 5. HOMICIDE (§ 304*)-CRIMINAL NEGLIGENCE devoted directly to the examination thereof. Upon such a trial all the evidence bearing upon such questions can be introduced, and new pleadings may be filed if necessary. The record now before us omits many facts which might be relevant to these propositions; at least we surmise that it does, from that which does appear. If upon such a trial it should be claimed that the aforesaid instrument should be construed as a grant of a share in value, only, of the estate, and not of the specific property, and that Campbell has already received all, or a large part of it, in money, thus satisfying the grant, or a due proportion of it, or if it should be asserted that he has elected to take the whole, or part of it, in money by retaining such sums as he may have received under the orders of the court as attorney for absent heirs, and, that the plaintiff is thereby estopped from now claiming any of it, or the ratable part of it, as a share of the real estate, or that the grant was obtained by undue influence, there is nothing in the opinion rendered which precludes such inquiries. No such questions have been heretofore presented, either here or in the court below, nor does the record here show that Campbell received any money as attorney for absent heirs.

O'BARR v. UNITED STATES.

it was improper for the prosecuting attorney, The defendant being on trial for murder, in his closing argument, to make use of the statement: "It is your duty to punish this defendant, who, by the means of whisky given the poor girl, weakened her will and dulled her senses, and has been her ruin."

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.*] (Syllabus by the Court.)

Error from District Court, Le Flore County; Malcolm E. Rosser, Judge.

George O'Barr was convicted of manslaughter on an indictment for murder, and he brings error. Reversed.

W. D. Buckley and Day & Du Bois, for plaintiff in error. Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the United States.

OWEN, J. The proof on part of the state, (Criminal Court of Appeals of Oklahoma. Dec. in substance, is to the effect: That the de

18, 1909.)

1. STATES ( 9*)-TERRITORIAL COURTS-SUBSEQUENT STATEHOOD.

Under an indictment for murder returned prior to statehood, the defendant should be tried and punished under the law as it existed at the time of the commission of the offense.

[Ed. Note. For other cases, see States, Dec. Dig. § 9.*]

2. HOMICIDE (§ 309*)-MANSLAUGHTER-ELEMENTS STATUTES.

An instruction defining manslaughter under the United States statute (Rev. St. U. S. § 5341 [U. S. Comp. St. 1901, p. 36281), in force in the Indian Territory prior to statehood, which omits the word "willfully," is improper. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*] 3. HOMICIDE (§ 31*) "WILLFULLY.'

MANSLAUGHTER

The word "willfully," as used in the United States statute defining manslaughter, is synonymous with "intentionally" or "designedly."

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 52; Dec. Dig. § 31.*

For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481, 7835, 7836.]

4. WEAPONS (§ 18*)-USE-CARE REQUIRED.

The law imposes upon persons handling deadly weapons the duty of exercising such care as an ordinarily cautious and prudent person

would exercise under similar circumstances.

[Ed. Note. For other cases, see Weapons, Cent. Dig. §§ 34, 35; Dec. Dig. § 18.*]

fendant was a married man with a family of children. The deceased, who was a girl between 17 and 18 years of age, on the day of the shooting, met the defendant by appointment away from home, got into his buggy, and they were driving over the country at the time of the shooting. That defendant had, at different times during the day, given her whisky. That he had been in her company on the night before at a church house and had there given her whisky. She was found in his buggy on the roadside with a gunshot wound through her neck, and a short time thereafter died. The evidence offered on part of the defendant was in perfect harmony with the evidence on part of the state, and, in addition thereto, was to the effect: That at the time of the shooting the girl was lying on his lap, with his hand under her neck; that his pistol had been laying on the seat of the buggy; that he and the deceased began playing with it, when it was accidentally discharged, the ball passing through the girl's neck and through his hand; that he immediately started for a doctor at the nearest town; but that before he reached there the tugs of his harness became unhitched; that he got out of the buggy to rehitch them, and, thinking the deceased was dead, left her in the buggy and went to a

If

used, or the failure to use such care as would | Ky. 360; Flesh v. Lindsay, 115 Mo. 1, 21 S. constitute carelessness, and render the shoot- W. 907, 37 Am. St. Rep. 374; Lago v. Walsh, ing criminal. The law imposes upon persons 98 Wis. 348, 74 N. W. 214; 1 Words & Phrases. handling dangerous instruments, or deadly The language used by the attorney for the weapons, the duty of exercising ordinary state in closing the argument, as set out in care, or such care as an ordinarily prudent the fifth assignment, was improper. The deand cautious person would exercise under fendant in this case was charged with mursimilar circumstances. Carelessness is the der. He was not charged with having imfailure to use such care as an ordinarily proper relations with the young girl, or with prudent person would use under similar cir- having seduced her, and there was no evicumstances. Under the proof in this case, dence offered proving any improper relation, the only theory on which the jury could have or that the girl had been ruined. An argufound this defendant guilty of manslaughter, ment along the line as indicated by this lanwas that the shooting was accidental. guage was calculated to arouse the prejudefendant's handling the pistol was with the dices of the jury against the defendant. same caution that an ordinarily prudent per- When this language is considered in connecson would have used, under the same circum- tion with the lack of the evidence to disclose stances, the accidental shooting of the girl any motive for the killing, it cannot be igwould not make him guilty of manslaughter. nored. Every one will admit that the conOn the other hand, although the shooting was duct of the defendant in administering whisaccidental, yet done by defendant in the care- ky to that young girl at the church house, less use or handling of the pistol, he would giving her whisky at different times, meetbe guilty of manslaughter. This court said, ing her by appointment, taking her into his in the case of Tyner v. United States, 3 Okl. buggy, and driving across the country, he Cr., 103 Pac. 1057: "If one fires a gun being a married man with a family of chilrecklessly or heedlessly, he will not be ex- dren, was reprehensible; but however reprecused; and his offense will be at least man- hensible such conduct, and however severely slaughter, though the weapon was pointed in the same is to be condemned, the courts must range of the deceased by accident, with no not lose sight of the fact that the defendant intention or design of killing the deceased. is not on trial for that conduct. The sole "The law infers guilty 'intention charge for which the defendant was on trial from reckless conduct, and, where the reck- here was the unlawful killing. When the lessness is of such a character as to justify evidence discloses such reprehensible conduct this inference, it is the same as if the de- on the part of a defendant, such conduct as fendant had deliberately intended the act is calculated to arouse the prejudices of an committed. When therefore one recklessly ordinary juror against a defendant, the trial fires a pistol with criminal indifference as to court should be all the more careful to conthe consequences, and another is killed, it is fine the argument of attorneys to the material not necessary, in order to constitute this kill- facts as proven. Every one must agree that ing murder, that the accused should at the the defendant deserves to be punished for time of firing have been engaged in the com- such conduct; but that was not at issue in mission of some unlawful act, independent of this case. There being no evidence that the and in addition to the reckless firing itself." defendant had caused the girl's ruin, or that In the case of Roberts v. United States, the girl had in fact been guilty of improper supra, the court said: "In the definition of conduct other than drinking whisky and 'manslaughter' contained in the statute, the driving in a buggy with a married man, there killing must be done unlawfully and will- was nothing to warrant the statement of fully. The term 'unlawfully,' as here used, counsel. The statement amounted to his means without legal excuse. The term 'will- opinion, an officer of the court, that defendfully' here means done wrongfully, with evil ant should be convicted of the crime charged intent. It means any act which a person of because of acts for which he was not on reasonable knowledge and ability must know trial. The jury is sworn to try the case acto be contrary to duty, and, while the act cording to the law and the evidence. They must be done with evil design, and knowingly, are not permitted to communicate with peras herein stated, still a killing which takes sons in or outside of the courtroom after place under circumstances showing a reckless they are selected as jurors for the reason disregard for the life of another, and the that perchance they might learn the opinions reckless and negligent use of means reason- of others as to the weight of the evidence and ably calculated to take the life of another, be improperly influenced. The law throws such killing would be willfully done, as the around the jury every safeguard that the term is herein defined." The instruction verdict may be the result of the sworn testicomplained of informed the jury that, in case mony alone. It is the province of attorneys of gross or culpable neglect, the law im- in the argument to apply the law to the facts posed on the defendant a criminal liability, as disclosed by the evidence, not to assert as but left the jury to determine what would facts things not in evidence. The argument constitute gross neglect. What constituted is presumed to influence the jury. The law carelessness and gross neglect should have provides for argument. It is one of the most

Why have any argument if the jury is not expected to be influenced by it? The state is given the closing of the argument because it has the burden of proof, and the argument is as much a part of the trial as the taking of testimony. It should be governed by the same rules of fairness, be confined to facts material to the issue, and based upon the competent testimony. We would not be understood as intending to abridge the power of prosecuting attorneys in arguing all the facts brought out in the testimony, but it is certainly error to argue facts which are not brought out. The state cannot convict a defendant of one crime by proving him guilty of another. This is true of the argument as well as the proof. It is extremely difficult to formulate rules by which to determine when the statement of counsel will justify the court in granting a new trial. It may be regarded as an established rule that it is error, sufficient to reverse a judgment, for counsel to state facts pertinent to the issue, calculated to prejudice the jury, and not in evidence, or to assume in argument that such facts are in the case, when they are not.

Many of the courts have announced a more rigid rule than this, and have even gone further in reversing cases on statements made by prosecuting officers than we would be willing to go. In this case we are following the rule of the more conservative courts. In the case of Dunmore v. State, 115 Ala. 69, 22 South, 541, the Supreme Court of Alabama said: "Counsel must not, in argument to the jury, state as a matter of fact that of which there is no evidence. Such statements are not within the latitude of discussion the law accords the counsel and is of itself of evil tendency." In the case of Tucker v. Henniker, 41 N. H. 317, the court said: "Every person against whom an accusation is made, or a suit is brought, is entitled to be tried by a jury and according to the laws of the land. This was the greatest of all the privileges conferred by magna chartá, and is guaranteed by our own fundamental law. This privilege is substantially violated, if counsel are permitted to state facts and comment upon them in argument against the adverse party, which are not before the jury by proofs regularly submitted.

or less force, according to circumstances; and,
if they in the slightest degree influence the
finding, the law is violated, and the purity
and impartiality of the trial tarnished and
weakened. If not evidence, then manifestly
the jury have nothing to do with them, and
the advocate has no right to make them."
In the case of Brow v. State, 103 Ind. 133, 2
N. E. 296, the prosecuting attorney said: "I
know personally the saloon keeper in this
case, and he is guilty of this, and I am sure
of other crimes." This was held to be suf-
ficient to justify reversal. In the case of
Martin v. State, 63 Miss. 505, 56 Am. Rep.
813, the prosecuting attorney said: "Martin,
the defendant, is a man of bad, dangerous,
and desperate character; but I am not
afraid to denounce the butcher boy, although
I may, on returning to my home, find it in
ashes over the heads of my defenseless wife
and children." The Supreme Court held
that it was the duty of the presiding judge to
interfere in such case of his own motion, and
for his failure to do so gave the defendant
a new trial.

The following excerpts are a fair sample of the rebukes administered to statements made by prosecuting attorneys, by courts following the more rigid rule. In Perkins v. Burley, 64 N. H. 524, 15 Atl. 21, counsel for the plaintiff in his closing argument, said: "That if they (the jury) knew how the plaintiff and his father and brother were regarded in the vicinity in which they lived, he would be willing to submit the case without argument." This was held to be sufficient ground for setting aside the verdict. The case of State v. Thompson, 106 La. 362, 30 South. 895, is one where the defendant was convicted of murder and sentenced to death. The only error assigned was a statement by the prosecuting attorney in his closing argument, "I will say nothing to you of her six fatherless little children." There was no proof that the widow of the deceased had six children. The Supreme Court held this language was calculated to prejudice the jury against the defendant and reversed the case. The case of Long v. State, 81 Miss. 448, 33 South. 224, is one where the defendant was on trial for burglary. The evidence was to the effect the defendant entered the house of essential element in the trial by jury is that one Lawson at night. Lawson's daughter, a the verdict shall be rendered according to the girl about 16 years old, was awakened by facts of the case, legally produced before cold hands on her face, looked up, and saw the jurors. * * When counsel are per- the defendant standing by her bed. The dismitted to state facts in argument, and to trict attorney, in his argument to the jury, comment upon them, the usage of courts reg- made use of the following remarks: "The ulating trials is departed from, the laws of defendant was in the house on the occasion evidence are violated, and the full benefit of when his offense was committed, not for the trial by jury is denied. It may be said, in purpose of It may be said, in purpose of committing the crime which answer to these views, that the statements he is charged with alone, but for the purof counsel are not evidence, that the court is pose of committing another crime, one of the bound so to instruct the jury, and that they vilest known." The Supreme Court of Misare sworn to render their verdict only ac- sissippi held that this statement was calcucording to evidence. All this is true, yet the lated to inflame the jury and arouse their necessary effect is to bring the statements of prejudices, and for this error reversed the

An

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