(225 P.) does that fact affect the situation, or why, may be no actual danger, and his guilt must should it render the judgment or order void? depend upon the circumstances as they apIt is certainly without effect on the Johnson peared to him, yet the danger must not be county term. Barring the fact that the same brought on by the wrongful conduct or unjudge held the two terms, they are as entirely lawful acts of the slayer, and no person has distinct and independent as are terms held in the right to kill another through unfounded fear or cowardice. Reed v. State, 2 Okl. Cr. 589, 103 Pac. 1042. different districts. The fact that the same judge holds the two terms is not of importance. It is the holding of distinct and separate terms, each unaffected by the other. There is nothing in public policy or private interest that demands a rule that such an adjournment is void." To repel a simple assault, the person assaulted is not authorized to attack his assailant with a deadly weapon. He will not be justified in doing those acts that are cal There is nothing in the statute above quot-culated to destroy the life of his assailant, ed fixing the time to be consumed in the sessions of any district court or date of its adjournment; and in the absence of some positive law to the contrary, a district court being a court of general jurisdiction, has power to adjourn over an intervening term, or a portion of a term held in another county of the same district during the interval of adjournment. It follows that the adjournment over the intervening term in Coal county was valid, and the proceedings unaffected by the adjournment. Some exceptions were taken to the rulings of the court in the admission and rejection of evidence. We deem it sufficient to say that we are of the opinion that none of them were well taken. The instructions given by the court submitted the issues of murder and manslaughter in the first degree and the law of selfdefense. Complaint is made that the instructions given improperly submitted the law of selfdefense, in that they do not cover the law on the right of pursuit in self-defense, and error is assigned on the refusal to give a requested instruction as follows: "If the defendant was attacked by the deceased, and the defendant, under the circumstances as they appeared to him at the time, in good faith believed that it was necessary to shoot the deceased to save his own life or to protect himself from great bodily harm, he had the right to do so, and to continue shooting until he believed himself out of danger, and if, at the time he fired the last shot he believed that deceased was going to his automobile to secure a gun to return and renew the attack, the defendant had a right to fire the shot provided the defendant was justified in firing the first shot." As to the character of this homicide there can be no doubt. On the undisputed facts it was deliberate murder. According to his own statement on the witness stand, appellant is guilty of a cruel and cowardly assassination. While the necessity for taking human life need not be one arising out of real or actual or imminent danger in order to justify the slayer, as he may act upon the belief arising from appearances which gives him reasonable cause to apprehend danger of death or great bodily harm, although there unless the assault is of such a character as to endanger his life or inflict on him great bodily injury, or to excite his fears as a reasonable man, that such would be the result of the assault. If his assailant retreats in good faith, and he pursues and kills him with a deadly weapon, the killing cannot be justified on the ground of self-defense. The law limits him to such acts as are necessary to self-defense. or apparently necessary Gransden v. State, 12 Okl. Cr. 417, 158 Pac. 157. And in this case it was held that: "Where the unimpeacheable physical facts squarely contradict the words of the defendant upon the witness stand, and show the theory of his testimony to be absurd, courts are not required to ignore such physical facts and give instructions not in harmony with them, but absolutely subversive of the theory they mutely and unalterably declare." Taken as a whole, the instructions given covered every phase of the case, and were more favorable to the defendant than he had any legal right to demand. On the undisputed facts as shown by the evidence the requested instruction was properly refused. We have given this case that careful study which its importance requires, and the most careful examination has revealed nothing in the record that gives us the right to say that the interests of justice require a new trial. One of the grounds of the motion for a new trial and assigned as error is that the extreme penalty assessed by the jury in its verdict is excessive. It is urged that the jury abused its discretion in assessing the death penalty, and that the judgment and sentence should be modified to imprisonment for life. Counsel for the state announced that they do not oppose such modification. In a capital case, the law of our state in its great humanity allows the jury, after they have first determined the question of guilt, to assess the punishment which may be death or imprisonment for life at their discretion, (section 1739, Comp. Stats. 1921) and, even after the jury say that the defendant should suffer death, this court, in furtherance of justice, has the power to modify the judgment to imprisonment for life at hard labor (section 2820, Comp. Stats. 1921). Fritz v. State, 8 Okl. Cr. 342, 128 Pac. 170; Owen v. State, 13 Okl. Cr. 195, 163 Pac. 548; Westbrook v. State, 14 Okl. Cr. 423, 172 Pac. 464; Chambers v. State, 16 Okl. Cr. 238, 182 Pac. 714; Wilson v. State, 17 Okl. Cr. 47, 183 Pac. 613. No more solemn duty can be imposed upon the courts than the duty of protecting, and the duty of taking human life. To take. the life of a human being is an awful thing, even when it is taken by the law. [2] Carefully considering the whole testimony in the case we feel constrained to say, that we find but few palliating circumstances in behalf of appellant. However, it appears that each had often threatened to kill or injure the other, that their animosity and enmity arose out of campaign canards, and that the deceased had often been overbearing and domineering in his conduct toward appellant. In this respect it differs from murder committed in the perpetration of a felony. For the reasons stated, we are of opinion that the punishment imposed is excessive, and that justice requires a modification of the judgment and sentence of death to that of imprisonment at hard labor in the state penitentiary for life. As thus modified, the judgment herein is affirmed. MATSON, P. J., and BESSEY, J., concur. Ex parte MILLER. (No. A-5130.) (Criminal Court of Appeals of Oklahoma. April 23, 1924.) (Syllabus by Editorial Staff.) Habeas corpus 53-Petition showing that judgments of conviction not fully satisfied, demurrable. A petition in a habeas corpus proceeding from which it appears that the judgments of conviction under which the petitioner is confined have not been fully satisfied is vulnerable to demurrer. Habeas corpus by Floyd Miller for release from custody, to which the Attorney General filed a demurrer. Demurrer sustained, and cause dismissed. thereto on the ground that upon the facts Ex parte CLEMMONS. (No. A-5101.) (Criminal Court of Appeals of Oklahoma. April 15, 1924.) to (Syllabus by Editorial Staff.) Criminal law 995(5)—Imprisonment for nonpayment of fine authorized though judgment Imposing it does not provide therefor. Where defendant is sentenced to prison and pay a fine and costs, failure of the judgment to recite that he shall be confined for nonpayment does not entitle him to be released, on serving the term of imprisonment named, in view of Comp. St. 1921, § 6332, providing that costs, together with the fine assessed, shall be enforced by imprisonment; such statutory provision automatically becoming a part of every criminal judgment imposing a fine or imprisonment or both. Doyle, J., dissenting. Habeas corpus by William Clemmons for release from custody. Writ denied. Minter & McClendon, of Madill, for petitioner. The Attorney General, for the State. BESSEY, J. The petitioner, William Clemmons, was on January 10, 1924, convicted of the crime of receiving stolen property, with his punishment fixed by the court at confinement in the county jail of Marshall county for a period of 30 days, beginning January 10th, and to pay a fine of $200 and the costs of the prosecution. On the same day the trial judge issued a commitment against the petitioner to enforce the judgconfined in jail until the fine of $200 and the ment, ordering the sheriff to keep petitioner costs of the prosecution, taxed at $66, were paid. Petitioner claims that he should now be released from such confinement because E. C. Patton, of Oklahoma City, for peti- he has served the term of imprisonment tioner. named in the primary judgment rendered The Attorney General and N. W. Gore, against him, which did not recite that in adAsst. Atty. Gen., for the State. dition to the term of imprisonment named therein he be confined for the nonpayment of fine and costs, and that the commitment, in so far as it relates to confinement for fine and costs is void and inoperative, and for that reason petitioner is entitled to be released on habeas corpus. PER CURIAM. On behalf of Floyd Miller, a duly verified petition for writ of habeas corpus was filed in this court on April 16, 1924, alleging that petitioner is illegally restrained of his liberty by the sheriff of Oklahoma county, on three separate commitments The statute first enacted providing for imissued upon judgments rendered in the coun-prisonment for nonpayment of a fine and ty court of said county. costs (section 5958, R. L. 1910) provides as The Attorney General filed a demurrer follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) The judgment in this case made no such provision, but the commitment simultaneously issued did provide for imprisonment for failure to pay the fine and costs. “A judgment that the defendant be impris- | visions relating to fines and costs automationed and pay a fine and costs may also direct cally become a part of every criminal judgthat at the end of the prison sentence he be ment imposing a fine or imprisonment, or imprisoned until the fine and costs are satisfied. both, and that a failure to make a recital in the judgment that the defendant be held until the fine and costs are satisfied in the manner provided by law will not on habeas corpus relieve the person so convicted from satisfying the fine and costs in the manner designated by this statute. Jackson v. Boyd, 53 Iowa, 536, 5 N. W. 734; Foster v. Territory, 1 Wash. 411, 25 Pac. 459; Murphy v. State, 38 Ark. 514; In re Luezler v. Perry, "The Legislature could provide for imprison- Sheriff, 18 Ohio Cir. Ct. R. 826; In re Carrie ment for the nonpayment of fines and penalties McAdams, 21 Ohio Cir. Ct. R. 450; Farris imposed for the violation of law. * judgment of the, court * * does not prov. Dozier (Ky.) 82 S. W. 615. Section 6332 vide that the defendant be imprisoned until the also provides how the fine and costs shall be fine and costs are paid." satisfied. They may be satisfied by the payment in money of the amount named, and if In the case of Ex parte Roller, 3 Okl. Cr. 384, 106 Pac. 548, in an opinion written by Judge Owen, the court said: * The It was adjudged that the petitioner for the person convicted fails to make such that reason should be discharged. In Ex parte Bowes, 8 Okl. Cr. 201, 127 Pac. 20, in an opinion written by Judge Doyle, the court again said: "The Legislature of this state would have authority to provide as a part of the penalty for the violation of law the payment of costs and the enforcement of the payment by im prisonment. Under the provisions of our penal code and procedure criminal, the costs are not made a part of the penalty." payment the statute directs that the fine and costs "shall be enforced by imprisonment until the same shall be satisfied at the rate of one dollar per day." This brings the duration of the convicted person's imprisonment under his own control. By payment of the fine and costs he can at any time secure his release. It is the better practice to recite in the judgment that the defendant stand committed until the fine and costs named are paid, at the rate of $1 per day, but under our stat See 25 C. J. "Fines and Penalties," §§ 19, utes a failure to incorporate such a recital 21, 22; 8 R. C. L. 269. The Legislature in 1913 (section 6332, Comp. Stats. 1921), probably following the suggestions made by the court in the Roller and Bowes Cases, provided that the fine and costs "shall" be enforced by imprisonment. This statute in part reads as follows: "All costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty and costs in addition to the * fine assessed, shall be enforced by imprisonment." This section specifically repeals prior statutes making a fine and costs a civil liability; the statutes so repealed are sections 885, 6917, 6918, 6921, 6922, 7068, 7793, Snyder's Comp. Laws 1909, also sections 2607, 5290, Stats. 1893; and it amends section 31a, c. 69, Sess. Laws 1910. A fair construction of this statute impels us to hold that since its enactment its pro in the judgment will not operate to give the petitioner relief on habeas corpus. So far as fine and costs are concerned both the accused and sheriff are bound by the provisions of the statute which, by its terms, gives no discretion to the trail court to render a judgment other than that designated by the statute. and purposes the fine and costs provisions of the statute automatically become a part of the judgment without any specific recital to that effect. Such recitals in the judgment are commended, however, in order that the convicted person and the sheriff may by an examination of the judgment and commitment avoid any misunderstanding as to the duration of the confinement. We conclude therefore that to all intents The application of the petitioner for his release upon habeas corpus is denied. MATSON, P. J., concurs. (No. A-4460.) KILGORE v. STATE. (No. A-4768.) (Criminal Court of Appeals of Oklahoma. April 23, 1924.) (Syllabus by the Court.) Criminal law 1131(4)-Appeal dismissed where appellant pardoned. When the pardoning power extends clemency and the same is accepted, pending the determination of an appeal, the appeal will be dis missed. Appeal from District Court, McCurtain County; B. C. Logsdon, Special Judge. E. A. Kilgore was convicted of rape, and he appeals. Appeal dismissed. H. P. Hosey and I. C. Sprague, both of Idabel, for plaintiff in error. George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State. DOYLE, J. The plaintiff in error, E. A. Kilgore, was convicted of rape in the second degree, and in pursuance of the verdict of the jury was on the 25th day of January, 1923, sentenced to imprisonment in the penitentiary for a term of one year. LEMMING V. STATE. DOYLE, J. Plaintiff in error, Oscar Lemming, was convicted on an information charging illegal possession of intoxicating liquor, and his punishment assessed at confinement in the county jail for 30 days and a fine of $50. From the judgment entered While his appeal was pending and await-on the verdict he appealed, by filing in this ing decision before this court, the Attorney court on October 2d a petition in error with General filed a motion to dismiss the appeal for the reason "that J. C. Walton, then Governor of the state of Oklahoma," on the 15th day of October, 1923, granted, issued, and delivered to the said E. A. Kilgore, a full and complete pardon from said conviction and sentence," which instrument duly authenticated was filed in the office of the secretary of state October 23, 1923. The uniform holding of this court is that when an appeal from a judgment of conviction is pending in this court, and plaintiff in error is granted a pardon and has accepted the same, and the fact that a pardon has been granted and delivered is brought to the attention of this court, the appeal will be dismissed. It follows that the motion to dismiss the appeal is well founded. It is therefore considered and adjudged that the appeal here in be dismissed and the cause remanded to the trial court. MATSON, P. J., and BESSEY, J., concur. case-made. The evidence shows that W. I. Eads and four or five other officers of Oklahoma City, in executing a search warrant against the defendant's premises on West Thirty-Third street, Oklahoma City, found in the basement a still and about a gallon of corn whisky, and about a gallon of wine and 20 gallons of mash, and found in the garage three 30-gallon kegs of mash, working, and also found about 20 gallons of whisky concealed behind the ceiling in the garage. The errors assigned are that the verdict is contrary to law and the evidence and that the court erred in admitting incompetent testimony and in its instructions to the jury. Ar examination of the record discloses that this appeal is wholly destitute of merit. The evidence of guilt is conclusive, and no material error is apparent. The judgment and sentence appealed from is therefore affirmed. MATSON, P. J., and BESSEY, J., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Okl.) BEACH v. STATE BEACH v. STATE. (No. A-4532.) (Criminal Court of Appeals of Oklahoma. April 20, 1924.) (Syllabus by the Court.) 1. Criminal law 1130(4)-Where no briefs filed nor argument presented conviction affirmed in absence of apparent error. In a homicide case where the defendant appeals from a judgment of conviction and no briefs are filed or argument presented, this court will make an examination of the case'made, and, if no error is apparent, will affirm the judgment. 2. Homicide 255 (3)—Evidence held to sustain conviction of manslaughter in second degree. In a prosecution for murder, evidence held to sustain a conviction of manslaughter in the second degree. Appeal from District Court, Kiowa County; Thos. A. Edwards, Judge. James E. Beach was convicted of manslaughter in the second degree, and he appeals. Affirmed. Keys & Rakestraw, of Hobart, for plaintiff in error. The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State. DOYLE, J. The plaintiff in error was convicted of manslaughter in the second degree and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of three years, for having shot and killed William E. Sexton. He has appealed from the judgment rendered upon such conviction to this court, but there has been no appearance in his behalf on his appeal. The assignments of error relate to rulings of the court in the admission and exclusion of evidence, instructions given to the jury, and the sufficiency of the evidence to sustain the verdict. [1, 2] The evidence shows that James E. Beach, defendant, and William E. Sexton, deceased, occupied farms in the same neighborhood in Kiowa county; that deceased, his wife, and two sons, with other neighbors, attended a dance at defendant's home on the evening of April 21, 1922; that about midnight some refreshments were served. What took place from that time is related by the wife of the deceased substantially as follows: Mr. Beach was sitting at the table; my husband was standing by the table and remarked to Mr. Beach, "Don't eat all of those doughnuts, I want one of them." Mr. Beach said, "I don't know whether you will get a damn one of them or not," and he held his gun up in his hand; my husband took his gun out, and I took hold of him and said, "Come on; let's go home," and I pushed him off into the other room and his gun fired. Within two or three minutes Mr. Beach followed us and fired three shots; my husband fell to the floor. Mr. Beach kicked my husband, and he said, "Don't pour it on me Jim because you got me down." Mr. Beach said, "Raise up, Ed, and take it like a man; you are not hurt; I have seen lots of people worse hurt than you are get well." We undressed him and put him on the bed and phoned for a doctor; after the doctor arrived we got Mr. Beach's team and wagon and Mr. Beach, his wife, and his niece helped us to put him on the wagon and they went home with us and helped us to take him out of the wagon and carry him into the house. My husband and Mr. Beach were both intoxicated. Dr. J. A. Land testified: "I am a practicing physician at Lone Wolf; James E. Beach, defendant, called me over the phone to come to his house; I went there and found Sexton lying on the bed; when I examined him I found that he had been shot in the left side; the wound penetrated the spleen; he was also shot in the middle of the thigh and the bone broken about four inches below where the bullet entered; I dressed the wounds and put a splint on his leg and helped remove him on a cot to a wagon. I was present the next day when he made a statement at the request of the county attorney; I had told him that I thought he was going to die; I wanted him taken to the hospital; he said there was not any use in going to the hospital, that he was going to die anyhow." A signed statement of deceased, witnessed by the county attorney and others was introduced in evidence, in part as follows: "Jim Beach phoned me about 6 o'clock to come over that night and we would have some we were the best of whisky and dancing; friends for six or seven years; I went down to the dance and my wife and two sons went with and then I joked him about some doughnuts; I me; we had a good time until about 1:30 a. m., said, 'Don't eat all those doughnuts;' then he jumped up and pulled his gun, a 38 automatic; I walked into the front room near the dresser and Jim Beach followed me and shot at least three times; I am not sure whether I shot or not, but if I did I must have shot after I was down. It seems my leg gave away and I fell to the floor. I then told him to finish God damn you, you are not dead; I saw them up the deal; he had killed me. He said, 'Oh, in worse shape than that get well,' or that in substance." The officers testified that they found 11 one-half gallon jars, containing whisky, in the cellar of the defendant the next day after the shooting. On the part of the defense, B. C. Walker testified: "I was sitting by the side of Mr. Beach at the table; I heard a shot fire in the west room; Mr. Beach went to the middle door and as I went out I heard four, five, or six shots." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |