to the jury "that this defendant had prior to the charge of homicide in this case been guilty of killing two men," which affidavit concludes as follows: to the jury, and that you are to entirely disre-, M. Varnell, as defendant is informed and gard any question that may be asked by counsel believes and so charges and alleges," stated to which the court has sustained an objection, and that the jury are to entirely disregard and put from their minds any statement of counsel, if any such there be, if such statements are not based upon the evidence in the case, or which are not a reasonable and fair deduction from the evidence in the case and the law as given you by the court. "(26) The jury are further instructed that it will require the concurrence of the full panel of the jury to render a verdict in this case, and that you must not arrive at your verdict by casting lot or by any manner or species of chance. You must be controlled in arriving at your verdict by the law as stated in these instructions and by the evidence you have heard from the witnesses. You must consider these instructions in their entirety; you have no right to consider any part or portion of these instructions to the exclusion of any other portion thereof." Thus it appears that the defense interposed by the defendant and the law applicable thereto was fully and fairly submitted to the jury in a charge commendably clear and adequate. The tenth instruction is not the same as the instruction condemned by this court in the case of Franks v. State, 8 Okl. Cr. 71, 126 Pac. 582. The vice of the instruction in the Franks Case lay in the use of the words, "Just such force as was necessary," and "no more." We again approve instruction No. (9), given in the case of Turner v. State, 4 Okl. Cr. 164, 111 Pac. 988, which instruction was inadvertently condemned in the case of Humphrey v. State, 8 Okl. Cr. 449, 128 Pac. 742, and cited in the defendant's brief. While the general rule often stated by this court is that trial courts should not give definitions of "reasonable doubt," except upon the request of the defendant, we are of the opinion that the instruction here given did not constitute material error. In another assignment the defendant complains that the court, despite the objections of the defendant's counsel, permitted the county attorney to go beyond the limits of legitimate argument in making statements that were prejudicial to the rights of the defendant, and in permitting the county attorney in his closing argument to the jury to put on the cotton sack alleged to have been worn by the deceased at the time of the fatal difficulty to demonstrate before the jury therewith, when there was no dispute that the defendant had fired the fatal shots. We do not think the objections merit discussion. The county attorney certainly had the right in his argument to discuss all the facts bearing on the issue within the scope of the evidence. See Saunders v. State, 4 Okl. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766; Wigmore on Evidence, § 1157. "The defendant further says that he has not been able to procure voluntary affidavits from jurors who sat in said case in support of the foregoing allegations, but that said jurymen will testify on the witness stand that the foregoing facts were disclosed to them in manner as aforesaid, and the defendant asks the court to hear the evidence of said jurymen, or a sufficient number of them to establish the truth of this amended motion and of the allegations therein contained." The county attorney filed a motion to strike the said amendment on the ground, among others, that affidavits or oral testimony of jurors are inadmissible to impeach their ver dict. Thereupon the defendant offered to introduce R. G. Lee, J. L. Platt, and J. O. Hughes, jurors who sat upon the trial of the case, to show by their testimony that the evidence set out in said amendment to the motion for new trial was received in the jury room during the deliberations of the jury. The court sustained the motion to strike the amendment and allowed an exception. In numerous decisions of this court the uniform holding is that affidavits or oral testimony of jurors are inadmissible to impeach their verdict. In the recent case of Craddock v. State, 14 Okl. Cr. - 167 Pac. 331, the decisions are collated. Judge Matson, delivering the opinion of the court, said: "It has been clearly established in this state that a juror will not be permitted to impeach his verdict, after he has been discharged and mingled with the public, either by affidavit or oral.testimony." In the case of McDonald v. Pless, 238 U. S. 264, 35 Sup. Ct. 783, 59 L. Ed. 1300, Mr. Justice Lamar, delivering the opinion of the court, used the following language: and by decisions in others, the affidavit of a "For while by statute in a few jurisdictions, juror may be received to prove the misconduct of himself and his fellows, the weight of authority is that a juror cannot impeach his own siderations of a public policy which in these verdict. The rule is based upon controlling concases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room. "These two conflicting considerations are il lustrated in the present case. If the facts were as stated in the affidavit, the jury adopted an verdict, and the defendant ought to have had rearbitrary and unjust method in arriving at their lief, if the facts could have been proved by wit[3] Several assignments are based upon al- nesses who were competent to testify in a proBut let it leged misconduct of a juror and alleged new-ceeding to set aside the verdict. once be established that verdicts solemnly made ly discovered evidence as set out in the de- and publicly returned into court can be attackfendant's affidavit in support of an amended and set aside on the testimony of those who ment to his motion for new trial, to the effect that while the jury were deliberating of took part in their publication, and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something shotgun, both barrels loaded with No. 4 shot; and if it be assumed that the deceased was awaiting an opportunity for a difficulty with the defendant, and drew a knife, the latter's conduct provoked it, and showed that he was willing to engage in mutual combat; that he was armed for the purpose, and did what was necessary to precipitate it; so upon the defendant's testimony it was a mutual combat, which made the shooting of the deceased either murder or manslaughter, and we think the evidence in the case was amply sufficient to support a verdict for murder. would be harassed and beset by the defeated | picking cotton, armed with a double-barreled party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation the constant subject of public investigation, to the destruction of all frankness and freedom of discussion and conference. * * "There are only three instances in which the subject has been before this court. In United States v. Reid, 12 How. 361, 366, 13 L. Ed. 1023, 1025, the question, though raised, was not decided because not necessary for the determination of the case. In Mattox v. United States, 146 U. S. 140, 148, 36 L. Ed. 917, 920, 13 Sup. Ct. 50, such evidence was received to show that newspaper comments on a pending capital case had been read by the jurors. Both of those decisions recognize that it would not be safe to lay down any inflexible rule, because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice." This might occur in the gravest and most important cases; and without attempting to define the exceptions, or to determine how far such evidence might be received by the judge on his own motion, it is safe to say that there is nothing in the nature of the present case warranting a departure from what is unquestionably the general rule, that the losing party cannot, in order to secure a new trial, use the testimony of jurors to impeach their verdict. The principle was recognized and applied in Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793, Ann. Cas. 1914A, 614, which, notwithstanding an alleged difference in the facts, is applicable here." In the case of People v. Hartung, 4 Parker, Cr. R. (N. Y.) 314, it is said: "But if jurors should not be allowed to give evidence to destroy their own verdict, how much more objectionable it would be to allow them to expose the occurrences of the jury room, and to allow their unsworn and irresponsible statements to be brought secondhand before the court in support of an application to set aside their verdict. It is impossible to give the least effect to such statements without a fearful de parture from the very first principles of evidence." And see Commonwealth v. Meserve, 156 Mass. 62, 30 N. E. 166, and State v. Freeman, 5 Conn. 349. Mr. Thompson says: "If the courts refuse, on ground of public policy, to listen to primary evidence of the facts, they will, of course, for stronger reasons, refuse to listen to secondary evidence of it. What the law will not allow to be proved by the oath of the person having knowledge, it obviously will not allow to be proved by the oath of another person deriving his information from the unsworn statement of the former person. follows that the affidavits of counsel, or other persons, of the misconduct of the jury, upon information derived from particular jurors, will not be heard to impeach the verdict.' Thompson on Trials, § 2622. It It follows that the court rightly ruled in sustaining the motion to strike the amendment. Aside from the testimony of the defendant, the evidence is undisputed that the killing was premeditated and deliberate. Viewing the defendant's testimony from the standpoint most favorable to him, it shows that he went to the field where the deceased was After a very careful examination of the record, we have failed to discover any prejudicial error. The judgment of the district court of Jackson county is therefore affirmed. ARMSTRONG and MATSON, JJ., concur. 1. (14 Okl. Cr. 632) WILSON v. STATE. (No. A-2809.) (Syllabus by the Court.) INTOXICATING LIQUORS 215-SALE TO MINOR-SUFFICIENCY OF INFORMATION. An information charging the sale of intoxicating liquor to a minor in the following language: "He, the said Tom Wilson, did then and there, unlawfully and feloniously, sell to at and for the sum and price of one dollar and one Maycil Harlan, a minor, one pint of whisky fifty cents contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state"-held suffi cient to give the court jurisdiction to try the cause and render judgment against the accused, - AB2. CRIMINAL LAW 1111(2) — TRIAL SENCE OF JUDGE. the ground that the trial court left the court- room during the course of the trial without sus- BOR-INSTRUCTIONS. 822(1)-HARMLESS ER Technical objections to the form of a particular instruction cannot form the basis for the reversal of a judgment, when all the instructions taken together clearly show that no hardship was worked upon the accused, and no prejudicial error contained in the charge considered as a whole. Appeal from District Court, Carter County; W. F. Freeman, Judge. Tom Wilson was convicted of unlawfully selling intoxicating liquor to a minor and he appeals. Affirmed. Wm. Pfeiffer, of Oklahoma City, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State. ARMSTRONG, J. Tom Wilson was convicted in the district court of Carter county at the August, 1915, term, on a charge of unlawfully selling intoxicating liquor to a minor, and his punishment fixed at impris onment in the state penitentiary for one year, and a fine of $100. The first assignment of error urged as ground for reversal of the judgment of the trial court is based upon the proposition that the demurrer to the information should have been sustained. there was no defense offered. In our judgment, the information is sufficient. [2] The next proposition urged is based upon the contention that the court lost jurisdiction of the proceedings by leaving the courtroom during the examination of the veniremen on the voir dire. Counsel sought The information, omitting the formal parts, to raise this question by filing the affidavits is as follows: "Tom Wilson did, in Carter county, and in the state of Oklahoma, on or about the 18th day of August, in the year of our Lord, one thousand nine hundred and fifteen, and before the presentment hereof, commit the crime of selling liquor to a minor, in the manner and form as follows; to wit: "He, the said Tom Wilson, did then and there, unlawfully and feloniously, sell to one Maycil Harlan, a minor, one pint of whisky at and for the sum and price of one dollar and fifty cents, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state." The demurrer is based upon the ground that the information fails to state facts sufficient to charge a public offense. [1] In the brief it is argued that the demurrer should have been sustained for the reason that the information fails to state that Maycil Harlan is a male minor under the age of 21 years, or a female minor under the age of 18 years, and that for this defect, the information is insufficient to give the court jurisdiction. Counsel presented this proposition extensively in oral argument as well as in the brief, but failed to cite a single authority to support the proposition, and we do not feel that the court is required to search the state library in an effort to find some authority which might support it. If there is such authority, it is the duty of counsel to find and present it. The well known diligence of the attorney arguing and briefing the case is such that we are constrained to the view that he failed after much effort to find any support in the opinions of other courts. Ordinarily an information charging an offense of this kind should set forth that the party to whom the sale of liquor was made is a minor under the age of 21 years, if a male, and under the age of 18 years, if a female. However, the general statement that a sale was made to Maycil Harlan, a minor, is sufficient to give the court jurisdiction to try the case. If, at the trial, the facts de veloped in the case should show conclusively that the person to whom the sale was made was a male person over the age of 21 years, or a female person over the age of 18 years, the case would naturally fall and the district court would lose jurisdiction to proceed further. In this case, the proof clearly established the fact that Maycil Harlan was a male minor under the age of 21 years, and nobody denies that fact. Two eyewitnesses testified to the sale, and the plaintiff in error of himself and three or four bystanders, all of whom testified that they did not hear the court make any order suspending the proceedings while he retired to the adjoining room to verify some legal document. The court and the clerk of the court state that there was an order made, suspending the proceedings during the court's retirement. Upon this proposition the record to the effect that the court was suspended is controlling. Even if the record failed to show that the proceedings were suspended temporarily by proper order of the judge, the recital in the case-made by the judge to the effect that he did make such an order, supported by the statement of the clerk that such order was given to him, would be sufficient. No person, on behalf of the plaintiff in error, stated positively that the order was not made, but all stated that they did not hear it. The court says he did make the order and the clerk says it was made, as does the court bailiff. Upon this state of facts, the assignment of error falls. This court would not undertake to reverse a judgment based upon the mere statement of bystanders that they did not hear an order made, when the officials of the court all say that it was made. All orders suspending proceedings temporarily, however, should be noted in the minutes of the clerk and the proceedings stopped by the court before retiring from the bench, so that no question of this kind could arise. [3] The only, other assignment of error is based upon a complaint against the instructions of the court. The first instruction complained of is as follows: "You are instructed that under the laws of this state all persons who take part, participate, or engage in an offense are guilty as principals.' The other instruction complained of is as follows: by the court for your consideration and all the "If you believe from all the evidence admitted facts and circumstances before you that the defendant, Tom Wilson, sold the whisky to the witness, Maycil Harlan, and you further so time of said sale, if you should find that there find that the said Maycil Harlan was, at the was such a sale, was a minor, as is alleged in the information, or if you so believe beyond a reasonable doubt that the defendant, Tom Wilson, took any part or participated in such unlawful sale, then and in that event you should find the defendant guilty as charged and assess his punishment as the law directs. * * It is argued that these instructions fail to include a definition of the word "minor" and tain a "reasonable doubt" clause. This ob- | Hickman went to his farm that day, and jection is covered in the general charge of there drank three pints of whisky at his the court, and a consideration of the entire barn; that they chipped in money amountrecord clearly discloses that the element of ing to $1.50, and one of the party threw this reasonable doubt is sufficiently included in money on the floor of the barn as they were the instructions to the jury to protect the leaving. rights of the defendant. In a separate instruction the court informed the jury that the term "minor," as used in the instructions theretofore given, means a male person under the age of 21 years. Under the facts disclosed, this instruction amply covered the proposition. Finding no error prejudicial to the substantial rights of the plaintiff in error, the judgment is affirmed. As a witness in his own behalf the defendant testified that the whisky these men drank belonged to Mr. Row, his hired hand; that he refused to accept any pay for it, and did not receive any money for this whisky from any one, directly or indirectly. His crossexamination was in part as follows: "Q. Were you not convicted of selling intoxA. No, sir. Q. Now, didn't the jury bring in icating liquor while I was county attorney? a verdict against you for selling liquor? A. Yes, sir; and when you found out it was on perjury DOYLE, P. J., and MATSON, J., concur. you dismissed the case.' (15 Okl. Cr. 57) CHILDS v. STATE. (No. A-2913.) (Criminal Court of Appeals of Oklahoma. Sept. 28, 1918.) (Syllabus by the Court.) 1. CRIMINAL LAW 700-REMARKS OF PROS ECUTING ATTORNEY. A prosecuting attorney should confine his argument before the jury to a fair discussion of the issues in the case, and improper remarks, objected to at the time, will be considered and construed in reference to the evidence. 2. CRIMINAL LAW 1183-APPEAL-REDUCTION OF SENTENCE. Under Procedure Criminal, section 6003, Rev. Laws 1910, this court, in the furtherance of justice, has the power to modify any judgment appealed from by reducing the sentence. Appeal from County Court, Caddo County; C. R. Johnston, Judge. George Childs was convicted of violation of the prohibitory law, and appeals. Modi fied and affirmed. C. H. Carswell, of Anadarko, for plaintiff in error. The Attorney General and R. McMillan, Asst. Atty. Gen., for the State. DOYLE, P. J. Plaintiff in error, George Childs, was convicted on an information charging that he did on the 8th day of April, 1916, have possession of one gallon of whisky with the intent to barter, sell, give away, and otherwise furnish the same, in violation of law. The jury failed to agree upon the punishment. On December 1, 1916, the court rendered judgment and sentenced him to be imprisoned in the county jail for 90 days and to pay a fine of $200. The evidence shows that the defendant is a farmer and stockman, living near Gracemont, where he had been dealing in live stock for 10 years and a part of the time running a butcher shop in Gracemont; that he received during the year seven one-gallon shipments of whisky, the last one on the date alleged in the information; that Ed Marolf, Vince Feaster, J. P. McAdams, and B. J. In rebuttal the assistant county attorney was sworn as a witness. He was asked: "Q. You heard Mr. Childs' testimony in regard to certain cases against him. I will ask you whether or not you dismissed that case on account of lack of evidence. (Objected to as being incompetent; that the evidence in regard to this conviction six years ago is not competent; that the verdict was set aside, and this evidence is prejudicial, and should be stricken.)" The objection was sustained. Commenting on this testimony, the county attorney in his argument to the jury said: "These facts show that the defendant is an old hand at the job and has been bootlegging since statehood, and that the penalty under the law is not sufficient to punish him in this case." [1] Counsel for the defendant contends that the court erred in permitting the prosecuting attorney to ask the defendant about a former trial where the verdict had been set aside, and that the remarks of the county attorney were prejudicial to the substantial rights of the defendant. We think that the county attorney had no right to ask the de fendant about his former trial, because it was admitted that the verdict was set aside. Under the statute a witness can only be asked if he has been convicted of a crime. Obviously the remarks of the county attorney were not warranted by the evidence, and were plainly calculated to prejudice the defendant, yet no proper objection was made, and the court was not asked to instruct the jury not to consider these remarks. By numerous decisions of this court it is held that a prosecuting attorney should confine his argument before the jury to a fair discussion of the issues of the case. Improper remarks, objected to at the time, will be considered and construed in reference to the evidence. If it appears that the improper argument may have determined the verdict, a new trial should be granted. Childs v. State, 13 Okl. Cr. 461, 165 Pac. 622, and cases cited. [2] In this case the defendant as a witness did not deny that the whisky was furnished to the witnesses for the state in his presence and on his premises, as testified to by them. He merely states that he did not sell, and did not accept any money for, the whisky., Franks why he was using the room to store However, in view of the facts of the case whisky, and he answered that he had bought and the errors complained of, we are of the the whisky the night before, and had stored opinion that substantial justice requires a it in the vacant room, and that he was willmodification of the punishment imposed. It ing to pay a month's rent for the room. is therefore ordered that the judgment and Three or four witnesses testified that the sentence be modified to 30 days' confinement defendant Franks' place of business had the in the county jail and a fine of $50. reputation of being a place where intoxicat As thus modified, the judgment will be af- ing liquors were sold. firmed. The defendant Winford, generally known as "Old Man Winford," testified that he was ARMSTRONG and MATSON, JJ., concur. employed by the defendant Franks as a Record and evidence examined, and held sufficient to sustain a conviction for the unlawful possession of intoxicating liquors, and that no reversible error was committed on the trial. Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge. John Franks was convicted of violating the prohibitory law, and appeals. Affirmed. Crump, Bailey & Crump, of Muskogee, for plaintiff in error. The Attorney General and R. McMillan, Asst. Atty. Gen., for the State. clerk, selling soft drinks; that he did not own the grip or its contents; that the defendant Franks told him to go into the storeroom and get the grip and carry it into the meat market; that Franks did not tell him what was in the grip. The defendant Franks, as a witness in his own behalf, testified that he sold cigars and soft drinks at his place of business; that he was trying to rent the empty storeroom from Nicholson, and found the grip containing the liquor there, and told the defendant Winford to take it out of there, because he had the key and did not want it in there; that Winford was employed by him at the time; that he did not say that he had bought the whisky the night before and placed it there. the place of business of the defendant Franks was competent, and properly admitted. Finding no material error, the judgment appealed from is affirmed. An examination of the record discloses that the verdict is amply sustained by the evidence, and that the defendant has been afDOYLE, P. J. John Franks, plaintiff in forded a fair and impartial trial. The everror, and C. C. Winford, were jointly charg-idence tending to show the reputation of ed and tried on an information which, after alleging time and venue, charges that they did have possession of certain intoxicating liquors, to wit, 24 pints of whisky and 4 quarts of whisky, with the intention then and there of conveying, selling, bartering, giving away, and otherwise furnishing the same. The jury found the defendant Winford not guilty, and the defendant Franks guilty, and fixed his punishment at confinement in the county jail for 4 months and a fine of $250. From the judgment rendered in pursuance of the verdict he appealed, by filing in this court on April 26, 1917, a petition in error with case-made. The only noticeable assignment of error is that the verdict of guilty is not sustained by sufficient evidence and is contrary to law. The evidence shows: That the defendant's place of business is in Muskogee, on Cherokee street, adjoining Henry Nicholson's building. One of the storerooms in this building was vacant, and another was occupied by the Hamlin Meat Market. On the date alleged in the indictment the defendant Winford carried a grip from the empty storeroom into the meat market, which grip contained 4 quarts and 24 pints of whisky, and was found there by the officers. That the defendant John Franks was carrying the key to the empty storeroom. Henry Nicholson testified that he asked the defendant ARMSTRONG and MATSON, JJ., con cur. 1. (15 Okl. Cr. 61) WARD v. STATE. (No. A-2963.) (Criminal Court of Appeals of Oklahoma. Sept. 28, 1918.) (Syllabus by the Court.) INTOXICATING LIQUORS 236(5)—ILLEGAL POSSESSION. possession of intoxicating liquors with intent To justify or sustain a conviction of having to violate any of the provisions of the prohibitory law, there must be evidence sufficient to prove possession, and also evidence of the criminal intent. When the verdict is manifestly contrary to the evidence, the judgment of conviction will be reversed. 2. INTOXICATING LIQUORS 236(5) — ILLEGAL POSSESSION EVIDENCE. See opinion for facts held insufficient to support a conviction for the offense of having possession of intoxicating liquors with the intention of violating provisions of the prohibitory law. Appeal from County Court, Carter County; Thos. W. Champion, Judge. Tom Ward was convicted of having illegal possession of intoxicating liquors, and appeals. Reversed. |