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that Fred went to bed and slept with him; he had been to the show that night, and got in home about 9:30, and Fred was at the show and came right in when he did or just after it, and he also went to bed; after he went to bed he stayed there all the time; that if he had gone out witness would have known it; that Fred had not been out of the room prior to the time that Mr. Waybright came over, and that he had not heard anybody run just prior to that time; that Waybright woke witness up hollering and Fred was in bed; that he woke papa first, and then woke witness and Fred up about the same time; that at that time Fred had off his clothes and was in bed with him; that he did not think it possible for Fred to have gotten up and gone out in his nightclothes and run back and gotten into bed with him without his knowing it; that Waybright hollered two or three times after he had awakened.

The defendant testified that he was 24 years old; that he had heard the testimony of Gertrude Waybright about his being in her room the night of May 9th; that he nev er was there that night or any other night: that she did not see him there at that time that he and his little brother had been to the show and got back home, and he had gone t bed about 15 minutes before he went on π bed; that he did not get up during the night; that he had not been up and out pre vious to that time; had not been out of the house at all; that he remembers his futur coming to the bed with Waybright, and the: he laid his hand on him and said to Wes bright, "He is lying here, right here n trabed asleep;" that he had never gone wit: 9 Waybright girl; that they were at t about a year ago; that he had triec company with her two or three tee she had not permitted it; that t just passing acquaintances; ther two beds in their room at home, H about four feet apart; that h cupied one and he and his brotar the other; that he heard

Mr. Waybright came that t
pleaded guilty here in cour.
ago to stealing some cho
barn; that on the

home about 10 o'clock

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must find as a matter of law that the evidence is insufficient to warrant the conviction." Piazzi v. State, 13 Okl. Cr. 60, 161 Pac. 1176. In Homer Gordon v. State, 13 Okl. Cr. 117, 162 Pac. 444, it is said:

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"The guilt or innocence of the defendant was peculiarly within the province of the jury to determine, and when the jury renders a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be disturbed, in the absence of prejudicial error."

[7] It is also earnestly insisted by the defendant that the verdict is fatally defective because it does not fix the degree of the burglary of which the jury found the defendant guilty, and with this contention we cannot agree. An inspection of the information shows beyond a reasonable doubt that the information charges burglary in the first degree.

In State v. Hayes, 23 S. D. 596, 122 N. W. 652, the Supreme Court of South Dakota held:

"That a verdict finding accused guilty as charged in the information,' and fixing 'his punishment as death,' was not objectionable for uncertainty."

In State v. Pepoon, 62 Wash. 635, 114 Pac. 449, the Supreme Court of Washington said:

"The fourth contention is that a verdict of guilty as charged is not a sufficient finding of the degree where the statute requires the degree to be found by the jury. In addition to the facts discussed above, viz. that under the testimony no other degree of guilt could have been found by the jury, there is no difficulty in interpreting this verdict. It was as follows: We, the jury in the case of the State of Washington, Plaintiff, v. Geo. Pepoon, Defendant, find the defendant guilty of the crime as charged in the information.' So that it was just as certainly a verdict of murder in the first degree as though it had been so stated in so many words, and the court would have no difficulty whatever in pronouncing the proper judgment. Any verdict which clearly indicates the conclusion reached by the jury is sufficient. State v. McCormick, 56 Wash. 469, 105 Pac. 1037."

In Noble Bowlegs v. State, 9 Okl. Cr. 69, 130 Pac. 824, Judge Doyle says:

dict in the absence of the defendant's counsel constitutes prejudicial error," and after diligent search we have been unable to find a case in point. It cannot be questioned that the law requires the presence of the defendant in court when the verdict is received and read, but it does not require the presence of his counsel at such time. It may be, as averred by defendant, that it would be better for the clerk to notify counsel when the verdict is to be received, but this is a matter of courtesy, over which this court has no control.

[8] Again, the defendant complains that the county attorney in his closing argument was guilty of a statement to the jury detrimental to the rights of the defendant and especially prejudicial to him by telling the jury "that the punishment of seven years in the penitentiary was a heavy punishment, but they ought not to take that into consideration for the reason that about onefourth of that could be knocked off for good behavior"; to which defendant objected, and requested the court to instruct the jury not to consider said statement, but the court did not so instruct the jury. We are of the opinion that the remarks of the county attorney were within the realm of legitimate argument, as they merely stated a matter of law which all are presumed to knew, and the contention "that this court would be acting in the interests of justice to reverse this case on account of such statement" is without the slightest merit.

[5] The defendant assigns in his petition. in error the refusal to give his requested instruction No. 1, and the giving of instructions Nos. 4, 6, 7, and 9 of the regular charge, respectively, but fails to argue, or even refer to, the same in his brief, and therefore the refusal to give and the giving of said charges will not be considered.

"Assignments of error, not presented in the brief" or upon "oral argument will be treated as having been abandoned and will not be considered by the court." Price Patterson v. UnitStates, 7 Okl. Cr. 272, 118 Pac. 150. counsel rely for the reversal of a case be pre"It is essential that all points upon which sented to the court in the brief or oral argument. and when not so presented they are waived." John Gonzalus v. State, 7 Okl. Cr. 444, 123 Pac. 705.

"While the verdict in the case at bar is tech-ed nically informal, it is sufficiently definite and certain as to the offense and the degree of which defendant was convicted, and it is, in fact, a verdict of guilty of manslaughter in the first degree. We think the defect is not sufficient to affect the substantial rights of the defendant." The verdict in the case read: "We, the jury, do upon our oaths find the defendant guilty * of manslaughter as charged in the indictment. ***"

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However, the verdict was not excepted to, and this failure to except to the verdict is fatal to the contention "that the cause on account of alleged defect in the verdict should be reversed."

[6] The defendant also complains that his counsel was not sent for upon the coming in of the verdict, and consequently was not present to take an exception; but fails to

However, we have carefully read said instruction refused and said Instructions given, and fail to find any error therein which materially affects the substantial rights of the defendant.

"Instructions must always be considered in connection with the evidence in the case, and where they contain no fundamental error nor any misstatement of law which, in the light of the evidence, was calculated to mislead the jury to the injury of the defendant, and where the evidence clearly shows that the defendant is guilty, a conviction will not be reversed because the charge of the court may not be technically correct." Ostendorf v. State, 8 Okl. Cr.

The court did not err in overruling the | George William Eyre was an unmarried motion for a new trial. man and taught school at various points Finding no error sufficient to justify a re- making visits during vacations to his mothversal, the judgment is affirmed.

er's home in Dayton, which he claimed as his place of residence. On May 1, 1914, in con

DOYLE, P. J., and MATSON, J., concur. sideration of $23.70, paid by him, respondent

(104 Wash. 129) WICK V.

made and delivered to him a policy of life insurance. The policy, among other things,

WESTERN UNION LIFE INS. contains a total disability clause as follows: CO. (No. 14288.) (Supreme Court of Washington. Nov. 13, 1918.) 1. CONTRACTS 147(2)-CONSTRUCTION-INTENT OF PARTIES.

"Total Disability.-If the insured, before attaining the age of sixty years, shall furnish due proof that he has, before default in the payment of any premium, become wholly disabled by bodly injury or disease and will be permanently, continuously and wholly prevented thereby from pursuing any and all gainful occupations, the company will pay for said insured all premiums which shall become due and payable during the AB-continuance of such disability.

In construing contracts, the intent of the parties, as expressed in the words they have

used, must govern. 2. CONTRACTS

157- CONSTRUCTION RANGEMENT OF WORDS.

A clumsy arrangement of words, even coupled with the "comma fault," will not be allowed to contravene a reasonable interpretation according to the intention of the parties at the time of using them.

3. INSURANCE 362-NONPAYMENT OF PREMIUM-CONSTRUCTION OF POLICY HAS TERM INSURANCE.

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Provision in policy that, "if the insured, before attaining the age of 60 years, shall furnish due proof that he has, before default in payment of any premium, become wholly disabled, *the company will pay for the said insured all premiums," required proof of disability before default in payment of premium; the word "has" being a present tense word showing intent of parties that proof of disability should be furnished before default, and such being intention of parties particularly in view of "grace" and "consideration" provisions of policy making

it "term insurance."

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Term Insurance.] 4. CONTRACTS 147(3)-CONSTRUCTION-INSTRUMENT AS A WHOLE.

In construing contracts, the intention of the parties is to be gathered from the instrument as a whole, and not from detached parts.

En Banc.

Appeal from Superior Court, Columbia County; Chester F. Miller, Judge.

charge against the insured, and the values in the "The premiums so paid shall not become a table of page two hereof shall increase in the same manner as if the premiums were being paid by the insured. The insured shall, upon said company, furnish due proof of the contindue date of any premium, if so required by the uance of such disability. If the insured shall fail to furnish such proof, the company's obligation to pay the premiums hereunder shall cease and the insured shall then resume payment of premiums."

Appellant is the mother of George William Eyre and is named as the beneficiary in the policy. The insured was employed, during the school year of 1914-15, to teach in the public school at Waitsburg, near Dayton. In the latter part of 1914 he became indisposed from a tumor on the brain and was given a vacation from some time in December, 1914, to the latter part of January, 1915, when he returned to work. His health grew worse. He suffered from headaches, attacks of dizziness, and occasionally fainted. Until about March 31, 1915, because of bad health he could not properly discharge his duties as teacher.

His health was such as to impair the general efficiency of the school, whereWest-He died on December 31, 1915, as a result of upon he was relieved by the school board.

Action by Mary E. Wick against the ern Union Life Insurance Company. Judgment of dismissal, and plaintiff appeals.

Affirmed.

R. M. Sturdevant, of Dayton, and Kuykendall & McCabe and M. F. Gose, all of Pomeroy, for appellant.

Graves, Kizer & Graves, of Spokane, for the policy of insurance. respondent.

MITCHELL, J. This case was tried in the lower court upon the pleadings and stipulated facts. There was judgment for defendant dismissing the action, and plaintiff appeals.

The material facts admitted are substantially as follows: Respondent is a domestic life insurance company with its home office at Spokane. It has been engaged in business for a number of years, has a large and wellestablished business, being well known in Spokane and throughout the state. One

unable to teach school or follow any vocathe tumor. After March 31, 1915, he was tion, and was, by his disease, permanently, continuously, and wholly prevented from pursuing any gainful occupation within the meaning of the total disability clause of While his physical condition so affected his mind that he was incapable of sustained mental effort, he was at no time insane or imbecile, and during the greater part of the time was capable of receiving and understanding communications made to him. He lived with his mother at her home after March 31, 1915. Respondent was not informed of the unfortunate condi. tion of the insured or any reason for nonpayment of premium on the policy until about October 22, 1915, when notice of the disability and a request for advice as to the nature and amount of proof necessary was given by an attorney for the insured. About 30 days

before the annual premium became due on May 1, 1915, respondent gave the insured notice thereof, by mail, addressing him at his post office address at Dayton. Again, about May 13, 1915, respondent mailed to the insured a letter calling attention to the nonpayment of the annual premium and cautioning him not to overlook it and that the 30 days of grace allowed by the policy would soon be up, and further stating that the company was ready to extend assistance by permitting semiannual or quarterly premium payments if preferred. Again, on June 3, 1915, respondent wrote as follows:

insured furnish due proof that he became totally disabled before default in the payment of any premium, then the company must pay for said insured all premiums, etc.

Appellant's counsel argue that the determination of the dispute requires an examination of the policy, from which it will appear that, in the last analysis, the total disability clause contains all of the policy which furnishes any aid.

[1] Certain rules are recognized for the construction of written contracts for the purpose of ascertaining from the language the extent to which the parties intended to be "Western Union Life Insurance Company. bound; and it is the duty of courts to ob"Spokane, Washington, June 3, 1915. # 13686. serve them and not attempt to vary, change, "Mr. Geo. W. Eyre, Dayton, Washington, 5th or withhold their application. The first and & J.-Dear Sir: We notice that the grace allow-most important of such rules is that the ined by the company in the payment of the premium on your policy No. 13686 expired 6/1/15 and we wish to know if this is intentional or otherwise on your part.

"If you are doing so because you are tempo rarily short of the necessary funds, we wish you to let us know what arrangement you would like to make to defer the payment of part of the premium.

"If you wish, the same can be changed to ei ther semi-annual or quarterly payments, and in fact almost any reasonable arrangement can be made if you will only let us know your wish

es in the matter.

"In any case drop us a line stating your intention and oblige,

"Yours very truly,

"J. N. Wright, Secretary."

This last letter manifestly proceeded out of consideration of the company for the insured, because the provision in the policy for reinstatement after it had lapsed for nonpay ment of premium depends upon a written application therefor by the insured. None of the three letters was returned, nor was any answer ever made to either by Eyre or any one in his behalf. Afterwards, and prior to the receipt of the notice of disability through the attorney for the insured in October, 1915, respondent canceled the policy upon its records. The premium falling due on May 1, 1915, was never paid, nor was there any application for reinstatement.

The case involves a construction of the contract of insurance. The respondent contends the disability clause of the contract must be held to mean that, if the insured, under an existing policy, demand that the insurer pay subsequently accruing premiums, accompanying such demand with due proof of total disability, it must pay such premiums so long as the disability continues, and thus preserve the policy in force; but that such obligation is not placed upon the company where the demand is made and proof of total disability furnished after the expiration of the grace period of 30 days from the premium due date, default in payment by the insured, and cancellation of the policy by the company.

On the other hand, appellant contends the contract means, and says, that if, at any

tent of the parties, as expressed in the words they have used, must govern. With such understanding counsel for appellant, protesting inability to see how there can be two opinions as to what the total disability clause means, present their view by quoting from the clause as follows:

"If the insured, before attaining the age of sixty years, shall furnish due proof that he has, before default in the payment of any premium, become wholly disabled, will pay for the said insured all premiums, etc."

the company

And it is seriously contended, considering the words and punctuation, that the insured has, under this contract, until just before he is 60 years of age to furnish proof that at some prior time (say a quarter of a century ago), while he was not yet in default of premium payment he became totally disabled, without losing his rights under the contract.

[2] A clumsy arrangement of words, even coupled with the "comma fault," will not be allowed to contravene a reasonable interpretation according to the intention of the parties at the time of using them.

[3] In the language last above quoted, it is to be noticed that the word "has" is used only once. Now, if in its stead the word "had" or "did" was employed, and no portion of the policy on this particular point considered other than this thus altered, there would be force in the argument made; but the word "has" is quite significant. It is a word which is always used in the present tense. So that the words "shall furnish proof that he has" mean at the present time, and, taken in connection with the other language in the part of the total disability clause quoted, mean that he shall "furnish" the proof be fore "default in the payment of any premium."

[4] In addition, the rule for the construction of contracts first mentioned is qualified or extended in such way that the intention of the parties is to be gathered, not from de tached parts of the instrument, but from the whole of it. Other portions of the policy in this instance may be noticed with advan

clause, in speaking of the payments the company will make for the insured, they are described as those "which shall become due and payable during the continuance of such disability." Not those which "did" or "had" become due, but those which "shall" become due. Thus showing the plan by which, if the insured become totally disabled and prevented thereby from pursuing any gainful occupation, and furnish proof thereof before default in the payment of any premium, then the company, for the insured, will make all payments of premiums which shall become due and payable during the continuance of such disability. Such a plan is manifestly designed to save the insured, in misfortune, from a forfeiture of his rights under a policy of "term insurance," which otherwise gives the insured only the right, upon the payment of a premium, to insurance upon his life for the term paid for, and the right to continue that insurance from term to term, at the

same rate.

Other language in this same clause may be considered. It provides:

"The insured shall, however, upon due date of any premium, if so requested by the company, furnish due proof of the continuance of such disability. If the insured shall fail to furnish such proof, the company's obligation to pay the premium hereunder shall cease and the insured shall then resume payment of premiums."

This provision contemplates a possible restoration of the insured from total disability (a change by no means improbable), whereupon the company in its turn is to be relieved from the obligation of paying premiums for the insured. But if appellant's idea of what this contract means shall prevail, when and by what means shall the company ever know of any relief to the insured from total disability? Obviously the insured would gain nothing by giving such information, but, on the contrary, would profit by withholding it until just before he became 60 years of age, or if he die before reaching that age for his beneficiary then to furnish proof to the company that years ago, and prior to the expiration of a period of term insurance, the insured became totally disabled, and in either of such cases hold the company liable and thus deprive it of any possible opportunity under this part of the contract.

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There are a number of other provisions in the policy that point this same way, only two of which need be considered: First. Under the clause "Consideration," it is stated to be "the advance payment in cash of an annual premium of $23.70 for term insurance for one year ending on the first day of May, 1915, and the payment of an equal amount upon each anniversary date until the date of the death of the insured." Second. In the clause entitled "Grace in Payment of Premiums," it says:

after the first policy year there will be allowed "In the payment of all premiums hereunder a grace of one month (not less than thirty days) ** during which time this policy shall remain in full force and effect."

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reference to grace in payment of premiums It is to be observed that the provision with is required by subdivision 1, § 6059-184, Rem. Code, in all such life insurance policies after January 1, 1912. Clearly, these the Payment of Premiums," make the contwo features, "Consideration" and "Grace in tract one of "term insurance"; that is, insurance in force during the term or period for which a consideration or premium has been paid and the grace period of 30 days. It is so declared by the words "during which time this policy shall remain in full force and effect," which words, of themselves, are at once useless unless they constitute a limitation as to time upon the vitality of the contract.

With what success shall it be contended that such language, which by the statute is required to be placed in all annual premium payment life insurance policies, is not out of harmony with the heavy obligations sought to be imposed upon the company by appellant's interpretation of the total disability clause of the policy?

Reading this contract as a whole, there is no doubt that the contention of respondent is correct.

The judgment of the trial court so construing it is affirmed.

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