Byers v. Territory , 1 Okla. Crim. 677 ( 1909 )

BAKER, Judge

(after stating the facts as above). The accused relies upon the following assignments of error:

“(1) The court erred in admitting certain evidence on behalf of the defendant in error; (2) the court erred in excluding evidence offered by the plaintiff in error; (3) the court erred in its instruction to the jury; (4) the court erred in overruling a motion for a new trial on behalf of the plaintiff in error; (5) the court erred in rendering judgment against the plaintiff in error; (6) the court erred in overruling plaintiff in error’s motion for a new trial on the grounds of newly discovered evidence; (7) the court erred in , refusing certain instructions requested by the plaintiff in error; (8) error of the court occurring at the trial and excepted to by the defendant.”

The first error claimed is directed to the admission of the testimony of Dr. Miller over the objection of the accused. The doctor was asked the following question:

“I will ask you if a woman of the build and stature of Mrs. Byers, dressed in the manner and condition in which you found her at the time of her death, could have taken the pistol, a double action, say, 'with a barrel four inches in length, and have inflicted, holding it in her right hand, the wound on her person such as you found under the arm and on the left side of the body.”

The doctor’s answer was that it would have been impossible for the deceased to have inflicted the wound from which she died. A similar question was asked Dr. Voyles, and he was permitted, over the objections of the accused, to answer, and answered: “It is inconveniently possible, but not probable.” It is urged by counsel for the accused that prejudicial error occurred in the admission of testimony of said doctors, on the ground that the evidence does not relate to any trade, science, or profession, but relates solely to a physical fact, of which the jury, as a matter of common knowledge, were as competent to judge as the witnesses. This court recognizes the rule that expert evidence is incompetent if the facts proposed to be proved are within the common experience of mankind. This court believes that it is much safer to confine the testimony of witnesses to the facts, in all cases where it is practicable, and leave the jury to exercise their judgment and experience upon the facts proved; that it is generally safer to take the judgments of unskilled jurors than the opinion of hired, and generally biased, experts. Still we are hot ready to discard expert testimony, as in many cases it is both essential and important.

The question therefore arises: Was the testimony complained of, in the light of all the evidence in the case, prejudicial to the material rights of the accused, and was the testimony of such character as to prejudice the rights of the accused? In other words, did the admission of this testimony deprive the accused of a fair and impartial trial? The question can only be properly determined by a careful reading and investigation of all the evidence contained in the record. This we have done, and we find from the record that the evidence, though possibly improper as expert testimony, was not, in the light of all the testimony, harmful to the rights of the accused; the theory of the defense 'being that the accused was not guilty of the homicide, but that death resulted from wounds .inflicted by the deceased, or in some way, in the struggle that ensued to prevent great bodily harm or possibly death to the accused. There is no controversy whatever about the cause of the death. No witness contradicted the statements made by the accused in explanation of the occurrence which resulted in the death of his wife. There is dispute about the location of the wounds, or the point of entrance, course, and exit of the bullets that produced the wounds found upon the body of the deceased. The accused was given the greatest latitude by the trial court in describing the scenes and occurrences at the time of the homicide. Other witnesses were permitted without objection, to locate and describe the wounds upon the deceased, their entrance, course and exit through the head and body, and all the surrounding facts and circumstances in detail.

We find the case of Wells v. Territory of Oklahoma, 14 Okla. 436, 78 Pac. 124, on the question of harmless error in the introduction of expert testimony an instructive one, and seems to us to be the law. The second syllabus reads:

“Where a witness, who is qualified as a medical expert, as coroner had made a careful examination of the body of the deceased and the surroundings shortly after the homicide, and, after having described the wounds, points of entrance, and exit and direction of the bullet through the body, and all of the surrounding facts and circumstances in detail, was permitted to give his opinion as to the position of the deceased at the time that the wound was inflicted, and where the defendant admits the killing, and there is no issue on which the testimony could operate against him, held, if error, harmless, and would afford no grounds for reversal.”

Another very carefully considered case is the case of Coyle v. State, 31 Tex. Cr. R. 604, 21 S. W. 765, the fourth syllabus reading as follows:

“On a trial for murder, where the physician testified that from his examination of the wound and clothing of deceased immediately after the homicide, etc., it was his opinion that at the time the shot was fired the right arm óf deceased was hanging at his side, slightly to the rear of a perpendicular line, held that, conceding the position of deceased’s arm could not thus be proved still to render the admission of such testimony reversible error it must tend to solve some issue in the case adversely to the defendant ; and, if it be clear that its admission did not do so, nor in some way injuriously affect him, this court would not be authorized to reverse the judgment because of its admission.”

These cases we believe correctly state the law. We, therefore, approve them. See, also, cases cited in 12 Amer. & Eng. Enc. of Law (2d Ed.) p. 449.

We think that in the light of all the testimony in this case, the testimony of both Dr. Miller and Dr. Voyles was not in the least harmful or prejudicial to the accused, and the court did not therefore commit reversible error in permitting the introduction of the same.

The accused also complains of the court below in refusing to allow him to answer a question propounded to him by one of the jurors, in which the juror asked: “Would it not be pretty near impossible for her to get her left arm in under both of your arms after that?” We think the trial court properly interferred when he said: “That is a physical fact that is to he determined by the jury from the evidence, and not by the witness.” The question of the juror does not seem predicated upon any proof offered, there being no testimony that the left arm of deceased was under both arms of the accused, and it seems to this court that the court below did an act of kindness toward the accused in not permitting this question to be answered; for in the light of'the testimony we are unable to see how any answer could be given to this question that would be beneficial to the accused. He had every opportunity to explain how her left arm might have gotten under both of his arms if that was a material circumstances in the case beneficial to accused. He had full opportunity to explain all that occurred at the time of the homicide.

We fail to see error in the exceptions taken to the testimony of witness Delestineer. And are likewise unable to see how the accused was prejudiced by excluding- from the jury the evidence of John Newby when he was asked, “Do you remember starting to haul some things from the house there once, and Mrs. Byers got the sewing machine and threw it under the wagon, and threw other stuff out, and broke up things generally ?” his answer being, Yes, sir.” And the further question was asked Newby: “And Mr. Byers had to ask you to go away and leave things?” which he also answered, “Yes, sii.” We cannot understand how this sewing machine incident could have had any direct bearing upon the homicide, or throw any light upon it, and therefore its exclusion was not prejudicial to the accused.

The remaining error growing out of the exclusion of testimonj'- relates to certain transactions between the accused and one Grofner, a former husband of, the deceased. This court is unable to understand how the accused could have been prejudiced in the exclusion of the testimony of the accused concerning his difficulty with Grofner. Many threats had been shown to have been made by the deceased against the accused, many of them being threats to kill the accused. The threats involved in the controversy between the accused and Grofner, having occurred in April, 1903, were therefore, somewhat too remote to have shed any light upon the question as to who was the aggressor in the controversy that resulted in the death of the deceased in this case; nor did it shed any light upon the question as to whether the accused acted in self-defense or not, and did not reflect the state of the accused’s mind at the tima of the homicide. We do not think the court erred to the prejudice of the accused in excluding the evidence regarding the Grofner transaction from the jury. Naturally the testimony of the witnesses at the trial varied somewhat in minor details. So far as the record shows, no one save the participants were present at the time, or witnessed the homicide, and the immediate circumstances leading up to it.

The evidence clearly shows that about 6 o’clock on the evening of the 27th of December, 1904, certain shots were heard in the direction of the home of the accused and deceased, in the town of Gotebo. Some 20 minutes after the shots were fired accused appeared in Dalton’s store in said village, complaining of a scalp wound, a weak heart, and injuries to his hip, apparently suffering great pain, and was greatly excited. He gave various accounts of. his trouble with the deceased, and, calling attention to the scalp wound on his head, exclaimed, “She shot, she shot, and just kept on shooting.” At the trial the accused claimed the wounds were inflicted on the deceased by the accidental discharge of a pistol held in her light hand, which he had pushed around to her left side, but, owing to his intense excitement at the time, he could not explain just hc-w it all happened. About an hour after the tragedy, when the officers returned to town after finding the body of the deceased, the accused was placed under arrest, and when told that he was arrested for shooting his wife, said: “Why, bless your soul, I didn’t know she was shot.” At the trial he claimed he acted in self-defense; that while sitting down, or about to sit down to a typewriter to write a letter to his sister, his wife, without warning, shot him with a pistol, the bullet grazing his head and inflicting a scalp wound, being the wound he complained of shortly after the tragedy; that in the haste and excitement in raising to his feet after he was shot he overturned the typewriter table with the machine upon it, then turning around, facing his wife, seized her by the right wrist, she at the time holding the weapon in the right hand, and that then a life and death struggle ensued to prevent her from killing him, and which ended by both falling on the bed, he in a dead faint; that when be recovered his consciousness he found his wife’s body prostrate and bleeding, and then endeavored to mop up some of the blood with the bed clothing, and caught her by the ankle and called her by name, but she made no response.

According.to the testimony of the witness Martin, on Saturday night prior to the tragedy the accused told Martin he thought he would have to kill his wife. He was the owner of the pistol with which the fatal shots were fired. There was no evidence of the pistol being in the possession of the deceased prior to the homicide. The pistol was a 38 caliber, and was about 6 1-2 or 7 inches long. One shot entered just below and behind the left ear of the deceased, the bullet ranging slightly upward from the point of- entrance, emerging from the right cheek, the bullet being found about a year afterwards in a mass of coagulated blood in the bed clothing which was under her at the time she was found dead. From the testimony of Heck Thomas, who testified, without objection, as a pistol and gunshot wound expert, the jury could well find that at the time of the discharge of the pistol the muzzle must have been some little distance from the point where the bullet entered the neck, the pistol not being close enough, at the time of its discharge, to deposit flakes of burned powder around the bullet hole. It is undisputed that this wound was instantly fatal. The location of the wound was such as to have ruptured at least one of the large arteries of the neck. The bullet of the other shot entered into the body of the deceased irnmediately behind and below the left arm, and emerged at the left nipple. This bullet was found resting by its own weight near the right nipple in the under vest of the deceased. No trace of blood was found in any part of the room, except upon the bed and clothing of the deceased, and a curtain hanging near the bed. About 20 minutes elapsed after the shots were fired before the accused left the house where the homicide occurred. There is no dispute that the deceased’s body was found lying clear across the foot of the bed upon her face and stomach, and her head near the wall at the back side of the bed, her feet protruding over the front; one of her leggings was smeared with blood, the left hand under the body, and the right partially extended. The pistol was found in her right hand, with the middle finger of her right hand on the outside of the pistol guard. There were three empty chambers in the pistol.

Search, was made for the bullet holes in the walls of the room where the tragedy occurred at the time the coroner’s inquest was held, which occurred soon after the finding of the body. Search was also made the next morning, but no bullet holes were found. The search was especially directed to the place over the typewriter table. Some two weeks later, however, the witnesses for the defense found what they claimed to be a bullet hole in the wall about four feet from the floor, at a point near where the typewriter table stood at the time of the homicide. The evidence also shows that the typewriter table was tilted on its side, and the machine lying on the floor bottom side up, apparently uninjured. The dining table was overturned, but the dishes were unbroken, tliough strewn in confusion on the floor.- A bowl of 'milk on the floor was found unspilled. The deceased’s hair combs and false teeth were found on the bed with the body. The scalp wound on the accused’s head, as testified by the doctor, was a mere scratch, an abrasion so light as not to penetrate the cuticle. It was not conceded by the state that the wound on the top of the head of accused was a gunshot wound; but, on the contrary, the state claimed that it was inflicted by the accused in furtherance of his defense of justifiable homicide. The physician who dressed the wound said it was free from powder burns. There was no evidence whatever to show that the wound on the scalp of the accused and the hole in his hat had any relation to each other. It seems that the hat said to have been worn by the accused at the time he was shot was stolen from the possession of the attorney for the accused.

The accused at the time of the tragedy was about 62 years old, and the deceased about 41 years old. His weight was about 220 pounds, and hers about 202 pounds. The accused in his own behalf testified to many quarrels occuring between himself and deceased at intervals during all their married life. He testified that she had driven him from his home; had often threatened to kill him; had sued him for a divorce; caused his arrest, and placed him under a peace bond; and that she was persistently demanding that he make over to her title to certain lots and lands he owned in Gotebo. He also testified that she did everything to defeat him in a certain contest involving the town site of Gotebo, and also to having a personal difficulty in her presence with her former husband; of her villification of him and his married son, who had married a daughter of the deceased; that a young son of the deceased by a former marriage had treated him insolently; of his doting love for her, and cowardly fears of her. We have carefully considered instruction No. 22, complained of by the accused, and we thi'nk the court below committed no error in giving said instruction, in the light of all the evidence. The court gave the accused great latitude in detailing the many difficulties between himself and deceased, and giving the many threats made by her; and we think the accused was fairly dealt with in this connection.

The jury in this case, so far as the record shows was fair and unbiased. They heard the evidence as it fell from the lips of the witnesses; they had the opportunity of facing the witnesses on both sides; they had the means of judging of their intelligence, their candor, or want of candor, their interest, if any, in the event of the.case. The jury may have concluded from the testimony that certain deductions therefrom would irresistibly follow, and that these deductions were inconsistent with the accused’s innocence. We think the jury was justified in believing that the evidence offered by the defense in justification of the homicide was invented by the accused to conceal the actual truth of his conduct, and thereby to put the acts of the deceased in a .false and unfavorable light before those who should have to pass upon the question of his guilt or innocence. The jury probably . concluded that the wounds of the deceased were “dumb mouths” “silently proclaiming” the physical impossibility clearly apparent from such wounds, and that said wounds could not have been inflicted, or resulted from shots fired from a pistol then held in the hand of the deceased, and that, the defense of justifiable homicide set up by the accused was thereby overcome and disproven, and the jury, as a matter of law, had a right to disregard it. ,/

The jury may also have believe/1 from the evidence of the peculiar position in which the pistol/was found in the unclinched hand of the deceased that the pistol -was placed there after death,. and after the muscular convulsions of her body had ceased; they may have concluded from the evidence that the reasonable hypothesis consistent with the facts proven was that the deceased had fal>r. asleep across the foot of the bed, while lying on her right side, with her head near the wall; that the accused standing at (he foot of the bed, in a position near and partially over her, fired the shot which entered near the left ear; and that to complete the work of destruction the second shot, within a few seconds thereafter, was fired into her body, and caused death to be doubly sure. The jury may have justly concluded from the evidence that the accused had, before the killing, in his own mind outlined a plan of defense satisfactory to himself; but that in so doing he probably did not reckon rightly with the immutable and eternal laws of nature, nor could he prevent the inquisitive minds of men from investigating and pursuing to a logical conclusion the reasonable and natural deductions which follow from the well-known laws of cause and effect. The jury may also have concluded from the evidence that the 20 minutes immediately following the firing of the fatal shots -were spent 'by the accused in putting the house in order for the ordeal near at hand, when every eye in the community would be turned in scrutiny upon it.

It is difficult to see how the jury in this case could have prevented being influenced to a considerable extent by proof showing that the bullet, which had passed through the neck and mouth of the deceased, was found concealed in a clot of blood in the bed clothing upon which the body of deceased was found. They undoubtedly were influenced by this evidence to believe, as they had a perfect right, that the shot that sent the bullet through the neck and 'mouth of the deceased was fired while the body was lying on the bed. . If not, the weight of the bullet itself would have caused lit to fall downward onto the floor of the room, and if the force \yas sufficient, would have penetrated the wall of the room. The '.other bullet, found inside of the undervest of the deceased, sholws conclusively that after the ball issued from the wound at th¡e left nipple it declined by its own weight until arrested by the garments of the deceased at the right nipple. It will be remembered that the body of the deceased when found was lying on its left side or stomach. Had the deceased been on her feet at the time this bullet was fired, it would have naturally gravitated downward.

The jury were undoubtedly also influenced against the innocence of the accused by the undisputed proof of the apparent disorder of the room in which the body was found. The dining-table was upset, and a dozen or more dishes were on the same, the dishes were thrown to the floor, but none were broken. The typewriter was also thrown from the table onto the floor, and was found upside down, but no proof that it was in any way broken or injured. The bowl of milk which the accused says he sat on the floor nearby the bed, and close to the scene of the death struggle, also was undisturbed and the contents intact.

The jury may also have reasonably concluded from the evidence that the three empty chambers in the revolver found by the deceased were accounted for by the two shots which pierced the body of the deceased, and that the other shot was used on the hat of the accused. It is true there is .some discrepancy in the evidence- as to whether the hat of the accused had two holes in it or but one. The defense offered no evidence to help clear this discrepancy, although it is proved and undisputed that the hat of the accused was taken possession of by one of his able attorneys, Mr. Morris. It seems to us, and it undoubtedly so appeared to the jury, that proof as to the number of holes in the' hat of the accused could have easily been supplied, if in fact more than one hole was in the hat, shortly after the homicide. The record being practically silent on this point, the jury were free to believe from the absence of such proof that -the hat either had but one hole immediately after the homicide, or if it had two holes, such holes could have no relation to the shot which the accused claims was fired by the deceased and took effect on his head. It will be conceded that the second hole in said hat, properly located, would have been a. strong circumstance favoring the contention of the accused that he was in fact shot by the deceased, as by him claimed; and, by like process of reasoning, the absence] of such facij would naturally weigh agáinst the best interests of the accused. Under the circumstances, therefore, the jury in all probability concluded that the wound upon the head of the accused was not made by a bullet, but was self-inflicted, or was caused by some other meanb. Especially is this true when the testimony of the doctor who dressed it, in describing the wound on the head, does not necessarily describe it as a gunshot wound.

The jury probably also took into consideration in this conxiection the evidence of the accused that the deceased was experienced and handy in the use of firearms, he having testified to the fact that he and deceased frequently went hunting together, and that she was a good shot, and the further fact that the evidence shows that the pistol which caused the death of deceased was a self-acting (double action) one; that if the pistol had been, in fact, in the hand of the deceased, and /by her discharged at the head of the accused, and the accused in the act of sitting down to a table to use the typewriter, as testified to by him, before the accused could have gotton hold of the wrist of the deceased, who was admitted to have been a powerful woman, said pistol would have again been discharged, and especially is this crue if the deceased had deliberately planned to kill the accused.

The jury being reasonable men, were bound to take into consideration the disorderly condition of vthe clothing of the deceased as described by the witnesses who found her dead, and about which there is no dispute. They may have wiseiy, and correctly, concluded from the proof that the accused thought it necessary or expedient, when the time arrived for placing in her hand the deadly weapon which was found, to roll the deceased onto her left side or stomach; because if the theory of the state is true, the deceased was lying on her right side on the bed when the shots were fired which killed her. The importance of placing her on her left side or stomach, therefore, becomes very apparent. This would be a necessary position if it was desired that the right arm might be extricated or extended. The jury-may also have justly concluded, that in the efforts of the accused to place the body in the position in which it was found, he besmeared his hands with the blood of his victim, a part of which was found on her leggings in the form of bloody finger marks. It may have been a hard thing for the jury to believe in -this case (if the theory and evidence of the accused is true) that, after the deceased received the fatal wounds, in her death plunge, and after making the struggle testified to by the accused in her efforts to kill him, she should be able to deposit her body full length on the bed, and on the exact spot where she would naturally lie down for a rest or a nap, and that in so doing she had taken two combs out of her hair, her false teeth out of her mouth, and carefully laid them on the bed.

This court believes that trial by jury is the most satisfactory method for determining disputed questions of fact in a criminal case. Time has taught the world, and especially the English-speaking portion thereof, that the jury system is one of the institutions which is deeply rooted into the hearts of all fair-minded people. The wisest jurists and ablest statesmen have bestowed unstinted encomiums upon it. It stands as a great bulwark against oppression and imposition; and, in the opinion of this court, is the highest form of human justice. Believing as we do, we can conceive of no higher conception of the proper discharge of official duty than the giving to a verdict, rendered by a fair and impartial jury, in a fairly tried case, full credence and respect, and conclude that the facts have been properly determined. The facts having been so determined, there is but one true guide for this court, and that is to apply the law as it is written and make the enforcement thereof an imperative duty. This court accepts the verdict in the case at bar as a fair, honest, impartial, and humane finding upon the facts in the case. And again announces that this court will not reverse a case when the record before it shows that the accused had a fair trial, by a fair and impartial jury and trial judge, simply because some harmless technical error may have occurred at the trial.

We come now to deal with the instructions given the jury, and which are assigned as reversible error. The record discloses that at the conclusion of the court’s instructions the accused excepted to each and all of the instructions separate^. It is not contended by the briefs of the accused that all of the instructions were erroneous. Instruction No. 12, found at page 526 of the record, reads as follows:

“You are further instructed that under the laws of the territory of Oklahoma homicide is justifiable when committed in the lawful defense of a person, when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there is imminent danger of such design being accomplished.”

The accused urges that the jury was, in effect, told that, in order that the homicide be justifiable, there must not only be reasonable grounds to apprehend a design to commit a felony, or to do some personal injury, but there must be actual and imminent danger of such design being accomplished. Again we are forced to an examination of the evidence to determine the correctness, or otherwise, of the charge No. 12 complained of. We find from the record that the testimony shows that the danger, if in fact danger there was to the accused, was actual danger, and was apparent to him; and, if this testimony is true on this subject, he could have taken but one view of the situation, and that was that he was in actual and imminent danger of great bodily harm or death, and therefore wé think charge No. 12, though not a model of perfection, is not against the accused.

Charge No. 13, complained of, as shown by the record, is as follows:

“If you find from the evidence, -beyond a reasonable doubt, that the defendant, A. N. Ifyers, at the time and place charged in the indictment, shot and killed the deceased in „the manner charged in the indictment, you should then determine the question as to whether or not such act was without authority of law, and you are instructed that such act was not without authority of law if you find the same to have been justifiable, according to the definition of justifiable homicide herein given, and you are further instructed that if the act charged against the defendant is shown to have been by him committed under such circum-' stances as that' the act is excusable under the definition of excusable homicide as given in these instructions, he is not guilty as charged in the indictment herein, and you should so find.”

Only a portion of the above charge is set up in the brief of the accused. This court believes in, and approves, the wisdom and binding force of section 5618, Wilson’s Rev. & Ann. St. 1903, which reads as follows:

“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial right of the parties.”

This court has a number of times, in other decisions, recognized the force of the above rule. Section 5144 of our statutes reverses the common law, which provides that the penal statutes are to be strictly construed, and expressly provides that all proceedings are to be liberally construed in the furtherance of justice, and therefore the common-law rule as to strict construction of penal laws has been repealed by the Legislature, and is not in force in this state; but, on the contrary, it is made the duty, by the statute, for this court to construe all laws liberally and in the furtherance of justice, and this court is thereby forbidden to reverse a conviction upon technical errors, or exceptions which do not affect the substantial rights of the accused. We, therefore, feel it our duty to examine the entire record before passing upon technical defects or exceptions in the charge of the court which do not go to the extent of affecting the substantial rights of the accused. We have carefully read every word of the record, and given every proposition therein contained careful attention and close scrutiny. It is further urged by the distinguished counsel for the accused that the court in said charge No. 13, in substance, told the jury that if they should find the acts of the accused to -be justifiable under the definition given in the instructions in this case, he would not be guilty as charged in the indictment, and that by instruction No. 12 the jury was told, in effect, that in order that the homicide be justifiable, there must not only be reasonable grounds to apprehend the design to commit a felony, or to do some great personal injury, but there must be actual and imminent danger of such design being accomplished, contending that these instructions eliminate from the jury the thought that the accused had a right to view the situation as an ordinarily prudent man, and act upon apparent, rather than real, danger to which he was subjected. From an examination of the entire record, and the authorities applicable thereto, we find instruction No. 12 is a fair definition of justifiable homicide under the laws of the territory of. Oklahoma, and seems to be in the language of a second subdivision of section 2189. Wilson’s Rev. & Ann. St. 1903, which statute was in force at the time the offense charged was committed.

We find further on' this subject that the justly popular and highly respected Court of Criminal Appeals of the state of Texas has passed directly upon this proposition in a well-considered and ably rendered opinion written by that great jurist, Judge Hurt, in the case of Allen v. State, found in 24 Tex. App., commencing at page 216, 6 S. W. 187. In this case Allen was charged with the killing of Tom Gill with a pistol. The testimony established the fact that there had been a passage of words between Allen and Gill, with a show of violence on the part of Gill just before the shooting occurred, and that Gill had a pistol in his hand. 7. he real danger in the Texas case was the pistol in the possession of Gill. There was some discrepancy in the testimony as to who fired the first shot, as the shots were so close together. It is contended that the court erred in instructing the jury that it would be immaterial whether the danger was real, provided the defendant acted on the real appearance of danger. The specific objection raised to the charge of the court in this case is practically the same as that urged by the accused in the case at bar, and is this: “That it limits and abridges the right of the accused to act upon the real appearance of- danger, and omits reasonable appearance of danger.” The court in said case, speaking of danger with reference to whether the appearance of it is “real” or “reasonable,” takes its classification under one or the other, according as to whether the manifestations are positive or threatening and imminent, or are merely such as reasonably create alarm and apprehension for one’s safety.

The danger in the case at bar was real, and consisted of the pistol in the hand of the deceased, as shown by the testimony of accused. “Real danger is danger such as is manifest to the physical senses. “Reasonable” danger, as the very force of the term imports, is something to be judged of by an exercise of reason and judgment, an exercise upon facts which require a construction to render their meaning apparent. It is manifestly true from the facts in the case at bar that whatever danger there was to accused, if any at all, was real. Hence the court discharged its whole duty when it instructed the jury as it did in instructions numbered 12 and 13. The court was not bound to instruct upon any other form of danger, because the facts did not present any other cause of danger. Every instruction given by the court to the jury in the trial of a cause should be confined to the issues made by the facts.

We have carefully read all the cases cited by counsel for the accused, filed in their separate and exhaustive briefs, and we cannot agree with the distinguished counsel that the facts in this case are indentical, or even similar, to the facts in the cases by them cited. The cases cited by counsel for the accused in this connection are cases that deal principally upon the shifting of the burden of proof, and they hold correctly that the burden of proof in a criminal case is never shifted to the accused, whether the defense is that of an alibi, or any other legitimate defense, holding that a defendant in a criminal action is presumed to be innocent until the contrary is proven. In case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. There is no such question in the record in the case at bar. The opinion of this court in this case would undoubtedly be in accordance with the many well-decided cases cited by the accused were the facts in harmony with said cases.

Coming now to instruction No. 18, complained of by the 'accused, which reads:

“If you find from the evidence that the deceased was the aggressor in the difficulty which resulted in her death, and made such assault with a revolver as aforesaid, the defendant in such case would have the right to use all necessary force to prevent the accomplishment of the apparent, threatened design; and if in so doing the revolver was discharged because of the act of the defendant, resulting in the death of the deceased, when in fact there was no intent on the defendant’s part to cause such revolver to be discharged, and no intent to cause the death of the deceased by the act then performed, then and under such circumstances he would not be guilty of the crime charged against him, and you should so find in your verdict.”

Counsel claims that the court, erred, in the first part of this instruction, in assuming that the evidence on behalf of the accused showed that the gun was in the hand of the deceased when the fatal shot was fired, and that the shots were accidental, and that by so charging the trial court invaded the province of the jury in passing on a question of fact. We cannot take this view of this charge. One of two things are true: (1) The shots were either fired while the pistol was in the" hand of the deceased, and the pistol was discharged during the scuffle which ensued between them by the accused in seeking to prevent the deceased from injuring or killing him; (2) or the shots were fired by the hand of the accused. The charge 'complained of, taken in connection with the whole charge, does not authorize the jury to draw the conclusion therefrom contended for by the accused. It is true that the accused has testified that he is unable to give a clear account of the things that happened immediately preceding and during the time the shots were fired which caused the death of the deceased, but the jury had a right to take into consideration, and doubtless' did, all the facts and circumstances as they were developed and established by all the testimony, taking into consideration'the location of the wounds, the point of entrance, range, and exit thereof, the size and relative strength of both the accused and deceased; and the jury may have justly come to the conclusion that it was absolutely, physically impossibile for the wounds to have been inflicted while the pistol was in the hand of the deceased, and that they refused to believe the evidence and theory of the accused in the light of all the facts and circumstances. The charge, taken as a whole, fully and properly protected the rights of the accused in the light of- the evidence . The accused urges with much force that the testimony shows the accused was shot in the back of the head with a revolver by the deceased. This fact, as well as all' other facts in the case, being purely within the province of the jury to determine, and there being considerable conflict of testimony on this point, the jury, as reflected from their verdict, simply disbelieved (as they had a right to) the testimony of the accused; several witnesses having testified immediately after the shooting that they made search for, but were unable to find, a bullet hole, or holes in the wall of the house at a point near where the typewriter table, and to which the accused was about to sit at the time he claims the shot was fired by the deceased, and which inflicted the scalp wound .on his head. It is true that some weeks after, as shown by the witnesses for the accused, a bullet hole, or what looked like a bullet hole, was found. The jury had a right to believe or disbelieve either or all of the witnesses who testified regarding the bullet hole being there or not, and we do not say the jury was not right in its conclusion upon the facts in this connection. We do not believe, in the light of the testimony, the charge was prejudicial to the rights of the accused.

The remaining question made by the record, and presented to this court for consideration, relates to the amended or supplemental motion for a new trial, predicated a upon newly discovered evidence. We have carefully read the affidavits in support of said motion, and the affidavit of the county attorney in opposition thereto. From these affidavits it appears that most of the alleged newly discovered evidence was on hand and obtainable at the beginning of the trial- in the court below if reasonable diligence had been employed. Much of the evidence in the supporting affidavits would be unimportant, immaterial, and cumulative. We cannot see how the alleged newly discovered facts set forth in the affidavits in support of the amended or supplemental motion for a new trial could change the verdict. There is not a word in said affidavits which throws any light upon the acts of either the deceased or the accused at the time or just before or after the homicide. See Flohr v. Territory, 19 Okla. 414, 91 Pac. 712. There was therefore np abuse of discretion by the trial judge in overruling said motion. The record amply and fully supports the verdict and judgment thereon. The rulings and charges of the court are free from reversible error. The judgment of the lower court must therefore be affirmed.

Denied July 29, 1909. 1. APPEAL AND ERROR — Harmless Error — Admission of Evidence. The admission of incompetent evidence before a jury is not ground for reversal unless it affirmatively appears from the entire testimony in the case that such improper evidence was calculated to influence the jury against the defendant in arriving at a verdict. 2. SAME. This court will not reverse a conviction on account of the admission or rejection of evidence unless both error and injury therefrom appears in the record. (Syllabus by the Court.) . A. J. Morris, Stillwell H. Russell and A. C. Cruce, for plaintiff in error. ' Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the State.

It is therefore ordered by this court that the sheriff of Comanche county, without delay, carry into execution the judgment and sentence of the court below.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.