Holmes v. State

First. Counsel requested the court to instruct the jury as to the objects and purposes for which they might consider the question of character evidence introduced by appellant, which was refused by the court. The refusal of the court to give this instruction was not error. A general instruction upon the subject of character was given by the court. This was all that should have been given on that question. While it is true that several witnesses testified that previous to the commission of this offense the appellant had the reputation of being a quiet, peaceful, and law-abiding citizen, yet, according to his own testimony, he was a highwayman and a thief. This entirely destroyed the effect of the testimony which he had introduced upon the subject of character, and, in view of his own admissions, the jury could not possibly have reached any conclusion favorable to him on this issue. If appellant had denied participation in the commission of this offense, his previous good character might have been of some value to him. But his own testimony took the question of character out of the case, and it would not have been error if the court had refused to give any instruction at all upon this subject. See Morris v. Territory, 1 Okla. Crim. 619, 99 P. 760,101 P. 111.

Second. Appellant complains of the introduction in evidence of his written confession upon the ground that it was obtained from him by duress and fear. There was no testimony showing duress except that of appellant himself. His statements upon this subject were contradicted by a number of reputable witnesses. It was proven that this confession was made freely and voluntarily, and that appellant had made similar statements freely and voluntarily to a great number of persons, which statements were far more damaging to appellant than his written confession. The trial court did not err in admitting the written confession. But, even if there was error in this respect, it could not have prejudiced appellant, because, when he went upon the stand as a witness in his own behalf, he confirmed every material statement contained in the written confession.

Third. The trial court instructed the jury that, if they found the defendant guilty of murder beyond a reasonable doubt, they should assess his punishment either at death or at imprisonment in the penitentiary at hard labor for life, as in their discretion they might see fit. Counsel for appellant insists that the court should have given the jury a definition of the meaning of the word "discretion." With this contention we cannot agree. "Discretion" is a common English word in use in everyday life, and its meaning is well understood by all persons of ordinary intelligence. It has no special legal significance. We must presume that the jury were at least men of ordinary intelligence and were capable of understanding the English language. We feel quite sure that the jury understood the meaning of the word "discretion" fully as well as the court or the attorneys in the case could possibly have explained it to them.

Fourth. Counsel contend that the jury should have been instructed to view the facts and circumstances of this case from the standpoint of appellant as they reasonably appeared to him at the time of the homicide, and cite in support of this position the case of Price v. Territory, 1 Okla. Crim. 508, 99 P. 157, and further contend that it was the right of appellant to have an instruction given the jury based upon the hypothesis that his testimony was true, and cite in support of this position the case of State v. Partlow, 90 Mo. 608, 4 S.W. 14, 59 Am. Rep. 31. It cannot be questioned but that the two cases above cited state correct principles of law, which under proper conditions should be given in homicide cases in which the right of self-defense is presented, and where the testimony of the defendant presents a legal defense to such homicide. But these principles have no application at all to the case at bar. According to appellant's own testimony, he was the voluntary aggressor in a case of highway robbery, in the perpetration of which the homicide occurred, and no word of testimony offered in his defense presents the least excuse or justification for the crime in which he confessedly participated. Therefore, while the principles of law which are cited by counsel are correct, they are not applicable to the facts contained in this record.

Fifth. Appellant contends that the court should have instructed the jury that if the conspiracy in which appellant had engaged had terminated before the homicide was committed, or if appellant had voluntarily withdrawn from the conspiracy before the fatal shot was fired, in either event appellant would be entitled to an acquittal. Both of these contentions state correct abstract propositions of law. The question is, Are they applicable to the evidence introduced upon the trial of this case? We do not think that the testimony in the record would have authorized the court to submit either of these issues to the jury. When a conspiracy is entered into to do an unlawful act, all persons who engage therein are responsible for all that is done in pursuance thereof by any of their co-conspirators until the object for which the conspiracy was entered into is fully accomplished. This responsibility is not confined to the accomplishment of the common design for which the conspiracy was entered into, but it extends to and includes collateral acts incident to and growing out of the common design. According to appellant's own testimony, the purpose of this conspiracy was not accomplished until after the return of the parties to the Alabama Hotel where the money obtained by the robbery and murder was divided among them. Neither does the record raise the issue that appellant withdrew from the conspiracy before the fatal shot was fired, because, according to his own statement, he accompanied his co-conspirators to the Alabama Hotel, and there, in pursuance of such conspiracy participated with them in the division of the money stolen. With full knowledge on his part that Prather had shot the deceased and having seen the deceased fall back and kick his feet, and knowing that after the deceased was shot he had ceased to call for help and was therefore probably dead, appellant continued to act with his co-conspirators and shared with them in the division of the fruits of their joint crime. He therefore cannot be heard to say that he had withdrawn from the conspiracy before the fatal shot was fired. It is true that appellant did testify at the trial that he had started to leave the place of the homicide before the fatal shot was fired, and that, before doing so, he had told Prather to come away and let the man alone; that the gun might go off accidentally. This might indicate a withdrawal upon the part of appellant from a conspiracy to kill Archie, but it does not indicate a withdrawal on his part from the conspiracy to rob, which alone could absolve him from responsibility for the act of Prather in killing the deceased in executing the conspiracy to rob. This testimony on the part of appellant was clearly an afterthought, and, even if standing by itself it did tend to constitute a defense, its falsity was so conclusively and overwhelmingly proven by the other testimony in the case that it would not have been necessary for the court to instruct upon this issue.

Miss Kate O'Mara was the first witness for the state. She testified that she heard a man passing her house whistling and singing; that she went to the window, but he had passed out of her sight; that she soon heard shuffling of feet, and heard a muffled scream, and afterwards heard a shot; that she looked out of the window again, and in about a minute after the shot was fired she saw four persons in the street, and they were running from the place the sound of the shot came from, and where the deceased was found dead. It was proven that the deceased was found immediately east of the house of this witness. Therefore, if appellant had started to leave the place where the shot was fired as he testified, before the shot was fired, the witness would have seen him as soon as she looked out of the window, and could not have seen him one minute after the shot was fired. This witness was clear that she did not see the parties running from the place until one minute after the shot was fired.

E.T. Bryan testified: That he resided at 214 East Third street. That he heard the shot fired at 1:30 o'clock. That he heard some parties running two or three minutes after the shot was fired. That the deceased was lying when found next morning between 214 and 216 East Third street. It simply cannot be true that appellant and those acting with him, except Prather, ran away from where the deceased was before the shot was fired. These disinterested witnesses testified that the running away did not take place until from one to three minutes after the shot was fired.

G.W. Morgan testified that in Justice Hawkins' courtroom he heard a conversation between the county attorney and all of the defendants as to how the homicide occurred, and he heard Elijah Turner, one of the defendants, say that he was not present when the shot was fired, but ran a little piece away, and that appellant James Holmes turned to Turner, and said, "You were there with the rest of us."

W.P. Hawkins testified: That he was justice of the peace in the city of Oklahoma. That he heard a conversation between the county attorney and all of the defendants in his courtroom. That the defendants were telling how Archie was killed, and that in said conversation Elijah Turner, one of the defendants, stated that he had just run around the corner when he heard the shot fired. That in response to this statement on the part of Turner appellant Holmes said, "You were right there holding him, or helping to hold him, when the shot was fired." So, even if appellant's testimony that he started to leave the place of the homicide before the fatal shot was fired, standing by itself, might tend to raise an issue favorable to him, yet the other evidence in the record conclusively shows that this is not the truth, and that appellant did not leave or attempt to leave the scene of the homicide until after the shot was fired. If human testimony is worth anything, and can be relied upon to establish any fact, no sane man can doubt but that appellant was a continuous participant in the crime committed to its final consummation. If Archie had submitted to being robbed without resistance and even after he lost his money, if he had not continued to call for help, it is probable that he would not have been murdered. The first man robbed that night made no resistance, and did not attempt to call for help, and he was permitted to go his way after the robbery was over. It is therefore safe to say that Archie would not have been killed if he had not persistently attempted to give the alarm. The only reasonable inference from all of the evidence is that the defendants did not dare to leave Archie alone, because, even if they should be able to get away with his money, his calling for help might bring assistance, and as long as he was alive, he might be able to show the direction in which the defendants had gone and secure their arrest, and thereby defeat the object of their robbery. It is therefore shown beyond all reasonable doubt that they found it necessary to murder Archie before they attempted to leave him, and that Prather did this in the presence of the other defendants. So from every standpoint the court did not err in refusing to instruct the jury upon the law of withdrawing from the conspiracy, or as to a homicide committed after the conspiracy was complete. Before it is error for the court to refuse to instruct upon any issue, there must be sufficient evidence in the record to make such issue not only possible, but also a legitimate, deduction from such testimony, and one at which an intelligent and honest jury could reasonably arrive. When there is no reason to believe that an intelligent and honest jury, having a due regard for their oaths, the evidence, and the law, would legitimately reach a conclusion favorable to a defendant upon an issue, it is a waste of time for the court to instruct upon such supposed issue. The only effect of such an instruction would be to needlessly incumber the record, and confuse and mislead the jury, and possibly result in a miscarriage of justice.

In the case of Starr v. State, 5 Okla. Crim. 459, 115 P. 356, when discussing the law of conspiracy, Judge Doyle, speaking for this court, said:

"It is not necessary that the prosecution establish beyond peradventure that the acts, declarations, or conduct of the alleged conspirators were based upon the conspiracy or in reference to the crime charged. It is sufficient if they harmonize with, and tend to confirm, the charge of conspiracy, or show the motive for the crime. If such acts, declarations, or conduct of the alleged conspirators could not be shown, unless the motive therefor, or the connection between the same and the crime, were made undisputably clear, the range of inquiry would be very limited. It is sufficient that such acts, declarations, and conduct have an apparent or probable connection with the crime. The general rule is that where there is evidence of a conspiracy to commit a crime, and of its subsequent commission, the prosecution may in support and corroboration thereof show acts, declarations, or conduct of the alleged conspirators intermediate to the conspiracy and the crime which apparently recognizes the existence of the conspiracy, or reasonably indicates preparation or motive to commit the crime."

In the case of Wishard v. State, 5 Okla. Crim. 641,115 P. 796, Judge Doyle again said:

"As a general rule, in cases of conspiracy, each conspirator is criminally responsible for the acts of his confederates committed in furtherance or in prosecution of the common design, or for any act which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original purpose or design. Whether the evidence tending to prove the unlawful purpose of conspiracy is sufficient and * * * was in furtherance of the common purpose and design were questions for the jury to determine. On the other hand, every person entering into a conspiracy or common design already formed is deemed in law a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design."

In section 40, 3 Greenleaf on Evidence, the law is stated as follows:

"If several persons set out in concert, whether together or apart, upon a common design which is unlawful, each taking the part assigned to him, some to commit the act, and others to watch at proper distances to prevent a surprise, or to favor the escape of the immediate actors, here, if the act be committed, are all in the eye of the law present and principals."

Where a conspiracy embraces not merely a series of unlawful acts, but also extends to a division of the fruits and proceeds of such acts among the co-conspirators, anything said or done by them, although after the commission of the unlawful acts, but before a disposition or division of the proceeds of such acts, is admissible evidence against all the other conspirators. See Statev. Pratt, 121 Mo. 566, 26 S.W. 556; Scott v. State, 30 Ala. 503;People v. Pitcher, 15 Mich. 397; State v. Grady, 34 Conn. 118. The theory upon which such evidence is admissible is that the conspiracy does not terminate until there has been a division of its fruits or spoils. See People v. Opie, 123 Cal. 294,55 P. 989. Conspirators are also responsible for the acts of their co-conspirators done for the purpose of escaping detection and arrest. See State v. Thaden, 43 Minn. 253, 45 N.W. 447. In the case of Reeves v. Territory, decided by the Supreme Court of the Territory of Oklahoma, and reported in 10 Okla. 195, 61 P. 828, Judge Hainer correctly said:

"Where several persons confederated together to commit a crime of a nature or under such circumstances as will, when tested by human experience, probably result in the taking of human life if such necessity should arise to thwart them in the execution of their unlawful plans, it must be presumed that they all understood the consequences which might be reasonably expected to flow from carrying into effect their unlawful combination, and to have assented to the taking of human life if necessary to accomplish such unlawful act. And, if death happens in the prosecution of such a common design or object, all are alike guilty of a homicide."

See, also, People v. Brown, 59 Cal. 352.

The Supreme Court of the State of Illinois, in the case ofLamb v. People, reported in 96 Ill. 73, said:

"Where the accused was present and committed the crime with his own hands, or aided and abetted another in its commission, he will be considered as having expressly assented thereto. So, where he has entered into a conspiracy with others to commit a felony, or other offense, under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he will be presumed to have understood the consequences which might reasonably have been expected to follow from carrying into effect the purpose of the unlawful combination, and also to have assented to the doing of whatever would reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go."

The court further said:

"If the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force and violence which may result in the taking of life unlawfully, every party to such agreement will be held criminally liable for whatever any of his coconspirators may do in furtherance of the common design, whether he is present or not."

The Supreme Court of Illinois, in the case of Brennan v.People, 15 Ill. 512, said:

"Where several persons conspire to commit a felony, and death happens in the prosecution of the common object, all are alike guilty of the homicide; that the act of one is the act of all, although some are not present when the crime is committed. The prisoners may be guilty of murder, although they neither took part in the killing nor assented to any arrangement having for its object the death of Story. It is sufficient that they combined with those committing the deed to do an unlawful act, such as to beat or rob Story, and that he was killed in the attempt to execute the common purpose. If several persons conspire to do an unlawful act, and death happens in the prosecution of the common object, all are alike guilty of the homicide. The act of one of them done in furtherance of the original design is, in consideration of law, the act of all."

The Supreme Court of Illinois, again, in the case of Hannahv. People, 86 Ill. 243, said:

"If a party, with others indicted with him, had a common design to do an unlawful act, whatever act any one of them did in furtherance of the original design is the act of all, and all are equally guilty of whatever crime is committed."

The Supreme Court of Iowa, in the case of State of Iowa v.Shelledy, 8 Iowa 477, said:

"It is not error to instruct a jury in a criminal case that ``if two or more persons conspire together to do an unlawful act, and in the prosecution of the design an individual is killed, or death ensue, it is murder in all who enter into, or take part in, the execution of the design. If the unlawful act be a felony, or be more than a mere trespass, it will be murder in all, although the death happen collaterally, or beside the original design. If the unlawful act be a trespass only, to make all guilty of murder, the death must ensue in the prosecution of the design."

In the case of Martin v. State, 136 Ala. 33, 34 So. 205, the Supreme Court of Alabama said:

"If two or more persons conspire to do an unlawful act, and in the prosecution of a common object another person is killed, they are all alike guilty of the homicide, since each is responsible for everything done which follows incidentally in the execution of the common unlawful purpose as one of its probable and natural consequences, even though such act was not intended or within the reasonable contemplation of the parties as a part of the original design."

In the case of Kirby v. State, 23 Texas Ct. App. 14[23 Tex. Crim. 14], 5 S.W. 166, the court said:

"Appellant and two other prisoners conspired to escape from jail, and arranged that C., who was one of them, should secure and detain the jailer in the corridor while the escape should be effected. No understanding to kill or injure the jailer, otherwise than by his detention, was expressly proved, but the conspirators had obtained and prepared a piece of iron with which the jailer was killed by C., and it had been concealed by the appellant the morning previous to the homicide. C. killed the jailer in the corridor of the jail, and whilst the appellant and the other prisoner were locked up in their cell, and thus disabled from assisting C. in the homicide. There was no proof that appellant by word or gesture encouraged C. to kill the jailer. Held, that on this state of case the question arises whether the appellant was a principal in the homicide, and the test of that question is whether he and C. acted together, and whether the act was done in pursuance of a common design and purpose wherein their minds had agreed. It is contended for appellant that the conspiracy extended no further than the escape, and did not contemplate the killing of the jailer, or the infliction of bodily injury upon him beyond his mere detention, and that the killing was the individual and independent act of C. alone, perpetrated without appellant's knowledge or complicity, and without ability on his part to prevent it. But held, in view of the nature and object of the conspiracy, and of the preparation and use of a deadly weapon as a means to execute the common design, that the homicide was not the independent act of C. alone, but was the act of each and all the conspirators, because it was directly incident to and grew out of the common design of all. See the opinion in extenso on the amenability of co-conspirators for the acts of each other done in the execution of an unlawful thing."

In the body of the opinion, beginning on page 23, 23 Tex. App., on page 171, 5 S.W., the court, speaking through Presiding Judge White, said:

"According to this statement or evidence, it is clear that the parties had entered into an agreement and plan by which to effect their escape from jail, a part of which was to the method by which Cannon was to secure and detain Glazner in the corridor. It is true that appellant says nothing about an understanding that Glazner was to be killed, or even that any bodily injury was to be inflicted upon him further than his confinement or imprisonment after he had entered the jail; but as part of the plan, and doubtless, as considered by them, a most important part, they had procured and prepared for use the piece of iron with which the murder was committed, and appellant tells us that he himself, after it was prepared, hid the same under the water-closet on the morning before it was used with such deadly effect by Cannon. If not to be used in any contingency, why prepare and hide such a weapon? Here we have established by the statement, the conspiracy to effect the escape, and the preparation of a deadly instrument to be used, it may be, only if occasion required. True, that at the very time it was used, appellant and Brown were so situated that it was impossible they could afford Cannon any direct assistance, or, in fact, do more, perhaps, than encourage him by words and gestures, even if they do so encourage him, of which fact there is no positive proof. Under such circumstances, and without direct proof of encouragement, the question is, Could appellant be held and considered in law a principal in the crime committed by Cannon? It is declared that ``all are principals who are guilty of acting together in the commission of an offense' (Penal Code, art. 74), and ``all persons who shall engage in procuring aid, arms or means of any kind to assist in the commission of an offense whilst others are executing an unlawful act' are principals (Penal Code, art. 76). And, again, any person who advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal thereto, whether he aids or not in the illegal act. (Penal Code, art. 78.) Thus it will be seen that, to render a party equally guilty and responsible with the real perpetrator, all that is required is that he be present, consenting, and that the act was the result of a common design. It is true his bare presence is not sufficient, nor is his failure to give alarm. Neither is his inactive and supposed concealment of the offense. Burrell v. State, 18 Tex. 713; Truittv. State, 8 Tex. App. 148[8 Tex. Crim. 148];Tullis v. State, 41 Tex. 598; Ring v.State, 42 Tex. 282. But such significant facts as his presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participancy may be inferred. Id. The true test is, Did the parties act together, and was the act done in pursuance of a common design and purpose in which their minds had agreed? Welchv. State, 3 Tex. App. 413[3 Tex. Crim. 413];Wells v. State, 4 Tex. App. 20[4 Tex. Crim. 20];Scales v. State, 7 Tex. App. 361[7 Tex. Crim. 361];Corn v. State, 41 Tex. 301; Smith v.State, 21 Tex. App. 107[21 Tex. Crim. 107] [17 S.W. 552]. There can be no question as to the common design and conspiracy to effect an escape from jail, and the fact is also incontestible that the murder was committed by Cannon in pursuance of this common purpose. But, while this is so, it is insisted that the conspiracy only extended to a purpose to confine Glazner in order that the escape might be accomplished, that the evidence fails to show that appellant and Brown ever contemplated, much less agreed to, his murder or the infliction of any bodily harm upon him, and that the fatal blows dealt him by Cannon causing death were the result of an independent act upon the part of Cannon without their knowledge or concurrence, and without the ability on their part even to prevent it. ``The joint responsibility of parties for each other's misconduct rests on the principle that, when an act is committed by a body of men engaged in a common purpose, such act is treated as if specifically committed by each individual. It should be observed, however, that, while parties are responsible for collateral acts growing out of the general design, they are not responsible for independent acts growing out of the particular malice of individuals. Thus, if one party of his own head turn aside and commit a felony foreign to the original design, his companions do not participate in his guilt.' (Whar. on Hom. secs. 201, 202;Mercersmith v. State, 8 Tex. App. 211 [8 Tex. Crim. 211]; Stevenson v. State, 17 Tex. App. 619[17 Tex. Crim. 619].) But it is equally as well settled that ``all combining to commit an offense to which homicide is incident are principals in homicide. As where persons combine to stand by one another in a breach of the peace, with a general resolution to resist all opposers, and in the execution of their design a murder is committed, all of the company are equally principals in the murder, though at the time of the act some of them were at such a distance as to be out of view, if the murder be in the furtherance of the common design. * * * Malice in such a killing may be inferred as a presumption of fact from the nature of the design and the character of the preparation. Whether the deceased fell by the hands of the accused or otherwise is immaterial. * * * It is only where the causes leading to the homicide have no connection with the common object that the responsibility of such homicide attaches alone to its actual perpetrator.' (Whar. on Hom. sec. 338.) As stated, we have in the evidence before us a common design to escape from jail, preparations to effect that purpose, a deadly weapon prepared as a means to be used if necessary in the accomplishment of the common purpose, the use of the deadly weapon by one of the parties in endeavoring to carry out the common design. Such a homicide, committed under such circumstances, is not a collateral, independent act of the actual perpetrator, but is the act of all, because it was an act directly incident to and growing out of the common design of all."

It will be noted that in this decision Judge White says:

"The acts of the companionship of co-conspirators, their conduct at, before, and after the commission of the act, are potent circumstances from which the participancy may be inferred."

The principle involved is that where parties voluntarily act together in the commission of an offense which may result in death to another, and such death does ensue therefrom, all such parties so acting together are just as guilty of murder as though they had intended the death of such party. The human eye cannot read the secrets of the minds and hearts of men. Therefore of necessity we must judge their intentions by the reasonable and probable results of their voluntary conduct. In other words, the law presumes that men do intend to accomplish those things which naturally and reasonably result from their actions. This is not only the law upon reason and human authority, but it is in strict harmony with the divine law. The sixteenth, seventeenth, eighteenth, nineteenth, twentieth, and twenty-first verses of chapter 35 of the Book of Numbers are as follows:

"16. And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death.

"17. And if he smite him with throwing a stone, wherewith he may die, and he die, he is a murderer: the murderer shall surely be put to death.

"18. Or if he smite him with an handweapon of wood, wherewith he may die, and he die, he is a murderer: the murderer shall surely be put to death.

"19. The revenger of blood himself shall slay the murderer: when he meet him, he shall slay him.

"20. But if he thrust him of hatred, or hurl at him by laying of wait, that he die;

"21. Or in enmity smite him with his hand, that he die: he that smote him shall surely be put to death: for he is a murderer."

So it is seen that, according to the divine law, the man or men who do things from which another may die are just as guilty of murder, and should be as severely punished, as if they had done these things intending that death should result therefrom.

Sixth. Counsel for appellant contends that there is a variance between the allegations in the information and the testimony introduced in the trial of this cause because the information charges that the homicide was committed with a premeditated design to effect the death of W.H. Archie, while the proof fails to show ill will or hostility on the part of the defendants toward the said W.H. Archie, and that, at most, the evidence shows a conspiracy among the defendants to rob the said Archie. In support of this position, counsel for appellant relies upon section 2268 of Snyder's Comp. Laws Okla. 1909, which is as follows:

"Sec. 2268. Murder defined. — Homicide is murder in the following cases: (1) When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being. (2) When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. (3) When perpetrated without any design to effect death by a person engaged in the commission of a felony."

This presents the question as to whether or not, where an information charges that the deceased was killed with a premeditated design to effect his death, a conviction can be secured where the proof shows that the killing occurred during an attempt to rob the deceased or to commit any other felony. This question has never before been presented to this court. The objection is purely technical, and should not be sustained unless it involves some substantial right of appellant. Our statute does not recognize different degrees or grades or kinds of murder. It only enumerates the class of evidence by which a murder may be proven. Where a murder has been committed, its essential character is not affected by the means by which it is accomplished. The statute upon which counsel relies was intended to simplify, and not to complicate our criminal laws, and it is our duty to place such a construction upon it as will effect its objects and promote justice. This we are required to do by section 2027 of Snyder's Comp. Laws Okla. 1909, which is as follows:

"The rule of common law that penal statutes are to be strictly constrdued has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice."

In construing penal laws, we should constantly keep in mind the fact that the supreme purpose for which they were enacted is the protection of society, and they should be given that construction which will best accomplish this result whenever it can be done without depriving a defendant of his substantial rights or working any injustice to him; and, in determining the issues presented in any case, we should always be controlled by substance rather than by form, and seek to enforce justice rather than to maintain artificial technical regularity. It is always bad pleading to state the evidence upon which the pleader relies to establish his case. It is never necessary and proper for an information or indictment to state more than the ultimate facts necessary to be proven to establish the offense. This rule is so manifestly just and so universally accepted and acted upon that it is not necessary to cite authority in its support. What are the ultimate facts in every trial for murder? First, the identity of the accused; second, the time and place where the homicide occurred; third, the means by which death was effected; fourth, the identity of the deceased; fifth, the intention with which the act resulting in death was committed. When these ultimate facts are clearly stated, they constitute every essential element of murder, and they inform the defendant of the accusation against him, and that is all that he has a right to demand in reason or under the Constitution and laws of the state. Whenever a defendant is so charged with murder in the courts of Oklahoma and the evidence brings the case within any one of the three subdivisions of section 2268, above quoted, the law has been fully complied with, and the defendant cannot be heard to complain. It will be noticed that the first subdivision of the statute includes every case of homicide, it matters not by what means or under what circumstances committed, where there was a premeditated design to effect the death of the person killed or of any other human being. It may have been accomplished by a person engaged in the commission of a felony or doing some act imminently dangerous to others and evincing a depraved mind regardless of human life, still such homicide would come under the first subdivision of the statute, if it was the result of an act committed with a premeditated design to effect the death of some human being. The difference is that the first subdivision provides for all cases where the homicide was committed with a premeditated design to effect the death of the person killed or of some other human being, and the second and third subdivisions include cases where a premeditated design to effect the death of the person killed or of some other human being is not proven, but when the existence of such a design may be inferred from the nature of the acts done. This statute does not attempt to regulate the questions of pleading, but only undertakes to say what class of evidence is necessary to establish murder. There is no denying the proposition that the whole necessarily includes all of its several parts. Therefore, when an indictment or information charges a defendant with murder under the first subdivision of the statute, even though the state may not be able to prove as a matter of fact that the killing was done with a premeditated design to effect the death of the person killed or of some other human being, yet, if the existence of a premeditated design to effect the death of the person killed, or of some other person may be inferred from the acts in evidence, and if these acts come under, or within, the second or third subdivisions of the statute, a conviction may be had under and by virtue of either of the other provisions of the statute. The reason for this is that the greater always includes the lesser, just as the whole includes all of its necessary parts. This is in strict harmony with the common-law rule that where an indictment charges murder upon express malice, a conviction can be had upon proof of implied malice.

Placing any other construction upon this statute would only be to complicate and make more difficult and intricate the enforcement of the penal laws of this state, and thereby assist in delaying or defeating the enforcement of justice. We cannot understand how by this construction a defendant can be deprived of any substantial right. There are already too many loopholes for the escape of the guilty in our system of jurisprudence. In our judgment this is the prime cause for the want of respect for law and the lack of confidence in the courts which pervade our people, and also for the low esteem in which human life is held in America. We have before us the judicial statistics of England for the years 1903, 1904, 1905, and 1906, presented to both houses of Parliament by command of the king. They are, therefore, authentic public records. These statistics show for the year 1903 only 11 persons were tried for murder in the city of London. In the year 1904 only 11 persons were tried in the city of London for murder. In the year 1905 only 10 persons were tried for murder in London, and in the year 1906 only 8 persons were tried for murder in the city of London. They also show that during these years 80 per cent. of persons tried for crime in England were convicted. We have no official statistics for the United States, but according to the Chicago Daily Tribune of Saturday, December 31, 1910, on page 18, column 6, excluding suicides and lynchings during the year 1910, as reported and recorded in the papers of the various states and territories of the Union, 8,975 persons died by personal violence. We have before us the official report of the general superintendent of police of the city of Chicago, dated December 31, 1910, which shows there were 202 homicides in that city alone during the year 1910, and only one of this number was sentenced to be hanged. When we remember that London has over 7,000,000 population, and for these years it averaged less than 1 murder a month, and then compare this with the record made by Chicago, it is enough to cause the people and the courts of America to consider this matter, and discover if they can, the cause which lies at the root of the evil. It is appalling, but nevertheless true, that, while the population of London is more than four times as great as the population of the entire state of Oklahoma, yet during the year 1911 in Oklahoma county alone twice as many persons have been tried for murder as were tried in the city of London in the year 1906. These facts should cause every intelligent and patriotic American to stop and inquire as to the cause of this disregard of law and fearful annual loss of human life. It should cause the courts to seriously consider as to whether or not the judicial system of America does not need reorganization. When a man kills another in England, the chances of his escape from punishment are exceedingly small, and the probability of his speedy prosecution and execution stares him directly in the face. It cannot be denied that this exercises a wholesome and restraining influence upon the passions of men, and results in respect for, and confidence in, the law, and consequent protection to society. It is the nearness and the certainty of punishment that strikes terror into the hearts of evildoers. The longer punishment is delayed, and the greater the opportunity for its evasion and defeat, the less efficacious it becomes as a means of deterring persons from violating the law. We inherited our criminal jurisprudence from England. The trouble is, we have endeavored to maintain it just as we received it, and we are still striving as hard as England did before the Revolutionary War to maintain technical regularity and form at the sacrifice of everything else, while, on the other hand, in England, the trial of criminal cases has been simplified, and many of the arbitrary technical rules of the common law, the effect of which was to hinder, delay, and defeat justice, have been abolished, while America keeps on using the old antequated, worn-out, secondhand, cast-off legal garments with reference to the enforcement of criminal law which England has long since discarded and thrown away. America leads the world in all departments of life, thought, and action, except in the administration of justice. While all other departments are full of progress and development, in the enforcement of justice we are largely stationary. It is time that the courts of America should act for the present and the future, and consider the past only for the purpose of avoiding the mistakes therein made. If the courts desire to enjoy public confidence and respect, they must earn it by basing their decisions alone upon substance, and by paying more attention to justice than to shadows, form, and technical regularity.

For these reasons we cannot accept the argument made and the authorities cited by counsel for appellant in support of the proposition that there is a variance between the allegations in the information and the evidence in this case. We are glad to know that we are not without support in the conclusions at which we have arrived touching this matter. The case of Territory v.Bannigan, 1 Dakota 451, 46 N.W. 597, is directly in point. The statute in that then territory upon the subject of murder was identically the same as ours. The indictment in that case did not use the language of the statute, but alleged that the homicide had been committed "wilfully, feloniously, and with malice aforethought." The defendant was convicted, sentenced to death, and appealed. The court held that the Legislature had endeavored to make plain to the common understanding of the citizens of the territory, the meaning of the legal phraseology used in framing the Penal Code, and had, therefore, used the words "with a premeditated design to effect the death," etc., as equivalent to the common-law term "malice aforethought." It also held that the statute did not prescribe a rule of pleading, but establishes a guide to the conduct of the trial prescribing the proofs requisite to a conviction. The court then proceeds as follows:

"In California, murder is divided into two degrees, and defined as follows: ``All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree.' Under this statute the Supreme Court of that state has uniformly held an indictment in the common-law form sufficient, charging the offense to have been committed with ``malice aforethought.' People v. Lloyd, 9 Cal. 55; People v.Dolan, 9 Cal. 576; People v. Cronin, 34 Cal. 191; People v.Martin, 47 Cal. 101. The force of these authorities is not weakened by the consideration that the specific definition of the degrees is preceded by the general common-law definition of the crime in the California statute. Our statute says ``homicide is murder in the following cases.' The question recurs, What is murder as here used? Being a word defined by law, it must be construed according to its legal meaning. Section 220, Crim. Proc. Therefore supplying the definition, or all that is implied in the single word, and we have in general arrangement the California statute, without the division into degrees. In the state of Pennsylvania, where murder in the first degree is defined to be ``by means of poison or lying in wait, or in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, or by any other kind of wilful, deliberate and premeditated killing,' the indictment in common-law form, charging the offense to have been committed with ``malice aforethought,' has always, ``without variableness or shadow of turning,' been held sufficient. The contrary doctrine has been held by the Supreme Courts of Ohio(Fouts v. State, 8 Ohio St. 98) and Iowa (State v. McCormick,27 Iowa 402), and insisted upon in a few dissenting opinions (Bacon, J., in Fitzgerrold v. People, 37 N.Y. 685; and Dixon, C.J., in Hogan v. State, 30 Wis. 442 [40 Am. Rep. 575]). Wharton, in his work on Criminal Law (vol. 2, p. 1115), says: ``According to the great weight of authority, a common-law indictment for murder is sufficient to support, under the statutes, murder either in the first degree or second degree' — citing in support of the proposition a long array of authorities, not necessary here to refer to. But it seems unnecessary to pursue the inquiry further. We have not been referred to one single authority holding a common-law indictment insufficient under a statute that leaves murder as at the common law undivided into degrees. Bishop, who maintains the doctrine laid down in the cases ofFouts v. State, and State v. McCormick, supra, in his work on Criminal Procedure (vol. 2, p. 586), uses the following language: ``The result is that, according alike to the principles of the common law, to those principles of natural reason and justice which are inherent in the case, and to the provisions of state and national Constitutions, the indictment for murder, where the statute divides it into two degrees, should, if murder of the first degree is meant to be proved against the prisoner, contain those allegations which show the offense to be in this degree. * * * If murder in the second degree only is to be proved, then in all cases an indictment for murder, drawn in any of the common-law forms, will be adequate. Thus it is with the two degrees of felonious homicide which we now call murder and manslaughter' — the only degrees known to our statute. From these considerations we are clearly of the opinion, and so hold, that the indictment in this case is sufficient."

In the case of People v. Enoch, 13 Wend. (N.Y.) 164, 27 Am. Dec. 197, the Supreme Court of New York passed upon this question. The statute then in force in New York defining murder was substantially the same as ours. The indictment in that case did not follow the language of the statute, but charged that the defendant committed the murder "feloniously, wilfully, and of his malice aforethought." The defendant was convicted and sentenced to be hung. He appealed, and the Supreme Court held that the conviction should be sustained. The case was then taken by writ of error to the Court for the Correction of Errors. The court for the Correction of Errors sustained the conviction on this indictment, and among other things said:

"One object of our Revised Statutes was to get rid of those technical difficulties that had so justly been complained of as a disease of the law, which, without being necessary for the protection of any substantial right of the accused, had so frequently entangled justice in the net of form; and this object of the Legislature will certainly be best promoted by adhering to the common-law form of indictment in cases of murder, the nature of which offense has not been materially changed in the revision of the laws."

In the case of People v. Giblin, 115 N.Y. 197, 21 N.E. 1062, 4 L.R.A. 757, the Supreme Court of New York said:

"The defendant was convicted at a court of oyer and terminer, held in and for the city and county of New York, of the crime of murder in the first degree for the killing of Madeline Goelz. From the sentence of death pronounced upon him he has appealed to this court, alleging various grounds in support of his appeal. The indictment was drawn in common-law form, and in one count charged the killing to have been done wilfully, feloniously and with malice aforethought. The defendant objected that such an indictment was not sufficient to sustain the conviction of the defendant for the offense of murder in the first degree while engaged in the commission of the felonious assault upon Valentine Goelz. He argues that the offense is denied by the statute in the alternative, as consisting of separate acts, and the indictment should have stated the circumstances constituting the offense, according to the third alternative provision of section 183 of the Penal Code, which makes the killing of a human being murder in the first degree when committed, without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, a felony. The objection to the indictment is untenable. A conviction of murder in the first degree under such an indictment is sustained by proof of a killing in the perpetration of a felony. People v. Conroy, 97 N.Y. 62; People v.Willett, 102 N.Y. 254, 6 N.E. 301. If the indictment contains a plain and concise statement of the acts constituting the crime, and the proof, as to the manner in which it was perpetrated, brings it within one of the statutory definitions of murder in the first degree, the requirements of the law are sufficiently met. The various statutory changes in the definition of what may constitute the crime of murder have not affected, and have not been held to affect, the ordinary common-law counts in indictments for murder."

In the case of People v. Osmond, 138 N.Y. 84, 33 N.E. 740, appellant was convicted of murder in the first degree. In passing upon the case the court said:

"The indictment in this case is in the common-law form, and does not charge the killing to have been done in the statutory language, ``from a deliberate and premeditated design to effect the death' of Mary Osmond. It charges that the defendant killed her ``wilfully, feloniously, and of his malice aforethought,' and it contains no charge that while intending to kill another the defendant killed his wife. Ever since the adoption of the Revised Statutes, it has been held without interruption that an indictment for murder in the common-law form was proper, and that under it the people might prove any case which amounted to murder under the statute, and, if the proof did not bring the case within some one of the statutory definitions of murder, it was the duty of the court to give proper instructions to that effect to the jury, and, unless it appeared that the court had failed so to do upon request, the appellate court would presume that the proper instructions were given. Fitzgerrold v. People, 37 N.Y. 413, citing People v. Enoch, 13 Wend. (N.Y.) 159 [27 Am. Dec. 197], and People v. White, 24 Wend. (N.Y.) 520; People v. Conroy,97 N.Y. 62; People v. Giblin, 115 N.Y. 196 [21 N.E. 1062, 4 L.R.A. 757]. Under this indictment, it was, therefore, proper to prove any facts which would show the defendant guilty of murder, as defined in any portion of the statute."

In the case of People v. Sullivan, 173 N.Y. 122, 65 N.E. 989, 63 L.R.A. 353, 93 Am. St. Rep. 582, appellant was convicted of murder. The indictment against him was in the common-law form. The appellant contended that, under such an indictment, the trial court could not submit to the jury the issue as to whether or not the homicide had been committed while the accused was engaged in the commission of or attempting to commit a felony, but the court held that under such an indictment the prosecution might prove any facts which would bring the case within any of the provisions of the statute defining the offense.

In the case of State v. Foster, 136 Mo. 655, 38 S.W. 722, the Supreme Court of that state said:

"The indictment charges that the murder was committed in the attempt to rob Atwater, but such statement was wholly unnecessary, as the indictment may be drawn in common form, and then when proof is made that the homicide was done in the perpetration of a robbery, this proof being made is tantamount to that premeditation, deliberation, etc., which otherwise are necessary to be proven, in order to constitute murder in the first degree. State v. Hopkirk, 84 Mo. 278; State v. Meyers,99 Mo. 107 [12 S.W. 516]; State v. Donnelly, 130 Mo. 642, [32 S.W. 1124]. But the unnecessary statement aforesaid did not vitiate the indictment. Enough was stated outside of the matter in reference to the robbery, which made the indictment good, but we do not approve of the unnecessary averment."

In the case of People v. Giblin, 115 N.Y. 196, 21 N.E. 1062, 4 L.R.A. 757, the Court of Appeals of New York held:

"An indictment for murder in the first degree, which charges that the killing was done ``wilfully, feloniously, and with malice aforethought,' is sufficient, under Pen. Code N.Y. sec. 183, which makes the killing of a human being murder in the first degree, when committed, without a design to effect death, by one engaged in the commission of a felony, and a conviction thereunder is sustained by proof of a killing while in the perpetration of a felony."

Seventh. Counsel complain that the death penalty should not have been assessed in this case. As the evidence amply supports the verdict, we have no right to interfere. The law provides that the jury may in their discretion affix the penalty of death. This is not only the human law, but is also the divine law. The thirty-first, thirty-second, thirty-third, and thirty-fourth verses of the thirty-fifth chapter of the Book of Numbers are as follows:

"31. Moreover, ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death.

"32. And ye shall take no satisfaction for him that is fled to the city of his refuge, that he should come again to dwell in the land, until the death of the priest.

"33. So ye shall not pollute the land wherein ye are: for blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.

"34. Defile not therefore the land which ye shall inhabit, wherein I dwell: for I the Lord dwell among the children of Israel."

The tenth, eleventh, twelfth, and thirteenth verses of the nineteenth chapter of Deuteronomy are as follows:

"10. That innocent blood be not shed in thy land, which the Lord thy God giveth thee for an inheritance, and so blood be upon thee.

"11. But if any man hate his neighbor, and lie in wait for him, and rise up against him, and smite him mortally that he die, and fleeth into one of these cities:

"12. Then the elders of his city shall send and fetch him thence, and deliver him into the hand of the avenger of blood, that he may die.

"13. Thine eye shall not pity him, but thou shalt put away the guilt of innocent blood from Israel, that it may go well with thee."

From these passages of Scripture it is seen that under the divine law no discretion was allowed and every murderer was condemned to suffer death, while under human law the jury at their discretion may inflict death or imprisonment for life.

Appellant is guilty of a double crime, viz., both highway robbery and murder. One of the citizens of Oklahoma, while quietly and peaceably pursuing his way on one of the public streets of Oklahoma City, was first assaulted and robbed, and, because he called for help, he was brutally murdered. These facts fully authorized and justified the jury in inflicting the death penalty. We are not unmindful of the awful circumstances which surround appellant, but we are also mindful of the fact that upon the proper enforcement of the law depends the safety of the lives of the people of Oklahoma, and, under the facts and circumstances in this case, we do not feel that we have a right to disturb the verdict.

We listened attentively to the oral argument made in behalf of appellant, and have carefully examined all of the propositions so ably and zealously presented in the brief of his counsel. We have also considered all of the authorities cited by counsel for appellant, and we have been unable to find any reasonable ground upon which the judgment of the lower court should be interfered with. The judgment of the lower court is, therefore, in all things affirmed.

The time originally appointed for the execution of appellant having passed, it is ordered that the judge of the district court of Oklahoma county execute a warrant in due form of law, attested by the clerk of the court under the seal of said court, and to be delivered to the sheriff of said court, commanding said sheriff to execute appellant, James Holmes, between sunrise and sunset on Friday, January 19, 1912, in accordance with law and the judgment of said court heretofore rendered.

DOYLE, J., concurs. ARMSTRONG, J., dissents.

ON MOTION FOR REHEARING.