Murphy v. State

Full title: ROY MURPHY v. STATE

Court: Criminal Court of Appeals of Oklahoma

Date published: Apr 9, 1941

72 Okla. Crim. 1 (Okla. Crim. App. 1941)

112 P.2d 438

Opinion

No. A-9708.

April 9, 1941.

(Syllabus.)

1. Appeal and Error — Discretion of Trial Court as to Granting Continuance. An application for a continuance in a criminal case is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for refusal to grant a continuance.

2. Continuance — Discretion of Trial Court as to Granting Continuance on Account of Mental or Physical Condition of Defendant. An application for continuance based on the mental or physical condition of defendant at the time of the application therefor is addressed largely to the discretion of the trial court, and the court may properly deny a continuance asked on such ground in the absence of a showing that proceeding with the trial will operate to the substantial prejudice of defendant or injure his life or health.

3. Same. An application for a continuance on account of sickness of defendant is addressed to the sound discretion of the trial court, and the overruling of such application is not error, unless it appears that there is an abuse of such discretion.

4. Trial — Procedure Where Doubt Arises as to Present Sanity of Defendant — Jury Trial of Question.

5. Same — Duty of Counsel to Call Mental Condition of Defendant to Court's Attention. If counsel for a defendant are of opinion defendant is not mentally competent to make a defense, the question of present sanity should be called to the attention of the court by affidavit or motion.

6. Same — Sole Issue Presented at Trial of Present Insanity. The only issue presented at a preliminary trial of present insanity is whether defendant has sufficient soundness of mind to appreciate the charge against him and the proceedings thereon, and to enable him to make a proper defense, and therefore whether or not he may be compelled to proceed with the trial of the main issue of guilty or not guilty; and the evidence should be confined to defendant's mental condition at the time of trial, except as far as his mental condition at other times may aid in determining his present condition.

7. Same — Appeal and Error — Order Finding Defendant Sane not "Appealable Order." The proceeding prior to murder trial to test defendant's sanity was a collateral issue, and hence an order finding defendant to be sane was not an "appealable order," since the only effect that the proceeding could have had on the murder trial would have been to postpone it had defendant been found insane. Section 3189, Sts. 1931, 22 Okla. St. Ann. § 1051.

8. Jury — Statute Providing Juror Is not Necessarily Disqualified Because of Opinion Formed or Expressed, Held not Violative of Constitutional Guaranty of "Fair and Impartial Trial." The statute which provides: "no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him," is not in violation of the constitutional guaranty of the right to trial by an impartial jury. Okla. St. Ann. Const. § 20, Bill of Rights; sec. 3000, O. S. 1931, 22 Okla. St. Ann. § 662.

9. Same — Appeal and Error — Issue Raised on Challenge for Cause to Juror on Ground of His Opinion Formed or Expressed — Conclusiveness of Court's Finding. The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he had formed or expressed an opinion as to the issue to be tried, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by an appellate court, unless it appears upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.

10. Same — Qualification of Jurors — Discretion of Trial Court. Question as to qualification of jurors is usually a question of sound discretion of trial court, and, unless abuse of such discretion is clearly shown, reversal cannot be had.

11. Jury — Juror in Murder Case not Subject to Challenge for Cause Where He Stated He Had an Impression From Reading Newspapers but Had Formed no Opinion as to Guilt or Innocence of Defendant. A juror who states on his voir dire examination that he has an impression, not amounting to an opinion, from the reading of a newspaper account of the tragedy, and that his impression did not amount to an opinion, and was not such that would in any way influence his verdict, is competent, and a challenge for cause by reason of implied bias was properly overruled.

12. Same — Appeal and Error — Trial Court's Refusal to Sustain Challenge not Disturbed. The trial court's refusal to sustain a challenge to a juror for cause will not be disturbed by an appellate court, where it appears from the examination of such juror that he had not talked with any one who purported to know about the case of his own knowledge, but had read full accounts of the tragedy in the newspapers, and that he had no opinion other than that derived from reading newspapers, and that he was positive that he could disregard that opinion, and try the case solely upon the evidence, fairly and impartially.

13. Witnesses — Defendant's Waiver of Constitutional Privilege of Silence by Taking Witness Stand. When a defendant takes the witness stand in his own behalf, he waives his constitutional privilege of silence in so far as all matters legal and pertinent to the case on trial are concerned.

14. Same — Latitude of Cross-Examination of Defendant. When a defendant takes the witness stand and testifies in his own behalf, the prosecution has the right to cross-examine him with the same latitude as any other witness. His cross-examination is not confined to a mere categorical review of the matters stated in the direct examination. He may be asked any question on cross-examination pertaining to the matter at issue, or that goes to his credibility as a witness.

15. Witnesses — Discretion of Court as to Extent of Cross-Examination on Matters not Relevant to Issue. The extent to which a witness may be cross-examined as to matters not relevant to the issue, for the purpose of testing his memory and of affecting his credibility, rests largely in the discretion of the trial court.

16. Appeal and Error — Burden on Appellant to Show Prejudicial Error. It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his substantial rights by the commission of error.

17. Homicide — Self-Defense — Right to Show Turbulent and Dangerous Character or Reputation of Deceased. On a trial for murder, where defendant has laid a proper foundation by evidence tending to show that in committing the homicide he acted in self-defense, he may introduce evidence of the turbulent and dangerous character or reputation of deceased.

18. Same — Admissibility of Evidence of Specific Acts of Violence by Deceased Against Persons Other Than Defendant. On a trial for murder, where the defense is justifiable homicide in self-defense, and there is evidence to support the same, evidence of specific acts of violence on the part of deceased against persons other than defendant, being known to defendant prior to the homicide, is admissible for the purpose of showing the disposition of deceased to become violent without provocation, and as tending to show his condition of mind and violent temper on such occasions and his disposition to use deadly weapons.

19. Same — Right of Defendant in Self-Defense to Act on Appearances of Danger. If it appeared to one charged with murder, at the time of the killing, that it was necessary for him to slay his assailant in order to save his own life or prevent receiving great bodily harm, he had a right to act upon such appearances and slay his assailant, although he was in no actual danger.

20. Same — Reasonableness of Danger Apparent to Defendant — Knowledge of Deceased's Propensity to Attack Persons Without Cause. Knowledge of defendant derived from personal observation of deceased's propensity to attack persons without cause is an important circumstance in determining from the standpoint of defendant the reasonableness of the danger apparent to him, and from which defendant might estimate the character of the attack upon him, and what he might expect from his assailant, as well as that which he might at the moment deem necessary to guard himself against.

21. Same — Proper Refusal to Permit Defendant to Call Alleged Third Persons to Testify as to Deceased's Acts of Violence After Defendant Had Testified in Full as to Such Acts. Defendant as a witness in his own behalf testified relative to specific acts of violence which deceased had told defendant he had committed on other persons, and several other specific acts which he had knowledge of, derived from personal observation, upon which he had acted on in part for his belief of imminent danger to himself when attacked by deceased; held, that the trial court did not commit error in refusing to permit defendant to call the alleged third persons to testify as to said acts of violence on the part of deceased, which they had witnessed.

22. Appeal and Error — Power of Criminal Court of Appeals in Furtherance of Justice to Reduce Sentence. Under Code of Criminal Procedure, sec. 3204, O. S. 1931, 22 Okla. St. Ann. § 1066, this court, exercising its supervisory jurisdiction, has the power to modify any judgment appealed from in furtherance of justice by reducing sentence.

23. Same — Power of Court to Reduce Death Sentence for Murder to Life Imprisonment Distinguished From Governor's Power to Pardon or Commute. The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice, is not the power to commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace.

24. Homicide — Verdict of Conviction for Murder Sustained by Evidence but Sentence of Death Reduced to Life Imprisonment. In a prosecution for murder, evidence held sufficient to warrant a verdict convicting the defendant of murder, but insufficient to warrant the extreme penalty of the law, and the Judgment and sentence is modified from death to imprisonment at hard labor in the state penitentiary for life.

Appeal from District Court, Garfield County; J. W. Bird, Judge.

Roy Murphy, convicted of murder and death penalty assessed, appeals. Conviction affirmed and sentence modified to imprisonment at hard labor for life; as so modified, judgment affirmed.

This was an information filed in the district court of Garfield county, April 18, 1939, wherein Roy Murphy and W. E. Murphy were jointly charged with the crime of murder, alleged to have been committed in said county on the 13th day of January, 1939, by shooting Harry Murphy with a 32-caliber automatic pistol.

The record in this case shows a severance was granted. Upon his arraignment, April 19th, defendant Roy Murphy entered a plea of not guilty. Thereupon the case was set for trial May 10th; on that date defendant filed an application for a continuance. After hearing the evidence and the argument of counsel the court overruled the application. Defendant then filed a motion for a jury trial on the issue of present insanity. A jury was duly impaneled, trial was had, and the question submitted to the jury. On May 11th, the jury returned a unanimous verdict finding defendant sane. Thereupon defendant filed a motion for a continuance until an appeal could be had on the sanity verdict; which motion was overruled.

On May 11th, a jury was impaneled to try the case. On May 19, 1939, the jury returned a verdict finding "the defendant Roy Murphy guilty of murder and we fix and assess his punishment at death."

Motion for a new trial was filed, heard and denied. On June 5, 1939, the court rendered judgment in accordance with the verdict and sentenced defendant Roy Murphy to suffer the punishment of death, to be inflicted by electrocution on August 31, 1939.

It appears that W. E. Murphy, codefendant, was later tried, convicted of manslaughter in the first degree and sentenced to serve a term of six years in the state penitentiary.

From the judgment and sentence rendered upon the verdict, defendant Roy Murphy was permitted to perfect an appeal as a poor person, and the petition in error with case-made was filed in this court on August 5, 1939.

The evidence shows or tends to show the following undisputed facts: Defendant Roy Murphy, codefendant W. E. Murphy, commonly known as "Bill" Murphy, and the deceased, Harry Murphy, brothers, had lived off and on in Garfield county for more than 30 years. On the date alleged defendant Roy and his wife were living in Enid, at Fifth and Broadway, in an apartment, over the Farmer's Grocery, and codefendant, Bill Murphy, his wife and two children lived in an apartment across the hall. Deceased, Harry Murphy, lived in a two-room cottage six miles north of Enid. On the night of January 13, 1939, about the hour of midnight, Harry Murphy and his wife were both shot and killed in the two-room cottage.

Roy Murphy and Harry Murphy were the owners of a cafe in the oil town of Hillsdale, about 25 miles northwest of Enid. Roy sold his interest to Harry about two weeks prior and at that time moved from Hillsdale to the apartment at Fifth and Broadway, Enid. About the hour of 5 o'clock on the date alleged Harry Murphy closed the cafe, and with his wife and his wife's niece, Alice Collier, drove to Enid. Alice Collier left the truck at her aunt's, Icy Kersbergen. Harry and his wife about 9 o'clock called at Julia Flemming's place, south of Enid, on Highway No. 81, being the first house north of the golf course, leaving there about 9 o'clock, shortly after Roy and Bill were at the Flemming place and the three brothers and their wives were at the apartments at Fifth and Broadway about 10 o'clock.

The testimony on the part of the state is substantially as follows:

Merle Hoffman, sergeant of the police department, testified that he was called to the home of Bill Murphy the night of January 13th, about 10 o'clock, accompanied by Officers Binnell and Mills, went to the corner of Fifth and Broadway; there on the curb were Roy and Bill Murphy. Mrs. Bill Murphy said that she had a little trouble with her sister-in-law, but everything now was all right; that he did not see Harry Murphy or Sarah Mae, his wife, there.

Fred Atkins, known as "Corkey", testified that he was in the employ of Bill Murphy and Julia Flemming selling whisky. That about 8:30 o'clock Mr. and Mrs. Harry Murphy called at the Flemming place and visited awhile; they had no drinks while there, and left about 9 o'clock. About 10 o'clock Roy Murphy and Bill Murphy came there. Bill ordered a pint of whisky and drank some of it. Roy Murphy was sober and Bill was drunk. Bill Murphy took a key out of his pocket and asked him if that was the same key he had shown him about a week prior thereto. Atkins said if it was it had been tampered with, filed down or something. Roy and Bill became very angry and Roy said that he got the key that night from Harry and put it in his pocket. He did not pay any attention to it until Harry left, then he discovered that Harry had switched keys on him. Roy and Bill both made the remark that Harry had double-crossed them on the key, and they wanted the key and were going to get it. Roy Murphy next said that Harry Murphy had double-crossed him and turned state's evidence on him and got him in the penitentiary and this key was the "blow-off". Either Bill or Roy said the key was worth a lot of money and talked about how Harry and Sarah Mae Murphy had double-crossed them, and that they were going to get the key. Before they left Mrs. Flemming suggested that they wait until tomorrow or the next day to get the key when they were not so mad and Roy spoke up and said he was 21 years of age and capable of taking care of his own business. Roy and Bill Murphy then left. It was about 10:30 when they left. Next morning, between 2 and 4 o'clock, Roy Murphy came up to his room, turned the light on and said that he had killed two people. He said he killed Sarah Mae Murphy first. He had a 32-automatic with him, and wanted Atkins to keep the gun. There were two shells in the gun, and Atkins refused to take the gun; he told Atkins not to say anything about the killing or it would not be good for him. Nothing was said about any car payment nor had Bill Murphy said anything about an overcoat when he was there that night.

Mrs. Julia Flemming testified that Harry Murphy and his wife came to her house earlier in the evening and Roy and Bill Murphy came there later. That they were both angry with Harry and his wife concerning a slot machine key. She also testified that Roy came to her house about 2 o'clock the next morning and went upstairs to Corkey's room. Her testimony is substantially the same as that of the witness Atkins.

Noah Allen testified that he traded a 32 automatic pistol to Bill Murphy about a month before the tragedy.

Leonard Easterly testified that he lived about three blocks west of Harry Murphy's cottage; that he left Enid on the night of January 13th about 11:30 o'clock, drove directly home, and saw a Ford pick-up truck going into the Harry Murphy's driveway.

Alice Collier testified that she lives in Enid with her aunt, Icy Kersbergen, a sister of her father; that she was a niece of the deceased, Mrs. Harry Murphy, and lived with them at their house six miles north of Enid, and had been working at the cafe which Mr. and Mrs. Harry Murphy operated in the Hillsdale oil field; that on January 13th about 5 o'clock in the evening they closed the cafe and she went with them to Enid; they stopped at a cafe for about an hour and drank some beer, then they left her at a beauty parlor; they called for her sometime after 11 o'clock and they drove out to the cottage; it was a two-room house, north room a bedroom, south room the kitchen. Harry and his wife went into the bedroom and retired; then she went into the bedroom and put out the light, and went to bed on a cot in the kitchen; shortly after she was awakened by the lights of a car shining in the window; she looked out and saw a car standing southwest of the house, heard some one at the door and Harry said, "Tell them to come in." About that time she heard Bill Murphy say, "We have brought you a drink;" she opened the door and Bill and Roy Murphy came in to the kitchen. Roy walked over to a table in the kitchen and lit the lamp and put a partly filled bottle of whisky on the table, Bill went directly into the bedroom and after lighting the lamp Roy followed him, she heard Bill say, "We have come after that key." Harry said, "I haven't got the key." Roy said, "He was tired of that damn double-crossing", then she heard the firing. Upon hearing the shots she ran to the northwest corner of the room. During the shots she could hear Harry trying to get off the bed; heard him cry "Oh" as he was falling. Roy came into the kitchen and said, "Why are you scared?" and said he was not going to kill me. Bill then said that she was the only eyewitness and if she told anything that happened they would kill her too. Roy and Bill walked back and forth between the two rooms and Roy said he had to kill Sarah Mae too, "That she was no good, that she was a rat." They told her she would have to get her clothes on; that she could not stay there, then they took her out to the car. Bill said he had lost his keys, and Roy went back in the house and got the flashlight, and started looking for the key. Bill said, "Here they are here in my pocket"; that she saw no gun either in the possession of Roy or Bill; that they took her to her aunt's house at 228 West State; she went into the house and her aunt asked her if she was cold; she was shaking from fear; she did not tell Mrs. Kersbergen what happened until the next morning and her aunt called the sheriff, the officers came out and brought her to the courthouse.

On cross-examination she stated that she was born in Enid, was 34 years old, that she married and was divorced, but after that she went to California and worked for a bachelor's club and came back to Enid in November, last year; that she was with Mr. and Mrs. Harry Murphy the night before in Bill Murphy's apartment; that they had slot machines at the Hillsdale cafe and Harry had a cock pit there where they fought chickens; that Harry had a Winchester rifle in the bedroom; that while she was talking to the county attorney a man came in and said Bill and Roy have given themselves up, and they have been in jail ever since; that in returning to Enid Bill drove the car, and she knew he had been drinking.

Dudley Branom, sheriff of Garfield county, testified that he went out to the scene of the fatal shooting the next morning about 7:30; that he found seven 32 empty automatic shells in the room where the bodies were found. Harry Murphy's body was on the floor between the bed and the north wall of the room. Mrs. Murphy's body was on the bed, on the south side; she had a bullet wound in her head, about an inch and a half above the right ear. Harry had been shot four times, two gunshot wounds in the left arm and two wounds in the back. He found a 32 automatic rifle near Harry's body; the gun was on safety; no shell in the barrel and was jammed; he found a cleaning rod for the rifle in the southeast corner of the room, also an indentation in the wall indicating that the gun had customarily rested in that corner. Tire prints of the last car entering the driveway corresponded to the tires on Bill Murphy's car. He found a flashlight on a table.

Ike Campbell testified that on the morning of January 14th, he took pictures of the bodies of Harry Murphy and his wife lying dead in their cottage north of Enid. The pictures as exhibits were over defendant's objections introduced in evidence.

C. C. Crabb, a ballistics expert from the State Bureau of Criminal Investigation, testified that the rifle found at Harry Murphy's on the morning of January 14th was in a jammed condition. It was jammed by working the loading rod in attempting to throw out the shell in the barrel; the shell which had been in the barrel had not been snapped; the gun was on safety.

On the part of the defense, W. E. Murphy, codefendant, commonly known as Bill Murphy, testified:

"My brother, Harry, was three years younger to a day than I am; my brother, Roy, is about ten years younger. On the night of the fatal shooting Roy was at my apartment, Harry and his wife were there, they brought some whisky there and were drinking. I took a little drink. I didn't see Roy take a drink. They left the apartment about 11 o'clock. I had laid down; voices disturbed me and I went downstairs. Harry and his wife were leaving in the truck; then the police came; I went back upstairs; Roy said Harry had promised to pay him some money and he had to go out to Harry's and wanted me to go with him. I went to put on my overcoat. I did not have it. I remembered it was out at Julia Flemming's on the south part of town. We went to Mrs. Flemming's to get my overcoat and got it before we went to Harry's. Julia Flemming and 'Corkey' were there. I didn't buy any whisky from her, I would not buy my own whisky, would I? I and Julia Flemming were in partnership in the whisky business. I did not show Julia Flemming or 'Corkey' a slot machine key and I did not tell 'Corkey' that I knew 'Harry had monkeyed with this key and filed it down and double-crossed me', or anything like that. I was not in the slot machine business. Roy did not come in, I left him in the car. I went out and got in the car and drove it to Harry's place. Harry and I were friendly at that time, and I was talking to him 30 minutes before we arrived there. Roy went into the house and said he would not be gone but a minute. I sat in the car, about half asleep. I heard them shooting and jumped out of the car and went in there; when I came in the door I saw Alice Collier standing near the stove with her hands over her face, she was excited, I said: 'My God, what is going on in here?' and she said 'Bill, I do not know.' Roy was standing near the partition door and Harry was leaning against the north wall on the other side of the bed, it looked like he was sliding down the wall, as I looked over something hit the floor, it was a rifle; I said to Roy, 'What is going on?' and he said, 'Bill, Harry is mad and he tried to shoot me'. I did not tell Alice Collier that if she told anybody I would kill her, Roy drove the car out there and drove it back, I did not drive it at all that night. I had been sick and had been drinking and when we left her at her aunt's, there were no threats or intimidation in any way made to Alice Collier."

He further testified as follows:

"Q. Now, Mr. Murphy, you knew Harry's disposition and reputation as a quarrelsome, overbearing and dangerous man, especially while drinking, did you not? A. Yes, sir. Q. Tell the jury whether or not he cut you and stabbed you? A. Yes, sir, Harry cut me pretty badly." State's objection sustained.

"Mr. Mathers: The defense counsel now asks the court for permission to prove by this witness specific acts of violence of the deceased, Harry Murphy, upon him, that he was stabbed near the heart and otherwise cut by Harry Murphy and remained in the hospital for several weeks, and that the defendant Roy Murphy knew and had knowledge of these specific acts of violence by Harry Murphy prior to the fatal difficulty." Objection sustained. Exception allowed.

Cross-examination:

"Q. You were engaged in the whisky business here at the time of the fatal shooting? A. Yes, sir." and stated that he had been convicted twice for violating liquor laws.

"Q. You made a statement, didn't you, which was signed and sworn to? A. Well, I made some kind of statement, the condition I was in." Shows witness a paper. "Q. I will ask you if that is your signature? A. Yes, sir. Q. And it is sworn to? A. Yes, sir."

Redirect:

"Q. You came in here and surrendered to the sheriff? A. Yes, sir, the next morning. Q. And had no legal advice? A. No, sir. Q. You hadn't consulted any lawyer? A. No, sir."

As a witness in his own behalf, Roy Murphy testified:

"Harry Murphy and I had been partners in the cafe in the oil fields. I had invested over $200 and Harry had agreed to give me back what I had in the place; he paid me $12 and owed me the balance; we were at our brother Bill's apartment that night, and when Harry and his wife were leaving in their truck Harry said, 'Come on out to the house,' that he had some money out there that he would give me on what he owed me. We had no quarrel there that night. I was not drinking. I drink a little beer once in a while, but I cannot drink whisky because of my stomach; I thought Harry was friendly with me; Harry had been in the penitentiary. He never turned state's evidence against me in his life. I had no business connection with Julia Flemming. I knew her husband that was sent to the penitentiary for 20 years for kidnapping. I drove Bill's car, he went with me. I drove to the Flemming place; Bill went in to get his overcoat; I remained in the car; he had it on when he came back; I never at any time had any interest in the slot machine that was introduced in evidence here. I would not know how to use a key on the machine, Bill and I drove to Harry's house and parked there, I told Bill I would not be in there but a minute and left him in the car, he was feeling bad and had a few drinks. I could not say that he was drunk though. I knocked on the door; it was unlocked or some one unlocked it; I went in the kitchen; Alice Collier was in bed. I did not have a bottle of whisky in my hand, and I did not set a bottle of whisky on the table; there was a part of a bottle sitting on the table; I lit the lamp in the kitchen and walked into the bedroom. Harry said, 'Light the lamp' and I did, Harry asked me for a key to the cafe, there were two keys, he carried one and I carried one. I told him that I had been out there and gave the key to his wife. He put his hand over on his wife and tried to shake her; he asked her about the key, and she did not answer him, and finally he became angry and hit her across the chest because he could not wake her up. Harry went on to tell about the oil field going bad and said he didn't figure he owed me anything for the cafe. I tried to explain I owed a payment on the car and would like to get that much out of it to make the payment. There was a rifle sitting there by the window, and he reached over to the window to get the rifle; that scared me. I had a 32 automatic in my coat pocket and I shot through the window by where the rifle was, to try to stop him from picking it up. He picked up the rifle, then I commenced to shoot at his hand, and shot him in the left shoulder. I was trying to cripple him or stop him or something to keep him from killing me with the rifle. I knew Harry's reputation as being a quarrelsome and overbearing man when he was drinking; that was the reason why I left the cafe. He had cut me once with a knife through the lip here, and he stabbed me over the heart. (He 'Exhibits the place to the jury'). I knew about his cutting up Bill Murphy. I stood by his bed when the doctor was expecting to pronounce him dead from cuts about the heart; that occurred in the bank building, in Lawyer John Robert's office, here in Enid. I heard about him beating his own wife and throwing her into a slush pit out here at Garber; she was brought to the hospital here by her sister and brother Bill and his wife. I heard about his taking a gun and running his wife and Bill's wife away from their home just before Bill's wife had her last baby here in Enid. I heard about his cutting up a barber here by the name of Peachy. I heard about his stabbing Bennie Coachman here in Enid. I heard about him making a policeman here in Enid by the name of Lincoln drink whisky at the point of a gun. The officers told me that. I heard about him assaulting Mr. R. G. Anderson, who was on the jury and disqualified. I had heard and talked with Harry about him killing a negro with a pitch-fork in Tulsa over a crap game, I had heard of numerous other cutting scrapes that Harry had been engaged in, and when he reached for this gun, that is what scared me, I had never shot any one in my life before."

Asked:

"Now, after you fired these two shots to scare or stop him, what did he do, and what did you do, in your own way, tell the jury? A. He came out of the bedroom with the rifle and it looked like he was trying to work a shell into the barrel of the gun and trying to take my life. I was scared and I shot. I didn't know what else to do. I believed if I didn't stop him I would be killed. I was afraid to do anything else. I did not know that a shell had jammed in the gun. Part of the time his gun was pointed towards me while he was trying to work it. I could not tell how Harry's wife, Sarah Mae, was shot. After the shooting I went into the kitchen. Alice Collier was on the far side of the stove; she asked me if I was going to kill her; I said 'No, you never had tried to harm me any way.' I told her she had just as well put her clothes on and go to town with me. I did not threaten her in any way. Coming into town that night I told her I would surrender to the officers. After leaving her at her aunt's, Mrs. Kersbergen, I drove up to Julia Flemming's house. Some one said come in, I went through the kitchen; the light was on in the dining room; I went upstairs to Atkins' room and told him I could not make the payment on the car, and that he would have to take the car and turn it over to the finance company, or whatever he wanted to do. I didn't pull out and try to sell the pistol or give it to him, or anything like that. I had thrown the pistol away between Harry's house and Enid; Bill was not with me. I came back to town. That morning I went over to the sheriff's office and surrendered."

Cross-examination:

"Mr. Murphy, you are also known as 'Coyote Murphy, are you not? A. Not that I know anything about. Q. Isn't that your nickname? Objection overruled and exceptions. A. I don't know. Q. I will ask you if on March 8, 1936, you were convicted of petit larceny in justice of the peace court here in Enid and plead guilty, and was fined $10 and the costs? A. I remember paying a fine, I don't remember what. Q. I will ask you, if on February 28, 1923, you were convicted of forgery and served two years in the Oklahoma penitentiary? A. I plead guilty to two years but I was not guilty. Q. I will ask you if on May 7, 1930, if you were not convicted in Texas by fraud in removing mortgaged property and given a term in the State Penitentiary for 5 and 5 years, accumulative? A. There was not any fraud, I was tried for removing mortgaged property. I bought a car and removed it over into Oklahoma and he wanted the car back. Q. You were given ten years? A. Yes, sir. Q. I will ask you if on June 8, 1938, you were convicted of counterfeiting and given a sentence of one year and one day in the federal prison? A. No, sir, I plead guilty to a year and a day for possession of three counterfeit half dollars, they said I would get five years if I didn't plead guilty. Q. Now, Mr. Murphy, you were confined down here in jail, shortly after you were in the jail there, I will ask you if you didn't refuse food? A. I didn't eat for a few days. Q. I will ask you if on April 19th, if you didn't go on a hunger strike? A. I refused food because it was impossible for me to keep it down. Q. I will ask you if while in jail, during the latter part of April, this year, you did have a conversation with one Sam Sayre, in which you stated, that you are not going to eat any food, and would get yourself into a wretched and run-down condition so the court would show you or give you some leniency, and that you would beat the chair, did you say that to Sam? Objection overruled. Exception. A. No, sir, I can explain why Mr. Sam Sayre made that statement, and I never made no such statement. Q. I will ask you if you didn't kill a woman at Tulsa by the name of Nell Bailey, in a rooming house and lay a pistol down beside her and it was pronounced suicide? Objection overruled. A. The records will show on that. If you will show my arrest on that I will plead guilty to it. Q. There were lots of things you did that you were not arrested for, weren't there? Do you practice short changing, is that your profession, short changing? Objection overruled. Exception allowed. A. I do not understand. Q. Are you a professional short changer? A. I don't know what you mean. Q. You have been arrested for that several times here in Enid and once at Tonkawa, wasn't you? Objection overruled. A. I don't know. Q. I will ask you if you wasn't arrested at Tonkawa in November for short changing? Mr. Mathers: We object to that your Honor as incompetent, irrelevant and immaterial and highly prejudicial. Overruled. Exceptions allowed. A. Well, Harry and I went over there to make a payment on the truck, and well, I don't know how to explain it, I was not taken to jail on it or anything of the kind. Q. How about that time you were arrested in Enid by a deputy sheriff for short changing a filling station operator at Phillip's University? A. I don't know anything about that."

State now offers in evidence Exhibit Q, statement signed by Roy Murphy, dated the 14th day of January, 1939. Objection that no proper predicate having been laid for the introduction of the instrument. Overruled. Exceptions.

Redirect examination:

"Q. Roy, you can't read, can you? A. God knows I can't. Q. You could not read that transcript, whatever was in it? A. No, sir. Q. You can just barely sign your name with difficulty? A. Yes, sir. Q. Had Harry, your brother never turned state's evidence in any court in any matter? A. Not to my knowledge. Q. Now, when this woman said you said he had turned state's evidence on you, that was not true, was it? A. It was not true, no, sir. Q. And you are sick, and you are testifying under the greatest difficulty, now before this jury? A. Yes, sir."

Seven or eight witnesses qualified as knowing the general reputation in the community of the deceased, Harry Murphy, as to being a quarrelsome, dangerous and overbearing man, and each testified that it was bad.

W. E. Murphy, recalled: The court having sustained the state's objection to the first question asked, directed the jury to retire to the jury room, in the absence of the jury stated:

"Now, Mr. Mathers, you can shorten the matter up, the jury will not see the witnesses, and the court will make rulings on your offering to prove what each witness will testify, and if they won't agree that will be the testimony, the court will rule on it at that time. Mr. Mathers: Then shall I state into the record what the witnesses will testify to the jury, if permitted? The Court: I think that is all right, and it is not necessary to bring all the witnesses in here before the jury. Mr. Mathers: Then offered to prove by this witness the various assaults made by the deceased upon him and other assaults as stated by appellant as a witness in his own behalf, and also offered to prove by the persons assaulted the specific acts of violence on the part of the deceased."

The profert of proof covers four closely written pages and concludes:

"We make this offer to introduce such evidence before this jury, that they may determine whether or not Roy Murphy at the time of the fatal difficulty had reasonable grounds to believe, and did believe as a reasonable person that his life was in danger at the hands of the deceased."

"Mr. Conway: Let the record further show that the defendant while testifying related the same incidents in detail which they are now asking to put proof on by third parties. By Mr. Watts (Assistant Attorney General): And we now object to the defendant's offer for the reason it is incompetent, irrelevant and immaterial. The Court: The objection will be sustained. Exceptions Allowed."

Harvey Council testified that he is engaged in the automobile business, in the city of Enid, knew Harry Murphy since 1912, during a conversation with him Monday before his death; he stated he owed Roy Murphy, but he was "going to pay him in lead."

In rebuttal the state called Harold Phillips, undersheriff, who testified he was a notary public and took the statement given by Roy Murphy, State's Exhibit Q, and gave it to him to read in the sheriff's office; that the statement was prepared by the county attorney; that he did not read it to the defendant.

Laura M. Wyatt testified that she was a stenographer and on January 14th this year, took down in shorthand and transcribed the same to typewritten sheets. Handed State's Exhibit Q said:

"This is the statement given by Roy Murphy in the county attorney's office between 10 and 12 o'clock, forenoon of January 14th Mr. Conway, county attorney, Mr. Wells, Assistant, and Mr. Branom, sheriff, and Roy Murphy were the only persons present at the time."

The state then offered in evidence State's Exhibit R, being a transcript of the testimony taken in the habeas corpus hearing in the case of W. E. and Roy Murphy, given on the 3d day of March, 1939. Over the defendant's objection the same was admitted.

In surrebuttal, W. E. Murphy, recalled, testified:

"My brother Roy never went to school, he never had a chance to go to school and he can't read. I have been reading his letters and mail for him and Mr. Hill, the jailor has."

There are other facts and circumstances as shown by the record, evidence of which we deem unnecessary to detail, as they have slight bearing upon the issues presented. The record in this case is very voluminous, covering over 1,200 pages.

Mathers Mathers, of Oklahoma City, for plaintiff in error.

Hugh Conway, Co. Atty., of Enid, Garfield County, Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for the State.

DOYLE, J.

This is an appeal from a judgment and sentence of the district court of Garfield county, pronounced and entered pursuant to the verdict of a jury finding defendant, Roy Murphy, guilty of murder and assessing his punishment at death.

The errors assigned and argued will be considered in the order presented in appellant's brief.

It is first urged that the court committed reversible error in overruling defendant's application for a continuance.

When the case was called for trial, May 10, 1939, defendant filed a motion for continuance, alleging in substance that for three weeks he has not and could not eat anything or take any food or nourishment; and he is mentally incompetent to make a rational defense to the charge against him; that he is physically too weak to go to trial, and is in constant pain and suffering, and his mind so affected that he cannot go to trial at this time; that having been brought here in an ambulance he has been required to appear in this court upon a cot; that he cannot on account of his weakened mental and physical condition consult with his attorney as to his defense and on account of his condition is unable to take the witness stand to testify as to what occurred at the time of the fatal difficulty; that he is wholly unable to withstand the ordeal of a trial at this time, and prays the court to order an examination by physicians as to his physical and mental condition.

The application was resisted by counsel for the state. Thereupon a hearing was had.

Ole Hill, county jailor, called by the state, testified: "Roy Murphy was placed in jail January 14th, and has off and on received medical treatment; that he has been in bed and has refused to partake of any food since April 19th. He gave no reason for his refusing to eat"; that when he talked to him today he appeared rational.

Dr. O. R. Gregg, jail physician, testified that in January defendant said he was sick and could not keep anything on his stomach, and he gave him glucose injections; that after April 19th, he refused to eat, and his present condition is brought about by the lack of food; that he talked to him today at the jail, offered to give him an injection of glucose and he refused to take it; in his opinion defendant at this time is rational and able to go to trial.

Dr. R. G. Jacobs, physician and surgeon, testified that he is on the staff of the three hospitals in Enid, that on the request of the wife of defendant he called on him in January and three or four times later. That going without food for a period of three weeks would not affect his mind materially.

At the request of counsel for defendant he examined the defendant in open court, found his blood pressure down, but not more so than any other man who had been in bed and not eaten; and he could see no reason why he could not testify intelligently, but not all at one time.

At the request of his counsel the defendant was sworn. Asked several questions by his counsel, he made no answer.

Mrs. Alma Murphy testified that she frequently visited her husband in jail; that he could not keep anything in his stomach; that yesterday in jail she talked to him, but he just whispered, and she could not understand what he said; that he had lost about 40 pounds in weight since placed in jail.

After hearing the argument of counsel, the court ruled: "The defendant's motion for continuance will be overruled. Exceptions allowed."

It has been uniformly held by this court that applications for a continuance are addressed to the sound discretion of the trial court, and that this court will not reverse a judgment of the trial court upon the ground that it refused to grant a continuance, unless a manifest abuse of discretion appears.

The rule as stated in 22 C.J.S., Criminal Law, § 845, is as follows:

"Continuances, based on the mental or physical condition of accused at the time of the application therefor, are addressed largely to the discretion of the trial court, and the court may properly deny a continuance asked on such ground in the absence of a showing that proceeding with the trial will operate to the substantial prejudice of accused or endanger his life or health."

Citing Nix v. State, 20 Okla. Cr. 373, 202 P. 1042, 26 A. L. R. 1053, wherein this court held:

"Where, in a motion for a continuance, the defendant urges that he is a necessary witness in his own behalf, and is physically and mentally unable to stand the strain and tension of a trial and to properly aid and advise his counsel, held, that the overruling of the motion, under the circumstances recited in the opinion, was not error." And see Morrison v. State, 35 Okla. Cr. 311, 250 P. 543; Cole v. State, 46 Okla. Cr. 365, 287 P. 782.

Upon the record before us we think it evident that there was no manifest abuse of discretion in overruling the motion and application for a continuance in this case. Further, there is no reason to believe that upon a second trial an intelligent and honest jury would arrive at any other verdict than that of guilty of murder as charged in the information.

On the same day, the defendant, through Alma Murphy, his wife, and James H. Mathers, his counsel, filed his motion for a jury trial on the issue of present insanity. A jury was duly impaneled, and the evidence introduced. The jury returned their verdict finding the defendant, Roy Murphy, sane.

Thereupon the defendant asked the court. to give three days in which to file a motion for new trial, which was denied. Then defendant asked the court for time within which to make up a case-made and appeal from said finding, which the court denied. Exceptions allowed.

The next two assignments based on these rulings of the court are wholly without merit, as was said by this court in Alexander v. State, 71 Okla. Cr. 47, 107 P.2d 811:

"The proceeding prior to murder trial to test defendant's sanity was a collateral issue, and hence an order finding defendant to be sane was not an 'appealable order' since the only effect that the proceeding could have had on the murder trial would have been to postpone it had defendant been found insane."

In Weiland v. State, 58 Okla. Cr. 108, 50 P.2d 741, 744, it is said:

"The trial of the question of present sanity is in the nature of a special proceeding not involving any question of guilt or innocence, but a collateral issue. The court here followed the civil procedure, that is, he ruled and instructed that the burden was on the defendant on that issue, and that he was entitled to the opening and closing in presenting his testimony and in the argument, and further ruled and instructed that nine of the jurors might return a verdict. His ruling was in conformity to the statute regulating the procedure in such cases. Sections 3214, 3215, Okla. Stat. 1931 [22 Okla. St. Ann. §§ 1164, 1165], as well as in conformity to the general rule, 16 C. J. p. 791, § 2017; 14 R. C. L., Insanity, § 59." And see Alder v. State, 53 Okla. Cr. 374, 12 P.2d 545.

In 16 C. J., Criminal Law, sec. 2017, it is said:

"The only issue presented at a preliminary trial of present insanity is whether defendant has sufficient soundness of mind to appreciate the charges against him, and the proceedings thereon, and to enable him to make a proper defense, and therefore whether or not he may be compelled to proceed with the trial of the main issue of guilty or not guilty; and the evidence should be confined to defendant's mental condition at the time of trial, except as far as his mental condition at other times may aid in determining his present condition." See, also, 23 C.J.S., Criminal Law, § 940.

The next assignments are in substance that the court erred in overruling defendant's challenges for cause to certain jurors on the ground that said jurors had formed a fixed opinion as to the guilt or innocence of defendant.

From the jurors selected to try the case, it appears the jurors Paul Caskey and Roy Stotts were passed unchallenged for cause by defendant.

As to jurors Charles Horton, C. F. Korthank, Marion Brown, Henry Gellerman, Henry Beaman, Fred Skouby, and Glenn Hamons, their voir dire examinations do not appear in the record.

From the examination of the juror Mike Pritchett, by defendant's counsel, it appeared that he had read some of the testimony that was published in the newspapers, and that he had talked to several people about the case, but they did not detail what the evidence would be or what they understood the facts to be; that he did not form an opinion as to the guilt or innocence of the defendant, and did not have any opinion now. That if selected on the jury he would require the state to prove beyond a reasonable doubt that Roy Murphy is guilty before he would return a verdict of guilty.

From the examination of the juror Floyd Goff, it appeared that he read about the case in newspaper articles; had not discussed the case with any one who purported to know the facts about the case; any impression he might have about the case was from what was in the newspapers.

Asked:

"Q. Could you lay aside any impression you might have gotten from the newspapers and hearing people talk and pass on the case solely from the evidence you hear here from the witness stand? A. Yes, sir. Q. At this time you do not have any fixed opinion of the guilt or innocence of the defendant? A. No, sir. Q. You could enter the case with your mind open and would do it? A. Yes, sir. Q. Do you know of any reason why you could not sit here and act fairly and impartially both for the state and the defendant? A. No, sir. Q. And you would do that if selected? A. Yes, sir."

His examination by counsel for defendant was as follows:

"Q. You didn't let what you read and heard cause you to form an opinion? A. No, sir. Q. Now, you have been reading all these articles in the newspapers? Yes, sir. Q. You didn't read any article purporting to give what any witness testified in any hearing? A. No, sir. Q. From reading these articles did you not come to any opinion or conclusion as to the guilt or innocence of the defendant on this charge? A. No, sir. Q. Whatever opinion you arrived at from this reading you still retain at this time? A. Yes, sir. Q. And the only way you will get rid of that opinion is by hearing something that will be different from what you read and heard that will cause you to change it? A. Yes, sir. Mr. Mathers: We challenge the juror for cause. Mr. Conway: Q. Mr. Goff, I understand the opinion you received has been from newspaper reports and perhaps the radio? A. Yes, sir. Q. Any impression you might have had about the guilt or innocence of the defendant, you could lay that aside and pass on this case entirely from the evidence you receive here? A. Yes, sir. Q. And you would lay that aside? A. Yes, sir. Mr. Mathers: Q. But it would take evidence to change the opinion you have now formed, wouldn't it, or how could it be changed? The Court: He said he didn't know anything about the facts but formed his opinion on newspaper items. Mr. Mathers: Q. You say you didn't talk to any one? A. No, sir. Q. Then the opinion you got is from what you heard and read? A. Yes, sir. Q. And you don't know whether they are facts or not? A. No, sir. Mr. Mathers: We think this juror is disqualified and we challenge him. The Court: The challenge is overruled. Exceptions."

As to the juror Donald Edwards, his voir dire examination does not appear in the record.

The record shows that 15 jurors were excused by the court upon challenges by defendant for having fixed opinions as to the guilt or innocence of defendant. The defendant exhausted his nine peremptory challenges.

In his brief defendant states that he was obliged to exhaust all his peremptory challenges upon jurors he had challenged for cause, which were overruled by the court.

The question presented is: What shall be deemed a disqualifying opinion?

These jurors were challenged for actual bias, as defined by paragraph 2 of section 2997, Sts. 1931, 22 Okla. St. Ann. § 659:

"For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, and which is known in this chapter as actual bias."

The Code of Criminal Procedure further provides:

"In a challenge for implied bias, one or more of the causes stated in the second preceding section must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of the third preceding section must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court." Sec. 3000, Sts. 1931, 22 Okla. St. Ann. § 662.

One accused of crime is by the Constitution guaranteed a fair and impartial trial, Okla. St. Ann. Const. Bill of Rights, § 20, but to insure this, it is not meant that jurors shall never have heard of the case, or shall not have any impression, concerning any of the facts. In this day and age it would be difficult to find citizens competent for jury service who have not some impression as to the case, derived from newspaper accounts. The constitutional guaranty only excludes those jurors who have an opinion upon the merits of the case, based upon such testimony as may reasonably be expected to be presented upon the trial, or an opinion founded on personal ill will towards the accused.

In the case of Turner v. State, 4 Okla. Cr. 164, 111 P. 988, 996, we said:

"Under the statute, an opinion formed or expressed as to the guilt or innocence of the defendant founded upon rumor or newspaper reports does not disqualify a juror, provided it appears to the court upon the declaration of said juror he can and will notwithstanding such opinion act impartially and fairly upon the law and evidence. As we construe the statute, the competency of a juror is a question of fact, to be determined by the court in the exercise of a sound discretion, and constitutes a legislative definition of the constitutional provision. However, it cannot be regarded as changing in any degree the essential qualifications which jurors must possess. It merely furnishes a test by which those qualifications are to be determined. It makes the declaration of the juror 'that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him, competent, as bearing upon the question of his impartiality, and requires the court to consider such declaration, when so made.' The statute does not attempt to determine what shall be the probative force of the declaration of the juror, or how far it shall have the effect of relieving him of the disqualification arising from such an opinion. The declaration when so made is evidence to be received and given such weight as under all circumstances appearing it is fairly and justly entitled to. Before it can operate to remove the disqualification, the court must be satisfied of its truth, and that question is left to be determined from all the facts and circumstances appearing from his examination upon the voir dire."

In the case of Gentry v. State, 11 Okla. Cr. 355, 146 P. 719, this court held:

"The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he had formed or expressed an opinion, as to the issues to be tried, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by an appellate court unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial."

In the opinion it is said:

"The increased facilities, through the press, of spreading stories of crime, as items of news, especially among the more intelligent classes, makes it difficult to lay down a fixed rule which would disqualify persons who formed their opinions from newspaper reports, or common report and rumor, unless it be of that character which impairs the impartiality of the juror by engendering a bias or prejudice which is fixed, and would require evidence to remove. Under the provisions of the statute the competency of a juror is a question of fact to be determined by the court. Before the court can so determine, it must be shown by an examination of the juror, upon his voir dire, not only that his opinion was formed solely in the manner stated, but, in addition to this, the juror must swear unequivocally that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence. * * *

"Under our statute, the mere expression of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief, is not a legal ground of challenge for cause. * * *

"The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he has expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial."

To the same effect are: Smith v. State, 14 Okla. Cr. 250, 174 P. 1107; Pope v. State, 15 Okla. Cr. 162, 175 P. 727; Tuggle v. State, 20 Okla. Cr. 314, 209 P. 187; Littrell v. State, 22 Okla. Cr. 1, 209 P. 184; Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Elkins v. State, 29 Okla. Cr. 175, 233 P. 491; Lemke v. State, 56 Okla. Cr. 1, 32 P.2d 331.

The purpose of the examination of a juror on his voir dire is to ascertain whether there are grounds for a challenge for either actual or implied bias, and, further, to enable the defendant to exercise intelligently his peremptory challenges.

A defendant is entitled to a jury which will insure him a fair and impartial trial, but not to unlimited choice in attempt to secure a jury which will acquit him.

In the case at bar there is nothing in the record which indicates any abuse of discretion on the part of the trial court in the selection of the jury, and we find nothing in the record which indicates that the jury was anything but fair and impartial.

It follows the trial court did not commit error in overruling the defendant's challenges for cause.

It is next urged that the trial court erred in permitting improper cross-examination of defendant in asking him if he had not been arrested several times here and in Tonkawa, for short changing. And the further question: "I will ask you if you didn't kill a woman in Tulsa by the name of Nell Bailey in a rooming house?"

As a general rule the scope of the cross-examination of a witness is largely a matter of discretion of the trial court.

It may be shown on cross-examination that a defendant has been convicted of a crime for the purpose of affecting his credibility. Sec. 268, Sts. 1931. 12 Okla. St. Ann. § 381.

The rule obtains in this jurisdiction that a defendant taking the witness stand and testifying in his own behalf may be cross-examined the same as any other witness. He, like any other witness, may be asked questions pertaining to the matter at issue or that would go to his credibility as a witness. His cross-examination is not confined to a mere categorical review of the matters stated in the direct examination. He may be asked questions irrelevant and collateral to the issue for the purpose of testing his memory, affecting his credibility and the weight of his testimony. Graham v. State, 28 Okla. Cr. 266, 230 P. 763.

Another well-settled rule is that any previous act of the defendant may be admitted in evidence against him provided it has any logical or legal tendency to prove any matter which is in issue. The general principle is thus tersely stated by Cushing, Chief Justice, in State v. Lapage, 57 N.H. 245, 24 Am. Rep. 69:

"Any act of the prisoner may be put in evidence against him, provided it has any logical and legal tendency to prove any matter which is in issue between him and the state, notwithstanding it might have an indirect bearing, which in strictness it ought not to have, upon some other matter in issue."

In the case before us it appears from the record that the errors complained of were invited on the part of the defense. Defendant on direct examination in response to counsel's questions testified that he has never before shot any person, and that together with his brother, Harry, in Tonkawa, they had a dispute with a service station attendant over the price of gasoline furnished, and were arrested, but were immediately discharged.

In Harris v. State, 14 Okla. Cr. 489, 173 P. 958, 963, it is said:

"The alleged errors are technical, but this court is frank to admit that certain things occurred during the trial of this case which should not have occurred; but the doctrine has been thoroughly established that where evidence on the part of the state makes out a case of cold-blooded murder, and under defendant's own testimony he is at least guilty of manslaughter in the first degree, and the conviction is only for manslaughter in the first degree, the judgment of conviction under such circumstances will not be set aside, although certain technical errors, occurred during the trial, the defendant being deprived of no constitutional or statutory right."

The Legislature of this state, by the enactment of section 3206, O. S. 1931, 22 Okla. St. Ann. § 1068, has made it clear that no judgment of conviction shall be set aside or new trial granted "on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."

It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced, in his substantial right, by the commission of error; where, according to defendant's testimony, he is guilty of the crime for which he was convicted, under such circumstances, none but fundamental error will operate to reverse the judgment of conviction.

Finally, it is contended that the court erred in refusing defendant the right to prove by testimony of witnesses other than himself certain specific acts of personal violence upon numerous persons, committed by the deceased, all of which were known by defendant at the time and prior to the homicide. Citing the case of Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532.

In the Mulkey Case, where the defense was justifiable homicide in self-defense, evidence to prove specific acts of violence on the part of the deceased excluded these acts of violence being known to the defendant; the court held:

"Competent for the purpose of showing the disposition of the deceased to become violent without provocation, and as tending to show his condition of mind, and violent temper on such occasions, and his disposition to use deadly weapons."

In the opinion we said:

"As a general rule, the evidence of the character of the deceased must be confined to his general reputation, and evidence of particular acts of violence is inadmissible unless they were directly connected with that involved in the homicide. Usually testimony of this character would have but little bearing upon the case, and the general reputation of the deceased as being a desperate and dangerous man would be sufficient. But, under the facts which the evidence here tends to prove, these prior assaults and acts of violence, being known to the defendant, were important circumstances in determining from the standpoint of the defendant the reasonableness of the danger apprehended by him, and for this reason it was error to exclude this testimony."

We deem it unnecessary to burden this opinion with each specific offer of proof, and will only refer to the record as stated in defendant's brief:

"Mr. Mathers: We make all these offers and ask the court's permission to introduce such evidence before the jury, that they may determine whether or not Roy Murphy at the time of the fatal difficulty, had reasonable grounds to believe that his life was in danger at the hands of the deceased, Harry Murphy, that the jury may determine that Harry Murphy was a dangerous man, easily angered and mad and without any apparent reason or provocation would attack and assault and kill people on slight or no provocation.

"Mr. Watts: (Asst. Atty. Gen.) For the purpose of the record the state will agree if the witnesses were permitted to and allowed to testify in this case at this trial, that they would testify substantially and materially as stated by defendant's counsel, however the state doubts the competency and materiality of the statement made by Mr. Mathers, the defendant's counsel.

"We would call the court's attention to the fact, that prior to calling of this witness to the stand the defendant has taken the stand and testified that he had heard and believes these things and knew the deceased to be a violent, turbulent character, and from what he had heard and knew himself and believed — the truthfulness of these matters are not involved in this law suit, and the state has no objection, at this time, of the defendant's counsel making any additional offer to show specific acts of violence on the part of the deceased which he cares to offer in evidence at this time."

It is a general rule in most jurisdictions that on a trial for homicide where the defendant has laid a proper foundation by evidence tending to show that, in committing the homicide he acted in his self-defense, he may introduce evidence of the turbulent and dangerous character of the deceased. See Annotation in 64 A. L. R. 1029, and Annotation 121 A. L. R. 380. Citing Sneed v. Territory, 16 Okla. 641, 86 P. 70, 8 Ann. Cas. 354; Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532; Mathews v. State, 16 Okla. Cr. 466, 184 P. 468; Elliott v. State, 18 Okla. Cr. 230, 194 P. 267; Edwards v. State, 58 Okla. Cr. 15, 48 P.2d 1087.

In Robinson v. Territory, 16 Okla. 241, 85 P. 451, it was held that the ruling of the trial court excluding the testimony of a third person as to the details of a fight between such person and the deceased, a short time before the homicide, did not constitute reversible error. The trial court having permitted the introduction of testimony by such witness with reference to the deceased's being armed with a revolver at the time of the difficulty between himself and deceased, and the appellate court pointing out the details of a personal encounter between the third person and the deceased, could not be material or relevant to the questions at issue in a homicide prosecution. The court observed that even if the ruling of the trial court was erroneous, two other witnesses, who were eyewitnesses to the encounter between the third person and deceased, were permitted to testify to all of the facts and details.

In Brock v. State, 55 Okla. Cr. 410, 32 P.2d 88, 89, the trial court permitted defendant, to testify relative to numerous specific acts of violence which deceased had told defendant he had committed on other persons, but which acts of violence defendant did not witness or have knowledge of, other than as told him by deceased, which information the defendant testified he believed and acted on in part as a foundation for his belief of imminent danger to himself. It was held that the trial court properly refused to permit the defendant to introduce the alleged third persons to give their version of such alleged acts of violence and difficulties on the part of deceased, which they had witnessed or known.

In the opinion it is said:

"The question before the jury was not whether the stories told by deceased to defendant of his quarrels, brawls, and difficulties were true, but was: Did defendant believe deceased had committed such acts detailed to him and by reason thereof believe deceased was a dangerous and violent man, and, acting on such belief, commit the killing in his own self defense. If he believed what deceased told him, it was immaterial whether it was the truth or a lie for the purposes of the trial. Hence, the mere fact that defendant might have shown by the proffered testimony that deceased had told him the truth could not have affected the issue in the case."

It follows from what has been said and the authorities cited, no error was committed by the trial court in excluding the offer of proof of specific acts of violence by the deceased against others than defendant, he in his direct examination as a witness in his own behalf having testified that all of said acts were known by him at the time of the homicide.

We have given this case that careful study which its importance demands, and having considered the alleged errors argued and given due weight to every proposition urged by counsel for defendant, we find no error committed on the trial of the case that would require or justify a reversal of the conviction.

A judgment and sentence of death should be above suspicion of any partiality, passion or prejudice. A most careful examination has revealed nothing in the voluminous record that gives us the right to say that the interest of justice requires a new trial.

As to the character of this homicide there can be no doubt. On the undisputed facts it was deliberate murder. According to his own statement on the witness stand, appellant is guilty of a cruel and cowardly assassination. While the necessity for taking human life need not be one arising out of real or actual or imminent danger in order to justify the slayer, as he may act upon the belief arising from appearances which give him reasonable cause to apprehend danger of death or great bodily harm, although there may be no actual danger and his guilt must depend upon the circumstances as they appeared to him, yet the danger must not be brought on by the unlawful acts or wrongful conduct of the slayer, and no person has the right to kill another through unfounded fear or cowardice.

It is also urged that the jury abused its discretion in assessing the death penalty, and that the judgment and sentence should be modified to imprisonment for life.

In a capital case, the law of our state in its great humanity allows the jury, after they have first determined the question of guilt, to assess the punishment, which may be death or imprisonment for life at the discretion of the jury (section 2222, C. S. 1931, 21 Okla. St. Ann. § 707), and, even after the jury say the defendant should suffer death, this court, in furtherance of justice, has the power to modify the judgment to imprisonment for life at hard labor. Sec. 3204, O. S. 1931, 22 Okla. St. Ann. § 1066.

In the case of Wilson v. State, 17 Okla. Cr. 47, 183 P. 613, 620, it is said:

"By this provision it seems to have been the intention of the Legislature to vest this court with power to modify the judgment, when such a course would be in furtherance of justice and conduce to the humane administration of the law. In a capital case it is the duty of this court to examine, with the greatest care, the whole record in favor of life, and review the case upon the merits to determine whether justice requires a modification of the judgment to imprisonment for life." And see Fritz v. State, 8 Okla. Cr. 342, 128 P. 170; Anthony v. State, 12 Okla. Cr. 494, 159 P. 934; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464; Chambers v. State, 16 Okla. Cr. 238, 182 P. 714; McConnell v. State, 18 Okla. Cr. 688, 197 P. 521; Young v. State, 19 Okla. Cr. 363, 200 P. 260; Phillips v. State, 27 Okla. Cr. 108, 225 P. 180.

In the case of Methvin v. State, 60 Okla. Cr. 1, 60 P.2d 1062, 1070, it is said:

"The law regards human life as the most sacred of all interests committed to its protection; and no more solemn duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. To take the life of a human being is an awful thing even when it is taken by the law in the due administration of justice."

In Anthony v. State, supra, it is said:

"The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice, is not the power to commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace."

After a careful consideration of all the facts in this case we are unwilling to lend the sanction of our approval to inflicting the death penalty, because in our opinion the undisputed facts in evidence do not justify the highest punishment authorized by the law.

While we think the defense by reason of fear entirely failed and was properly discredited by the jury, yet it appears that deceased had previously made assaults with intent to kill upon both defendant and his codefendant, and it appears that on a subsequent day of the term his codefendant on his trial was convicted only of manslaughter in the first degree with sentence of imprisonment for six years. It appears that defendant during the trial was unable to leave the stretcher upon which he was each day brought into court; that he is illiterate and was reared by the two older brothers in an atmosphere of crime, and it would have been more satisfactory if the guilt of defendant had been altogether established by the testimony of reputable witnesses, free from any imputation of interest.

Our conclusion is that the punishment assessed is excessive, and that the ends of justice would best be served by modifying the judgment and sentence of death to imprisonment at hard labor in the penitentiary for life.

The judgment of the district court of Garfield county herein is therefore modified to the extent that the sentence will be changed from the infliction of the death penalty to that of imprisonment in the state penitentiary at hard labor for life, as thus modified the judgment is affirmed.

BAREFOOT, P. J., and JONES, J., concur.