MATSON, P. J.
(after stating the facts as above). The first assignment of error is not supported by the record. In overruling the motion for a new trial on the ground that the verdict was not supported by the evidence the trial judge indulged in a lengthy discussion on the question of his duties in the premises, and in so doing stated that he did not know as a) matter of fact whether or not the defendant was guilty; that it was the duty of the jury to weigh the evidence and to pass upon the credibility of the witnesses, and in this connection further said:
“It is not the province of the court, as I understand the rule, to say or resolve the doubt or weigh the doubt, but if the court is not satisfied as to the sufficiency of all of the evidence, then it is his duty to set aside the verdict. But, reviewing all the evidence, and with all the evidence in mind, the court is of the opinion that there is sufficient competent evidence to support a verdict, even had the jury returned a verdict of guilty of rape in the first degree, and the motion for a new trial, as a whole, is overruled, and the defendant will be allowed axj exception.”
Whether or not the remarks of the trial judge expressing his private opinion of a case at the time he overrules a motion for a new trial constitute a part of the trial and should be incorporated in the case-made is not of material importance here.
In Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478, this court held that such remarks did not constitute any part of the
trial of the case, and should not be incorporated in the case-made. Counsel representing defendant, however, contends that such remarks form a “matter in the action” which may properly be brought before the appellate court for review under the provisions of section 784-, Compiled Statutes 1921.
If the contention of defendant’s counsel be correct, which we expressly do not hold, it is apparent in our opinion that the trial judge clearly understood his duty in the premises when he overruled the motion for a new trial on the ground that the verdict was not supported by sufficient evidence, because he expressly stated that in his opinion, after reviewing the evidence:
“There is sufficient competent evidence to support the verdict, even had the jury returned a verdict of guilty of rape in the first degree.”
The foregoing statement shows the attitude of the trial judge at the time of overruling the motion for a new trial, and is a sufficient answer to the contention of counsel that the trial judge misunderstood his duties in the premises.
Under the second assignment of error, to wit, that the trial court erred in giving an instruction covering the entire 'eight subdivisions defining the crime of rape, it is! contended that such instruction was prejudicial to the substantial rights of the defendant, in that it permitted the jury to find him guilty of the crime of second degree rape without any evidence to support the submission of the cause on such theory. It is true that under the evidence introduced by the state the defendant was guilty alone of rape under the fifth subdivision of section 1834, Compiled Statutes 1921, which is rape in the first degree. There was no evidence on the part of the defense that tended to reduce the crime committed to that of rape in the second degree.
By instructions 8 and 9 the trial court told the jury that, if they believed the defendant accomplished an act of sexual intercourse with the prosecuting witness, Mrs. Etta Bishop, a female person not the wife of said defendant, by means of threats of immediate and great bodily harm to her, accompanied by apparent power of execution, and that the said prosecutrix at the time of the commission of such act believed that if she resisted the defendant and did not yield and acquiesce in the consummation of the act of sexual intercourse by him, those threats would be carried into immediate execution, the defendant should be found guilty, but that, if the jury did not so believe, or; had a reasonable doubt as to whether an act of sexual intercourse was accomplished by the defendant with Mrs. Bishop under such circumstances and by such means, they should acquit the defendant. Instructions 8 and 9 were the only instructions given by the trial judge which applied the law of the case to the evidence in issue. Considering instructions 8 and 9, together with the instruction covering all the statutory definitions of rape, the jury could not have been misled into the belief that they could find the defendant guilty under the issues, except of rape accomplished by means of threats of great and immediate bodily harm, accompanied by apparent power of execution.
In addition to the instructions commented upon above, the trial judge further instructed the jury as follows:
“(7) You are further instructed that rape committed by a male over 18 years of age upon a female under the age of 14 years, or incapable through lunacy or unsoundness of mind of giving legal consent, or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases, rape is of the second degree.”
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(10) You are further instructed that the crime of rape is distinguished into two degrees, rape in the first degree and rape in the second degree, and that if you convict the defendant you must find the degree of the crime of which he is guilty.”
Neither of the instructions above quoted were objected to by counsel for the defendant. The first of the latter instructions is a verbatim statement of section 1837, Compiled Statutes 1921. The second, in substance, is the same as section 2739, Compiled Statutes 1921, which provides:
“Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”
While this court has repeatedly held that the instructions should be applicable to the issues raised by the evidence, and that the trial court is not required to delve into the realms of conjecture or speculation in order to instruct upon some theory of the law of the ease not reasonably supported by the evidence (Smith v. State, 22 Okla. Cr. 383, 212 Pac. 1012, and eases cited therein), on the other hand this court has held:
“Where defendant is charged with murder and under the law and facts might properly have been convicted of manslaughter in the first degree, a conviction of manslaughter in the second' degree is error of which defendant will not be heard to complain upon appeal.” Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742.
See also, Hunter v. State, 6 Okla. Cr. 446, 119 Pac. 445.
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MATSON, P. J.
(after stating the facts as above). The first assignment of error is not supported by the record. In overruling the motion for a new trial on the ground that the verdict was not supported by the evidence the trial judge indulged in a lengthy discussion on the question of his duties in the premises, and in so doing stated that he did not know as a) matter of fact whether or not the defendant was guilty; that it was the duty of the jury to weigh the evidence and to pass upon the credibility of the witnesses, and in this connection further said:
“It is not the province of the court, as I understand the rule, to say or resolve the doubt or weigh the doubt, but if the court is not satisfied as to the sufficiency of all of the evidence, then it is his duty to set aside the verdict. But, reviewing all the evidence, and with all the evidence in mind, the court is of the opinion that there is sufficient competent evidence to support a verdict, even had the jury returned a verdict of guilty of rape in the first degree, and the motion for a new trial, as a whole, is overruled, and the defendant will be allowed axj exception.”
Whether or not the remarks of the trial judge expressing his private opinion of a case at the time he overrules a motion for a new trial constitute a part of the trial and should be incorporated in the case-made is not of material importance here.
In Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478, this court held that such remarks did not constitute any part of the
trial of the case, and should not be incorporated in the case-made. Counsel representing defendant, however, contends that such remarks form a “matter in the action” which may properly be brought before the appellate court for review under the provisions of section 784-, Compiled Statutes 1921.
If the contention of defendant’s counsel be correct, which we expressly do not hold, it is apparent in our opinion that the trial judge clearly understood his duty in the premises when he overruled the motion for a new trial on the ground that the verdict was not supported by sufficient evidence, because he expressly stated that in his opinion, after reviewing the evidence:
“There is sufficient competent evidence to support the verdict, even had the jury returned a verdict of guilty of rape in the first degree.”
The foregoing statement shows the attitude of the trial judge at the time of overruling the motion for a new trial, and is a sufficient answer to the contention of counsel that the trial judge misunderstood his duties in the premises.
Under the second assignment of error, to wit, that the trial court erred in giving an instruction covering the entire 'eight subdivisions defining the crime of rape, it is! contended that such instruction was prejudicial to the substantial rights of the defendant, in that it permitted the jury to find him guilty of the crime of second degree rape without any evidence to support the submission of the cause on such theory. It is true that under the evidence introduced by the state the defendant was guilty alone of rape under the fifth subdivision of section 1834, Compiled Statutes 1921, which is rape in the first degree. There was no evidence on the part of the defense that tended to reduce the crime committed to that of rape in the second degree.
By instructions 8 and 9 the trial court told the jury that, if they believed the defendant accomplished an act of sexual intercourse with the prosecuting witness, Mrs. Etta Bishop, a female person not the wife of said defendant, by means of threats of immediate and great bodily harm to her, accompanied by apparent power of execution, and that the said prosecutrix at the time of the commission of such act believed that if she resisted the defendant and did not yield and acquiesce in the consummation of the act of sexual intercourse by him, those threats would be carried into immediate execution, the defendant should be found guilty, but that, if the jury did not so believe, or; had a reasonable doubt as to whether an act of sexual intercourse was accomplished by the defendant with Mrs. Bishop under such circumstances and by such means, they should acquit the defendant. Instructions 8 and 9 were the only instructions given by the trial judge which applied the law of the case to the evidence in issue. Considering instructions 8 and 9, together with the instruction covering all the statutory definitions of rape, the jury could not have been misled into the belief that they could find the defendant guilty under the issues, except of rape accomplished by means of threats of great and immediate bodily harm, accompanied by apparent power of execution.
In addition to the instructions commented upon above, the trial judge further instructed the jury as follows:
“(7) You are further instructed that rape committed by a male over 18 years of age upon a female under the age of 14 years, or incapable through lunacy or unsoundness of mind of giving legal consent, or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases, rape is of the second degree.”
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(10) You are further instructed that the crime of rape is distinguished into two degrees, rape in the first degree and rape in the second degree, and that if you convict the defendant you must find the degree of the crime of which he is guilty.”
Neither of the instructions above quoted were objected to by counsel for the defendant. The first of the latter instructions is a verbatim statement of section 1837, Compiled Statutes 1921. The second, in substance, is the same as section 2739, Compiled Statutes 1921, which provides:
“Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”
While this court has repeatedly held that the instructions should be applicable to the issues raised by the evidence, and that the trial court is not required to delve into the realms of conjecture or speculation in order to instruct upon some theory of the law of the ease not reasonably supported by the evidence (Smith v. State, 22 Okla. Cr. 383, 212 Pac. 1012, and eases cited therein), on the other hand this court has held:
“Where defendant is charged with murder and under the law and facts might properly have been convicted of manslaughter in the first degree, a conviction of manslaughter in the second' degree is error of which defendant will not be heard to complain upon appeal.” Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742.
See also, Hunter v. State, 6 Okla. Cr. 446, 119 Pac. 445.
In this case the defendant might properly have been convicted of rape in the first degree, and the trial court, without objection on the part of the defendant, and, evidently misconstruing his duty in the premises where there was no evidence tending to reduce the degree of the crime, authorized the jury by the instructions given to find the defendant
guilty of a lower degree of crime than the evidence tended to disclose. There is considerable conflict in the authorities of the different jurisdictions as to whether or not such action on the part of the trial court amounts to reversible error. In this jurisdiction, however, it is held that such action constitutes error of which defendant will not be heard to complain upon appeal in cases where the crime is by statute distinguished into degrees and the defendant is convicted of a lower degree than the law and evidence warrant.
This view is consonant with the further statutory provision of this state (section 2822, Compiled Statutes 1921) substantially to the effect that on appeal no criminal judgment should be set aside or a new trial granted, among other grounds, because of misdirection of the jury, unless in the opinion of the court after an examination of the entire record it appears that thé error complained of has probably resulted in the miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right of the defendant.
It is also contended that the trial judge erred—
“in not presenting instructions covering the whole ease, and the defendant’s theory, and in refusing instructions asked by the defendant for that purpose.”
Counsel for the defendant .asked, the court to give some instructions upon the theory that the evidence disclosed that Mrs. Bishop voluntarily consented to an act of sexual intercourse with the defendant for the purpose of preventing any possible harm being done to her daughter. In this connection it is argued that the testimony of Josephine Bishop, the daughter, indicates conclusively that her mother voluntarily consented to the act of intercourse complained of. With this contention we cannot agree. The testimony of the daughter is not reasonably open to such construction. At the most,
in our opinion, it discloses that the mother submitted against her will by reason of threats of immediate and great bodily harm to both her and the daughter. The mother may have been impelled by such fear to submit against her will to such act more for the purpose of protecting her daughter from such treatment than for the purpose of saving herself. Rather is she to be commended than condemned for such conduct, as both statutory and natural laws give to the parent the right under such circumstances to protect his offspring. Such conduct does not constitute that species of consent which will render the act guiltless. Consenting means consent of the will, and submission under the influences of fear or terror cannot amount to real consent. We think, therefore, no prejudicial error was committed in refusing such requested instructions. The theory of the defendant was not that the prosecutrix voluntarily consented to an act of sexual intercourse with him, but that he did not commit any such act; that he was in another place at the time such act was probably committed, if committed at all. The defense interposed was practically a negation of guilt. We think the trial court’s general charge presented the issues as fully for the defendant as the defense interposed by him warranted.
The further contention that the verdict is against the weight of the evidence and not supported by sufficient evidence has been commented upon by what has heretofore been said in passing upon previous assignments of' error. We think it sufficient to say that a reading of the synopsis of the evidence accompanying this opinion will convince an unprejudiced person that there was ample evidence to justify the jury to conclude that the defendant was guilty of the crime charged.
Certain incompetent evidence was admitted; no timely objection, however, was made to the admission of this evidence,
nor motion interposed to strike the same from the consideration of the jury. The evidence was admitted under a mistaken impression that it formed a part of the res gestae. We are of the opinion, however, that the error is not such as should result in a reversal of the judgment in a case where the evidence reasonably discloses that the defendant should have been convicted and punished for a higher degree of the crime than that of which he was found guilty.
For reasons stated the conviction is affirmed.
DOYLE and BESSEY, JJ., concur.