FURMAN, J.
(after stating the facts as above). First. At the August, 1911, term of the district court of Beckham county, an information was filed against appellant charging him with the crime of murder. On the 23d day of November thereafter, the case was reached for trial, and appellant filed a motion for a continuance on account of the absence of Vic Vorhees, P'rank Morgan, T. M. Beavers, and S. Slater, who were alleged to be material witnesses for the defendant, and also upon the ground of the sickness of one of his local attorneys. Attached to the motion for a continuance, and made a part thereof, were the subpoenas which were issued by appellant for the absent witnesses. The subpoena for Vic Vorhees was issued on the 20th day of November; the subpoena for Frank Morgan was issued on the loth day of November; and the subpoenas for Beavers and S. Slater were issued on the 10th day of November, 1911. The subpoenas for Vic Vorhees, Beavers,, and Slater were returned, “Not found.” The subpoena for Frank Morgan was .returned, “Served on the 15th day of November, 1911.” It is nowhere alleged in the application for a continuance that the testimony of the absent witnesses was not cumulative and could not be obtained from any other source.
This court has repeatedly held that a continuance will not be granted to allow a defendant to obtain merely cumulative testimony, unless some special reason exists therefor. See
Bethel v. State, ante,
126 Pac. 698;
Litchfield v. State, ante,
126 Pac. 707. When this case was tried, it appeared from the testimony introduced that, if the absent witnesses had been present, their testimony would have been only cumulative. We think the showing is also insufficient upon the question of diligence.
In the case of
Musgraves v. State,
3 Okla. Cr. 423, 106 Pac. 545, this court said:
“No reason is given why process was not procured for the witness at .an earlier date. The law requires diligence in these matters. A defendant cannot sit still and wait until just before his trial before he begins to get ready for trial. He must be diligent; and if special reasons exist upon which a reasonably prudent man would rely,- which would cause him to fail to exercise the utmost diligence, he must state-these reasons in his motion for a continuance as an excuse for not having exercised the utmost diligence. No such reasons are stated in the motion in this case. Continuances are not granted as matters of favor or convenience. Defendants must learn that it is a very serious matter to violate the laws of Oklahoma, and that, when they are charged with such conduct, they must be diligent in preparing their defense.”
So far as the sickness of one of the appellant’s local attorneys is concerned, the record shows that appellant had the benefit-of the services of one of the ablest criminal lawyers in the state as leading counsel, and that he also had the assistance of local counsel. The record nowhere shows that appellant suffered any injury on account of the overruling of the motion for a continuance. An application for a continuance is addressed to the sound discretion of the trial court, and a conviction will not be reversed upon appeal unless an abuse of this discretion is shown.
Second. Appellant complains in his brief that the .court erred as to the qualifications of two of the jurors in holding them to be competent, and that thereby appellant was forced to exhaust two of his peremptory challenges on said jurors. An examination of the record does not show any error in the ruling of the trial court upon this question. Two of the jurors, when examined on their
voir dire,
did state that they had received impressions about the case from what they had heard, but that they had not talked to any witnesses in the case; that what they had heard was a mere matter of rumor and would not in any manner influence them in considering'the evidence; and that they could and would, if taken on the jury, disregard all such impressions and be governed alone by the testimony of the witnesses
and the charge of the court in making up their verdict.- Before a juror is. disqualified on account of impressions he may have with reference to a case, it must appear that he has such an opinion as will combat the evidence and resist its force. See
Johnson v. State,
1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300;
Scribner v. State,
3 Okla. Cr. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 985. In the case of
Turner v. State,
4 Okla. Cr. 164, 111 Pac. 988, this court expressly held, in an opinion by Judge Doyle, that an opinion to disqualify a juror must be a fixed one and not a mere impression. This is the law as we understand it. Otherwise it would be impossible to obtain intelligent jurors in the trial of criminal cases. . We therefore think that the court did not' err in the ruling on this question. But, even if it be conceded that the court was in error on this question, we could not grant a new trial on this account, because there is nothing in this record to show that appellant suffered any injury therefrom.
In the case of
Colbert v. State,
4 Okla. Cr. 500, 113 Pac. 558, Judge Doyle, speaking for this court, said:
“Where there is nothing in the record to show that an incompetent, disqualified, or otherwise objectionable juror was forced upon the defendant, this court will not consider assignments of error based upon the rulings of the court upon a challenge for cause.”
Third. A number of questions presented in the brief of counsel for appellant may be considered under the general objection that, where a defendant is charged with homicide committed with a premeditated design to effect the death of the person killed, or of some other person, a conviction cannot be had for manslaughter in the second degree. Under these various assignments of error, counsel for appellant has discussed at great length and with signal ability all of our statutes upon the subject of felonious homicide, and also the statutes of many other states of the Union. If the views contended for by counsel for appellant were recognized by this court, indictments and informa-tions for murder would become almost as complicated and confusing as a Chinese puzzle, and the very objects for which our statutes were enacted would be defeated. Where an indictment
or information charges a defendant with murder committed with a premeditated design to effect death, and alleges the means with which the homicide was committed, and identifies the transaction which resulted in the killing, this sufficiently informs the defendant of the accusation against him and enables him to prepare for his defense. As murder committed with a premeditated design to effect death constitutes the highest character of felonious homicide, and as the greater necessarily includes all of its several parts, the charge that the homicide was so committed includes all of the lesser degrees of this offense, and a conviction may be had for any of said lesser degrees. The various classifications included in our statute upon the subject of felonious homicide were never intended to, and do not, establish so many different rules of pleading.
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FURMAN, J.
(after stating the facts as above). First. At the August, 1911, term of the district court of Beckham county, an information was filed against appellant charging him with the crime of murder. On the 23d day of November thereafter, the case was reached for trial, and appellant filed a motion for a continuance on account of the absence of Vic Vorhees, P'rank Morgan, T. M. Beavers, and S. Slater, who were alleged to be material witnesses for the defendant, and also upon the ground of the sickness of one of his local attorneys. Attached to the motion for a continuance, and made a part thereof, were the subpoenas which were issued by appellant for the absent witnesses. The subpoena for Vic Vorhees was issued on the 20th day of November; the subpoena for Frank Morgan was issued on the loth day of November; and the subpoenas for Beavers and S. Slater were issued on the 10th day of November, 1911. The subpoenas for Vic Vorhees, Beavers,, and Slater were returned, “Not found.” The subpoena for Frank Morgan was .returned, “Served on the 15th day of November, 1911.” It is nowhere alleged in the application for a continuance that the testimony of the absent witnesses was not cumulative and could not be obtained from any other source.
This court has repeatedly held that a continuance will not be granted to allow a defendant to obtain merely cumulative testimony, unless some special reason exists therefor. See
Bethel v. State, ante,
126 Pac. 698;
Litchfield v. State, ante,
126 Pac. 707. When this case was tried, it appeared from the testimony introduced that, if the absent witnesses had been present, their testimony would have been only cumulative. We think the showing is also insufficient upon the question of diligence.
In the case of
Musgraves v. State,
3 Okla. Cr. 423, 106 Pac. 545, this court said:
“No reason is given why process was not procured for the witness at .an earlier date. The law requires diligence in these matters. A defendant cannot sit still and wait until just before his trial before he begins to get ready for trial. He must be diligent; and if special reasons exist upon which a reasonably prudent man would rely,- which would cause him to fail to exercise the utmost diligence, he must state-these reasons in his motion for a continuance as an excuse for not having exercised the utmost diligence. No such reasons are stated in the motion in this case. Continuances are not granted as matters of favor or convenience. Defendants must learn that it is a very serious matter to violate the laws of Oklahoma, and that, when they are charged with such conduct, they must be diligent in preparing their defense.”
So far as the sickness of one of the appellant’s local attorneys is concerned, the record shows that appellant had the benefit-of the services of one of the ablest criminal lawyers in the state as leading counsel, and that he also had the assistance of local counsel. The record nowhere shows that appellant suffered any injury on account of the overruling of the motion for a continuance. An application for a continuance is addressed to the sound discretion of the trial court, and a conviction will not be reversed upon appeal unless an abuse of this discretion is shown.
Second. Appellant complains in his brief that the .court erred as to the qualifications of two of the jurors in holding them to be competent, and that thereby appellant was forced to exhaust two of his peremptory challenges on said jurors. An examination of the record does not show any error in the ruling of the trial court upon this question. Two of the jurors, when examined on their
voir dire,
did state that they had received impressions about the case from what they had heard, but that they had not talked to any witnesses in the case; that what they had heard was a mere matter of rumor and would not in any manner influence them in considering'the evidence; and that they could and would, if taken on the jury, disregard all such impressions and be governed alone by the testimony of the witnesses
and the charge of the court in making up their verdict.- Before a juror is. disqualified on account of impressions he may have with reference to a case, it must appear that he has such an opinion as will combat the evidence and resist its force. See
Johnson v. State,
1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300;
Scribner v. State,
3 Okla. Cr. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 985. In the case of
Turner v. State,
4 Okla. Cr. 164, 111 Pac. 988, this court expressly held, in an opinion by Judge Doyle, that an opinion to disqualify a juror must be a fixed one and not a mere impression. This is the law as we understand it. Otherwise it would be impossible to obtain intelligent jurors in the trial of criminal cases. . We therefore think that the court did not' err in the ruling on this question. But, even if it be conceded that the court was in error on this question, we could not grant a new trial on this account, because there is nothing in this record to show that appellant suffered any injury therefrom.
In the case of
Colbert v. State,
4 Okla. Cr. 500, 113 Pac. 558, Judge Doyle, speaking for this court, said:
“Where there is nothing in the record to show that an incompetent, disqualified, or otherwise objectionable juror was forced upon the defendant, this court will not consider assignments of error based upon the rulings of the court upon a challenge for cause.”
Third. A number of questions presented in the brief of counsel for appellant may be considered under the general objection that, where a defendant is charged with homicide committed with a premeditated design to effect the death of the person killed, or of some other person, a conviction cannot be had for manslaughter in the second degree. Under these various assignments of error, counsel for appellant has discussed at great length and with signal ability all of our statutes upon the subject of felonious homicide, and also the statutes of many other states of the Union. If the views contended for by counsel for appellant were recognized by this court, indictments and informa-tions for murder would become almost as complicated and confusing as a Chinese puzzle, and the very objects for which our statutes were enacted would be defeated. Where an indictment
or information charges a defendant with murder committed with a premeditated design to effect death, and alleges the means with which the homicide was committed, and identifies the transaction which resulted in the killing, this sufficiently informs the defendant of the accusation against him and enables him to prepare for his defense. As murder committed with a premeditated design to effect death constitutes the highest character of felonious homicide, and as the greater necessarily includes all of its several parts, the charge that the homicide was so committed includes all of the lesser degrees of this offense, and a conviction may be had for any of said lesser degrees. The various classifications included in our statute upon the subject of felonious homicide were never intended to, and do not, establish so many different rules of pleading. Their purpose was to mitigate the hardships of the common law and to furnish rules to guide the trial judge in the admission of evidence and in his instructions to the jury. If this were an open question, we would discuss it at length, but the views expressed by counsel for appellant have already been fully discussed by this court, and these previous decisions will be treated as final upon these questions. See
Rhea v. Territory,
3 Okla. Cr. 230, 105 Pac. 314;
Holmes v. State,
6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300;
Byars v. State,
7 Okla. Cr. 650, 126 Pac. 252;
Turner v. State, ante,
126 Pac. 452;
Fritz v. State, ante
128 Pac. 170.
Fourth. It is contended by counsel for appellant that, under the evidence in this case, appellant should either have been convicted of murder or manslaughter in the first degree, or that he should have been acquitted. We cannot recognize this as a ground for setting aside this verdict. Mr. Bishop’s New Criminal Procedure, sec. 596, is as follows:
“The jury have the absolute power to fix the degree, as, if in the opinion of the court, which it should state for their guidance, the evidence proves, however conclusively, the first degree, they can still return a verdict for the second. The defendant has no ground of complaint. Of course the proofs must establish murder of one sort or the other.”
For a full discussion- of this question, see
Warren v. State,
6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121.
We are of the opinion that the testimony in this case would sustain a verdict of either murder or manslaughter in the first degree, but as the jury in charity for the weakness and faults of human nature, or through sympathy for the prisoner or for some other mistaken reason, have seen fit to convict him of manslaughter in the second degree, we cannot disturb the verdict on this account, although we are of the opinion that he should have been convicted of a higher degree. The error was in favor of appellant, and it is one of which he cannot in justice be heard to complain.
The judgment of the lower court is therefore in all things affirmed.
ARMSTRONG,. P. J., and DOYLE, J., concur.