FURMAN, PeesidiNG Judge.
In this case appellant relies upon a number of different grounds to secure a reversal of the judgment against him. We do not deem it necessary, however, to discuss more than three questions presented, which are as fellows: First, remarks made by the trial judge when the motion for a new trial was overruled and sentence was pronounced against the defendant; second, objections to one paragraph of the charge oC the court; third, is the verdict contrary to the evidence ?
First. As to the first question, we are of the opinion that the remarks made by the trial judge when the motion for a new trial was overruled and judgment of the court was pronounced against the defendant do not constitute any part of the trial of tliis cause, and that they were improperly incorporated in the record. Remarks made by a trial judge upon such an occasion could not have any. influence whatever upon the action of the jury in convicting the defendant, because they are made after the verdict has been rendered. If a judge in overruling a motion for a new trial desires to review the testimony, we know of no reason why he could not do so, except that it might be prejudicial to a defendant in the event the judgment of conviction was reversed and a new trial was ordered; but, be this as it may, such remarks do not constitute any part of the trial and should not be incorporated in the record. It is the right and duty of the judge to incorporate in the case-made a statement of facts as to any matters that occurred during the trial in his presence which he thinks should be brought to the knowledge of this court, and which are necessary to enable this court to understand the rulings that were made during the trial of the case. But the private opinion of a trial judge with reference to a case does not concern this court, and could not in any manner affect our decision upon any question which might be submitted to us for consideration. It is therefore improper to incumber the record with remarks made by the trial court with reference to a case which were not made during the trial, and which could not .possibly have influenced the jury improperly to the injury of the appellant. There was no order of the trial judge directing that the remarks made in this case should he incorporated in the record. The entire remarles indicate that the judge was only expressing his private opinion with reference to the case.
. These remarks were evidently inserted in the record by counsel for appellant; and, as the record contains nearly 800 pages and the trial judge would not have time to read, it all over and see that each statement was correct, and as the case-made was ap
proved by the. county attorney, the trial judge was justified in signing and approving it as presented. We do not for one moment believe that the distinguished judge who presided at this trial ever intended, to send these remarks up to this court for review.
This illustrates how necessary it is for the county attorney to carefully read every line in a case-made before it is presented to the trial judge for his signature, and to file objections to any statement made therein which it should not contain. We have been forced to reverse a number of cases which would have been affirmed had it not been for the carelessness of county attorne}s in this respect. The remarks made by the trial court in this case constitute no proper part of the case-made, and are therefore stricken from the record, and will not be considered by this court for any purpose whatsoever.
Second. The court,-among other things, instructed the jury as follows:
“You are instructed that, upon a trial for murder, the commission of a homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable/
To this instruction defendant duly excepted. The instruction as given is in the exact language of the statute. Section 6854 of Snyder’s Comp. Laws of Okla. 1909 is as follows:
- “Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”
As the Legislature has enacted this law, the courts of this state are without power to do otherwise than to enforce it. The trial court repeatedly, correctly, and fully instructed the jury as ro the presumption of innocence and the doctrine of reasonable doubt as applicable to all of the facts and circumstances in evidence before them.
The question here presented has been repeatedly passed upon
by this court adversely to the contention of counsel for appellant.
Hawkins v. U. S., 3
Okla. Cr. 651, 108 Pac. 561;
Prince v. U. S.,
3 Okla. Cr. 700, 109 Pac. 241;
Culpepper v. U. S.,
4 Okla. Cr. 103, 111 Pac. 679. We cannot do better than quote from the case of
Prince v. United States, supra.
The opinion in this case was by Judge Richardson, than whom Oklahoma has not produced an abler or more conscientious judge. It is as follows:
“If the prosecution proves the killing without showing of facts sufficient to raise a reasonable doubt as to the defendant’s justification or excuse, the unlawfulness of the killing is presumed, and thereupon the burden shifts to the defendant to produce sufficient testimony to raise q, reasonable doubt as to his justification or excuse. If the defendant discharges this burden, then it returns to the prosecution, and, to warrant a conviction, the prosecution must overcome such reasonable doubt thus raised by proof beyond a reasonable doubt of each essential element of the crime. And where the court gives that statutory provision as an instruction, and also instructs the jury, as he did in this case, that upon the whole case the burden is on the prosecution to prove the defendant’s guilt beyond a reasonable doubt; that every presumption of law, independent of evidence, is in favor of innocence; that this defendant is presumed to be innocent of any offense; that this presumption remains with him throughout the trial, and attends him step by step; and that if, upon a consideration of all of the evidence, there remains a reasonable doubt of the defendant's guilt, he must be acquitted — certainly the giving of the instruction complained of thus limited in its application could not be held error. On the contrary, it is proper.
People v. Flahave,
58 Cal. 249;
People v. Hawes,
98 Cal. 648, 33 Pac. 791;
People v. Neary,
104 Cal. 373, 37 Pac. 943;
Duncan v. People,
134 Ill. 110, 24 N. E. 765;
People v. Tarm Poi,
86 Cal. 225, 24 Pac. 998;
Bell v. State,
69 Ga. 752;
Murphy v. People,
37 Ill. 447;
State v. Tabor,
95 Mo. 585, 8 S. W. 744;
Territory v. McAndrews,
3 Mont. 158;
Territory v. Rowand,
8 Mont. 110, 19 Pac. 595;
State v. Keith,
9 Nev. 15;
People v. McGonegal,
62 Hun, 622, 17 N. Y. Supp. 147;
State v. Mazon,
90 N. C. 676;
State v. Jones,
98 N. C. 651, 3 S. E. 507;
State v. Thomas,
98 N. C. 599, 4 S. E. 518, 2 Am. St. Rep. 351;
State v. Byers,
100 N. C. 512, 6 S. E. 420;
State v. Rollins,
113 N. C. 722, 18 S. E. 394;
Commonwealth v. Drum,
58 Pa. 9;
People v. Callaghan,
4 Utah, 49, 6 Pac. 49;
Cotrell v. Commonwealth,
17 S. W. 149, 13 Ky. Law Rep. 313;
Peo
ple v. Boling,
83 Cal. 380, 23 Pac. 421;
Territory v. Manton,
8 Mont. 95, 19 Pac. 387;
Hammil v. State,
90 Ala. 577, 8 South. 380.”
Section 6857 of Snyder’s Compiled Laws of Oklahoma 1909 is as follows:
“In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court an}*- written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given, if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge 'be given and part refused the court must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused.”
Paragraph 5 of section 6823 of Snyder’s Compiled Laws of Oklahoma 1909 is as follows:
“When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. If the quesr tions of law involved in the instructions are to be argued, the court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions, and may give or refuse any instruction asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by the judge, if modified, modification shall be shown in the instruction, and by refusal to give instructions or the modification thereof, shall be deemed to be excepted to. When the instructions are thus settled, the jury, if sent out, ■ shall be recalled and the court shall thereupon read the instructions to the jury.”
Construing these two statutes together, it is plain that our law only requires the judge to give to the jury in his instructions such matters of law as he thinks are necessary for thrar ■ information in giving their verdict, and that the instructions must be settled after the introduction of evidence is concluded, and that, if counsel for the defendant desire any additional instruction given to the jury, it is their duty to reduce such instructions to writing, and request that they be given. See
Boutcher v. State,
4 Okla. Cr. 585, 112 Pac. 762. We certainly would not be justified in
reversing a conviction where the law is correctly given, and is applicable to the facts of the case. If counsel for appellant had desired, they might have requested the court to instruct the jury as the court did instruct the jury in the case of
Culpepper v. United States, supra;
but, in the absence of such a request, all the instructions given being applicable to the facts of the case and in harmony with the laws of this state, and it not appearing from the entire record that the defendant has been deprived of any substantial right, we cannot grant a new trial upon the ground which we are now considering.
Third. We think that the state’s evidence in this case amply sustains the verdict. It is true that there is a great deal of evidence on the part of appellant contradicting the testimony' of the state, but it is the province of the jury, and not of the court, to settle conflicts in testimony.
Abe Hunter, a witness for the state, testified as follows:
“Q. I will ask you if, in the city of Perry, on the 2d or 3d day of March' — the 3d day of March — on the east side of the square, if you saw the defendant dick Lumpkin? A. Tes, sir. Q. About what time of day? A. Somewhere along about 4, or something; Somewhere along about 4 or 5 o’clock, something like that. Q. In the afternoon? A. Yes, sir. Q. I will ask you if at that time and that place he made any threats or any statements in connection with the deceased, James Edward Fitzpatrick? A. Yes, sir. Q. Tell the jury what he said. A. Shall I tell how he come to say this? Q. Just state what he said. A. He said that if the Fitzpatrick boys come that night to the dance, that he was going-prepared, and, if they come, he was going to get them, ‘going to kill them. God damn them.’ That is the words. Q. Who did lie make that statement to, Mr. Hunter? A. Why, I don’t know his name. I don’t know the man, in fact, that he was speaking to. There was him and his brother. His brother was with him at that time. Q. Where was the man standing? A. He was standing on the side — he had walked from the north, and they was going east. Q. Where had the man come from? A. About — he liad rode up and got off of his horse in front of Smith’s office over there. Q. You say that was the afternoon of the evening in which the tragedy occurred? A. Yes, sir. Q. I will ask you if prior to that time, a couple of weeks, or ten days, on the
south side of the square, in the city of Perry, if you was present when the deceased, Fitzpatrick, and' his brother John passed by the defendant? A. Yes, sir. Q. Where was it? A. That wa.s somewheres along by Lindemann’s or the Famous, I couldn’t say. Q. On the south side of the square? A. Yes, sir. Q. Who passed by? A. John Fitzpatrick and Ed. Q. What did the defendant say at that time, if anything, regarding the deceased? A. He said that the — the middle aged Lumpkin boy, Lucius, I suppose is his name, said, There goes — ■ Mr. Martin: I object to that. Mr. Doyle: Was the defendant Glick Lumpkin, present? A. Yes, sir. Q. What did he say? A. He says: ‘There goes the sons of bitches. We will get them, God damn them.’ That’s the words he said. Mr. Doyle: That’s all.”
John Fitzpatrick, a witness for the state and also a brother of the deceased, testified that uhe deceased and himself attended a dance on the night of the homicide at the home of Mr. Ezzard, in Noble county, Okla., and that, when they reached the scene of the difficulty, they entered the house. He then proceeded to testify as follows:
“A. I went into this room here, where they are dancing, and started to go by the folks that were furnishing the music into this room. Q. Into the south room? A. Yes, sir. Q. Well, did you go into the south room? A. No, sir. I heard a shuffle or rustle, behind me, ’and I looked back, and I saw Glick Lumpkin kick my brother, or trip him; but he more kicked him than anything else. Q. That is your deceased brother? A. Yes, sir. Q. Now, where was the defendant, Glick Lumpkin, stationed at that time, and what was he doing? A. He was playing the violin right there at the door. Q. You mean this door (indicating on the plat) ? A. No; a little further over. Q. This being tne kitchen, from the north room, and this being the door of the west room, south? A. Yes, sir. Q. You say fi. was inside of this door? A. Yes, sir. Q. Then what happened? Tell the jury. A. Then there was a crash, and that crash, to the best of my knowledge, was a shot, and both parties were fighting at once, and there wasn’t a word spoke on either side that I ever heard, or knowing anything about; and I hadn’t known that my brother was behind me. I didn’t pay much attention to him. I thought probablv he stopped out in the kitchen to talk to somebody; and so the fight started, and the shooting started as soon as the fight started,
or very near it; and how I know they was fighting- I come in this door here, and my brother was not in— Q. Which door? A. In this door, into the south room; and I believe I was fighting Lucius. I don't know whether I was or not for sure right then; but nex,t my brother was apparently down, and he run to me and grabbed hold of me, and, as he did, he was shot from the l.oft, apparently from the left side, by a -party standing over there ['indicating], and after he was down, in a dying condition, Click Lumpkin stepped up and shot him again, shot him right through here [indicating]. Q. About how many shots were fired, Füz-pairiek? A. I couldn't say. Q. Approximately? A. I suppose probably seven or eight or a dozen. Q. What was the condition of your brother when you saw him again, as to being dead or alive? A. He was lying dead on the floor.”
Lou. Dolman, a witness for the -state, testified that, after tbe shooting was over, he went into the room where the shooting-had taken place, and found the deceased lying on the floor. He then ¡proceeded as follows:
“Q. Was he living when you saw him? -A. Why, he just looked to me like he was breathing his last, when I was there by him. Q. Did you see the defendant, Click Lumpkin, about that time? A. Why, I seen him right afterwards. Q. Where was lie? A. Well, he come there to the door, where I was standing over Ed. there. Q. Did you hear any remark made by him? A. Yes, sir. Q. What did he say? A. He says, 'Is he dead? God damn him. I want to kill him.’ ”
Jesse Bo-right, being introduced -on behalf of the defendant, testified that he was marshal of the city of Perry; that on the night of the homicide the defendant came in to the town of Perry, and surrendered himself to the witness, and told him that he, the defendant, h-ad killed a man. The witness further testified as follows:
JA. Well, I asked him where his gun was, when he got out, and lie says, 'In the buggy,’ and I think I told the boys to dig the guns out, and they got me out-wo guns and a billy, and I think a fiddle neck, with some strings to it. I left that in the buggy. Q.' What other remark did he make about killing Fitzpatrick? A. Well, sir, I says, 'How did you come to two guns?’ and he says, 'One of the guns is his. We took it from him, one'of the guns.
is bis/ And be said something about killing him with his own gun. I don’t know which he said.”
This witness evidently tried to do all in his power to screen ard protect the defendant, and, when pressed on cross-examination, he endeavored to modify his statement that the defendant told him that he, the defendant, had killed the deceased with bis own gun. But having been put on the stand by the defendant, who thus vouched for hi-s credibility, and the evident disposition of the witness to do all he could to help' the defendant, the jury were fully justified in placing the strongest possible construction upon his testimony adverse to the defendant.
The defendant, Glick Lumpkin, took the stand in his own behalf, and on cross-examination admitted that he carried a pistol with him that night to the place where the homicide occurred, and he further testified that he fired all the shots that were fired during the difficulty which resulted in the death of the deceased. These admissions, in connection with the other evidence in the record, rendered it impossible for the jury to acquit him.
Dr. A. A. Weber, a witness introduced on behalf of the state, testified as follows:
“Q. Just state to the jury, Doctor, the result of that examination, with reference to wounds on the body? A. I found three bullet wounds in the body. Q. Where were they? A. One wound was — -had penetrated the sixth rib, about an inch below the nipple, and had passed clear through the body, and had lodged near the outer surface on the other side, about an inch further down than it had gone in. The second bullet entered the sternum, or breastbone, about the level of the second rib, and backward, passed completely through the superior vena cava vein, which is the vein which returns all the blood from the upper part of the body to the heart, and from there passed down through the right oracle of the heart, and down through the thorax into the abdominal cavity. The third bullet wound I found in the head, about two inches above the right ear, and about an inch behind that, and that wound had fractured the skull, broken the bone, and had flattened out, and then slipped backwards about an inch, and lodged just under the scalp on top of the skull. Q. Now, the first wound you talk about, Doctor, went in on which side? A. The
left side. Q. About the sixth rib? A. Yes, sir; right through the sixth rib. Q. And it ranged through the body? A. It ranged right straight through the body, a little downward and a little backward. Q. And lodged in the skin, just under the skin, on the right side? A. I don’t know just where it lodged. Dr. Moore got there 'before I did, and he removed it. It must have been near the surface, however. Q. Now, the second wound, that entered, you say, through the breast-bone? A. Yes, sir; right up here, at the level of the second rib. Q. It went down ? A. It went downward and to the right and backward. Q. Downward and to the right, and backward? A. Yes, sir. Q. The other bullet, you say, hit him in the back of the head? A. Yes, sir; in the side of the head. Q. And flattened out? A. Yes, sir. Q. Which one of these wounds, Doctor, in your opinion, caused his death? A. Well, the two body wounds were both undoubtedly fatal. Q. Which, if either, was instantly fatal? A. Well, I don’t think— I didn’t say instantly fatal; but I think the one that passed down through the sternum was the one most fatal of the two. Q. Doctor, did you observe any bullet holes through his pants?. A. Yes; I found one. Q. That hadn’t hit the body? A. Yes, sir. Q. Where was that bullet hole. A. It passed right across his right leg, about there [indicating], and through the clothing, but didn’t touch the right leg. Q. Passed across his left leg? A. Yes; just cut the clothing, was all. Q. Doctor, was that wound in the head such a wound as in your pinion would render him unconscious, so that he would lose the power of locomotion, and knowing what he was doing? A. Yes; I think undoubtedly that bullet wound would have knocked him down, and knocked him unconscious. There is no doubt about that. Q. What would be a man's actions in that condition, in reference to struggling around, or moving around ? A. He would be absolutely quiet. Q. He would be quiet ? A. Yes, sir.”
Strike from the record every word of evidence on behalf of' the state except that of Dr. Weber, which is not denied, and it must be taken as an admitted fact that the deceased was powerless to harm the appellant and was in a defenseless condition when he received the last shot. In connection with this, take the admission of the appellant that he fired all the shots that were fired during the difficulty, and the proof amounts to demonstration that the appellant shot the deceased while he was lying in a helpless condition on the floor, when the glamor of death was in his eyes,
and the rattle of death was in his throat, just as John Fitzpatrick testified that appellant did do. Connect this with the testimony of Jesse Boright, a witness for the appellant, to the effect that the appellant had stated to him that he had killed the deceased with his own pistol, and there is absolutely no rational escape from the conclusion as to the guilt of the appellant. Even if appellant was mistaken in saying that he had killed the deceased with his own pistol, it is clear that appellant knew when he fired this shot he killed an unarmed and defenseless man. Grant that this shot was fired in the heat of passion, before cooling time had intervened, which is the most that could be claimed for appellant, this would make the killing manslaughter in the first degree under our statute. From this standpoint it would be an abortion of justice to grant a new trial in this case. It may be said that the witness Boright testified that the pistol given him by appellant and claimed to be the pistol of the deceased was loaded with unfiped cartridges, but it is a significant fact that this witness, though evidently partial to the appellant, did not testify that the. pistol had not been recently fired. It must be remembered that appellant traveled several miles from the scene of the difficulty before surrendering to Boright, and there is testimony in the record showing that appellant was seen to reload a pistol soon after killing the deceased. Granting, for the salce of argument, that every word of the testimony which was used against appellant was contradicted, yet it must be remembered that the jury were the sole and exclusive judges of the credibility of the witnesses and the weight of the testimony. There is not one word of complaint in the record or in the brief of appellant indicating that the jury was not entirely fair and impartial. Every, man on the jury was acceptable to the appellant, because the record shows that when the jury was impaneled he still had two peremptory challenges which he had not used. By his action in accepting the jurors, he has introduced them to this court and vouches for their fairness, impartiality, and integrity. Being thus recommended by the appellant himself, we are bound to accept their verdict, under our law, as conclusive of the facts in this case. This court is not hunt
ing for excuses to set aside the verdicts of juries and the judgments of courts, and thereby turn guilty men loose. We believe that the laws of Oklahoma should be fearlessly and strictly enforced, and it is a waste of time for attorneys to appeal cases to this court and ask for a reversal upon the facts, unless there is absolutely no evidence in the cases appealed from which a jury could legitimately draw the conclusion of the guilt of the defendant. We feel that the appellant has been fairly tried before an impartial jury and by an able judge, who manifestly sympathized with the appellant and who would evidently have been pleased to see him acquitted, if it could have been lawfully done, but who was brave enough and honest enough to enforce the law, even though the conviction of the appellant was contrary to the personal feelings of the judge. We most heartily commend the action of the trial judge in overruling the motion for a new trial upon the ground that the verdict was contrary to the evidence.
We find no material error in the record before us, and the judgment of the lower court is therefore in all things affirmed.
ARMSTRONG, Judge, concurs.