MATSON J.
(after stating the facts as above). Counsel rely almost entirely for a reversal of this judgment upon the ground that it was error under the issues in this case for the trial court to fail and refuse to instruct the jury on the law relative to manslaughter in the first and second degrees, as requested by counsel, to which action proper exception was taken at the time,' and again urged as error in the motion for new trial and in the petition in error filed in this court.
Counsel for the defendant upon this proposition rely upon the decisions of this court, which hold:
“In a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which' the evidence in any reasonable view of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury,-whether it be requested on the part of defendant or not.”
Kent v. State,
8 Okla. Cr. 188, 126 Pac. 1040;
Steeley v. State,
17 Okla. Cr. 252, 187 Pac. 821.
Upon the oral argument it was urged that the peculiar circumstances under which the- deceased met death were so surrounded in mystery and uncertainty that it was possible, if not clearly probable, that the defendant, either in the heat of passion or else by his own culpable negligence in the handling of the pistol at the time of its discharge, may have not been entirely blameless but guilty of either manslaughter in the first or second degree, and that instructions along the lines requested should have been given.
As heretofore repeatedly held, we deem the law to be that, if there is even .slight evidence which tends to reduce the degree of the homicide from murder to manslaughter in either of its degrees, the trial court should give the defendant the benefit of any doubt which the evidence may suggest, and instruct upon such lower degrees. However, the court is not required to delve into the realms of conjecture or speculation in order to instruct upon some theory of the case not reasonably supported by the evidence.
Section 5902, Revised Laws 1910, provides:
“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burdén 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.”
The evidence in this case on the part of the state, if believed, proved the defendant guilty of murder. There was nothing in the state’s evidence that tended to reduce the degree of the homicide to manslaughter, and the defendant made no effort to justify or excuse the killing. In fact, he denied having killed the deceased at all. According to the defendant’s testimony the deceased killed himself, whether purposely or accidentally the defendant does not know; 'but the defendant is certain that he himself had nothing whatever to do with the killing. The issues presented, therefore, were clear-cut and permit of no middle ground. Either the defendant killed the deceased in the manner testified to by the state’s witnesses, or else the deceased met his death at his own hands without any fault or criminal culpable negligence on the part of the defendant. The decisions of this court relied upon by the defendant’s counsel, therefore, are not controlling in this case, but this case is determined by other decisions of this court holding as follows:
“The refusal to give manslaughter instructions is not error if there is no evidence to reduce the degree of the crime from murder to manslaughter.”
Hunter v. State,
3 Okla. Cr. 533, 107 Pac. 44;
Morris v. State,
4 Okla. Cr. 233, 111 Pac. 1096;
Hopkins v. State,
4 Okla. Cr. 194, 108 Pac. 420, 111 Pac. 947;
Ryan v. State,
8 Okla. Cr. 623, 129 Pac. 685;
Fritz v. State,
8 Okla. Cr. 342, 128 Pac. 170;
Updike v. State,
9 Okla. Cr. 124, 130 Pac. 1107;
Robinson v. Territory,
16 Okla. 241, 85 Pac. 451;
Regnier v. Territory,
15 Okla. 652, 82 Pac. 509.
Further, in the case of
Sayers et al. v. State,
10 Okla. Cr. 233, 135 Pac. 1073, it is held:.
“When a defendant, who has the right of election as to several defenses, takes the stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one.”
Applying the law contained in the decisions of the Supreme 'Court of the territory of Oklahoma and of this court in the cases last above quoted to the facts of this case, we find no prejudicial error in the refusal of the trial court to submit to the jury the question of the defendant’s guilt either of manslaughter in the first or second degree.
It is also contended that the trial court erred in placing one Mat Francis, a deputy sheriff, as a bailiff in charge of the jury after he had testified as a state’s witness. The record shows that Mat Francis testified as a witness for the state on rebuttal, and it is further disclosed by the record that' before the argument had 'been concluded in the cause the jury was placed in charge of two sworn bailiffs, to wit, Tom Ballard and Mat Francis, to be kept together under proper instructions of the court during the adjournment of the trial from Saturday evening until the trial was resumed the following Monday morning.
Counsel for the defendant at the time interposed no objection to the said Mat Francis being placed in charge of the jury in conjunction with the other sworn bailiff, Tom Ballard, during said recess of the court. It was not until after the verdict had been returned that defendant for the first time urged this as an alleged error prejudicial to his substantial rights. It is not contended that the jury, by reason of the fact that Mat Francis was one of the
sworn bailiffs placed in charge of it, was in any way tampered with or subjected to any improper influences. In fact, it is stated in the brief filed in behalf of the defendant that “no charge is made that this bailiff made any improper, suggestions to the jury”; that the objection is based solely on the ground that he was permitted “to associate with the jury” in the capacity of a bailiff during the recess.
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MATSON J.
(after stating the facts as above). Counsel rely almost entirely for a reversal of this judgment upon the ground that it was error under the issues in this case for the trial court to fail and refuse to instruct the jury on the law relative to manslaughter in the first and second degrees, as requested by counsel, to which action proper exception was taken at the time,' and again urged as error in the motion for new trial and in the petition in error filed in this court.
Counsel for the defendant upon this proposition rely upon the decisions of this court, which hold:
“In a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which' the evidence in any reasonable view of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury,-whether it be requested on the part of defendant or not.”
Kent v. State,
8 Okla. Cr. 188, 126 Pac. 1040;
Steeley v. State,
17 Okla. Cr. 252, 187 Pac. 821.
Upon the oral argument it was urged that the peculiar circumstances under which the- deceased met death were so surrounded in mystery and uncertainty that it was possible, if not clearly probable, that the defendant, either in the heat of passion or else by his own culpable negligence in the handling of the pistol at the time of its discharge, may have not been entirely blameless but guilty of either manslaughter in the first or second degree, and that instructions along the lines requested should have been given.
As heretofore repeatedly held, we deem the law to be that, if there is even .slight evidence which tends to reduce the degree of the homicide from murder to manslaughter in either of its degrees, the trial court should give the defendant the benefit of any doubt which the evidence may suggest, and instruct upon such lower degrees. However, the court is not required to delve into the realms of conjecture or speculation in order to instruct upon some theory of the case not reasonably supported by the evidence.
Section 5902, Revised Laws 1910, provides:
“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burdén 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.”
The evidence in this case on the part of the state, if believed, proved the defendant guilty of murder. There was nothing in the state’s evidence that tended to reduce the degree of the homicide to manslaughter, and the defendant made no effort to justify or excuse the killing. In fact, he denied having killed the deceased at all. According to the defendant’s testimony the deceased killed himself, whether purposely or accidentally the defendant does not know; 'but the defendant is certain that he himself had nothing whatever to do with the killing. The issues presented, therefore, were clear-cut and permit of no middle ground. Either the defendant killed the deceased in the manner testified to by the state’s witnesses, or else the deceased met his death at his own hands without any fault or criminal culpable negligence on the part of the defendant. The decisions of this court relied upon by the defendant’s counsel, therefore, are not controlling in this case, but this case is determined by other decisions of this court holding as follows:
“The refusal to give manslaughter instructions is not error if there is no evidence to reduce the degree of the crime from murder to manslaughter.”
Hunter v. State,
3 Okla. Cr. 533, 107 Pac. 44;
Morris v. State,
4 Okla. Cr. 233, 111 Pac. 1096;
Hopkins v. State,
4 Okla. Cr. 194, 108 Pac. 420, 111 Pac. 947;
Ryan v. State,
8 Okla. Cr. 623, 129 Pac. 685;
Fritz v. State,
8 Okla. Cr. 342, 128 Pac. 170;
Updike v. State,
9 Okla. Cr. 124, 130 Pac. 1107;
Robinson v. Territory,
16 Okla. 241, 85 Pac. 451;
Regnier v. Territory,
15 Okla. 652, 82 Pac. 509.
Further, in the case of
Sayers et al. v. State,
10 Okla. Cr. 233, 135 Pac. 1073, it is held:.
“When a defendant, who has the right of election as to several defenses, takes the stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one.”
Applying the law contained in the decisions of the Supreme 'Court of the territory of Oklahoma and of this court in the cases last above quoted to the facts of this case, we find no prejudicial error in the refusal of the trial court to submit to the jury the question of the defendant’s guilt either of manslaughter in the first or second degree.
It is also contended that the trial court erred in placing one Mat Francis, a deputy sheriff, as a bailiff in charge of the jury after he had testified as a state’s witness. The record shows that Mat Francis testified as a witness for the state on rebuttal, and it is further disclosed by the record that' before the argument had 'been concluded in the cause the jury was placed in charge of two sworn bailiffs, to wit, Tom Ballard and Mat Francis, to be kept together under proper instructions of the court during the adjournment of the trial from Saturday evening until the trial was resumed the following Monday morning.
Counsel for the defendant at the time interposed no objection to the said Mat Francis being placed in charge of the jury in conjunction with the other sworn bailiff, Tom Ballard, during said recess of the court. It was not until after the verdict had been returned that defendant for the first time urged this as an alleged error prejudicial to his substantial rights. It is not contended that the jury, by reason of the fact that Mat Francis was one of the
sworn bailiffs placed in charge of it, was in any way tampered with or subjected to any improper influences. In fact, it is stated in the brief filed in behalf of the defendant that “no charge is made that this bailiff made any improper, suggestions to the jury”; that the objection is based solely on the ground that he was permitted “to associate with the jury” in the capacity of a bailiff during the recess.
In the absence of any showing that the said bailiff in any manner communicated with any member or members of the jury concerning the case, or permitted others to do so, and in view of the fact that the defendant made no objection to his serving in this capacity until after the verdict was returned, and in view of the further fact that it is provided in section 6005, Revised Laws 1910, that no judgment of conviction shall be reversed as to any error of procedure unless 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, we are impelled to the conclusion that this assignment of error, under the circumstances presented, is without prejudice to the substantial rights of the defendant.
It is also contended that the court erred in overruling the supplemental motion for a new trial on the ground of newly discovered evidence. We consider this assignment of error without substantial merit, as the evidence, if produced, would be cumulative and in the nature of impeachment of witnesses for the state, who were attempted to be impeached along the same lines 'by other witnesses introduced at the trial. It is not clear that the alleged newly discovered evidence would produce a different result if another trial should be had, and as this was a matter ad
dressed to the discretion of the trial court, and as no manifest abuse of discretion appears, the judgment will not ho reversed on this .ground.
Defendant was repre' ented in the court ‘below by counsel who left no stone unturned in their efforts to get before the jury the defendant’s theory of defense, and to break down where possible the credibility of the evidence of the state’s witnesses. An able brief has been filed in his behalf in this court, and his cause was earnestly presented in an oral argument.
After a full consideration of all the points urged by counsel for defendant and assigned and relied upon as reasons for reversal of this judgment, we conclude that none of the errors complained of were of such a fundamental character or so prejudicial as to deprive the accused of that fair and impartial trial which is guaranteco to him under the Constitution and laws of this state. ’
The judgment is therefore affirmed.
DOYLE, P. J., and ARMSTRONG, J., concur.