MATSON, P. J.
(after stating facts as above). The first assignment of error urged by counsel is:
“The learned trial court erred in excluding competent and relevant testimony offered by the plaintiff in error.”
Defendant offered Nora (Quinn) Moring as a witness to prove that the deceased came upon the plaintiff in error with a knife at the time of the shooting. The testimony given by said witness is as follows:
“Q. How did he open the bottle of whisky, Mrs. Moring? A. He opened it with a knife. Q. Can you tell the jury what kind of a knife it was? A. Well, it was a knife; I couldn’t— right at the time I paid no attention to the knife ; I couldn’t swear to the knife. I know he did it with a knife. Q. I will ask you to examine that knife and tell the jury whether 'or not you can testify that was the knife he used in opening the bottle of whisky?
“Mr. Goldsberry: We object to that, your honor, as incompetent, irrelevant, and immaterial at this time for the reason that the witness has testified she didn’t know what kind of a knife it was, didn’t see it, and paid no attention. A. It was a knife something like that.
“The Court: The objection will be sustained; the answer will be stricken.
“Mr. Goldsberry: We uow move that the áttempted answer of the question, the portion of the answer to the question, be stricken and the jury instructed not to consider it.
“The Court: It was stricken, and the jury will be instructed not to consider it.
“Q. I will ask you to examine the knife there.
“Mr. Goldsberry: We object to that as incompetent, irrelevant, and immaterial, having the knife examined in the presence of this jury, for the reason that it has never been identified.
“The Court: Overruled.
“Q. You have examined this knife, have you not, that I have in my hand? A. I have. Q. I will ask you to state to the jury if you observed a knife that the deceased used in opening that bottle of whisky sufficiently to determine whether or not it was that same general description of this knife or not?
“Mr. Goldsberry: We object to that, your honor, as leading and suggestive, and for the further reason it is incompetent, irrelevant, and immaterial under the former testimony of this witness.
“The Court: Yes; let her describe .what she saw; it is the best evidence.
“Q. Describe the knife as nearly as you can that you saw him use in opening the bottle of whisky.
“Mr. Goldsberry: We object to that as incompetent, irrelevant and immaterial under the former testimony of this witness, for the reason that the witness has previously testified she paid no attention at the time referred to by the question of counsel.
“The Court: Overruled. Read the question. (Question read by the reporter.) A. It was a knife something similar to that, I couldn’t say it was the same knife.
“Mr. Goldsberry: We object to that answer and ask that it be stricken as not responsive to the question, and the jury instructed not to consider it.
“The Court: That is a conclusion. That will be sustained.
“Mr. Ward: That is not important enough to quibble long about. We will pass along.”
The following additional testimony of the same witness is found in the case-made:
“Q. Do you know whether or not he was doing anything with the door? A. I couldn’t tell exactly. Q. Well, did you see anything in Mr. Paris’ hand, right hand, when he held it up that way?
“Mr. Goldsberry: Object to that, your honor, as leading and suggestive of . the answer.
“The Court: Sustained.
“Q. What did Mr. Paris have in his hand, if anything?
“Mr. Goldsberry: We object to that, your honor, as assuming a fact not in evidence in this case.
“The Court: Overruled.
“Q. What, if anything, did Mr. Paris have in his hand, his right hand, when he raised it? A. I couldn’t tell for sure. Q. Do you know whether or not he had anything? Mr. Golds-berry: We object to that, your honor, as incompetent, irrelevant and immaterial.
“The Court: Sustained.
“Mr. Ward: Your honor, we insist that that question is admissible, she said she couldn’t tell exactly what he did have in his hand.
“By the Court: Q. Did you see his hand? A. I did.
“The Court: The objection will be sustained.
“Mr. Ward: Her testimony was she didn’t know exactly to that effect, what he did have in his hand. My next question is do you know whether or not he had anything in his hand.
“Mr. Goldsberry: I submit, your honor—
“Mr. Ward: I think this is clearly legitimate, competent, and relevant.
“The Court: Sustained.
"Mr. Ward: Exception. For tbe purpose of the bill this defendant submits that he offers ■ to prove—
"Mr. Goldsberry: We object to any offer being made in the presence of the jury.
"The following offer was made out of the hearing of the jury:
"Mr. Ward: The testimony of this witness will be, if permitted to testify, that she didn’t know exactly what was in his hand, but he had something in his hand upraised as if to strike the defendant; she didn’t know whether it was a knife or not, but it was something in his hand; she didn’t know what it was.
"Mr. Goldsbérry: To which offer the state objects, in view of the former testimony of this witness relative to the ¡same subject-matter; it is incompetent, irrelevant, and immaterial.
"The Court: The objection to the tender will be sustained.
"Mr. Crossland: Give us an exception. .
"Mr.' Ward: We will add to this that the testimony of the defendant will show that the defendant had upraised in that hand at the time we are asking this witness about a knife with which he was endeavoring to assault and do great bodily harm to this defendant or to kill him, and at the very time inquired of did have a knife in his hand.
"The Court: Bearing in mind the foregoing answer of the witness, the objection will be sustained.”
It is the refusal of the court to permit this offered testimony above quoted to be introduced of which plaintiff in error complains.
It will be observed that this witness refused to positively state that the deceased had a knife in his hand at the time he was shot, the statement of the attorney being that the
witness, if permitted, would testify that she did not know exactly what was in his hand, but that he had something in his hand. The witness had theretofore stated that she could not tell for sure what the deceased had in his hand, if anything. If the witness was positive in her statement that she did not know what it was- if he did have something in his hand, how could defendant have been injured by the refusal of the trial court to permit the witness to testify that deceased had something in his hand? Unless the witness could testify that the deceased had a knife or pistol or some implement or weapon that would indicate a design to kill or commit some serious bodily harm to defendant, the proffered evidence was of little probative force. We cannot see that the refusal of the trial court to permit this witness to add to the testimony which she had already given the further statement that deceased had something in his right hand when shot, the nature or description of which she did not know, was such error,' if any, as should result in a reversal of this conviction. Especially do we think this alleged error harmless in view of the fact that defendant himself testified that he “couldn’t tell what he had at the time; I couldn’t tell what he had in it; but he had his right hand kind of drawed back like that” (indicating).
■ It is next contended that-—
“The trial court erred in not directing the jury to return a verdict in favor of the defendant at the close of the trial, for the reason that he was shown that there was an eyewitness to the transaction who was not related either to the defendant or the deceased, and who was not shown to have been disqualified in any way as a witness, and the state was bound to use her as a witness and failed to do so.”
The proceeding here invoked was an attempt to require the state to follow the old English rule of practice which re
quired the public prosecutor to call all witnesses in order to give the defendant an opportunity to cross-examine them. We do not think the rule here contended for is in accordance with sound rules of practice under the laws as they now exist in this state. Under modern criminal procedure the defendant has so many more privileges than he had at the time the rule here relied upon was established that the reason for the rule no longer exists. The defendant has the right to compel the attendance of his witnesses under our Constitution and statute; he has the right to have the aid of counsel, and when not financially able to employ counsel the. court must appoint counsel to defend him at public expense. Thus in effect, under the present criminal procedure, the defendant is practically placed on an equality with the state in preparing his defense. Not so at the time of the establishment .of the old English rule. While there are some states which yet follow the English practice, the trend of modern authority is to1 abandon the rule, and we think that sound reason supports such a course.
In State v. Brady, 124 La. 951, 50 South, 806, it was held: “The state is not bound to examine a witness in whom it has lost confidence.” Other decisions may be found to the same effect. In Bloom v. State, 95 Neb. 710, 146 N. W. 965, it is held: “It is not required that all the witnesses whose names are indorsed upon an information must be called at the trial.” See, also, People v. Johnson, 13 Cal. App. 776, 110 Pac. 965. And it has also been held not error to refuse to force the prosecution to call eyewitnesses to testify, since it cannot' be forced to call any particular witness. Lard v. State, 54 Tex. Cr. 570, 113 S. W. 762; See, also, State v. Hatfield, 65 Wash. 550, 118 Pac. 735, Ann. Cas. 1913B, 835; Willis v. People, 73 Colo. 369, 215 Pac. 854.
We reaeb the conclusion, therefore, since defendant may testify in his own behalf and compel the attendance of witnesses in his behalf by compulsory process, and is entitled to the aid of counsel at public expense if necessary, that the reason for the old English rule of practice requiring the public prosecutor to call all eyewitnesses to a transaction no longer exists, and that, there being no longer any reason for the rule, but, on the contrary, sound reason why the rule should not be followed, the refusal of the trial court to require the county attorney to call all eyewitnesses to the transaction and thereby vouch for them, was not error.
The next assignment of error is that the court erred in permitting the state to improperly impeach the defendant.
While the defendant was on the witness stand the county attorney asked him, “Did you have any whisky there that evening?” to which defendant replied, “I did not.” The defendant was also asked if he had not been drinking and if he was not intoxicated at the time of the killing. Defendant testified that he had not drank anything since early that morning and that he was not intoxicated at the time of the killing, and in rebuttal and as impeachment to this testimony a witness was permitted to testify that at the time of his arrest defendant was intoxicated, it having been shown that he was arrested within five minutes after the killing. The court also permitted the state to show by way of impeachment and to discredit all the defendant’s testimony on the subject of intoxication that a gallon of whisky was found in the defendant’s house the next morning after the killing. In this connection it was also shown that no one lived in the house with the defendant at that' time. In surrebuttal the defendant was permitted to testify that when he was arrested and immediately put in jail that evening after the killing
his house was left open and the door unlocked. 'We think there was no reversible error in admitting this evidence.
Professor Wigmore says:
“Intoxication, as a mental condition of temporary stupefaction, may be evidenced circumstantially in the same general modes that are available for mental capacity or condition in general. (1) It may be evidenced by the person’s conduct. (2) It may be evidenced by predisposing circumstances ; i. e., by the drinking of intoxicative liquor. (3) It may be evidenced by his prior or subsequent condition of intoxication within such a time that the condition may be supposed to be continuous.”
In Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271, it is held:
“In a homicide case, where the plea is self-defense, evidence as to whether accused was intoxicated or under the influence of intoxicating liquors at the time of the homicide is competent for the purpose of aiding the jury to determine whether or not the accused acted under the influence of a well-grounded and reasonable belief that he was in imminent danger of losing his life, or receiving great personal injury.”
Professor Wigmore also says that intoxication is admissible for purpose of impeachment. Section 933.
It is evident from the foregoing that in eases where self-defense is pleaded the intoxication of the defendant at the time of the killing may be shown for the purpuse of aiding the jury to determine whether the accused acted under the influence of a well-grounded and reasonable belief that he was in imminent danger of losing his life or receiving great personal injury. This evidence, therefore, was material in chief. If it was a material matter the defendant could be properly impeached, where he denied his intoxication, by evidence to the contrary, and the circumstance that whisky was
found in Ms bouse tbe next morning after the Mlling was, under the surroundings of this ease, a proper matter for the jury to consider; and where defendant was permitted to deny the knowledge of any such whisky in his house, and where it. was shown that the house was left open during the night immediately following the killing, the only question remaining was one for the jury, involving the weight to be given to this circumstance.
Further, it is contended that the court also permitted other evidence to be introduced in rebuttal improperly.
The record discloses that the witness who testified to the matters here complained of was introduced in chief by the state, and after he had disclosed the things here complained of the defendant objected to his testimony and moved to strike it on the ground that his name had not been indorsed on the information or on the list of witnesses served upon the defendant two days before the ease was called for trial as required by the Constitution in capital cases. The trial court struck this witness’ testimony, and afterwards permitted the state to introduce the witness in rebuttal, the defendant having been theretofore interrogated covering the matters to wMch the witness subsequently testified in rebuttal.
If any error was committed, the court committed error in the first instance in striking from the consideration of the jury the testimony of this witness in behalf of the state given in chief. The objection interposed that the witness’ name had not been served upon defendant in compliance with the constitutional provision came too late. The service of a list of witnesses to be used in chief upon the defendant is a matter which the defendant can waive and which he does waive if no timely objection is interposed. State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091.
In the Frisbee Case it was held that if in a capital case the person prosecuted fails to object before announcing ready for trial that the list of witnesses has not been served upon him, he cannot afterwards avail himself of this objection, and the constitutional right given to him by such provision will be waived. By analogy it follows that, where an incomplete list of witnesses is served upon him in compliance with the constitutional provision and the state at the trial calls a witness whose name is not indorsed upon such list, the appropriate time to object is at the time the witness is called; otherwise, the defendant, by his own conduct, has waived the objection.
In view of the fact that the testimony of the witness here objected to should have been received in chief, and, in view of the further fact that the matter complained of was material and a proper foundation laid for its reception in rebuttal, we find no error in the action of the court in this respect that would authorize a reversal of this judgment.
Further, it is contended that the trial court erred in not permitting a witness who was present at the time of the killing to express her opinion and conclusion that it appeared to her that the defendant was likely to be killed or to receive serious bodily injury at the hands of the deceased at the moment deceased was killed.
The record showing this assignment of error is as follows : '
“Q. From your position and from what you saw there and have testified heretofore about, in your opinion what did it look like and reasonably appear to you that Paris was going to.do to Pollock?
“Mr. Goldsberry: We object to that, your honor, as incompetent, irrelevant, and immaterial, calling for a conclusion of the witness and leading and suggestive of the answer.
“The Court: The objection will be sustained.
“Mr. Ward: We except to the ruling of the court. The following occurred out of the hearing of the jury.
“Mr. Ward: If permitted to do so, this witness will testify that from the acts and conduct and manner and advance upon the defendant by the deceased that she saw, that it reasonably appeared to her that the defendant was in danger of receiving serious bodily injury at the hands of the deceased, or being killed by the deceased.
“Mr. Goldsberry: To which offer the state objects for the reason it is incompetent, irrelevant, and immaterial, leading and suggestive of the answer and calling for a conclusion of the witness.
“The Court: Sustained.
“Mr. Ward: Exception.”
We pass this assignment of error without comment further than to say that, had the court permitted the witness to answer the question, it is apparent from the question itself that the answer necessarily would have involved an invasion of the province of the jury to determine for itself from the facts surrounding the transaction the reasonableness or unreasonableness of the defendant’s belief and of the defendant’s necessity to shoot at the time.
Certain objections are made to some of the trial court’s instructions. The instructions complained of are such as have heretofore been approved by this court in numerous decisions where the issue of self-defense was involved.
We have read the entire charge and carefully considered the same in connection with the evidence, and find the charge as a whole to correctly state the law of the case.. In fact, we consider the charge a model one, free from any prejudicial error.
The deceased and the defendant had for many years been friends. They were in the habit of daily associating with each other. The killing occurred in the dark at the defendant’s home. The deceased was not wearing a coat, and the defendant claims he shot him because he believed that the deceased at the time intended to kill him or to inflict some serious bodily injury upon him. The defendant does not claim to have seen any weapon of any kind in possession of the deceased at the time he shot him. Both parties evidently had been drinking. Corn whisky and choc beer played an important part in this apparently unnecessary tragedy. To hold that the defendant was justified under the circumstances would do violence to those well-known principles of law which point the way to one about to be attacked to avoid the necessity of taking human life, and especially to use no more force than is apparently necessary at the time.
For reasons stated, the judgment is affirmed.
BESSEY and DOYLE, JJ., concur.