DOYLE, P. J.
(after stating the facts as above). The plaintiff in error, James Sunday, was convicted of murder in the district court of Muskogee county, and in pursuance of the verdict of the jury he Was sentenced to imprisonment in the penitentiary for life at hard labor. From the judgment, he appeals.
The main contention in this ease is that the trial court erred in not permitting the defendant to prove by Eva Sunday and Callie Sunday “that he at the time he got the gun stated that Frank Dandridge had robbed him of $6, and that he was taking the gun with the intention of arresting Frank Dandridge, and turning him over to Deputy Sheriff Will Fool.”
Counsel for the defendant in their brief state:
“That if the defendant’s • testimony was true, Frank Dandridge was guilty of the crime of robbery or grand larceny, and if the defendant, knowing the crime to have been committed in his presence by Dandridge, went to his home for his gun in order to arrest Frank Dandridge and deliver him to the deputy sheriff as he testified, and after-wards met Dandridge, and the other two men in a field with the intention to arrest him, then and in this event the defendant was in the field for a lawful purpose, and he
had a right to defend himself against any assault made upon him by Dandridge. If upon the other hand he went to his home for his gun with the purpose and intent to kill Frank Dandridge, then he was not in the field for a lawful purpose. Therefore his intention in procuring the gun was the vital question to be determined by the jury under the evidence, and what the defendant said to his sisters at the time of procuring the .gun was explanatory of his intent, and was admissible as a part of the
res gestae.”
In support of this contention counsel cite
Koller v. State,
36 Tex. Cr. R. 496, 38 S. W. 44, wherein it was held by the Court of Criminal Appeals of Texas that:
“Where it appeared that deceased had spoken insulting words to defendant, and that the latter went home 'to procure a gun, and returned therewith, and shot deceased, declarations, made-by defendant at the time he went for the weapon, that he did not intend to kill deceased, but merely to make him retract the insult, were admissible as
res gestae.”
And the case of
Irvine v. State,
104 Tenn. 132, 56 S. W. 845, in which the Supreme Court of Tennessee held that:
“Statements made by the defendants to their mother, when leaving home, armed, in search of deceased, who had insulted her, that they were not going to hurt any one, but were going to beat deceased, when they killed him a short time afterwards, were admissible as part of the
res gestae.”
Counsel for the state urge:
“That the statement made by defendant to his sisters was not
res gestae,
and was properly excluded as ‘self-serving declaration.’ ”
Self-serving declarations are not admissible for the defense, unless they form a part of the
res gestae.
Declarations as a part of the
res gestae
are regarded as verbal
facts indicating a present purpose and intention, and therefore are admitted in proof like any other material facts. Prof. Wigmore says:
“Statements of design or plan are in general admissible, so far as the design or plan is relevant to show the doing of the act designed. Accordingly, it has never been doubted that the threats of an accused person are admissible to show his doing of the deed threatened, so also the threats of the deceased, on a charge of homicide, are by most courts admitted to show the deceased to have been the aggressor. Upon' the same principle, the expressions of plan, by the accused, not to do the thing charged, - or to do a different thing, are equally admissible. Statements before the act, asserting malice or hatred, are always received against an accused, except so far as the time of feeling is so remote as to make it irrelevant. Is there any reason why prior statements in favor of the accused — for example, of good feeling towards the injured party, or of fear of him as an aggressor — should not be equally admissible? Conduct offered as circumstantially evidential does not seem to be objected to. But statements asserting directly the existence of such feelings are by some courts treated as inadmissible, so far as they do not accompany the very act charged. .It is argued that the party must not be allowed to ‘make evidence for himself.’ But this objection applies equally to many classes of statements under the present exception, and is yet not thought of as fatal. Moreover, the notion of ‘making,’ that is, ‘manufacturing,’ evidence, assumes that the statements are false, which is to beg the whole question. Then it is further suggested that at any rate the accused, if guilty, may have falsely uttered these sentiments in order to furnish in advance evidence to exonerate him from a contemplated crime. But here the singular fallacy is committed of taking the possible trickery of guilty persons as a ground for excluding evidence in favor of a person not yet proved guilty; in other words, the fundamental idea of the presumption of innocence is repudiated. We elaborate this presumption in painful and quibbling detail; we
expend upon it pages of judicial' rhetoric; we further maintain, with sentimental excess,- the .privilege against self-crimination; in short, we exhaust the resources of reasoning and strain the principles of common sense to protect an accused person against an assumption of guilt in the most violent form. Because (we say) this accused person might be guilty and therefore might have contrived these false utterances, therefore we shall exclude them, although without this assumption they indicate feelings wholly inconsistent with guilt, and although, if he is innocent, their exclusion is a cruel deprivation of a most natural and effective sort of evidence. To hold that every expression of hatred, malice, and bravado is to be received, while no expression of fear, good will, friendship, or the like, can be considered, is to exhibit ourselves the victims of a narrow whimsicality, which might be expected in the tribunal of a Jeffreys, going down from Loridon to Taun-ton with his list of victims in his pocket, or on a bench ‘condemning to order,’ as Zola said of Dreyfus’ military judges. But it was not to have been anticipated in a legal system which makes so showy a parade of the presumption of innocence and the rights of the accused. The question-begging fallacy about ‘making evidence for himself’ runs through much of the judicial treatment. There is no reason why a declaration of an existing state of mind, if it would be admissible against the accused, should also be admissible in his favor, except so far as the circumstances indicate plainly a motive to deceive. Statements of intent or motive, at the time of the act charged, are of course admissible under the present exception. Whether in strictness the principle properly involved is the present one, or that of the verbal act doctrine, is perhaps open to question. Practically there can be little difference in the result, for, under either principle, the statements must relate to the present state of mind at the time of the act.
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DOYLE, P. J.
(after stating the facts as above). The plaintiff in error, James Sunday, was convicted of murder in the district court of Muskogee county, and in pursuance of the verdict of the jury he Was sentenced to imprisonment in the penitentiary for life at hard labor. From the judgment, he appeals.
The main contention in this ease is that the trial court erred in not permitting the defendant to prove by Eva Sunday and Callie Sunday “that he at the time he got the gun stated that Frank Dandridge had robbed him of $6, and that he was taking the gun with the intention of arresting Frank Dandridge, and turning him over to Deputy Sheriff Will Fool.”
Counsel for the defendant in their brief state:
“That if the defendant’s • testimony was true, Frank Dandridge was guilty of the crime of robbery or grand larceny, and if the defendant, knowing the crime to have been committed in his presence by Dandridge, went to his home for his gun in order to arrest Frank Dandridge and deliver him to the deputy sheriff as he testified, and after-wards met Dandridge, and the other two men in a field with the intention to arrest him, then and in this event the defendant was in the field for a lawful purpose, and he
had a right to defend himself against any assault made upon him by Dandridge. If upon the other hand he went to his home for his gun with the purpose and intent to kill Frank Dandridge, then he was not in the field for a lawful purpose. Therefore his intention in procuring the gun was the vital question to be determined by the jury under the evidence, and what the defendant said to his sisters at the time of procuring the .gun was explanatory of his intent, and was admissible as a part of the
res gestae.”
In support of this contention counsel cite
Koller v. State,
36 Tex. Cr. R. 496, 38 S. W. 44, wherein it was held by the Court of Criminal Appeals of Texas that:
“Where it appeared that deceased had spoken insulting words to defendant, and that the latter went home 'to procure a gun, and returned therewith, and shot deceased, declarations, made-by defendant at the time he went for the weapon, that he did not intend to kill deceased, but merely to make him retract the insult, were admissible as
res gestae.”
And the case of
Irvine v. State,
104 Tenn. 132, 56 S. W. 845, in which the Supreme Court of Tennessee held that:
“Statements made by the defendants to their mother, when leaving home, armed, in search of deceased, who had insulted her, that they were not going to hurt any one, but were going to beat deceased, when they killed him a short time afterwards, were admissible as part of the
res gestae.”
Counsel for the state urge:
“That the statement made by defendant to his sisters was not
res gestae,
and was properly excluded as ‘self-serving declaration.’ ”
Self-serving declarations are not admissible for the defense, unless they form a part of the
res gestae.
Declarations as a part of the
res gestae
are regarded as verbal
facts indicating a present purpose and intention, and therefore are admitted in proof like any other material facts. Prof. Wigmore says:
“Statements of design or plan are in general admissible, so far as the design or plan is relevant to show the doing of the act designed. Accordingly, it has never been doubted that the threats of an accused person are admissible to show his doing of the deed threatened, so also the threats of the deceased, on a charge of homicide, are by most courts admitted to show the deceased to have been the aggressor. Upon' the same principle, the expressions of plan, by the accused, not to do the thing charged, - or to do a different thing, are equally admissible. Statements before the act, asserting malice or hatred, are always received against an accused, except so far as the time of feeling is so remote as to make it irrelevant. Is there any reason why prior statements in favor of the accused — for example, of good feeling towards the injured party, or of fear of him as an aggressor — should not be equally admissible? Conduct offered as circumstantially evidential does not seem to be objected to. But statements asserting directly the existence of such feelings are by some courts treated as inadmissible, so far as they do not accompany the very act charged. .It is argued that the party must not be allowed to ‘make evidence for himself.’ But this objection applies equally to many classes of statements under the present exception, and is yet not thought of as fatal. Moreover, the notion of ‘making,’ that is, ‘manufacturing,’ evidence, assumes that the statements are false, which is to beg the whole question. Then it is further suggested that at any rate the accused, if guilty, may have falsely uttered these sentiments in order to furnish in advance evidence to exonerate him from a contemplated crime. But here the singular fallacy is committed of taking the possible trickery of guilty persons as a ground for excluding evidence in favor of a person not yet proved guilty; in other words, the fundamental idea of the presumption of innocence is repudiated. We elaborate this presumption in painful and quibbling detail; we
expend upon it pages of judicial' rhetoric; we further maintain, with sentimental excess,- the .privilege against self-crimination; in short, we exhaust the resources of reasoning and strain the principles of common sense to protect an accused person against an assumption of guilt in the most violent form. Because (we say) this accused person might be guilty and therefore might have contrived these false utterances, therefore we shall exclude them, although without this assumption they indicate feelings wholly inconsistent with guilt, and although, if he is innocent, their exclusion is a cruel deprivation of a most natural and effective sort of evidence. To hold that every expression of hatred, malice, and bravado is to be received, while no expression of fear, good will, friendship, or the like, can be considered, is to exhibit ourselves the victims of a narrow whimsicality, which might be expected in the tribunal of a Jeffreys, going down from Loridon to Taun-ton with his list of victims in his pocket, or on a bench ‘condemning to order,’ as Zola said of Dreyfus’ military judges. But it was not to have been anticipated in a legal system which makes so showy a parade of the presumption of innocence and the rights of the accused. The question-begging fallacy about ‘making evidence for himself’ runs through much of the judicial treatment. There is no reason why a declaration of an existing state of mind, if it would be admissible against the accused, should also be admissible in his favor, except so far as the circumstances indicate plainly a motive to deceive. Statements of intent or motive, at the time of the act charged, are of course admissible under the present exception. Whether in strictness the principle properly involved is the present one, or that of the verbal act doctrine, is perhaps open to question. Practically there can be little difference in the result, for, under either principle, the statements must relate to the present state of mind at the time of the act. Most courts treat the question in terms of the verbal act doctrine. The statements, as already indicated, ought to be admissible as well in favor of the accused as against him.” (Wigmore on Evidence, sec. 1732.)
In
Morehead v. State,
12 Okla. Cr. 62, 151 Pac. 1183, it is said:
“No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be a part of the
res gestae.
Each case must necessarily depend on its own circumstances to determine whether the facts offered were really part of the same continuous transaction.”
See
Wesley v. State,
11 Okla. Cr. 292, 146 Pac. 450;
Price v. State,
1 Okla. Cr. 369, 98 Pac. 447.
In our opinion, the statements made by the defendant to his sisters were admissible as a part- of the
res gestae.
They were so connected with it as to constitute a part of the transaction which ended in the death of Dandridge; but while holding this, we are clearly of the opinion that the rulings of the trial court in this regard do not constitute reversible error. Because, assuming the defendant’s account of the difficulty at the log cabin to be true, it does not show or tend to show that a felony had been committed. At most, the taking of the $5 bill would be only petty larceny. There was. no element of robbery in the transaction.
Upon the undisputed facts there was not the slightest authority in the defendant to arrest the deceased. The law protects its citizens in the enjoyment of liberty, and prescribes the mode and manner by which they may be arrested and brought to trial, intrusting the execution of the same.to its peace officers. Arrests can be made by no one for alleged offenses, unless upon a warrant based upon an affidavit issued by a judicial officer, except those enumerated in sections 5654, 5656, 5658, 5659, and 5660, Rev. Laws 1910. A private person attempting to arrest a felon without warrant must, before making the arrest, inform
.the person to be arrested of the cause thereof. Section 5661, Rev. Laws 1910. Unless he does so, the party attempted to be arrested has the right to. resist the arrest. In this case the defendant did not make his purpose and reason for attempting to make the arrest known.
The foregoing discussion disposes of all questions, in the case! No objection was made or exception saved to the instructions given by the court, which fully and fairly covered the law of the case. Upon a careful examination of the whole record,' we do not find any error prejudicial to the defendant, and we think it would have been a miscarriage of justice, if upon the evidence in this case any other verdict had been rendered.
The judgment of the district court of Muskogee county herein is affirmed.
ARMSTRONG and MATSON, JJ., concur.