(220 P.) tersection of Second and Dewey street and MATSON, P. J. (after stating the facts as turned north on Dewey, and as he did so the above). [1] It is first contended that the evilights on his automobile shown brightly up-dence is insufficient to sustain the verdict on a man who was standing in the alleyway and judgment. While there is a sharp conbetween Second and Third Street on the west flict in the evidence, if the evidence introducside of Dewey. York passed in the car and ed by the defendant and his witnesses was drove north to Third street, where he turned to receive credence by the jury to the excluaround and drove back along the west side of sion of the state's evidence, an acquittal Dewey street to the point where he had seen should have resulted. On the other hand, the the man standing. Drawing the shotgun, York evidence as to the identification of the defendtold the man he was an officer and to come to ant by the prosecuting witness was positive, him, but before doing so York had seen two and supplemented as it was by the subsequent bright objects, one in each hand of the man. attempt of the defendant on the occasion of Instead of coming to York the man backed his arrest to escape and his explanation for up against a hedge fence and threw one of being at the place where he was arrested at the objects over the fence and then started the time of his arrest, and the further fact to run. York followed him up to Third street that the prosecuting witness gave the police, and west along Third street for a block or immediately after the robbery, a detailed more and fired one shot to frighten him description of the person who robbed him, when the man darted in behind a house. which tallied with the defendant, and also York, however, was close upon him and that defendant carried, when arrested, a accomplished his arrest, placing handcuffs pistol and search light like those described on him. This man proved to the defendant, by the prosecuting witness before any arrest E. T. Cox. He was possessed of a nickel- was made, all point conclusively to his guilt, plated, long-barreled, 22 revolving pistol, and convince this court that the jury made which he had thrown over the hedge when no mistake in the conclusion reached. the officer accosted him, and also a search It is well established in this jurisdiction light. He fully answered the description that a judgment of conviction will not be regiven by Burkhart to the officers the night versed because of the insufficiency of the before. After his arrest he was taken to the police station, and the prosecuting witness Burkhart was called and there identified him as the man who had robbed him the night before. Burkhart had given a description to the officers of the person who robbed him, including the statement that the man carried a long-barreled nickel-plated revolver and a search light at the time he was robbed, having used the search light to distinguish the Columbian half dollar at the time he returned it to him (Burkhart). The defense interposed was an alibi-the defendant claiming that he was at the home of his mother and father at 4122 West Reno in Oklahoma City that night, that his mother was sick and that he waited upon her and gave her certain medicine at intervals of two hours apart, one dose at 8 o'clock and another at 10 o'clock, after which he retired. The robbery occurred at about 10:20 p. m. Defendant admitted, however, that he left the premises to mail a couple of letters between the hours of 9 and 10 and that he was gone only a few minutes, which were not sufficient to permit him to have committed this robbery. Defendant was corroborated by certain of his relatives and intimate friends who lived at the rooming house. There are other facts and circumstances in evidence which are not necessary to detail, and which do not involve any legal propositions presented in this appeal. O. T. Shinn, of Oklahoma City, for plaintiff in error. George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State. evidence, where the evidence is conflicting if there is evidence in the record, apparently credible and competent, from which the jury that the defendant was guilty of the crime could reasonably and rationally conclude charged. High v. State, 9 Okl. Cr. 523, 132 Pac. 509; Curry v. State, 9 Okl. Cr. 38, 130 Pac. 513; Dotson v. State, 14 Okl. Cr. 50, 166 Pac. 902; Prather v. State, 14 Okl. Cr. 327, 170 Pac. 1176. [2] Next it is contended that the information is insufficient to charge the crime of robbery. The information was not demurred to in the lower court, neither was any motion in arrest of judgment interposed on the ground of the insufficiency of the information to state facts sufficient to charge the crime of robbery. While the information is somewhat inartlficially drawn and does not go into detail as to the manner of the use made by the accused of the revolver alleged to have been had and held by him, we deem it sufficient by inference and intendment to charge the crime of robbery. It has been repeatedly held by this court that, where a defendant goes to trial and for the first time objects to the indictment or information when the state attempts to introduce testimony thereunder or upon appeal, or by habeas corpus, the objection should be overruled, if, by any intendment or presumption, the indictment or information can be sustained. McDaniel et al. v. State, 8 Okl. Cr. 209, 127 Pac. 358; Wilsford v. State, 8 Okl. Cr. 535, 129 Pac. 80; Edwards v. State, 5 Okl. Cr. 20, 113 Pac. 214; White v. State, 4 Okl. Cr. 143, 111 Pac. 1010; Extrial sufficiently prejudicial to authorize a parte Spencer, 7 Okl. Cr. 113, 122 Pac. 557. reversal of the judgment. [3] It is also contended that the trial court erred in permitting the state to show by the witness York that at the time witness arrested the defendant on the night of the alleged robbery the defendant was armed, resisted arrest, and attempted to escape. in this connection it is contended that the evidence thus admitted tended to prove the guilt of the defendant of other offenses not directly connected with the offense charged. For reasons stated, the judgment is therefore affirmed. DOYLE, J., concurs. BESSEY, J., absent, not participating. WILLIS v. STATE. (No. A-4294.) (Criminal Court of Appeals of Oklahoma. Nov. 24, 1923.) (Syllabus by the Court.) I. Homicide 342-Defendant found guilty of manslaughter in first degree cannot complain of submission of issue of manslaughter where law and facts show murder. In a prosecution for murder, when the defendant guilty of manslaughter in the first court submits the issue, and the jury finds the degree, in a case where the law and the facts make the crime murder, it is an error in the defendant's favor, of which he has no cause to complain. No objection was interposed to this evidence in the trial court, and for that reason no reviewable question is presented in this court. The evidence of the possession of the revolver, which answered the description given by the prosecuting witness, and of the search light, which also answered the de scription given by the prosecuting witness, and of the description of the clothing worn by the defendant at the time of his arrest, which also answered the description given by the prosecuting witness, were all admissible on the question of the identity of the defendant with that of the man who committed the 2. Criminal law robbery. The evidence of his attempted escape from arrest and resistance to arrest were provable as indicating a consciousness of guilt on his part, and the admissibility of this evidence was not affected by the fact that it tended to prove the defendant guilty of other offenses. Hill's Criminal Evidence, §§ 54, 115, and 118; Robinson v. State, 8 Okl. Cr. 674, 130 Pac. 121; Vickers v. United States, 1 Okl. Cr. 452-462, 98 Pac. 467. [4] It is also contended that the trial court erred in limiting the jury in its instructions to a consideration of first degree robbery only. The information charged robbery in the first degree. The undisputed evidence was to the effect that the robbery was accomplished by putting the person robbed in fear of immediate injury to his person. Robbery accomplished by putting the person robbed in fear of immediate injury to his person is robbery in the first degree. The trial court is not required to instruct as to the lower degree of the crime charged, 1186(4)-Conviction will not be set aside for error in admission of evidence in absence of miscarriage of justice or prejudicial denial of rights. A conviction will not be set aside because of error in the admission of evidence, unless, in the opinion of this court, such error probably resulted in a miscarriage of justice or deprived defendant of some constitutional or statutory right, to his prejudice. (Additional Syllabus by Editorial Staff.) 3. Criminal law 847-Failure to object and except to instruction as to first degree manslaughter held a waiver of error. Where, in a prosecution for murder, the court instructed on the issue of manslaughter in the first degree, defendant's failure to object waiver of the error in giving it. and except to the instruction constituted a Appeal from District Court, Choctaw County; G. N. Barrett, Judge. Joe Willis was convicted of manslaughter in the first degree, and he appeals. Affirmed. John Cocke, of Antler, and Warren, Warren & Warren, of Hugo, for plaintiff in er if there is no evidence tending to reduce the The instructions as a whole fairly cover the law of the case as applied to the evidence, and are free from prejudicial errors. After a careful examination of the entire record, the court is of the opinion that defendant had a fair and impartial trial, that there is ample evidence in the record to sustain the verdict and judgment, and that no error occurred during the progress of the George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State. MATSON, P. J. On the 3d day of November, 1921, plaintiff in error, Joe Willis (hereinafter referred to as defendant), was convicted of the crime of manslaughter in the first degree in the district court of Choctaw county, on an information charging defendant with the murder of one George Clemmons, alleged to have been committed in said county on or about the 24th day of July, 1920. The punishment was fixed by the jury For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (220 P.) at imprisonment in the state penitentiary directed by the defendant against the defor a term of 10 years. ceased. But two assignments of error are urged by The matter to which the defendant's atcounsel for the defendant as grounds for reversal of this judgment. First is that the court erred in instructing the jury upon the issue of the guilt of the defendant of the crime of manslaughter in the first degree. In this connection it is contended that the facts and circumstances as viewed from the evidence introduced by the state disclosed that the defendant was guilty of the crime of murder; that the facts and circumstances viewed from the evidence as introduced by the defense disclosed that the defendant acted in his necessary self-defense; that there was no evidence to justify an instruction on the law of manslaughter in the first degree; and that the giving of such instruction was clearly prejudicial to the substantial rights of this defendant. tention was directed in the foundation for his impeachment was competent for that purpose; but inasmuch as the attempt to impeach the defendant failed of accomplishment, and in view of the fact that counsel for the defendant did not consider it of enough import to move that what little evidence was permitted to go to the jury be stricken and withdrawn from the jury's consideration, we fail to see wherein defendant was in the least prejudiced by reason of the matters and things urged under this assignment, in view of the mandatory provisions of section 2822, Compiled Statutes 1921, that no judgment must be set aside by this court because of the improper admission of evidence unless the same, in the opinion of the court, probably resulted in a miscarriage of justice or deprived defendant of some constitutional or statutory right to his prejudice. [3] The court instructed the jury on the issue of the defendant's guilt of manslaughter in the first degree without objection on Upon a consideration of the entire record, the part of the defendant and without any it is the opinion of the court that the judgexception being taken to such instruction.ment should be affirmed. It is so ordered. His failure to thus object and except within itself was a waiver of this alleged error. Steward v. State, 9 Okl. Cr. 327, 131 Pac. 725. [1] However, under the repeated decisions of this court, it is uniformly held that a defendant who has been convicted of manslaughter cannot complain that the court charged on that degree of felonious homicide and that the evidence would not justify such a charge. Especially is this true where the evidence is sufficient to have authorized his conviction of a higher grade of the offense than that for which he was convicted. Counsel for the defendant admit in the brief filed that the evidence on behalf of the state in this case is sufficient to sustain a conviction for murder. That the giving of a manslaughter instruction under the circumstances as disclosed by this record was not error is supported by the following authorities: Weatherholt v. State, 9 Okl. Cr. 161, 131 Pac. 185; Steward v. State, 9 Okl. Cr. 327, 131 Pac. 725; Irby v. State (Okl. Cr. App.) 197 Pac. 526; Harper v. State (Okl. Cr. App.) 200 Pac. 879, 882; Smith v. State (Okl. Cr. App.) 202 Pac. 519, 520; Wilmoth v. State (Okl. Cr. App.) 203 Pac. 1055, 21 A. L. R. 590. [2] Second, it is assigned that the court erred in permitting the state to impeach the defendant on immaterial matters for which no predicate had been laid, and over the objection and exception of the defendant. DOYLE, J., Concurs. BESSEY, J., absent, not participating. CONNER v. STATE. (No. A-4161.) (Criminal Court of Appeals of Oklahoma. Nov. 12, 1923.) (Syllabus by Editorial Staff.) Criminal law 1106(3)-Appeal dismissed, where petition and case-made not filed in time. Where petition in error and case-made after conviction for misdemeanor were not filed in the Criminal Court of Appeals until more than 120 days after rendition of judgment of conviction below, the appeal will be dismissed. Appeal from County Court, Major County; Harry Randall, Judge. J. F. Conner was convicted of failing and refusing to compel his minor child to attend school, and he appeals. Appeal dismissed. See, also, 217 Pac. 226. Bishop & Roberts, of Fairview, for plaintiff in error. George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State. PER CURIAM. This is a purported apAn examination of the record in connec- peal from the county court of Major countion with the second assignment of error dis- ty, from a judgment rendered on the 5th day closes that the attempt to impeach the de- of September, 1921, convicting plaintiff in fendant here complained of failed, in that error of the offense of failing and refusing the impeaching witness was unable to fasten to compel his minor child to attend school the alleged impeaching statement as being as required by law and assessing against For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes him a fine in the sum of $25 and costs of the prosecution. The petition in error and case-made were not filed is this court until the 5th day of January, 1922, more than 120 days after the rendition of the judgment in the lower court. This being a conviction for a misdemeanor, the longest period of time allowed by statute for perfecting an appeal from the judgment is 120 days after the rendition thereof. The appeal is therefore dismissed. Boyle v. State, 15 Okl. Cr. 659, 179 Pac. 945, and cases cited therein. KIRBY v. STATE. (No. A-3948.) (Criminal Court of Appeals of Oklahoma. June 16, 1923. Rehearing Denied Dec. 4, 1923.) (Syllabus by the Court.) 1. Criminal law 1150-Order granting or refusing change of venue not disturbed unless court's discretion appears clearly abused. The granting or refusing of a change of venue is in the discretion of the trial court, and this court will not reverse the judgment, unless it clearly appears that there has been an abuse of such discretion. 2. Criminal law 377, 378-Character evidence as to trait involved in charge against accused always admissible; where a defendant offers testimony of previous good character, state may offer evidence of bad character in rebuttal. A defendant's general good character or reputation as to the trait involved in the charge against him is always admissible in his favor to evidence the improbability of his doing the act charged, and where a defendant offers testimony to show his previous good character the state may in rebuttal offer evidence of his bad character. 3. Witnesses 337(1)-Defendant as witness in own behalf puts his credibility at is sue. When a defendant elects to testify in his own behalf, he occupies a double position. As a defendant his character cannot be attacked by the state; as a witness he puts his credibility at issue like any other witness. 4. Witnesses 410-Mere fact that witness' testimony is contradicted does not warrant evidence as to his reputation for truth and veracity. In a criminal trial the mere fact that a witness' testimony is contradicted by adverse testimony does not warrant the introduction of evidence as to his reputation for truth and veracity. 5. Witnesses 318-Where defendant testifies in his own behalf and is not impeached nor credibility attacked, evidence sustaining reputation for truth and veracity inadmissible. In a criminal trial where the defendant testifies as a witness in his own behalf and is not impeached, and his credibility is not attacked, except by contradiction of his testimony by other witnesses, evidence sustaining his reputation for truth and veracity is not admissible. County; A. C. Brewster, Judge. A. L. Kirby was convicted of manslaughter in first degree, and he appeals. Affirmed. Hunt & Beauchamp, of Grove, and J. Wythe Walker, of Fayetteville, Ark., for plaintiff in error. George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State. DOYLE, J. In the information in this case, filed in the district court of Delaware county, A. L. Kirby was charged with the crime of murder, alleged to have been committed in said county on or about the 26th day of September, 1920, by killing one Boone Crawley, by shooting him with a pistol. Upon his trial the jury found him guilty of manslaughter in the first degree and fixed the punishment at imprisonment in the penitentiary for the term of 10 years. From the judgment rendered in pursuance of the verdict he appeals. The defense was justifiable homicide. The evidence shows that Crawley and Kirby were neighbors and lived about onehalf mile apart on the same road; that there was a dispute existing between them relative to the right to open and use a certain section line as a road that Kirby had planted a crop on; that four months before the killing in connection with this dispute, Crawley and Kirby had engaged in a difficulty, and Crawley struck Kirby with a wagon spoke; that in the afternoon of the day of the homicide, Crawley had hauled a load of cane to a mill near by and returning drove through the gate into his place, and was fastening the gate when Kirby rode up on a horse and shot him with a pistol, firing five or six times. One bullet entered just to the right of the backbone at the twelfth rib and came out at the junction of the third rib with the breastbone at a point higher up than where it entered. Another bullet entered just above the left hip in what doctors call Petit's triangle, and came out about an inch and a half to the right and an inch below the naval; this wound ranged down. From the effects of these wounds he died at 11 o'clock the next morning The only witnesses to the transaction were the parties concerned and Crawley's wife. She testified: "My husband hauled a load of cane to the mill on Wolford's place. About 4 o'clock I was sitting in the house and saw my husband driving in a walk towards the gate. A little later I heard two or three shots. I went to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (220 P.) door and saw Mr. Kirby sitting on his horse the county. The state contested the applicawith a smoking pistol in his hand. He was tion and called ten witnesses, and after near the north end of the gate and his horse hearing the proof and argument, pro and was facing south. The team and wagon were con, the court overruled the application. inside the gate. My husband called to me to bring him a gun. I walked across the room to get the pistol, and I heard two or three more shots fired. As I went out the door, Mr. Kirby turned his horse and rode north towards his home. I went to my husband and found him lying as one dead. I called to him. He could not answer me. My children were over in the field. I started after them, and stopped and called to them, but I could not make them hear me. Then I called to my neighbors and went back to my husband. He was lying about 15 steps inside the gate. The gate was made of It pine planks and opened out to the road. fastened with wire, and was about 200 yards from the house. The team ran away." It appears that one bullet passed through the second board from the top of the gate. It entered from the outside and ranged down. The preponderance of testimony tends to show that two shots were fired in quick succession, then a pause followed by three or four shots. Crawley's dying declarations were to the effect that Kirby shot him; that he was inside the gate, fastening it at the bottom, when Kirby shot him in the back. As a witness in his own behalf, Kirby testified: "I had been to Row, and came back by a sale. I saw Crawley ahead of me in a wagon and slowed up because I didn't want to pass him. He stopped and opened the gate and took his horses by the bits and led them in. Then he shut it back and stood with his back to the gate and watched me as I was coming. He said, 'How are you, sir?' I pulled my horse out to the side of the road, and he says: 'Go to hell, you son of a bitch! You made me pay a fine, I am going to hammer your damn brains out.' And he stooped down and grabbed a rock and threw it at me. I dodged it. He stooped down again and grabbed a rock that seemed to be tight in the ground, and I shot at him. I think there was four loads in the pistol, but there possibly might have been five. I fired the shots to protect my life or my body from serious injuries. About four months before I had trouble with him, and he hit me with a wagon spoke on the side of the face. He was fined for it by justice of the peace at Jay. A few days before he hit me with the club, I met him in the wood pasture. He had an open knife in his hand and asked me if I had seen any hogs. I told him, no, and I kept out of his way." In accordance with a stipulation of the parties, the court directed and the jury were conducted to the scene of the tragedy to view the same. [1] It has been repeatedly decided by this court that the granting of a change of venue is, under the statute (Comp. Stats. 1921, § 2628), discretionary with the trial court, and unless it clearly appears that there is abuse of such discretion,, this court will not reverse the judgment for the failure of the trial court to grant a change of venue. Warren v. State (Okl. Cr.) 215 Pac. 635 (not yet officially reported), and cases therein collated. There is nothing in the record to indicate that the court acted arbitrarily, and it appears that there was no difficulty in securing a fair and impartial jury. Considering the verdict rendered by the jury, there can be no doubt of the fact that the court did not abuse its discretion in refusing to grant a change of venue. All other assignments of error are based upon exceptions taken to rulings of the court excluding evidence offered by the defendant. [2] The defendant offered to show by seven different witnesses that each of them knew "the general reputation of the defendant in the community in which he lived for truth and veracity, and that defendant's general reputation for truth and veracity in that community was good." To this evidence the state objected; the court sustained the objection; the defendant duly excepted. Upon this subject the court gave the following instruction: "You are instructed that the general reputation of the defendant in the community in which he lives for truth and veracity is presumed under the law to be good." It is argued that the only direct evidence controverting the dying declaration was the testimony of the defendant; hence it became very material to the defendant to show his good reputation for truth and veracity, and that he was entitled to something more than a mere presumption, that he was entitled to make proof of the fact that his reputation was good. In support of this contention counsel cite two cases. Friel v. State, 6 Okl. Cr. 532, 119 Pac. 1124; Smith v. State (Okl. Cr. App.) 202 Pac. 1046. In the Friel Case it is held that"Where the testimony of a witness is contradicted in the trial of a cause, it is competent, for the purpose of supporting his testimony, to introduce evidence as to the general reputation of the witness for truth and veracity." In the Smith Case it is said: The first assignment is: "Error of the court in refusing to grant a change of venue." When the case was called for trial, appel"The testimony of the defendant was directlant filed his duly verified petition in properly in conflict with the testimony of the witform for a change of venue, which was sup- nesses for the state, and, where the veracity of ported by the affidavits of nine citizens of a witness is in any manner called in question, |