ANCE ROGERS, Plaintiff in Error,

VS.

STATE OF OKLAHOMA Defendant in Error.

(Rendered May. 9, 1913.)

Error from District Court of Love County. Hon. S. H. Russell, trial Judge.

Affirmed.

No.

1. The admission or exclusion of testimony which in the light of subsequent development during the trial indicates conclusively that no injury did or could have resulted is not ground for reversal of a judgment.

2. The admission of testimony which is of doubtful competency, and which is afterwards by the court excluded out of an abundance of caution, is not error sufficiently prejudicial to justify a reversal.

3. (a) When two persons are jointly charged with the commission of an offense against the laws of this State, if such offense is felony they are entitled to separate trials, if they so demand, as provided by statute. (b) When persons who are jointly charged with a felony are jointly tried, testimony which is admissible as to one and inadmissible as to the other is properly admitted when limited in its effect by instructions from the court to the jury confining it to the particular defendant against whom it is admissible; and this is the rule even though the testimony introduced is such that were the complaining accused on separate trial it would have been reversible error to admit the same as against him.

(Syllabus by the court.)

Ance Rogers being convicted of murder appeals.

Eddleman & Graham, Attorneys for plaintiff in error. Smith C. Matson, Assistant Att'y General for the State.

Opinion of the Court by ARMSTRONG, P. J.

PAUL COLLEGENIA, Plaintiff in Error,

vs.

No. A-1496

STATE OF OKLLHOMA, Defendant in Error.

Reversed.

1. A man has the right to defend his domicile against every unlawful invasion, and to defend himself and those within it against every and all violence, without the necessity of retreat, even to the extent of taking life if it be actually or apparently necessary to do so in order to prevent the commission of a felony thereon or therein. 2. The law in the humanity will not justify the taking of life to repel a mere trespass or invasion of the home without felonious intent, or in resisting a non-felonious assault, but a man who is without fault may repel force with force in defense of his person habitation, or property against any one manifestly intends and endeavors with violence to commit a felony thereon or therein. such case he is not compelled to retreat, but may pursue his adversary until he finds himself out of danger, and if in the conflict between them he happens to kill him such killing is justificable.

In

3. A peace officer may arrest without a warrant for a misdemeanor committed or attempted in his presence and a person so arrested has no lawful right to resist. However, if the lawful power to arrest is exercised in such a wanton and unlawful manner as to make such officer a trespasser, resistance will be justified.

4. A peace officer making an arrest without authority to do so, occupies the same relations to the party arrested that any other private citizen would. He is a trespasser, who has no right to detain the person, and hence no right to prevent an escape, and in preventing an escape, he is still a trespasser.

5. The defendant being where he had a right to be, on his own premises at the time deceased assaulted him with a deadly weapon, and it being a disputed fact whether the defendant by his conduct in any way provoked

the deceased to so assault him, the question was for the jury to determine as a question of fact upon all the evidence, and for this reason the court had no right to assume that the deceased as a constable and his deputies were not trespasers, and that the defendant was not without fault, or that the deceased as such peace officer was justified in making an assault with a deadly weapon upon the defendant.

6. In a prosecution for murder, the court should instruct upon the law applicable to the case whether requested to do so or not. The law applicable is determined by the accusation and the evidence introduced upon the trial, and when the evidence tends to show justification in self defense and in defense of habitation, it is the duty of the court to submit instructions properly embracing the law of self defense.

7. On the trial of an indictment or information, questions of law are to be decided by the court and questions of fact are to be decided by the jury, and the court has no right in charging the jury to submit any proposition which assumes any particular controverted fact to be proven, which is an expression upon the weight of the evidence or credit of a witness or which requires the jury to give more credit to one class of testimony than some other, the jury must be left entirely free to deter mine all facts, the weight of the testimony and the credit to be given the witnesses.

8. The evidence reviewed and held not to warrant a charge on murder.

EDITORIALS.

We call attention to the card of Hon. W. I. Williams of Tulsa, as to a set of books (Lawyers Reports Annotated), which he is offering at a great bargain. We personally saw the books and they are almost new. In the hands of some publisher they would sell almost for the original price of $5.00 per volume, while he is offering then at a great sacrifice. See card on 2nd cover page,

and address him at once.

Can Japan be Barred.-A clause of the treaty between the United States and Japan reads as follows: "The citizens or subjects of each high contracting parties shall have liberty to own or lease and occupy houses, manu. factories, warehouses and shops; to employ agents of their own choice, to lease land for residential and commercial purposes, and generally to do any thing incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established."

That our government has the power to make such treaty has already been adjudicated. See Geofroy vs. Riggs, 133 U. S. 258. See also Fort Leavenworth R. R. Co. vs. Love, 114 U. S. 525. And further the very Su preme Court of California, 127 Cal. 431, has followed the Federal construction of the treaties.

The Virginia Law Register, in its May Number, cites the Horton case, 99 Virg. 855, on the subject of "Reasonable doubt." It seems to be a well considered definition, and it reads as follows: "It must arise from a candid and impartial investigation of all the evidence in the case, and unless it is such that were the same kind of doubt interposed in the graver transactions of life it would cause a reasonable and prudent man to hesitate and pause, it is sufficient to authorize a verdict of not guilty. If after oonsidering all the evidence you can

say that you have an abiding conviction of the truth of the charge, you are satisfied beyond reasonable doubt."

And further on, this valuable magazine, says: ExPresident Taft, while Circuit Judge, in the case of U. S. vs. Youtsey, 91 Fed. Rep. 864, uses the following very apt and clear language: "A reasonable doubt of guilt is a doubt growing reasonably out of the evidence, or the lack of it. It is not a captious doubt; not a doubt engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the responsibility of convicting a fellow man. If, having weighed the evidence on both sides you reach the conclusion that the defendant is guilty to that degree of certainty that would lead you to act on the faith of it in the most im portant and critical affairs of your life, you may properly convies him. Proof beyond a reasonable doubt is not proof to a mathematical demonstration. It is not proof beyond the possibility of mistake.”

Why should a good subscriber, who pays year after year when personally seen, pay no attention to a proper statement sent him asking to send you his check for two dollars? you must remember that there are points not convenient to reach to stop over every year to see you in person, it is too inconvenient. Now if this applies to you at all, send us your check.

PROFESSIONAL NEWS⚫

Hon. Preston C. West, noted and successful lawyer of Muskogee has formed a partnership with Mr. Franklin Pierce Schaffer, lately from New York. Mr. Schaffer is a graduate from Columbia in law, and of Oberlin college in the arts and literature. He was admitted to practice in his native state but concluded to come to Oklahoma. He was admitted here on motion by reason of his high credentials. Mr, Shaffer bears all the indicia of the thorough gentleman and we predict for him a brilliant future in the State of his adoption.