rors had formed and expressed an opinion in regard to the guilt of the defendant after he had been impaneled and sworn to try the cause, and before the same was finally submitted to the jury. Several witnesses were introduced in support of and in opposition to the motion. The testimony in the hearing covers several pages. The court, at the time the motion was passed upon, made the following findings: "There is no testimony here that any person made any comment upon the case in the presence of any juror; and no evidence offered tending to show that the juror, or any of the jury, were influenced in any way in arriving at their verdict by anything, other than the testimony that was offered in the case." We think the finding of the court is sustained by the proof shown in the record. The defendant had a fair and impartial trial under the law. The judgment is affirmed, with directions to the district court of Harper county to enforce its judgment and sentence. call the attention of the trial judge to any er- 2. CRIMINAL LAW (§§ 778, 824*)-DUTY TO IN- Second. (a) Section 6854 of Snyder's Compiled Laws of Oklahoma 1909 is as follows: "Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden 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." It is not error for the trial court to give this section in charge to a jury in a homicide case. (b) Hawkins v. United States. 3 Okl. Cr. 651, 108 Pac. 561; Prince v. United States, 3 Okl. Cr. 700, 109 Pac. 241; Culpepper v. United States, 4 Okl. Cr. 103, 111 Pac. 679, reaffirmed. (c) Our statutes require a trial judge to instruct the jury as to all matters of law which he thinks are necessary for their information in giving their verdict. If counsel for a defendant are of the opinion that additional instructions should be given to the jury, it is their duty to reduce them to writing, submit them to the FURMAN, P. J., and DOYLE, J., concur. trial judge, and request that they be given to (5 Okl. Cr. 488) LUMPKIN v. STATE. (Criminal Court of Appeals of Oklahoma. May 1. CRIMINAL LAW (§§ 1098, 1099*)-APPEAL— First. (a) Remarks made by a trial judge expressive of his private opinion of a case at the time that he overruled a motion for a new trial, and pronounced judgment against a defendant, do not constitute any part of the trial of the case, and should not be incorporated in the case-made. (b) It is the right and duty of a trial judge to incorporate in a case-made any statement of facts or matters that occurred in his presence during the trial which he thinks should be brought to the knowledge of this court, and which are necessary to enable this court to understand the rulings made during the trial; but the private opinion of the trial judge with reference to the merits of the case, which is not expressed in the presence of the jury and which therefore could not influence them adversely to the rights of the defendant, does not concern this court, and cannot in any manner affect its decision upon questions of law or fact submitted to it for consideration. It is therefore improper to incumber the record with such remarks. (c) It is the duty of the county attorney to carefully read over and consider every line in a case-made before it is presented to the trial judge for his approval and signature, and, if any matters have been improperly incorporated in the case-made, the county attorney should call such matters to the attention of the trial judge and move that they be stricken from the case-made. (d) The trial judge is justified in approving a case-made after it has been submitted to and approved by the county attorney, without first reading the entire case-made, upon the ground that it is the duty of the county attorney to the jury. If they fail to do this, a conviction will not be reversed unless this court is of the opinion, in the light of the entire record and instructions of the court, that by the failure of the trial court to instruct the jury upon some material question of law the defendant has been deprived of a substantial right. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. $$ 778, 824;* Homicide, Cent. Dig. §§ 615, 651.] 3. HOMICIDE (§ 255*) - MANSLAUGHTER IN FIRST DEGREE-SUFFICIENCY OF EVIDENCE. Third. For facts fully sustaining the verdict of the jury where a defendant was convicted of manslaughter in the first degree, see statements contained in the opinion of the court. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 539-541; Dec. Dig. § 255.*] McAdams, Special Judge, dissenting. Appeal from District Court, Noble County; W. M. Bowles, Judge. Glick Lumpkin was convicted of manslaughter in the first degree, and he appeals. Affirmed. Judge Doyle, having been of counsel in this cause, was thereby disqualified, and did not participate in the hearing, consideration, and decision of this case, and the Governor appointed Hon. E. G. McAdams as special judge to preside in the place of Judge Doyle. H. B. Martin, for appellant. Smith C. Matson, Asst. Atty. Gen., for the State. FURMAN, P. J. In this case appellant relies upon a number of different grounds to secure a reversal of the judgment against him. We do not deem it necessary, however, to discuss more than three questions presented, which are as follows: First, remarks made by the trial judge when the motion for a new trial was overruled and sentence was pronounced against the defendant; second, objections to one paragraph of the charge of the court; third, is the ver- [ carelessness of county attorneys in this redict contrary to the evidence? spect. The remarks made by the trial court in this case constitute no proper part of the case-made, and are therefore stricken from the record, and will not be considered by this court for any purpose whatsoever. [2] Second. The court, among other things, instructed the jury as follows: "You are instructed that, upon a trial for murder, the commission of a homicide by the defendant being proved, the burden 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." To this instruction [1] First. As to the first question, we are of the opinion that the remarks made by the trial judge when the motion for a new trial was overruled and judgment of the court was pronounced against the defendant do not constitute any part of the trial of this cause, and that they were improperly incorporated in the record. Remarks made by a trial judge upon such an occasion could not have any influence whatever upon the action of the jury in convicting the defendant, because they are made after the verdict has been rendered. If a judge in overruling a motion for a new trial desires to review the testimony, we know of no reason why he could not do so, except that it might be prej-defendant duly excepted. The instruction as udicial to a defendant in the event the judgment of conviction was reversed and a new trial was ordered; but, be this as it may, such remarks do not constitute any part of the trial and should not be incorporated in the record. It is the right and duty of the judge to incorporate in the case-made a statement of facts as to any matters that occurred during the trial in his presence which he thinks should be brought to the knowledge of this court, and which are necessary to enable this court to understand the rulings that were made during the trial of the case. But the private opinion of a trial judge with reference to a case does not concern this court, and could not in any manner affect our decision upon any question which might be submitted to us for consideration. It is therefore improper to incum-evidence before them. ber the record with remarks made by the trial court with reference to a case which were not made during the trial, and which could not possibly have influenced the jury improperly to the injury of the appellant. There was no order of the trial judge directing that the remarks made in this case should be incorporated in the record. The entire remarks indicate that the judge was only expressing his private opinion with reference to the case. These remarks were evidently inserted in the record by counsel for appellant; and, as the record contains nearly 800 pages and the trial judge would not have time to read it all over and see that each statement was correct, and as the case-made was approved by the county attorney, the trial judge was justified in signing and approving it as presented. We do not for one moment believe that the distinguished judge who presided at this trial ever intended to send these remarks up to this court for review. This illustrates how necessary it is for the county attorney to carefully read every line in a case-made before it is presented to the trial judge for his signature, and to file objections to any statement made therein which it should not contain. We have been forced to reverse a number of cases which would have been affirmed had it not been for the given is in the exact language of the statute. Section 6854 of Snyder's Comp. Laws of Okl. 1909 is as follows: "Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden 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." As the Legislature has enacted this law, the courts of this state are without power to do otherwise than to enforce it. The trial court repeatedly, correctly, and fully instructed the jury as to the presumption of innocence and the doctrine of reasonable doubt as applicable to all of the facts and circumstances in The question here presented has been repeatedly passed upon by this court adversely to the contention of counsel for appellant. Hawkins v. U. S., 3 Okl. Cr. 651, 108 Pac. 561; Prince v. U. S., 3 Okl. Cr. 700, 109 Pac. 241; Culpepper v. U. S., 4 Okl. Cr. 103, 111 Pac. 679. We cannot do better than quote from the case of Prince v. United States, supra. The opinion in this case was by Judge Richardson, than whom Oklahoma has not produced an abler or more conscientious judge. It is as follows: "If the prosecution proves the killing without showing of facts sufficient to raise a reasonable doubt as to the defendant's justification or excuse, the unlawfulness of the killing is presumed, and thereupon the burden shifts to the defendant to produce sufficient testimony to raise a reasonable doubt as to his justification or excuse. If the defendant discharges this burden, then it returns to the prosecution, and, to warrant a conviction, the prosecution must overcome such reasonable doubt thus raised by proof beyond a reasonable doubt of each essential element of the crime. And where the court gives that statutory provision as an instruction, and also instructs the jury, as he did in this case, that upon the whole case the burden is on the prosecution to prove the defendant's guilt beyond a reasonable doubt; that every presumption of law, in dependent of evidence, is in favor of inno- | thereof, shall be deemed to be excepted to. cence; that this defendant is presumed to When the instructions are thus settled, the be innocent of any offense; that this pre- jury, if sent out, shall be recalled and the sumption remains with him throughout the court shall thereupon read the instructions trial, and attends him step by step; and to the jury." Construing these two statutes that if, upon a consideration of all of the together, it is plain that our law only reevidence, there remains a reasonable doubt quires the judge to give to the jury in his of the defendant's guilt, he must be acquit- instructions such matters of law as he thinks ted-certainly the giving of the instruction are necessary for their information in givcomplained of thus limited in its application ing their verdict, and that the instructions could not be held error. On the contrary, it must be settled after the introduction of eviis proper. People v. Flahave, 58 Cal. 249; dence is concluded, and that, if counsel for People v. Hawes, 98 Cal. 648, 33 Pac. 791; the defendant desire any additional instrucPeople v. Neary, 104 Cal. 373, 37 Pac. 943; tion given to the jury, it is their duty to reDuncan v. People, 134 Ill. 110, 24 N. E. 765; duce such instructions to writing, and rePeople v. Tarm Poi, 86 Cal. 225, 24 Pac. quest that they be given. See Boutcher v. 998; Bell v. State, 69 Ga. 752; Murphy v. State, 4 Okl. Cr. 585, 112 Pac. 762. We cerPeople, 37 Ill. 447; State v. Tabor, 95 Mo. tainly would not be justified in reversing a 585, 8 S. W. 744; Territory v. McAndrews, conviction where the law is correctly given, 3 Mont. 158; Territory v. Rowand, 8 Mont. and is applicable to the facts of the case. If 110, 19 Pac. 595; State v. Keith, 9 Nev. 15; counsel for appellant had desired, they might People v. McGonegal, 62 Hun, 622, 17 N. Y. have requested the court to instruct the jury Supp. 147; State v. Mazon, 90 N. C. 676; as the court did instruct the jury in the case State v. Jones, 98 N. C. 651, 3 S. E. 507; of Culpepper v. United States, supra; but, in State v. Thomas, 98 N. C. 599, 4 S. E. 518, the absence of such a request, all the in2 Am. St. Rep. 351; State v. Byers, 100 N. structions given being applicable to the facts C. 512, 6 S. E. 420; State v. Rollins, 113 N. of the case and in harmony with the laws C. 722, 18 S. E. 394; Commonwealth v. Drum, of this state, and it not appearing from the 58 Pa. 9; People v. Callaghan, 4 Utah, 49, entire record that the defendant has been 6 Pac. 49; Cotrell v. Commonwealth, 17 S. deprived of any substantial right, we cannot W. 149, 13 Ky. Law Rep. 313; People v. Bol- grant a new trial upon the ground which we ing, 83 Cal. 380, 23 Pac. 421; Territory v. are now considering. Manton, 8 Mont. 95, 19 Pac. 387; IIammil v. State, 90 Ala. 577, 8 South. 380." Section 6857 of Snyder's Compiled Laws of Oklahoma 1909 is as follows: "In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must Abe Hunter, a witness for the state, testiin addition inform the jury that they are fied as follows: "Q. I will ask you if, in the exclusive judges of all questions of fact. the city of Perry, on the 2d or 3d day of Either party may present to the court any March-the 3d day of March-on the east written charge, and request that it be given. side of the square, if you saw the defendant If the court thinks it correct and pertinent, Glick Lumpkin? A. Yes, sir. Q. About what it must be given, if not, it must be refused. time of day? A. Somewhere along about 4, Upon each charge presented and given or or something; somewhere along about 4 or refused the court must indorse or sign its 5 o'clock, something like that. Q. In the decision. If part of any written charge be afternoon? A. Yes, sir. Q. I will ask you given and part refused the court must dis- if at that time and that place he made any tinguish, showing by the indorsement or an- threats or any statements in connection with swer what part of each charge was given the deceased, James Edward Fitzpatrick? and what part refused." Paragraph 5 of A. Yes, sir. Q. Tell the jury what he said. section 6823 of Snyder's Compiled Laws of A. Shall I tell how he come to say this? Q. Oklahoma 1909 is as follows: "When the Just state what he said. A. He said that if evidence is concluded, the attorneys for the the Fitzpatrick boys come that night to the prosecution may submit to the court written dance, that he was going prepared, and, if instructions. If the questions of law involv- they come, he was going to get them, 'going ed in the instructions are to be argued, the to kill them, God damn them.' That is the court shall direct the jury to withdraw dur- words. Q. Who did he make that statement ing the argument, and after the argument, to, Mr. Hunter? A. Why, I don't know his must settle the instructions, and may give name. I don't know the man, in fact, that or refuse any instruction asked, or may mod- he was speaking to. There was him and his ify the same as he deems the law to be. In- brother. His brother was with him at that structions refused shall be marked in writ- time. Q. Where was the man standing? A. ing by the judge, if modified, modification | He was standing on the side-he had walkshall be shown in the instruction, and by re-ed from the north, and they was going east. [3] Third. We think that the state's evidence in this case amply sustains the verdict. It is true that there is a great deal of evidence on the part of appellant contradicting the testimony of the state, but it is the province of the jury, and not of the court, to settle conflicts in testimony. About-he had rode up and got off of his room; and I believe I was fighting Lucius. horse in front of Smith's office over there. I don't know whether I was or not for sure Q. You say that was the afternoon of the right then; but next my brother was apparevening in which the tragedy occurred? A. ently down, and he run to me and grabbed Yes, sir. Q. I will ask you if prior to that hold of me, and, as he did, he was shot from time, a couple of weeks, or ten days, on the the left, apparently from the left side, by a south side of the square, in the city of Perry, party standing over there [indicating], and if you was present when the deceased, Fitz- after he was down, in a dying condition, patrick, and his brother John passed by the Glick Lumpkin stepped up and shot him defendant? A. Yes, sir. Q. Where was it? again, shot him right through here [indicatA. That was somewheres along by Linde- ing]. Q. About how many shots were fired, mann's or the Famous, I couldn't say. Q. Fitzpatrick? A. I couldn't say. Q. ApproxOn the south side of the square? A. Yes, sir. imately? A. I suppose probably seven or Q. Who passed by? A. John Fitzpatrick and eight or a dozen. Q: What was the condition -Ed. Q. What did the defendant say at that of your brother when you saw him again, as time, if anything, regarding the deceased? to being dead or alive? A. He was lying A. He said that the the middle aged Lump-dead on the floor." kin boy, Lucius, I suppose is his name, said, Lou. Dolman, a witness for the state, tes'there goes- Mr. Martin: I object to that. Mr. Doyle: Was the defendant Glick Lumpkin, present? A. Yes, sir. Q. What did he say? A. He says: "There goes the sons of bitches. We will get them, God damn them.' That's the words he said. Mr. Doyle: That's all." tified that, after the shooting was over, he went into the room where the shooting had taken place, and found the deceased lying on the floor. He then proceeded as follows: "Q. Was he living when you saw him? A. Why, he just looked to me like he was breathing his last, when I was there by him. Q. Did you see the defendant, Glick Lumpkin, about that time? A. Why, I seen him right afterwards. Q. Where was he? A. Well, he come there to the door, where I was standing over Ed. there. Q. Did you hear any remark made by him? A. Yes, sir. Q. What did he say? A. He says, 'Is he dead? God damn him. I want to kill him.'" John Fitzpatrick, a witness for the state and also a brother of the deceased, testified that the deceased and himself attended a dance on the night of the homicide at the home of Mr. Ezzard, in Noble county, Okl., and that, when they reached the scene of the difficulty, they entered the house. He then proceeded to testify as follows: "A. I went into this room here, where they are dancing, and started to go by the folks that were furnishing the music into this room. Q. Into the south room? A. Yes, sir. Q. Well, did you go into the south room? A. No, sir. I heard a shuffle or rustle, behind me, and I looked back, and I saw Glick Lumpkin kick my brother, or trip him; but he more kicked him than anything else. Q. That is your de ceased brother? A. Yes, sir. Q. Now, where was the defendant, Glick Lumpkin, stationed at that time, and what was he doing? A. He was playing the violin right there at the door. Q. You mean this door (indicating on the plat)? A. No; a little further over. Q. This being the kitchen, from the north room, and this being the door of the west room, south? A. Yes, sir. Q. You say he was inside of this door? A. Yes, sir. Q. Then what happened? Tell the jury. A. Then there was a crash, and that crash, to the best of my knowledge, was a shot, and both parties were fighting at once, and there wasn't a word spoke on either side that I ever heard, or knowing anything about; and I hadn't known that my brother was behind me. I didn't pay much attention to him. I thought probably he stopped out in the kitchen to talk to somebody; and so the fight | ed for his credibility, and the evident dispostarted, and the shooting started as soon as sition of the witness to do all he could to the fight started, or very near it; and how help the defendant, the jury were fully jusI know they was fighting I come in this door tified in placing the strongest possible conhere, and my brother was not in- Q.struction upon his testimony adverse to the Which door? A. In this door, into the south defendant. 115 P.-31 Jesse Boright, being introduced on behalf of the defendant, testified that he was marshal of the city of Perry; that on the night of the homicide the defendant came in to the town of Perry, and surrendered himself to the witness, and told him that he, the defendant, had killed a man. The witness further testified as follows: "A. Well, I asked him where his gun was, when he got out, and he says, 'In the buggy,' and I think I told the boys to dig the guns out, and they got me out two guns and a billy, and I think a fiddle neck, with some strings to it. I left that in the buggy. Q. What other remark did he make about killing Fitzpatrick? A. Well, sir, I says, 'How did you come to two guns?' and he says, 'One of the guns is his. We took it from him, one of the guns is his.' And he said something about killing him with his own gun. I don't know which he said." This witness evidently tried to do all in his power to screen and protect the defendant, and, when pressed on cross-examination, he endeavored to modify his statement that the defendant told him that he, the defendant, had killed the deceased with his own gun. But having been put on the stand by the defendant, who thus vouch The defendant, Glick Lumpkin, took the stand in his own behalf, and on cross-examination admitted that he carried a pistol with him that night to the place where the homicide occurred, and he further testified that he fired all the shots that were fired during the difficulty which resulted in the death of the deceased. These admissions, in connection with the other evidence in the record, rendered it impossible for the jury to acquit him. pants? A. Yes; I found one. Q. That Dr. A. A. Weber, a witness introduced on behalf of the state, testified as follows: "Q. Just state to the jury, Doctor, the result of that examination, with reference to wounds on the body? A. I found three bullet wounds in the body. Q. Where were they? A. One wound was-had penetrated the sixth rib, about an inch below the nipple, and had passed clear through the body, and had lodged near the outer surface on the other side, about an inch further down than it had gone in. The second bullet entered the sternum, or breastbone, about the level of the second rib, and backward, passed completely through the superior vena cava vein, which is the vein which returns all the blood from the upper part of the body to the heart, and from there passed down through the right oracle of the heart, and down through the thorax into the abdominal cavity. The third bullet wound I found in the head, about two inches above the right ear, and about an inch behind that, and that wound had fractured the skull, broken the bone, and had flattened out, and then slipped backwards about an inch, and lodged just under the scalp on top of the skull. Q. Now, the first wound you talk about, Doctor, went in on which side? A. The left side. Q. About the sixth rib? A. Yes, sir; right through the sixth rib. Q. And it ranged through the body? A. It ranged right straight through the body, a little downward and a little backward. Q. And lodged in the skin, just under the skin, on the right side? A. I don't know just where it lodg-Grant that this shot was fired in the heat of ed. Dr. Moore got there before I did, and he removed it. It must have been near the surface, however. Q. Now, the second wound, that entered, you say, through the breastbone? A. Yes, sir; right up here, at the level of the second rib. Q. It went down? A. It went downward and to the right and backward. Q. Downward and to the right, and backward? A. Yes, sir. Q. The other bullet, you say, hit him in the back of the head? A. Yes, sir; in the side of the head. Q. And flattened out? A. Yes, sir. Q. Which one of these wounds, Doctor, in your opinion, caused his death? A. Well, the two body wounds were both undoubtedly fatal. Q. Which, if either, was instantly fatal? A. Well, I don't think-I didn't say instantly fatal; but I think the one that passed down through the sternum was the one most fatal of the two. Q. Doctor, did passion, before cooling time had intervened, which is the most that could be claimed for appellant, this would make the killing manslaughter in the first degree under our statute. From this standpoint it would be an abortion of justice to grant a new trial in this case. It may be said that the witness Boright testified that the pistol given him by appellant and claimed to be the pistol of the deceased was loaded with unfired cartridges, but it is a significant fact that this witness though evidently partial to the appellant, did not testify that the pistol had not been recently fired. It must be remembered that appellant traveled several miles from the scene of the difficulty before surrendering to Boright, and there is testimony in the record showing that appellant was seen to reload a pistol soon after killing the deceased. Granting, for the sake |