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mony which was used against appellant was plainable. I have no way to explain them. contradicted, yet it must be remembered that One other thing I have heard all this evithe jury were the sole and exclusive judges dence, and I tried to give it my undivided atof the credibility of the witnesses and the tention, and I believe I did. I believe I weight of the testimony. There is not one understand practically what the evidence in word of complaint in the record or in the this case discloses, and it is impossible for brief of appellant indicating that the jury this court to say that he is couvinced bewas not entirely fair and impartial. Every yond a reasonable doubt that the defendant man on the jury was acceptable to the appel- | in this case was not justifiable. I must lant, because the record shows that when the confess that, under all the evidence in this jury was impaneled he still had two peremp- case. That this man was murdered or killed tory challenges which he had not used. By there is no doubt, not the least particle in his action in accepting the jurors, he has in the world, but not that this man was not troduced them to this court and vouches justified. That means to say that this evifor their fairness, impartiality, and integri-dence in my mind convinces me beyond a ty. Being thus recommended by the appel- reasonable doubt. But, gentlemen, that is lant himself, we are bound to accept their not the function of this court. I only wish verdict, under our law, as conclusive of the at this time it was. But it is not. I am facts in this case. This court is not hunt simply an individual. If this court can say ing for excuses to set aside the verdicts of that be should grant a new trial by reason juries and the judgments of courts, and of the fact that he is not convinced beyond thereby turn guilty men loose. We believe a reasonable doubt of this man's guilt, so that the laws of Oklahoma should be fear- far as this self-defense proposition is conlessly and strictly enforced, and it is a waste cerned, I would be establishing an unknown of time for attorneys to appeal cases to this precedent in the law of this land. court and ask for a reversal upon the facts, I can't do that. That is not my function. unless there is absolutely no evidence in the That is not the purpose of the court. cases appealed from which a jury could le

And, as I stated before, there are some pecugitimately draw the conclusion of the guilt liar things about this case. The complainof the defendant. We feel that the appel ing witness does not come to me clothed in lant has been fairly tried before an impartia! that cloak of honesty and uprightness that jury and by an able judge, who manifestiy every complaining witness should present a sympathized with the appellant and who commission of crime to a jury of his counwould evidently have been pleased to see

trymen. And it is an awful thing, a horhim acquitted, if it could have been law. rible thing, to confine a man in the penitenfully done, but who was brave enough and tiary, and take away his liberty, if it is honest enough to enforce the law, even done by evidence that is not true. And I though the conviction of the appellant was

must confess that the evidence of the comcontrary to the personal feelings of the plaining witness in some particulars does judge. We most heartily commend the ac

not come to me in the way that it should. tion of the trial judge in overruling the

One other thing about this case, to motion for a rehearing upon the ground that say the least of it, and I must state, after the verdict was contrary to the evidence.

a very careful reflection, that undoubtedly We find no material error in the record it was the main cause of this verdict: before us, and the judgment of the lower Here were guns of the latest manufacture, court is therefore in all things affirmed.

and of the oldest manufacture, all sorts

and kinds of guns, cudgels, knives, slungARMSTRONG, J., concurs.

shots, and I don't know as all the evidence

was introduced, I don't know as I am stating MCADAMS, Special Judge (dissenting). I the facts in the case, but the valise containregret exceedingly that it becomes necessary ing all this paraphernalia was sitting under for me to dissent from the majority opinion me here, where I .could see into it, and I of this court, but, as I view this case, I do discovered knucks and other cudgels and innot feel that I would be justified under my struments of warfare.

* That this oath to do otherwise.

evidence that this gun came from the FitsThere is no other criminal case in this patrick house, there is some very strong evistate that I have been able to find similar dence in corroboration of that fact; very to the one at bar. Therefore this court is strong evidence in corroboration of that called upon for the first time to determine fact. But I don't believe, I can't believe, the power, duty, and responsibility of a that all the facts in this case have been trial judge in passing on a motion for a new told. That is exactly the way I feel now. trial. The trial court in passing on the mo

And, as I said before, it strikes tion for a new trial (one ground of which me that that is what brought about, more was that the verdict was not supported by or less, this verdict that was returned by the evidence) stated, among other things, as this jury; and right here there is another disclosed by the record: “But I must say thing that militated against this defendant there are things in this lawsuit that are in my opinion, and that is that from the so very peculiar to me that they are inex- day of the opening this has been a place


and rendezvous for crime of that character. I which the trial judge has to perform, and, All a man had to do was to go before a jury when no efficient review of his action can with a plea of self-defense or insanity, or be had, it is peculiarly incumbent upon the something of that kind, and he was turned judge to weigh the evidence with care and loose, turned loose upon our streets to an- conscientiously grant a new trial, when in noy and harass the public. That has some his opinion the interest of justice requires it. thing to do with this verdict. We are 14 In my opinion there is no more prolific years old and more. This country is because of miscarriage of justice than the recoming civilized, and this theory of carry- luctance of the trial judges to grant new ing guns and pistols wherever you go, even trials in criminal cases." In Garton v. Sterne to social functions, ready for trouble, ready and Others, 121 Cal. 347, 53 Pac. 904, the for affray, I tell you, gentlemen, the juries Supreme Court of California again said: “It of this country are going to do away with is the province of the trial judge upon mothat; absolutely do away with it.” Plain- tion for a new trial to inquire into the suftiff in error contends when the verdict of ficiency of the evidence upon which a verdict the jury was challenged by a motion for a or findings was found, and it is his duty to new trial, upon the ground that it was con- grant a new trial when, in his judgment, the trary to the evidence, that it was the duty evidence was insufficient to support the deof the trial judge to weigh the evidence, cision. * * It has been repeatedly held and unless he was convinced of the guilt of that upon motion for a new trial it is the defendant, and could conscientiously approve duty of the trial court to examine the erithe verdict as a just one, he should have dence, even though it be conflicting, and, sustained the motion and awarded a new if dissatisfied with the conclusion reached, trial. And when the record discloses that to grant a new trial." In Serles v. Serles the trial court was not convinced of the de- and Others (Supreme Court of Oregon) 35 Or. fendant's guilt, and did not conscientiously 289, 57 Pac. 634, in the body of the opinion, approve the verdict of the jury, it is the the court in passing upon this question said: duty of this court to reverse the cause and “It must be understood, of course, that a direct the lower court to grant a new trial. | mere dissatisfaction of the judge with the

This brings squarely before us for deter- verdict is not sufficient ground for disturb mination: What is the duty of a trial judge ing it, but the court must exercise its judg. in passing on a motion for a new trial when ment in each particular case, and if from all the verdict of the jury is challenged upon the testimony given the jury it is satisfied the ground that it is not supported by the that the verdict is against the clear weight evidence? In People v. Knutte, 111 Cal. 453, or preponderance of the evidence, or that the 44 Pac. 166, the Supreme Court of California, jury has acted unreasonably in returning in discussing this question, said: "While it the verdict, or has been misled or misdirect. is the exclusive province of the jury to find ed, or has acted through improper motives, the facts, it is nevertheless one of the most it is the duty of the court to set it aside important requirements of the trial judge and grant a new trial.

In Kansas to see to it that this function of the jury is City W. W. & N. W. R. Co. v. Ryan, 49 Kan. intelligently and justly exercised. In this 1, 30 Pac. 108, the Supreme Court of Kansas respect, while he cannot competently inter- | in an opinion by the late Chief Justice Horfere with or control the jury in passing up-ton said: “It has been the unvarying decision on the evidence, he nevertheless exercises a of this court to permit no verdict to stand very salutory supervisory power over their unless both the jury and the court trying the verdict. In the exercise of that power, he cause could within the rules prescribed ap should always satisfy himself that the evi- prove the same. When the judgment of the dence as a whole is sufficient to sustain the trial judge tells him the verdict is wrong, verdict found; and, if in his sound judg- whether from mistake or prejudice or other ment it does not, he should unhesitatingly cause, no duty is more imperative than that say so, and set the verdict aside.” In con- of setting it aside and remanding the quessidering the question of "reasonable doubt,” tion at issue to another jury. While the the court further said: "Nor does it affect case is before the jury for their considerathe question that the evidence in the case tion, the jury are the exclusive judges of may have a legal tendency to prove all of all questions of fact; but, when the matter the material facts. Guilt is to be establish- comes before the court on a motion for a ed beyond a reasonable doubt; and, while new trial, it then becomes the duty of the there may be some evidence to support each trial judge to determine whether the verfact, this does not signify that it is neces- dict is erroneous. He must be controlled by sarily such as to satisfy the conscience of his own judgment, and not by that of the the judge that a case is made which war- jury. When a trial judge overrules a morants conviction." In People v. Chew Wingtion pro forma, and declines to look into Gow, 120 Cal. 298, 52 Pac. 657, the Supreme the facts or pass upon its sufficiency, he misCourt of California again, opinion by Jus-conceives his duty and commits fatal error." tice Temple, in discussing the duty of the Atyeo v. Kelsey, 13 Kan. 212; Williams v. trial judge to weigh the evidence, said: Townsend, 15 Kan. 563; Railway Co. v. “This is one of the most important duties Kunkel, 17 Kan. 145; Railway Co. v. Keeler, 32 Kan. 163, 4 Pac. 143; Railway Co. v.y triers of all issues of fact, but when they have Dwelle, 44 Kan. 394, 24 Pac. 500. “Where a passed upon the facts and expressed their verdict of the jury does not meet the ap- views by a verdict, and the sufficiency of the proval of the trial judge, it is his duty to evidence is challenged, then it must be weighset aside the verdict and grant a new trial." ed and considered by the trial court, and, Pierson v. Thompson, 4 Kan. App. 173, 45 unless it is satisfied with the judgment to Pac. 944; Richolson, Sheriff, v. Freeman, 56 such an extent that its reason and judgment Kan. 463, 43 Pac. 772; Myers v. Knabe et al., approve it, a new trial should be granted. 4 Kan. App. 484, 46 Pac. 478. Mr. Justice The approval of a verdict does not mean Brewer has laid down what seems to us to merely that informal approval which is inbe the proper rule for the guidance of the ferred from the act of rendering judgment trial judge in Railway Company v. Kunkel, upon it, but it means the assent and approv-! 17 Kan. 172, supra. He says: “This one al of the mind, after due consideration; and, (the trial judge) has the same opportunity as when the mind of the court refuses to concur the jury for forming a just estimate of the in the correctness of a verdict, and its honcredence to be placed in the various witness- est convictions lead it to believe that it ought es, and, if it appears to him that the jury to have been for the other party, then the have found against the weight of the evidence, verdict is not supported by the evidence so it is his imperative duty to set the verdict as to merit its approval, for in passing upon aside. We do not mean that he is to substi- a motion for a new trial it is the court, and tute his own judgment in all cases for the not the jury, that must weigh and determine judgment of the jury, for it is their province the effect of the evidence. It cannot be said to settle questions of fact, and, when the that the court approves a verdict when its evidence is nearly balanced, or is such that reason and judgment rebel against the condifferent minds would naturally and fairly clusion it expresses. The rule requiring a come to different conclusions thereon, he has juror to be satisfied with the verdict is no no right to disturb the findings of the jury, stronger than the rule which makes it the although his own judgment might incline hine duty of the trial court to approve or disapthe other way. In other words, the finding prove, as dictated by its own conscience and of the jury is to be upheld by him as against judgment. It may be here suggested, howany mere doubts as to its correctness, but ever, that as one juror may yield his opinwhen his judgment tells him that it is wrong, ions, and accept those of the other jurors, that, whether from mistake, or prejudice, or so may the court yield his impressions or other cause, the jury have erred and found opinions, and adopt those of the jury; but against the fair preponderance of the evi- such surrendering of his own views must be dence—then no duty is more imperative than the result of consideration and reasoning, that of setting aside the verdict and remand and can only be done where it through such ing the question to another jury."

process finally reaches the conclusion that In State v. Bridges, 29 Kan. 138, in an the verdict is right, and by reason thereof opinion by the late Chief Justice Horton, in approves it.” In Hogan et al. v. Bailey, 110 passing upon the identical question raised Pac. 890, the Supreme Court of Oklahoma, here, he said: “Even in a civil case, when speaking through Chief Justice Dunn, said: the judgment of a trial judge tells him that “The trial court has a higher function under the verdict is wrong, that whether from mis- our jurisprudence than to act merely as a take or prejudice, or other cause, the jury moderator or umpire between contending adhave erred and found against the fair pre- versaries before a jury. Not only is it ponderance of the evidence, then no duty is charged with the duty of seeing that the more imperative than that of setting the courses and conduct of the trial give to verdict aside, and remanding the question to each of the litigants a fair opportunity to another jury. In a criminal case this duty present his cause, and to have the facts is still more important, and a trial judge weighed in the light of proper instructions ought never to sentence a prisoner upon a declaring the law relative thereto, but it is verdict which is properly challenged, unless the imperative, abiding duty of the court, he is willing to declare that the verdict of after the jury has returned its verdict, and the jury should be accepted as just.” In awarded to one of the other success in the City of Sedan v. Church, 29 Kan. 190, Jus- controversy, where the justness of the same tice Valentine, delivering the opinion of the is challenged as in this case, to carefully court, said: “Trial courts are vested with a weigh the entire matter, and, unless it is very large and extended discretion in the satisfied that the verdict is responsive to granting of new trials, and new trials ought the demands of justice, to set the verdict to be granted whenever in the opinion of the aside and grant a new trial. Not only must trial court the party asking for the new the jury be satisfied of the righteousness of trial has not in all probability obtained or the conclusion to which it arrives, but, unreceived substantial justice.

less that conclusion meets the affirmative, In Yarnell v. Kilgore, 15 Okl. 591, 82 Pac. considerate approval of the mind and con990, the Supreme Court of the Territory of science of the court, it should not, where Oklahoma in an opinion by Burwell, Judge, challenged, be permitted to stand." said: "The jury in the first instance are the If the verdict of the jury be repugnant to

the evidence or the law does it, notwith-, or the issues joined in the cause, in the standing it is wrong, bind the trial courts presence and under the superintendence of and compel them to give it force and effect a judge empowered to instruct them on the and approve it? I think not. To do so law, relative to the issues of fact involved in would be to take away from the judiciary the case, and to set aside their verdict when, the power that rightly belongs to it under in his opinion, it is contrary to the law or our system of government. It is eminently the evidence. Trial by jury does not mean proper that the people should make the law simply a trial before 12 men, duly impapeled by which they are to be governed, but this and sworn to render a true verdict accorddoes not mean that they should interpret, or ing to the law and the evidence given them, that they are competent to interpret, it in such but means a fair and impartial jury, duly a way that justice may prevail. They have impaneled and sworn according to law, prerealized their inability to do this, and estab- sided over by a competent court, with power lished for that purpose a judicial system. and superintending control over them. In a Upon the judiciary depends the destiny of capital case it requires the concurrence of 12 this republic. Therefore its power should not jurors to return a verdict of guilty, but, bebe curtailed so as to prevent it from proper- fore judgment can be entered upon the verly administering the law. Tue duties and dict, it requires the concurrence of the thirresponsibility of a judge should be placed teenth man, the trial judge, and unless the above all others. He is to pass final judgment trial judge can, and does, approve the verbetween the government and the prisoner at dict as a just one, right and justice has not the bar, whom that government is prosecut- been administered as guaranteed by our Coning. The President of the United States, the stitution. It is therefore the imperative Governor of a state, may, by virtue of the duty of a trial judge, where the verdict of pardoning power vested in them, remove the the jury is challenged by a motion for a punishment inflicted upon an innocent man, new trial, which contends as one of the but the trial judge, if he be a just judge, grounds therefor that the verdict is contrary holding the scales of justice in his hands, to the evidence, to carefully weigh the evimay go further and prevent the sting of dence, and unless he is satisfied in his own conviction and disgrace being placed upon an mind, and his conscience tells him that the innocent man and his posterity by seeing that evidence is sufficient to sustain the verdict the law is properly administered, and that as a just one, to set it aside and grant a no verdict be permitted to stand which in

new trial. his judgment does not meet the ends of jus- The learned judge who wrote the majority tice. It is not the mere suspicion of guilt opinion holds that the language of the trial that justifies a jury in returning a verdict judge in acting upon the motion for a new of guilty, or that justifies the court in ap- trial constitutes no part of the record, and proving the verdict, but it must be competent will not be considered by this court. To and legal evidence, adduced in a legal way, this part of the opinion I cannot agree. The sufficient to satisfy the minds of the jury be- language of the trial judge appears in the yond a reasonable doubt of the defendant's case-made, which was signed and approved guilt, and, unless this is done and the trial by him, and we must therefore accept this court conscientiously approves the verdict as portion of the case-made as absolutely true, a just one, no proper judgment can be en- and as speaking the exact language of the tered.

trial judge in passing upon the motion for Section 6, art. 2, of the Constitution of a new trial. In Yarnell v. Kilgore, supra, this state, provides: “The courts of justice which has been specifically approved in reof the state shall be open to every person, cent decisions of our Supreme Court, the lanand speedy and certain remedy afforded for guage of the trial judge in acting upon the every wrong, and for every injury to person, motion for a new trial was incorporated into property, or reputation; and right and jus- the case-made and the language of the trial tice shall be administered without sale, de- judge was the very point, and only point upnial, delay or prejudice.” Section 20, art. 2, on which the Supreme Court of Oklahoma provides: "In all criminal prosecutions the Territory predicated its judgment of reversal. accused shall have the right to a speedy and if the court in a civil case, involving merepublic trial by an impartial jury of the coun- ly rights or property, make the language of ty in which the crime shall have been com- the trial judge, acting upon a motion for a mitted.

Construing sections 6 and new trial, not only a part of the record, but 20 of article 2, supra, of our Constitution, to the basis of a judgment of reversal, how gether, it must be taken as established by can this court, sitting in judgment upon the virtue thereof that a party charged with life and liberty of a citizen, refuse to concrime has a constitutional right to be tried sider the language of the trial judge, as by a fair and impartial jury of his county, shown in this case? The learned judge who presided over by a competent court, who shall wrote the majority opinion in passing upon see to it that justice is administered, without this point says: “There was no order of the sale, denial, delay, or prejudice; that a trial trial judge directing that the remarks made hy jury means a right to be tried by a fair in this case should be incorporated into the and impartiai jury upon the charge preferred, record. The entire remarks indicated that



* "

the judge was only expressing his private, ceptions stated in the case shall have the opinion with reference to the case. These same effect as if they had been reduced to remarks were evidently inserted in the rec- writing, allowed and signed by the judge at ord by counsel for appellant, and as the rec- the time they were taken.” It will be seen ord contains nearly 800 pages, and the trial from this section of our statute that the parjudge would not have time to read it all over, ty appealing has the right to make the caseand see that each statement was correct, and made, and incorporate into it so much of the as the case-made was approved by the county proceedings and evidence, and other matters attorney, the trial judge was justified in as may be necessary to present the errors signing and approving it as presented. We complained of, to this court. The trial court do not for one moment believe that the dis- has no right or authority to prevent the partinguished judge who presided at this trial ty appealing from incorporating anything inever intended to send these remarks up for to the record which actually transpired durreview."

ing the progress of the trial, and which he What right has this court to presume that desires this court to review. Passing upon the learned trial judge did not intend his a motion for a new trial is a part of the remarks to become a part of the record and proceedings of the trial, and, if the trial be considered by this court, when he has cer- judge makes any statement in passing upon tified them to this court? The learned trial the motion for a new trial, and before enjudge evidently knew that in Yarnell v. Kil-tering final judgment, which the appellant gore, supra, the Supreme Court of the terri- deems necessary for this court to review, it tory of Oklahoma had considered the lan- | is right and proper that he should have the guage of the trial judge in passing upon the same incorporated into the record, and cermotion for a new trial as a part of the rec- tified to this court. ord, and had predicated its judgment of re- It is true there is some evidence in this versal upon the remarks of the trial judge. case to justify the verdict. It is also equalI think, instead of assuming that the trial | ly true that there is overwhelming evidence judge did not intend for this court to con- to justify the plea of self-defense, and if sider his remarks, we should assume at the the writer was to take the cold record as he time he made the remarks, and at the time sees it, and were permitted to pass upon it, he certified them to this court, that he was he would unhesitatingly say that the defamiliar with the decision of the Supreme fendant was justified. I do not believe, howCourt of the territory of Oklahoma in Yarnell | ever, that it is the duty of this court, in a v. Kilgore, supra, and the decisions of our case like the one at bar, to search the recSupreme Court in approving the same; that ord to ascerta in whether or not it can find he then intended such remarks to become a sufficient evidence to warrant the verdict, part of the record, and that they should be or sustain the theory of the defendant that so considered by this court. Section 6951, he was justifiable. In my judgment there is Snyder's Comp. Laws 1909, in part is as fol- only one question for this court to determine lows: “A party desiring to have any judgment in this case, and that is whether or not the or order of the district court (superior coun- trial judge approved the verdict, and, if he ty court), or county court or a judge thereof, did not approve the verdict, has the defendreversed by the Supreme Court (Criminal ant had a trial as guaranteed him by the Court of Appeals), may make a case contain- laws and Constitution of this state? ing a statement of so much of the proceedings We believe it is apparent to any fair and and evidence of other matters in the action impartial mind from the statement of the as may be necessary to present the errors trial judge in this case that he did not apcomplained of to the Supreme Court (Crim- prove the verdict. It is also equally apparinal Court of Appeals). The case so made, ent that he was conscious of the fact that he or a copy thereof, shall within thirty days was permitting a verdict to stand, which in after the judgment or order is entered, be his judgment was not sustained by sufficient served upon the opposite party, or his attor- evidence, but was based upon public sentiney, who may, within three days thereafter, ment and prejudice against a plea of selfsuggest amendments thereto in writing, and defense in homicide cases. present the same to the party making the . This record clearly discloses to my mind case, or his attorney. The case and amend that the judgment of the lower court has ments shall be submitted to the judge, who nothing upon which to stand, except the misshall settle and sign the same and cause it conception of duty of the trial judge, and to to be attested by the clerk or county judge, permit it to stand would be a miscarriage of and the seal of the court to be thereto at- justice, and contrary to the letter and spirit tached. It shall then be filed with the papers of our Constitution, declaring that right and in the case. Such original case-made shall justice shall be administered without sale, be filed with the petition in error. The ex- denial, or prejudice.

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