1. HOMICIDE--Information--Sufficiency--Murder. An information for murder, which, after alleging time and venue, charges that the defendant "did then and there, willfully, unlawfully, intentionally, feloniously, without authority of law, and with a premeditated design to effect the death of the said J. J. F., shoot and discharge leaden shot and bullets into the body of him, the said J. J. F., from a certain loaded shotgun which he, the said defendant, then and there had and held in his hands, then and there and thereby inflicting upon the body of him, the said J. J. F., a mortal wound, of which he, the said J. J. F., then and there did die," sufficiently charges the crime of murder, and a demurrer thereto was properly overruled.

2. SAME--Trial--Instruction. On a trial for murder, where the issue was justifiable homicide in necessary self-defense, see opinion for approved instructions.

3. TRIAL--Verdict--Affidavits of Jurors. Affidavits or oral testimony of jurors are inadmissible to impeach their verdict, and affidavits of the defendant, or any other person,, of alleged misconduct of a juror, upon information derived from particular jurors, are inadmissible to impeach the verdict.

"That at and within said county and state, on or about the 30th day of November, A. D. 1914, and anterior to the filing of this information, one M. M. Brantley, of Jackson county, state of Oklahoma, then and there being, did then and there willfully, unlawfully, intentionally, feloniously, without authority of law, and with a premeditated design to effect the death of one J. J. Ferguson commit the crime of murder in the manner and form as follows, to wit: The said M. M. Brantley did then and there willfully, unlawfully, intentionally, feloniously, without authority of law, and with a premeditated design to effect

"(7) Homicide is not without authority of law, but is justifiable, where committed by any person in resisting an attempt to murder him or to commit a felony upon him, or when committed in the lawful defense of such person when there is a reasonable ground to apprehend a design of the person killed to do some great personal injury to the person doing the killing, and there is imminent danger of such design being accomplished.

"(8) A person who is unlawfully attacked is not bound to retreat to avoid the necessity of injuring his assailant, or of killing him, when it reasonably appears necessary to save his own life or to avoid serious bodily injury from the person killed. The killing under such circumstances will be self-defense, and it is not necessary to the right of self-defense that the danger should in fact exist, and, if it reasonably appears from the circumstances of the case that danger exists, the person threatened with such apparent danger has the same right to defend against it and to the same extent that he would have were the danger real.

"(9) When an attack has been made by one person upon another and the person making the attack is killed, in determining whether the killing is justifiable, the nature and purpose of the attack, the existence of or appearance of danger and extent thereof, the amount or degree of force necessary and sufficient to be used to avoid the apparent or threatened danger, and all of the facts and circumstances

"(10) You are further instructed that while one unlawfully attacked has the right to use such force as under the circumstances reasonably appears to him to be necessary to repel the attack and avoid injury to himself, yet he will not be justified in using greater force than reasonably appears to him necessary and sufficient to do so; and if he does use greater force than reasonably appears to him to be necessary and sufficient to avoid the danger or apparent danger, and thereby kills the person who made the attack, he will be guilty of manslaughter in the first degree; and as applied to this case, if you find that J. J. Ferguson, at the time and place alleged in the information, made an unlawful attack upon the defendant, and should you further find beyond a reasonable doubt that in resisting such attack it was not necessary for defendant to shoot the said J. J. Ferguson, and that from the nature of such attack, and under all the facts and circumstances as shown by the evidence, it did not reasonably appear to the defendant that it was necessary to shoot the said J. J. Ferguson to prevent serious bodily injury then and there to himself, and that he then, under such condition, shot and killed the said Ferguson, the defendant will be guilty of manslaughter in the first degree, and it will be your duty to so say by your verdict, unless you should find the shooting was justifiable or have a reasonable doubt thereof, in which case you should acquit him.

"(11) While a person need not be in actual imminent peril of his life being taken, or of great personal injury being done him, yet if the jury believe that the defendant had reasonable grounds to believe and did believe, from the facts as they reasonably appeared to him at the time, that

"(12) In this connection you are told that self-defense, under the law, is a defensive and not an offensive act, and for a person to avail himself of a plea of self-defense, in order to justify a killing, it must reasonably appear to him at the time he fired the fatal shot that the act upon the part of the deceased by which the defendant seeks to justify the killing was such an act as made it reasonably appear to him at the time that he was in danger either of losing his life or of great personal injury being done him, and it is the duty of a person so threatened with danger to his life or of great personal injury being done him to use at the time all reasonable means apparent to a reasonable person under the circumstances to avoid such danger before taking human life, except that he is not bound to retreat to avoid such necessity or apparent necessity of killing, provided he has done no act upon his part to bring about the attack, or threatened attack, if any, by the deceased.

"(13) In determining the question as to whether or not the defendant was in danger or apparent danger, under these instructions you are told that the law requires you to view the circumstances at the time from the defendant's standpoint as they reasonably appeared to him.

"(14) Evidence has been introduced herein relative to a difficulty or difficulties between the deceased and defendant which have occurred previous to the fatal difficulty. This evidence should be considered by you, with the other evidence in the case, for the purpose of assisting you in ascertaining the state of mind of the respective parties at the time of the homicide, and for the purpose of assisting you in determining whether or not the defendant, in good faith, believed that he was in danger of losing his life or of receiving serious bodily injury at the hands of the deceased

"(15) You are instructed that insulting words or insulting conduct or epithets or assaults previously made--that is, anterior to the actual time of the killing--had and done to the defendant at other and different places than at the scene of the homicide, nor insulting epithets, no matter how opprobrious, at the time of the killing, do not justify or mitigate a homicide.

"(15B) You are instructed that what is or is not an overt action--that is, what acts upon the part of the person slain will justify the person taking his life--varies with the circumstances of each particular case. Under some circumstances the slightest movement may justify instant action on the part of the person threatened with danger, upon the ground of reasonable apprehension of danger. Under other circumstances this might not be true, and it is for the jury, viewing the facts and circumstances in evidence from the defendant's standpoint, to determine how this may be in each case.

"(16) Evidence has been introduced herein upon the part of the defendant tending to prove that prior to the fatal difficulty the deceased had made threats of violence against defendant, and such threats, should you find the same to have been made, should be considered by you, in connection with all the other evidence in the case, to assist you in determining the deceased's feeling toward the defendant and to assist you to determine who was the probable aggressor in the fatal difficulty; also, if you find from the evidence that prior to the fatal difficulty, the defendant had been informed that the deceased had made threats of violence against him, and in good faith believed the information (whether such information was in fact true or not being immaterial), then you should consider that fact, should you so find, together with all the other facts and circumstances in evidence before you in this case, to enable you to determine the state of the defendant's mind, and what he might have reasonably apprehended from the

"(17) You are instructed that the knowledge of the defendant derived from personal observation as well as otherwise of the violent temper of the deceased, if you find such to be the case, and of his violent and turbulent character, if such you find to be the case, and his liability to attack persons when angered or aroused, if such you find to be the case, and also the knowledge of the defendant

"(18) The jury are instructed that if you find from the evidence that the deceased made threats against the defendant which, if carried into execution, would endanger his life or subject him to great bodily harm, and that the defendant feared or had reason to fear that such threats were liable to be carried into execution, then you are instructed that the defendant could not lawfully assault the deceased on account of such threats or because of fear induced thereby, unless the deceased at the time of the fatal difficulty made some demonstration or performed some overt act that caused reasonable apprehension that such threats were about to be put into execution, and, in case of such demonstration or overt act, the defendant may lawfully become the aggressor only to the extent of putting himself in a position of safety as against the unlawful threatened acts of the deceased. If, under the circumstances and facts of this case, you find beyond a reasonable doubt that the defendant intentionally carried his acts of aggression, if any there be, further than were reasonably necessary to place himself in a situation of apparent safety, his acts then would be such as to render his acts of aggression unlawful, and you should, under such circumstances, consider the evidence as a whole, together with such acts of aggression, if any such act you find, in determining his guilt or innocence under the charge made in the information.

"(19) In order to constitute murder under our statute, it is essential that the homicide be committed with a premeditated design on the part of the defendant to unlawfully take the life of the person slain; and in order that you may fully understand the legal meaning of the words 'Premeditated design,' as used in this connection, I charge you that should the unlawful killing be established. to your satisfaction beyond a reasonable doubt, then to determine the grade of the homicide it becomes necessary for you to inquire into the condition of the mind of the party killing, and in reaching this conclusion the important questions to be considered are: Do the facts and circumstances in the case at the time of the killing, and before and immediately after that time, having connection with or relation to it, furnish satisfactory evidence, beyond a reasonable doubt, of a deliberate mind on the part of the person killing to do the killing at the time he does the act that results in the killing? And do these facts and circumstances show beyond a reasonable doubt a formed design on the part of the person killing to take the life of the person slain? If they do, then the killing will be by premeditated design and will be murder. Premeditated design includes malice aforethought, and accordingly, to warrant a conviction for murder, the jury must be satisfied from the evidence beyond a reasonable doubt that the killing was a consummation of a previously formed design to take the life of the person killed, and that the design to kill was formed deliberately and with a deliberate mind; that is, at the time when the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done.

"There is, however, no definite space of time necessary to intervene between the formed design to kill and the actual killing. A single moment of time may be sufficient, all that is required being that the mind be cool and deliberate in forming its purpose, and that the design to kill is formed, and the design to effect death is inferred from the fact of the killing, unless the circumstances raise a reasonable doubt as to whether or not any such design

"To warrant a conviction for murder, the jury must be satisfied by the evidence beyond a reasonable doubt that the defendant, before the act, deliberately formed the design with a cool and deliberate mind to kill the deceased, and that the defendant proceeded in accordance with that design to the infliction of the death wound. The act, to constitute murder, must not result from a mere sudden, rash, inconsiderate impulse, passion, or excitement, however unjustifiable and unwarranted it may be.

"Now, if you believe from the evidence beyond a reasonable doubt that the defendant, in Jackson county, Oklahoma, on or about the 30th day of November, 1914, and anterior to the filing of this information, to wit, the 6th day of January, 1915, did then and there at said time and place alleged willfully, unlawfully, intentionally, and feloniously, without authority of law and with a premeditated design to effect the death of J. J. Ferguson, shoot the said J. J. Ferguson as alleged in the information with a certain shotgun, then and there had and held in his hand, and did thereby inflict a mortal wound upon the said J. J. Ferguson, of which he did then and there die, then it will be your duty to find the defendant guilty of murder as charged in the information, unless you should find that at said time said defendant was justifiable, or have a reasonable doubt thereof, in which case you should acquit the defendant of the charge of murder.

"(20) If you have a reasonable doubt that the defendant is guilty of the crime of murder as herein submitted

"(21) If you believe, or have a reasonable doubt thereof, that at the time of the fatal difficulty that the deceased, without any act upon the part of the defendant showing a purpose to do bodily harm to the deceased, did then and there by some act upon his part then done, make it reasonably to appear to the defendant, viewed from the standpoint of the defendant, that it was then and there the purpose of the deceased to assault him or to do him some personal injury, then in that event the defendant had a right to shoot the deceased in his self-defense, if it was then and there necessary, or apparently necessary, for him to do so in his own proper self-defense; and, if he did so shoot the deceased under these circumstances, then you are instructed that you should find him not guilty, and, unless you find beyond a reasonable doubt that the defendant unlawfully killed the deceased, you must return a verdict of not guilty.

"(22) If you find the defendant guilty of murder or of manslaughter in the first degree, you will state in your verdict of which offense you so find him guilty, and you may, if you see fit, assess his punishment therefor, as such punishment is stated in paragraph number 22A of these

"(22A) The punishment fixed by law for the offense of murder is death, or imprisonment in the state prison for life, in the discretion of the jury. The punishment for manslaughter in the first degree is imprisonment in the state prison for any term not less than four years.

"(22B) If from the evidence you are satisfied beyond a reasonable doubt that the defendant is guilty of murder or of manslaughter in the first degree, but have a reasonable doubt as to which of said offenses he is guilty, then you must give him the benefit of the doubt, and not find him guilty of a higher offense than manslaughter in the first degree.

"(22C) The jury are the sole judges of the facts proven in this case, and of the credibility of the witnesses who have testified herein, and the weight and value to be given to their testimony. In determining the credit you will give to any witness, and the weight and value you will attach to his evidence, you should take into consideration the conduct and demeanor of the witness on the stand, and his manner of testifying, his means of knowing the facts about which he testifies, the reasonableness or unreasonableness of his statements, and his interest, if any, in the result of the trial; all these matters being taken into account by you, together with all the other facts and circumstances before you, it is your province to give to each witness such credit, and the testimony of each witness such weight and value, as you deem it entitled to have. In determining the facts proven in the case, you should bring to your assistance in considering the evidence your common sense and your knowledge of human nature and your experience in human affairs.

"(23) The defendant in a criminal case is not required by law to prove his innocence, but the burden is upon the state to prove his guilt of the offense charged against him and every material element thereof beyond a reasonable doubt. He is presumed to be innocent of such charge until his guilt is established by legal evidence beyond a reasonable doubt, and, in case the jury have a reasonable doubt as to the defendant's guilt, they must acquit the defendant and return a verdict of not guilty.

"(24) By the term 'reasonable doubt,' however, is not meant a mere misgiving of the imagination, a fanciful conjecture, or a suggestion of sympathy for the defendant; but a reasonable doubt is an actual doubt, arising from the evidence or want of evidence in the case. The state is not required to prove the defendant's guilt to an absolute or mathematical certainty or beyond any possible or imaginary doubt. If, however, after considering, comparing, and weighing all the evidence in this case, your minds are left in that condition that you cannot say that you feel an abiding conviction to a moral certainty of the defendant's guilt, then you would have a reasonable doubt and it would be your duty to acquit the defendant. On the other hand, if the evidence in the case establishes in your minds the guilt of the defendant to a reasonable and moral certainty, such a certainty as convinces and directs the understanding and satisfies the reason and judgment of you, who are bound to act conscientiously upon it, then you would have no reasonable doubt, and it would be your duty to convict the defendant.

"(25) The jury are instructed that, in arriving at a verdict in this case, that they are governed by the evidence that is permitted to go to the jury, and that you are to entirely disregard any question that may be asked by counsel to which the court has sustained an objection, and that the jury are to entirely disregard and put from their minds any statement of counsel, if any such there be, if such statements are not based upon the evidence in the case, or which are not a reasonable and fair deduction from

"(26) The jury are further instructed that it will require the concurrence of the full panel of the jury to render a verdict in this case, and that you must not arrive at your verdict by casting lot or by any manner or species of chance. You must be controlled in arriving at your verdict by the law as stated in these instructions and by the evidence you have heard from the witnesses. You must consider these instructions in their entirety; you have no right to consider any part or portion of these instructions to the exclusion of any other portion thereof."

"The defendant further says that he has not been able to procure voluntary affidavits from jurors who sat in said case in support of the foregoing allegations, but that said jurymen will testify on the witness stand that the foregoing facts were disclosed to them in manner as aforesaid, and the defendant asks the court to hear the evidence of said jurymen, or a sufficient number of them to establish the truth of this amended motion and of the allegations therein contained."

"It has been clearly established in this state that a juror will not be permitted to impeach his verdict, after he has been discharged and mingled with the public, either by affidavit or oral testimony."

"For while by statute in a few jurisdictions, and by decisions in others, the affidavit of a juror may be received to prove the misconduct of himself and his fellows, the weight of authority is that a juror cannot impeach his own verdict. The rule is based upon controlling considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.

"These two conflicting considerations are illustrated in the present case. If the facts were as stated in the affidavit, the jury adopted an arbitrary and unjust method

"There are only three instances in which the subject has been before this court. In United States v. Reid, 53 U.S. 361, 12 HOW 361, 13 L. Ed. 1023, 1025, the question, though raised, was not decided because not necessary for the determination of the case. In Mattox v. United States, 146 U.S. 140, 148, 36 L. Ed. 917, 920, 13 S. Ct. 50, such evidence was received to show that newspaper comments on a pending capital case had been read by the jurors. Both of those decisions recognized that it would not be safe to lay down any inflexible rule, because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.' This might occur in the gravest and most important cases; and without attempting to define the exceptions, or to determine how far such evidence might be received by the judge on his own motion, it is safe to say that there is nothing in the nature of the present case warranting a departure from what is unquestionably the general rule, that the losing party cannot, in order to secure a new trial, use the testimony of jurors to impeach their verdict. The principle was recognized and applied in Hyde v. United States, 225 U.S. 347, 56 L. Ed. 1114, 32 S. Ct. 793,

"But if jurors should not be allowed to give evidence to destroy their own verdict, how much more objectionable it would be to allow them to expose the occurrences of the jury room, and to allow their unsworn and irresponsible statements to be brought secondhand before the court in support of an application to set aside their verdict. It is impossible to give the least effect to such statements without a fearful departure from the very first principles of evidence."

"If the courts refuse, on ground of public policy, to listen to primary evidence of the facts, they will, of course, for stronger reasons, refuse to listen to secondary evidence of it. What the law will not allow to be proved by the oath of the person having knowledge, it obviously will not allow to be proved by the oath of another person deriving his information from the unsworn statement of the former person. It follows that the affidavits of counsel, or other persons, of the misconduct of the jury, upon information derived from particular jurors, will not be heard to impeach the verdict." (Thompson on Trials, sec. 2622.)