(Syllabus.)

1. Homicide -- Conviction for Murder Sustained. In a prosecution for murder, the evidence reviewed, and held sufficient to sustain the conviction with imprisonment for life as the punishment.

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2. Same -- Killing Officer in Resisting Arrest. A peace officer has the right without a warrant to arrest a fugitive from justice. The officer being in the right and in the discharge of his duty, the person resisting arrest does so at his peril, and in so doing if he kills the officer, he is guilty of murder if he knew that the person attempting to make the arrest was an officer.

3. Same -- Aider and Abettor Guilty as Principal. One who is present, aiding, and abetting in perpetrating a murder is guilty as a principal, though another does the killing.

4. Witnesses -- Impeachment -- Proof of Statements Contrary to Testimony. A witness may not be impeached on a matter collateral to the issue. Where, however, the matter inquired about is relevant to the issue, and the witness denies having made a statement material thereto, such statement, if contradictory to his testimony given on the trial, may be shown to impeach him.

Appeal from District Court, Creek County; J. Harvey Smith, Judge.

Lee Davis was convicted of murder, and he appeals. Affirmed.

The plaintiff in error, Lee Davis, was convicted of murder in the district court of Creek, county, and in accordance with the verdict of the jury was sentenced to imprisonment in the state penitentiary for and during the term of his life.

From the judgment rendered on March 14, 1935, he has taken this appeal.

The information in substance charges that Lee Davis did in said county on the 3d day of February, 1934, commit the crime of murder, in manner and form as follows: Said defendant, Lee Davis, then and there being concerned and acting with Eldon Wilson, Aussie Elliott, and Raymond Moore, alias Dupert Carolan, did unlawfully and feloniously and without authority of law and with the premeditated design to effect the death of T.J. Brumley, shoot at and into the body of the said T.J. Brumley

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with an automatic pistol then and there held in the hand of Raymond Moore, alias Dupert Carolan, and did then and thereby inflict a mortal wound in and upon the said T.J. Brumley, of which said mortal wound the said T.J. Brumley then and there died, as was intended by the said defendants.

The evidence establishes, or tends to establish, the following facts:

T.J. Brumley, the deceased chief of police of the city of Sapulpa, was shot and killed at the home of plaintiff in error about 4 p.m. on February 3, 1934.

The defendant, Lee Davis, was living about two miles northwest of Sapulpa in a house facing east; the "Frisco" right of way being between the house and Highway 66. The house had a north and south room with a lean-to shed behind the north room. On the day of the tragedy, Aussie Elliott, Eldon Wilson, Raymond Moore, alias Dupert Carolan, all three fugitives from justice, having escaped from the state penitentiary, were at the home of the defendant. The night before the tragedy, the defendant was in Sapulpa in company with Eldon Wilson, who was armed with a pistol. Together they took a taxi to a house on East McKinley street, stayed a short time, then the taxi driver drove them back to the main part of the city. The defendant was approached by Policeman Floyd Sellers on Main street and asked who the man was that was with him an hour before; the defendant answered there wasn't anybody with him. The defendant was in Sapulpa the next day and hired a taxi to take him home; stopping at a grocery, he bought a box of groceries. Arriving at the home of the defendant, the taxi driver offered to carry the groceries into the house; the defendant said, "No," he would do that himself. In the afternoon of that

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day, Willis C. Strange, sheriff, T.J. Brumley, chief of police, with Officers W.E. Gage and Floyd Sellers, drove to the home of the defendant in the sheriff's car. Sellers went around the south side of the house; Brumley went around on the north side. The defendant came out the front door, Sheriff Strange asked him who was in the house, and he said, "Just an old country boy." Floyd Sellers came back saying there were three men in the lean-to shed, each armed with two pistols, one in each hand. "One of them is Aussie Elliott, another is Eldon Wilson, I don't know who the third man is. The sheriff said to the defendant, "Why did you tell us there was only one old country boy in the house?" And the defendant said, "well, there might be two old country boys in the house."

Sheriff Strange then told the defendant to go in and tell the boys to come out with their hands up. The defendant went into his house. In a few minutes he came back and said, "They are willing to come out." He went back in the house again. Two or three minutes later he came to the door and said, "They are coming out with their hands up. Then Aussie Elliott and Eldon Wilson came out the front door with their hands up. As they stepped out a shot was fired, and T.J. Brumley, standing near the northeast corner of the house, fell mortally wounded and instantly died. Elliott and Wilson rushed the two officers standing in the front yard, and in the shooting that followed Aussie Elliott was mortally wounded and later died. Moore, alias Carolan, ran from the back of the house and was pursued by Officers Sellers and Gage. They came back for ammunition and assistance. Carolan was later found armed with a Luger pistol with drum attached which made it a machine gun that would shoot 32 times. When the assisting officers came upon Carolan, he was

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hiding in a gully; the shooting commenced; Carolan raised up and shot and killed C.F. Loyd, a police officer. The officers then shot and killed Carolan.

Sheriff Strange testified that he knew Eldon Wilson and had him in jail charged with shooting the city marshal of Depew; later he was shot northwest of Sapulpa when he was wanted for breaking jail; that he had been convicted and sentenced for a term of 50 years for bank robbery, the Fairfax bank and 20 years for highway robbery, and had escaped from the state penitentiary; that Aussie Elliott was sentenced to 50 years for the bank robbery at Fairfax, and had escaped from the Granite penitentiary.

He further testified in part as follows: About the time Elliott and Wilson got on the doorsteps a gun fired at the back of the house and Tom Brumley fell. These boys dropped their hands and reached for their guns. Elliott started at Mr. Sellers and Wilson came at him, the firing began, Elliott was killed, and Wilson, mortally wounded. That they found an automatic pistol on Elliott under his shirt and in his belt; he identified the gun; that Mr. Sellers took a gun off of Wilson about the same time. That he guarded Wilson and the defendant while Officers Sellers and Gage pursued Carolan. Shortly after, with four or five assisting officers, he located Carolan in a gully, about 200 yards north of the defendant's house. As they approached the place he said, "Look out boys he is down in that gully"; Carolan raised up and exchanged shots with Mr. Loyd; after firing his second shot, Mr. Loyd fell, dying instantly. They were all shooting at Carolan and he was riddled with shot; beside the body was an automatic German Luger gun.

The testimony of Officer W.E. Gage was substantially the same as that of Sheriff Strange.

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Floyd Sellers testified, that he saw the defendant in Lawrence's Cigar Store on the night of February 2, about 9:30, talking to George Marz. About an hour later he met him and asked his name; he said it was "Lee Davis." Then he asked him who was the young man that was with him about an hour before; he said there wasn't any one with him. The next day about 4 o'clock he saw him at his home. Davis came out the front door; Sheriff Strange asked him who was in there; Davis said, "An old country boy"; that he recognized him as being the man he talked to the night before. That he went around the south side of the house and saw Aussie Elliott and Eldon Wilson and a third man he didn't know in the lean-to shed; each one had a gun in each hand, and he rushed back and told the sheriff and chief of police that Elliott and Wilson were back there and a third man. The sheriff said to Davis, "I thought you said there was just one old country boy back there," and Davis said, "There is two old country boys back there." Witness said: "Lee, why do you want to lie like that; I saw three myself back there." The sheriff asked him to get his rifle out of the rack in the car; he got it and handed it to him, then took out his shotgun. The sheriff said, "Davis, you go in the house and tell those boys to come out with their hands up." The defendant went in, stayed long enough to have a conversation, then came out and said, "They are coming out with their hands up," and the sheriff said to him, "Go back in there and tell them to come out if they don't want us to start shooting." The defendant went back in and had a conversation with them, then came to the front door and said, "They are coming out with their hands up now"; then he disappeared back in the house; Elliott came to the front door with his hands up; Wilson with his hands up was right behind him; a shot fired and Mr. Brumley fell; then Elliott ran

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at him and Wilson ran at the sheriff, at the same time reaching for their guns; that he started shooting; Elliott fell dead; Wilson fell wounded and died the next morning.

The sheriff called to Davis to come out the front door and he came out with his hands up; that he saw the third man running south from the house and called to him to stop, then followed him; he shot back at him and witness started shooting. At the first shot he dropped his hat and a gun, and as he went through a wire fence about 70 yards southwest of the house, Mr. Gage started shooting at him with a rifle; he flinched and fell, then got up and went on around the hill. Witness threw down his shotgun and fired until he emptied his pistol. Mr. Gage said he had only one shot left in his rifle and they rushed back to the house for ammunition. He took an automatic pistol off of Wilson, and another gun was taken off of Elliott; that he picked up the gun that Carolan dropped as he ran from the house; that they searched the house and found a Colt 45 automatic on a table in the house.

At the close of the evidence on behalf of the state, the defendant interposed a demurrer to the same and moved the court to direct a verdict of not guilty upon the ground that the crime charged in the information has not been proven.

Which demurrer was overruled and motion denied.

On the part of the defendant, J.B. Hargrove testified that he lived with his parents a hundred yards from the defendant and was pruning grape vines when the officers drove up to the defendant's house. That a little later he heard his wife say, "They are coming out with their hands Up," and he looked over and they were standing 12 or 14 feet in front of the house with their hands up when the first shot was fired. Then he ran to the house to tell his

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mother and father they had better get out; that he was afraid they might get hit.

Mrs. J.B. Hargrove testified that she was working with her husband and saw the defendant in the front yard talking to the officers; then saw two men coming out of the house with their hands up; that when the first shot fired their hands were up.

Mrs. Maud L. Davis, wife of defendant, testified that when the officers came there Mr. Strange came to the door and told her husband to come out; at that time the boys were in the kitchen; her husband came back in and told the boys to come out; then he went out with his hands up; two of the boys followed him with their hands up; that the third one started out about the time the shooting occurred, and when the shot fired he turned back and ran.

The defendant as a witness in his own behalf testified that he had known Tom Brumley for about ten years; that he had known Eldon Wilson three or four years and was with him in Sapulpa for about an hour and a half on the night of February 2d; that he saw him in Sapulpa three or four weeks before that, but did not know that he was wanted by the officers of the law; that Wilson and the other two men had been at his place in the latter part of December, 1933. That he went into the Lawrence Cigar Store Friday evening to get a $20 bill changed; later went with Eldon Wilson to a house over on McKinley street; Wilson went into the house, was gone about five minutes, came out and got in the taxi; and they came back up town. They walked that night up the Sapulpa-Sand Springs road to his home. That he was working for the C. W. A. three days a week, and worked Friday, February 2d. The next morning these boys left saying that they were going over to visit Wilson's mother at Sand Springs. He came to

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town and about 2:30 had a taxi driver take him home; stopped on the way and bought a box of groceries. That Wilson and these two other men were not there when he got back home; that 30 or 40 minutes later they came in and were there probably 40 minutes when the officers came. That he went out to talk to the officers. Mr. Brumley was the first to speak and said, "Lee, is there anybody up here besides your folks?" And he answered, "yes." Brumley said, "Who are they?" And he said: "Tom, I know one of them and you know him too; but the other two, I don't know their names; I don't know whether I could tell their names right now or not." Brumley said, "Where are they at?" And he said, "In the house." Brumley said: "Tell them to come out; it may be they are the boys we are looking for." That he stepped inside the door and told them. About that time Sheriff Strange says, "All of you come out with your hands up." That he turned and stepped out in front, Eldon Wilson was behind him, and the two boys turned a little to the north towards them. They had their hands up. Floyd Sellers fired the first shot. That he did not tell Sheriff Strange there was just one old country boy in there. That after the shooting was over Sheriff Strange placed him under arrest and went into the house with him. The officers searched the house; that there was a gun laying on the floor; the sheriff said, "Pick up that gun"; he said, "I don't want to pick the gun up it ain't mine you ain't going to catch me with a gun." That he did not counsel, or assist, or advise these boys, or any one of them, to take the life of Tom Brumley, and did not in any way help them, and did not have anything whatever to do with the taking of the life of Tom Brumley.

Finis M. Walker and Fred L. Patrick, for plaintiff in error.

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Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Don Lewis and S.M. Cunningham, of counsel), for the State.

DOYLE, J. (after stating the facts). This appeal is from a conviction of murder and sentence in pursuance of the verdict of imprisonment for life. Taking up the errors assigned in the order presented in appellant's brief:

First. It is contended that the evidence is insufficient to justify or support the verdict, in that it fails to establish anything more than a mere suspicion of guilt. Citing Moore v. State, 4 Okla. Cr. 212, 111 Pac. 822.

The state's contention is that the defendant, Davis, knowing the character and criminal records of Eldon Wilson, Aussie Elliott, and Raymond Moore, alias Dupert Carolan, took them into his house and furnished them lodging, food, and shelter, and thereby, harbored them, knowing they were outlaws and fugitives from justice. That he knew they were armed with the most deadly weapons and would shoot, and if necessary kill, in order to avoid arrest. That said defendant and the other three men whom he was harboring saw the car approaching and had some kind of agreement or understanding as to what part each would play upon its arrival if the persons in the car proved to be officers. That the defendant, Davis, when he came out into the yard and told the officers there was only one country boy in the house, was carrying out his part of an understanding or agreement that would enable the three desperadoes in the house to avoid arrest, or to take advantage of the officers, and if necessary slay them. That said defendant was the pivot around which these other three men were revolving, and that in his acts and conduct and in the words spoken to the officers, that is, the falsehoods told the officers, and the deception used

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to mislead the officers, he knowingly aided and abetted in the killing of the deceased, Tom Brumley.

On the theory of the state the only issue of fact was whether said defendant, Davis, was present, assisting, aiding, and abetting these outlaws in their attempt to escape, when in order to prevent arrest and to make good his escape the outlaw Moore, alias Carolan, shot and killed T.J. Brumley.

In the case of Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194, 206, it is said:

"It may be stated as a general proposition that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right and shocking to every sense of justice and humanity. When the accused is present and aiding and abetting another in its commission he may be considered as expressly assenting thereto, so, where he has entered into a conspiracy with others to commit a felony or other crime under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the aiding of whatever should reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go; for if the accused in such case has not expressly assented to the commission of the crime, and the unlawful enterprise is not of such character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no criminal liability. The mere presence of the accused at the scene of the homicide does not make him a criminal; he may have known that a crime was committed, yet, if he did not participate in it directly or indirectly, or encourage the party doing the killing, his

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mere presence would not constitute him a principal in the transaction or connect him criminally with the killing."

Our Penal Code declares that:

"Any person who shall knowingly feed, lodge, clothe, arm, equip in whole or in part, harbor, aid, assist or conceal in any manner any person guilty of any felony, or outlaw, or fugitive from justice, or any person seeking to escape arrest for any felony committed within this state or any other state or territory, shall be punished by imprisonment at hard labor in the penitentiary for a period not exceeding ten years." Section 2062, St. 1931.

The evidence shows beyond a doubt that Officer Tom Brumley was murdered in the manner charged, at the home of the defendant, Davis, while attempting with other officers to arrest the aforesaid outlaws and fugitives from justice.

The strongest circumstance against the defendant is that he was harboring these fugitives from justice, and that he made untrue and contradictory statements to the officers well calculated to aid and assist them in avoiding arrest; that he attempted to deceive the officers by telling them first there was only one country boy in the house, then later saying there were only two country boys in the house, and after his second conference in the house with these outlaws, only two of them came out the front door with their hands up, and about that time the third outlaw, going out the back door of the house in attempting to escape and in resisting arrest, fired the shot that killed Officer Brumley.

There are other circumstances in evidence from which a reasonable and logical inference arises that this defendant acted in collusion with the three fugitives from justice in their effort to make their escape; that he thus wilfully

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aided, abetted, and assisted in the commission of the crime charged in the information.

Upon a careful consideration of all the testimony, we cannot resist the conclusion that the verdict was fully warranted by the evidence. In such a case, unless there were material errors upon the trial, we have no right to reverse the judgment.

The main contention that the verdict is not supported by sufficient evidence and is contrary to the evidence is thus disposed of.

It is next contended by counsel for the defendant that the court erred in admitting over objections improper rebuttal testimony, prejudicial to the defendant.

The witness J.W. Williams testified that he was a farmer; that he sold about six bushels of corn to the defendant and delivered it at his home on the afternoon of February 2d, and the defendant told him he would settle for it next Monday, then told him to hurry and get away from the house; that witness saw the faces of two, maybe three, men looking out through windows on the east side of the house; that the shades were down, and in order to look out the parties pulled the window shades to one side; that the defendant told him the second time to hurry and get on away from the house.

When the defendant was testifying in his own behalf, he denied that these three parties were at his house on the afternoon of the 2d, and denied knowing anything about their criminal records. This testimony was competent for the purpose of showing that the three outlaws were in the defendant's house on the afternoon of the 2nd of February, 1934; that the defendant knew they were there; and it tended to show that he knew of their criminal

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records, because he did not want the witness Williams to see or know who was in the house at that time. When the defendant was testifying in his own behalf, he denied that he and Aussie Elliott were out together on the evening of February 2nd, denied that he knew the boys at the Banner Filling Station, denied that he knew the witness Caton who was working at this filling station, and denied that he and Aussie Elliott stopped at the Banner Filling Station and procured gasoline on the evening of February 2nd.

The witness Caton testified that the Banner Filling Station is on Highway 66 not far from the defendant's home; that he was employed there the past two years; that the evening before the killing the defendant with another man in a Chevrolet car stopped there for gasoline; that he saw the body of Aussie Elliott the next day and he was the man that was with the defendant; that Elliott gave him a $5 bill to pay for the gasoline, and when he gave him back the change, he handed the defendant a dollar; that witness said to the defendant, "Mr. Davis, you owe us eighteen cents on that little account"; the defendant said, "I believe I paid that"; witness said, "The ticket is still here and now is the time to pay it," and the defendant handed the dollar to him and witness gave him back the change; that about three or four weeks before that time the defendant asked him if he would handle some of his liquor, and he told him he did not sell liquor.

It has been repeatedly held by this court that a witness may not be impeached on any matter collateral to the matter in issue with a view of eliciting from such witness an admission at variance between former statements and those testified to on the trial. Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201, 202.

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It is equally true, however, that where a matter is relevant to the issue in the cause, and the witness denies having made a statement material thereto, such statement, if contradictory to his testimony given on the trial, may be shown to impeach him. Hartwell v. State, 15 Okla. Cr. 416, 177 Pac.383.

A careful examination of the record convinces us that the court committed no error in overruling the defendant's objections.

Other questions are raised as to the admissibility of certain testimony. We have examined them and find nothing prejudicial to the rights of the defendant.

The instructions, given by the court to which no objection was made or exception taken, fully covered the law of the case.

After a patient examination of the entire record and giving due weight to every consideration urged by counsel for the defendant, we fail to find reversible error. It appears that the defendant had a fair trial, and that the ends of justice were no more than satisfied by the judgment and sentence appealed from, and our conclusion is that the duty of this court is performed by an affirmance of the same.

The judgment of conviction is therefore affirmed.

DAVENPORT, P.J., and EDWARDS, J., concur.