(Syllabus.)

1. Homicide -- Conviction for Murder Sustained. Evidence held to support conviction for murder without death penalty.

2. Trial -- " Rebuttal Evidence" Defined. Rebuttal evidence in criminal case is that which is given by the state to explain, repel, counteract, contradict, or disprove evidence introduced by or on behalf of the defendant.

3. Same -- Rebuttal Testimony Proper Though Same Could Have Been Introduced in Chief. Evidence tending to clarify a disputed point may be properly rebuttal testimony, notwithstanding the fact that the same testimony might have been introduced in chief.

4. Same. When the state makes out a clear case in chief, the fact that certain testimony was reserved for rebuttal, which would have been admissible in establishing the case in chief, but which is clearly in rebuttal of a material defense, or testimony introduced in defense, does not render the same inadmissible in rebuttal.

5. Trial -- Necessity for Requesting Special Instructions Desired. If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our

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Code of Criminal Procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant's theory of the case, when he has not requested such instructions.

6. Same -- Appeal and Error -- Review in Absence of Request for Specific Instructions. Where a party desires the court to give any particular instruction, or desires that the one that is given be made more specific or comprehensive, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request a conviction will not be reversed, unless this court is of the opinion, in the light of the entire record, including the instructions given, that the defendant may have been prejudiced by the instruction complained of.

7. Appeal and Error -- Judgment of Conviction not Disturbed in Absence of Material Error. Where, after an examination of the entire record, it appears that the defendant has had a fair and impartial trial, and that no material error has been committed by the trial court, and the verdict seems to be amply sustained by the evidence, this court will not disturb the verdict or judgment of the trial court.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Jesse Pulliam was convicted of murder, and appeals. Affirmed.

By information filed in the district court of Osage county, July 11, 1935, Jesse Pulliam and one John Stacy were jointly charged with the murder of E. W. Williams, on August 24, 1934. Upon his separate trial the jury found the defendant Jesse Pulliam guilty of murder and assessed his punishment at imprisonment for life. From the judgment rendered in pursuance of the verdict he appeals.

The evidence discloses substantially the following facts :

The deceased, E. W. Williams, lived a mile and a half out of Fairfax, and had been for some time prior to the

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24th day of August, 1934, operating a lunch and drink stand, about seven miles east of Fairfax, on the main highway to Gray Horse and the Naval Reserve Oil field. About 6 o'clock on the afternoon of August 24^th, E. C. Spencer came from Fairfax to this stand to collect a payment due on a washing machine which he had sold to Williams, and found Williams in such an intoxicated condition that he made no effort to collect. Shortly after the arrival of Spencer, Albert Stevens, who lived on a farm a mile east, came to the stand. Spencer, Stevens, and Williams then drank beer spiked with alcohol furnished by Williams.

 

Soon after the arrival of Stevens, the defendant Jesse Pulliam and codefendant, John Stacy, driving a truck, arrived and bought two bottles of beer which were spiked with alcohol. Williams being too drunk to attend to the matter, Stevens served the beer and put in the alcohol. Pulliam and Stacy paid 50 cents a bottle for the beer and the money was placed by Stevens in Williams' pocket. Pulliam and Stacy called for two more bottles and were again furnished with the spiked beer, paying the same price for the same. By this time Williams was so drunk that he could not walk and had to be assisted by Stevens to a pallet under a tree a short distance from the stand, and Williams never got up from the pallet.

Stevens then asked Pulliam and Stacy to leave, as Williams was "clear out," and there was no one left to run the place. Stacy "set his bottle of beer down real hard and said he had paid for it and would stay all night and drink it if he wanted to." Pulliam remarked to Spencer, with reference to Stacy, that "they had better not monkey with him, he was plenty tough with the other fellow." Spencer left within a few minutes thereafter, and as he was leaving Stacy told him that he had better

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beat it and be going, if he didn't want to see something happen. It was about 7:30 when Spencer left. Pulliam, Stacy, and Stevens were still around the stand and Williams was unconscious on the pallet.

Stevens testified that while he was getting the beer for Pulliam and Stacy, there were some words between them and the deceased; that after he had helped Williams to the pallet and asked Pulliam and Stacy to drink their beer and leave, Stacy said that he had paid for his beer and was going to stay there and drink it. Witness told them that he did not have anything to do with the joint, only just as a friend of Williams. That some time after Spencer had gone and while defendant Pulliam and Stacy were present, after dark, witness was struck a blow over the eye with some instrument which he took to be a glass, he was struck a second blow over the eye, and a piece of glass later worked out of his forehead. This was on Friday evening, and he was unconscious from the time this second blow landed until the following Sunday. At the time he was struck and rendered unconscious he had about $2.50 or $3 in his pocket, that was missing thereafter.

Bill Stevens, a son of Albert Stevens, testified that with his uncle Lee Van Cleve, he drove to this stand looking for his father. The car lights flashed on his father's body, and they put him in the car and carried him home and later took him to the hospital; that at the time he noticed on the ground nearby some other object which might have been the body of a man. That his father's pockets were turned inside out and his money was gone; that it was about 9 o'clock when he arrived home with his father.

Mrs. Zollie Williams, widow of the deceased, testified that her husband sometimes stayed at the stand at night

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and sometimes he came home at night; that on the afternoon of the day before he was injured he was at home and was carrying his money in a brown billfold in a pocket in the bib of his overalls; that she saw six $10 bills and more fives than he had tens in his pocket-book when he opened it to give her $15 that afternoon; that he just pulled the corners of the bills up to show her the money.

A search of the place that night showed that the pallet on which the body of E. W. Williams was found was "pretty well soaked with blood." Some three or four feet away was a considerable amount of blood in which was broken glass. On the ground outside of the stand and east of the pallet was a winch handle. The inside of the stand, a shack eight by twelve, was in a disorderly condition, the icebox was open, and on the floor, inside the door, was found a claw hammer having a broken handle, on which was fresh blood and hair. The clothing of the deceased contained no coins, but in the watch pocket of the trousers, underneath the overalls, were five $1 bills.

Williams was yet alive and was taken to the hospital, where he died about noon the next day. He had a large scalp wound and a compound fracture at the base of the skull sufficient to cause immediate unconsciousness and paralysis. The wound had been made by some blunt instrument such as a hammer, and was the cause of E. W. Williams' death.

The defendant, Pulliam, and codefendant Stacy were the last persons seen at the scene of this murder. They spent that night in Ponca City, where they tried to borrow some money. Pulliam returned to Shidler the next day, but left about noon and went to Seminole. From Seminole he went to Texas, then to New Mexico, where he worked under an assumed name. He was apprehended in June, 1935, and brought back to the state for trial.

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When the state rested the defendant demurred to the evidence and asked the court to direct the jury to return a verdict of not guilty.

Jesse Pulliam, as a witness in his own behalf, testified that he was 25 years old, had been living at Shidler, engaged in driving a truck for Curnutt and Pulliam, his brother-in-law and brother; that on August 24th he drove into the Naval Reserve Oil field with his cousin, John Stacy, to move a house; that after quitting work that evening they drove to Slim Williams' beer joint; that Albert Stevens and E. W. Williams were there. Stacy asked for a bottle of beer and Williams asked if we wanted it spiked, Stacy said, "Yes," and he said, "'No." After drinking the beer there was an argument between Stacy and.Stevens, who. was pretty drunk; then all four drank each another bottle of spiked beer. Stevens then told Stacy to go away from there. Stacy answered he would go away when he got ready; he had paid for the beer and was going to drink it. Stevens made a pass at Stacy, and Stacy hit him and knocked him down with a beer bottle. William came out to take a hand in it, and witness told him to stay out. That he had seen a pistol in Stevens' pocket, and when Stevens reached back for this pistol, witness hit him over the head with a beer bottle and knocked him down. Stacy was out by the truck and Williams was on the west side of the shack.

He further testified that he never owned the hammer introduced in evidence and did not have a hammer that evening; that he did not hit Williams with a hammer; that they reached Pawhuska about 8:30 and from there they drove to Ponca City, arriving there about 11 o'clock and remained there that night, the next morning returning to Shidler. It was then about noon, and his brother fired,

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him and paid him his wages, $15; then he went to Seminole; that he was on parole from Kansas at the time. From there he went to New Mexico, stopping at Gladewater, Tex., 14 days, worked there driving a tractor nine days. In New Mexico he worked about seven months on a ranch, then got a PWA job hauling gravel on the road between Tucumeari and Santa Rosa, and took that job under an assumed name; that he had an uncle out there and a whole bunch of cousins; that he did not kill or murder E. W. Williams, nor John Stacy did not in his presence; that he did not steal or rob money from either Stevens or Williams; that he did strike Williams with his fist during the scuffle between Stacy and Williams.

He admitted having made certain statements and admissions at Tulsa, on June 12, 1935, and signed a written statement taken by Emerson Hopp, special agent of United States Department of Justice, which had been received in evidence.

On cross-examination he stated he had been convicted of the crime of grand larceny in 1927 and served a term at the state reformatory at Granite; was convicted of attempt to steal an automobile in the State of Kansas in 1931.

The record covers over 400 pages, but the foregoing is a sufficient statement for the purpose of this opinion.

Abe Wildman, H. M. Curnutt, John W. Tillman, and Fred A. Tillman, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.

DOYLE, J. This is an appeal by the defendant Jesse Pulliam from a conviction of murder and judgment and sentence of imprisonment in the state penitentiary for and during the term of his life.

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The information charges that:

"On or about the 24th day of August, 1934, in said County and, State, the defendant, Jesse Pulliam, then and there being, did then and there wrongfully, wilfully, unlawfully, intentionally and feloniously, and while acting together with one John Stacy, without authority of law, and with the premeditated design to effect the death of one E. W. Williams, make an assault in and upon the said E.W. Williams, with a certain dangerous and deadly weapon, to-wit: a claw hammer, and did then and there with said weapon as afore-stated, strike, beat, batter and wound the said E. W. Williams about his head, thereby crushing the skull of E. W. Williams, of which said wounds the said E. W. Williams did, on the 25th day of August, 1934, die, as was intended by the said defendant, Jesse Pulliam, and one John Stacy, that he should so do, contrary to," etc.

The overruling of the defendant's demurrer to the information is assigned as error.

Where an information charges that the injuries to the deceased were inflicted by the defendant with a premeditated design to effect death, and alleges the means with which the homicide was committed, it is sufficient. The demurrer was properly overruled.

Several assignments of error are based on exceptions to rulings on evidence.

The second assignment argued is that the trial court erred in failing to declare a mistrial when Sheriff Conner testified in the presence of the jury in answer to the f6llowing question of the county attorney:

"Q. When did you first begin your search for these two individuals? Objected to as incompetent, irrelevant and immaterial. Overruled and exception. A. Sunday night was the first we positively knew it was John and Jesse. Mr. Tillman: Your Honor please we move to strike

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that. By the Court: Sustained. Mr. Tillman: At this time we move for a mis-trial on account of the voluntary statement of the sheriff. The Court: Overruled. Mr. Tillman: And 'we ask the court to instruct the jury to disregard the same. The Court: Gentlemen of the jury, you are instructed to disregard the last answer."

It is sufficient to say that this assignment is without merit. The answer of the witness was stricken by the court and an instruction given to the jury not to consider it.

The next assignment of error is based upon rulings of the court permitting Charles Cass to testify in rebuttal relative to statements made by the defendant after he had been apprehended, as follows:

"Q. Were you in the county attorney's office a few days after Jesse Pulliam was brought to the Osage county jail when he made some statements with reference to this transaction out here? A. Yes, sir. Q. I will ask you to state whether or not if the following questions were not asked him and if he did not answer as follows: Jesse, was there a winch on this truck that you were driving. answer: there was; question: was there a handle on that winch. answer: it was on the bed of the truck or I suppose it was, that is where it was generally kept. Would you know the winch handle if you were to see it. I believe I would. Is that it? That looks like it all right, it sure does. Did he made that statement? Mr. Tillman: Objected to as improper rebuttal, the witness wasn't asked about making those statements. The Court: He said he didn't make the most of them. Let him answer. Mr. Tillman: Give us an exception. By Mr. Carman: Q. Were those questions asked and those answers given. A. Yes, sir. Q. Question: Was there a hammer on your truck or in your possession that evening? Answer: I believe there was a hammer in the back of the truck or on the floor boards in the cab of the truck. Was that a claw hammer? Yes, sir, a claw hammer. Would you know it if you were

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to see it? I don't know whether I would or not. Was it a straight claw hammer or were the claws curved or crooked? Curved I believe. Look at that and see if you can identify that. Answer: I don't know if it is or not, I believe it is. You. believe it is. Answer: yes sir. Mr. Tillman: Just a moment, the same objection, he answered that he might have testified to that. The Court: Overruled. Mr. Tillman: Exception. A. He did. By Mr. Carman: Q. At the time that he made this statement with reference to the hammer was this hammer shown to him? (indicates the hammer in evidence) Mr. Tillman: Objected to as improper rebuttal. The Court: Overruled. Mr. Tillman: Exception. A. Yes, sir."

It is contended that this evidence should have been introduced as a part of the state's case in chief, and it is urged that it was prejudicial error on the part of the court to permit the county attorney to rehash the state's testimony after the defense had closed. Citing Corliss v. State, 12 Okla. Cr. 526, 159 Pac. 1015.

An examination of the record discloses that this testimony was in no sense a rehash of the evidence adduced as a part of the state's case in chief, and was admitted in rebuttal and for impeachment purposes.

An examination of the cross-examination of the defendant as a witness in his own behalf discloses that the defendant was questioned relative to the making of these statements. Some of them he positively denied. In other instances he answered vaguely with, "I might have, I don't know," or, "I might have answered that way, I don't know for sure." The less important part of his statements he some time admitted having made. It appears when the county attorney began his questions as to the statements made in the county attorney's office, counsel for the defendant stated:

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"Now if your Honor please, if there are going to be parts of statements, made in the county attorney's office, the defendant asks that all be read."

It appears the defendant admitted that the winch handle which was picked up near the stand looked like the one which belonged on the truck. As a part of his defense the defendant and his witnesses denied that the winch handle was lost off the truck. They also denied that the hammer which was found, and with which the murder evidently was committed, was in the truck or in the possession of the defendant.

When asked on cross-examination about the making of this statement he answered evasively.

Our Procedure Criminal (St. 1931), section 3057, in part provides:

"The jury having been impaneled and sworn, the trial must proceed in the following order:

"First. If the indictment or information is for a felony, the clerk or county attorney must read it, and state the plea of the defendant to the jury. In other cases this formality may be dispensed with.

"Second. The county attorney, or other counsel for the state, must open the case and offer the evidence in support of the indictment or information.

"Third. The defendant or his counsel may then open his defense, and offer his evidence in support thereof.

"Fourth. The parties may then, respectively, offer rebutting testimony only, unless the court for good reason, in furtherance of justice, or to correct an evident oversight, permit them to offer evidence upon their original case."

In the case of Claycomb v. State, 22 Okla. Cr. 315, 211 Pac. 429, 431, this court said:

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"Portions of this testimony and that of other witnesses called on rebuttal related to matters controverting the testimony given by defendant, dovetailing in with facts that could have been introduced in chief. Rebuttal evidence is proof of facts tending to explain, repeal, counteract, or disprove matters given in evidence on the other side. 3 Bouvier's Law Dictionary, p. 2820.

"Evidence tending to clarify a disputed point may be properly rebuttal testimony, notwithstanding the fact that the same testimony might have been introduced in chief. Wigmore on Evidence, § 1873."

In Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308, 309, this court said in the seventh paragraph of the syllabus:

"(a) When the state makes out a clear case in chief, the fact that certain testimony was reserved for rebuttal which would have been admissible in establishing the case in chief, but which is clearly in rebuttal of the material defense, or testimony introduced in defense, does not render the same inadmissible in rebuttal.

"(b) Rebuttal testimony is properly that testimony which is given to explain, repeal, counteract, disprove, or destroy facts given in evidence by an adverse party. Any evidence may be given in rebuttal which is a direct reply to that produced by the other side or a contradiction thereof, or which tends to destroy the effect of the same."

Construing the fourth subdivision of section 3057, this court held in Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N.S.) 43:

"The fact that evidence may have been introduced in chief by the state does not necessarily prevent its introduction as evidence in rebuttal. The introduction of such evidence is a matter of discretion of the trial court, and will not be ground for reversal, unless an abuse of this discretion is shown."

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It follows from what has been said that the objections thereto as improper rebuttal were properly overruled.

In another assignment the defendant complains that the court erred in giving instruction No. 7.

Upon the record before us counsel for the defendant have not properly raised the question. Only prejudicial errors raised by exceptions reserved, require a new trial and it is only when we are satisfied that the verdict was contrary to law or to the evidence, or that injustice has been done, that we are permitted to reverse a conviction, whether or not an exception has been taken in the trial court.

It appears from the record that counsel for the defendant presented no request for instructions and no exceptions were taken to the instructions given by the court.

In charging the jury the court submitted the issue of "murder" as defined by the first subdivision of section 2216, wherein homicide is defined to be "murder":

"First. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being."

The instructions given correctly stated the law of circumstantial evidence. As before stated, the defendant did not request the court to give instructions submitting the law of manslaughter in the first degree.

Our Procedure Criminal (St. 1931) section 3079, in part provides:

"Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given, if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision."

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Under this provision, if counsel for the defendant desires the court to give any particular instruction, or that one that is given be made more specific or comprehensive, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request a conviction will not be reversed, unless this court is of the opinion, in the light of the entire record, including the instructions given, that the defendant may have been prejudiced by the erroneous instruction given and to which an exception was duly taken. Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453.

In Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900, we said:

"If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant's theory of the case, when he has not requested such instructions."

If the defendant's counsel had requested further instructions and they had been refused, the question would have been properly raised upon exceptions taken. Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263; Reagan v. State, 35 Okla. Cr. 332, 250 Pac. 435; Carpenter v. State, 56 Okla. Cr. 76, 33 P.2d 637.

Upon a careful examination of the voluminous record, we find that the evidence upon the part of the state was sufficient to establish every material element of the offense charged. Its weight and convincing effect was for the jury, and having considered the assignment of error argued orally and in the briefs, we are satisfied that no exception taken upon the trial is of any force or merit.

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Our conclusion is that the defendant had a fair and impartial trial.

The judgment of the district court of Osage county herein is therefore affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.