
    MAYFIELD FANNIN v. STATE.
    No. A-7130.
    Opinion Filed Oct. 4, 1930.
    (291 Pac. 989.)
    
      Phillips, Boner & Phillips and MacDonald & MacDonald, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was by information charged jointly with Roy Tillett and H. Frank Moore with the crime of murder.' The defendant, May-field Fannin, was convicted of manslaughter in the first degree and his punishment fixed at five years in the state penitentiary. Motion for a new trial was filed, considered, overruled, and defendant duly excepted.

The testimony in this case shows the killing occurred • at an abandoned house in the northeast part of Bryan county, near the town of Matoy. The parties, who were intimate acquaintances and friends, had been together for more than a day prior to the killing. On the day of the killing, Fannin, Tillett, Moore, and McBride left the defendant’s home on foot. The testimony of the defendants Tillett and Moore tends to' show they left the home of the defendant for the purpose of seeing a span of mules that the deceased, Frank McBride, wanted to buy from Fannin; when they left the house they took a 22-caliber rifle belonging to Fannin with them; it is claimed they took the gun for the purpose of killing squirrels; when the deceased was found he had in his possession two butcher knives. The testimony shows the only persons present at the scene of the difficulty were the defendant Mayfield Fannin, Roy Tillett, and Frank Moore; that on the way to the abandoned house where the difficulty occurred they met Dock Plant, a neighbor, driving his team; Plant asked the parties to go with him to this abandoned house to assist him in loading a stove into the wagon; the stove was loaded in the wagon and Plant drove away; a shower of rain came up, and the defendant McBride, Moore, and Tillett remained at the house and engaged in shooting dice; one of the dice was lost, and they looked under the house, but could not find it, and the testimony on behalf of the parties present shows the deceased became angered at the defendant and accused him of losing the dice in order to break up the crap game; that the dice could not be found, and when the question of the mules came up they had some controversy about that; and finally it is contended the deceased tried to cut the defendant with one of the butcher knives, and did succeed in cutting him on the hand. The testimony of the defendant shows that deceased made an assault on him with the butcher knife, and in order to protect himself he fired the 22-caliber rifle, inflicting the wound upon the deceased from which he died. The defendant in his testimony insists that up to the time of the difficulty he and the deceased had been good friends, and that he only fired the shot when he believed he was in danger of losing his life or receiving great bodily harm at the hands of the deceased.

It is the contention of the state that the defendant suggested to the deceased, when the mule trade was being discussed, that be would buy tbe mules and give the deceased a uote for them provided tbe deceased would give him credit for $17.50 tbe defendant claims be bad paid for McBride to an attorney in Atoka; that tbe deceased resented this statement, and tbe trouble arose from tbe conversation that grew out of tbe contemplated trade between tbe deceased and tbe defendant. The defendant contends that he only acted in tbe necessary self-defense, and would not have fired tbe shot bad be not believed at tbe time of the firing that the deceased was going to do him great bodily barm with tbe knife tbe deceased was assaulting him with.

This is, in substance, tbe testimony of the defendant, and Tillett and Moore, tbe two witnesses who were jointly charged with tbe defendant.

Tbe defendant has argued eleven errors alleged to have been committed by tbe court in tbe trial of bis case. Tbe record discloses that tbe defendant demurred to tbe information on tbe ground: First, that tbe information filed in this cause does not follow tbe requirements of tbe laws of Oklahoma as provided in matters of this kind. Second, that tbe facts set out in tbe information do' not state a cause of action against these defendants or either of them.

There is nothing in tbe record to show that this demurrer was passed on by tbe court. After this demurrer was filed, tbe record shows that tbe case was called for trial.

After a careful examination of the information, we bold that it stated sufficient facts to advise tbe defendants of the charge they were expected to meet. Tbe defendants in this case were charged with tbe crime of assault on tbe said Frank McBride with a rifle, and tbe use of tbe pleader in tbe information, after alleging tbe assault on Frank McBride with a rifle, of tbe words, “and other instruments,” did not affect tbe sufficiency of tbe charge in tbe information of shooting tbe deceased Frank McBride with a rifle.

It is further argued that the court erred in refusing to permit tbe defendant to cross-examine Nellie McBride, a daughter of the deceased, with reference to tbe defendant having- at one time assisted her father in tbe burial of one of the children. ' Tbe record discloses that tbe trial court permitted tbe defendant to cross-examine Nellie McBride and show that the defendant and her father, prior to this trouble, were good friends. This we .think was sufficient, and tbe question with reference to tbe defendant assisting in tbe burial of tbe child was immaterial and properly excluded from tbe jury; when the court permitted tbe defendant to show that prior to tbe difficulty tbe defendant and tbe deceased were friendly, it permitted the defendant to show everything that was competent in this connection, and it would add nothing to the friendship of the parties to show the various details of their friendship.

It is further urged by the defendant that the court permitted counsel for the state to ask certain improper questions of the codefendant Moore, who took the witness stand in his own behalf, and in behalf of this defendant.

The record discloses that the testimony complained of by the defendant is where Moore, who was one of the defendants, on cross-examination was asked:

“Didn’t you see the defendant Mayfield Fannin take his right hand and grab the wrist of McBride with his right hand, and put his hand against his breast and shove McBride back?”

The defendant contends that in asking this question of the witness Moore there was no proof upon which to base the question as to the defendant Fannin shoving the deceased back with his right hand. With this contention we cannot agree, as the record discloses that in the examination of the defendant Fannin the following appears :

“Q. Tell what happened on the porch? A. After we got back on the porch, we was all talking and I told the boys ‘let’s go home’ and my target was setting close to this water shelf and I reached down and got it and started home and McBride — I made I guess two' steps — he said, ‘What are you going to do about the mules?’ and I said, ‘Frank, I will let you have them for $ 125, if you will put that $17.15 in that I paid for you at Atoka and I will let you have them and make a note for next fall.’
“Q. What did he say? A. He said, T don’t owe you a damn cent and I am going to have that dice, you son of a bitch, or cut your God damn head off’ — I—he was standing like that and pulled his breeches up and he had a butcher knife and was coming at me like this and I throwed my hand up like this and pushed him back again and asked him not to do it—
“Q. Show the jury what position he was in? A. Like this (indicating).
“Q. Was he as tall a man as I am? A. No, sir.
“Q. Was he over— A. Like this.
“What did you do? A. I grabbed the gun and caught hold of it like this and fired.”

It is further urged by the defendant that his conviction is not sustained by sufficient evidence, and the defendant invites the attention of the court to the fact that there were no eyewitnesses to the difficulty except the three defendants who were on trial charged with the murder of McBride, and tbeir stories all agree as to bow tbe trouble arose.

There is no conflict in tbe testimony as to wbat brought on tbe trouble, and it is true tbe only witnesses to tbe shooting were tbe three defendants. Tbe jury beard tbeir testimony and reached its verdict from tbe statements made by tbe defendants. This court has repeatedly held that tbe jury is tbe sole and exclusive judge of tbe weight of tbe evidence and the credibility of tbe witnesses, and if tbe evidence is such that different inferences may properly be drawn from it, tbe determination of tbe jury will not be interfered with unless there is no competent evidence to sustain tbe conviction, or that tbe verdict appears to have been influenced by passion or prejudice. There is nothing in tbe record which indicates that the jury was influenced by prejudice or passion. Tbe testimony is sufficient to sustain tbe verdict.

Other errors are assigned which do not possess sufficient merit to warrant a reversal of this case. Tbe defendant was accorded a fair and impartial trial. Tbe court substantially instructed the jury on tbe law applicable to tbe facts in tbe case. There being no errors in tbe record of sufficient merit to require a reversal, tbe judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.  