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 convinced 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 he 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 pecuThe complaingitimately draw the conclusion of the guilt liar things about this case. of 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 manifestly 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 him acquitted, if it could have been law-rible thing, to confine a man in the penitenfully done, but who was brave enough and honest enough to enforce the law, even though the conviction of the appellant was contrary to the personal feelings of the judge. We most heartily commend the action of the trial judge in overruling the motion for a rehearing upon the ground that the verdict was contrary to the evidence. We find no material error in the record before us, and the judgment of the lower court is therefore in all things affirmed.

ARMSTRONG, J., concurs.

MCADAMS, Special Judge (dissenting). I regret exceedingly that it becomes necessary for me to dissent from the majority opinion of this court, but, as I view this case. I do not feel that I would be justified under my oath to do otherwise.

There is no other criminal case in this state that I have been able to find similar to the one at bar. Therefore this court is called upon for the first time to determine the power, duty, and responsibility of a trial judge in passing on a motion for a new trial. The trial court in passing on the motion for a new trial (one ground of which was that the verdict was not supported by the evidence) stated, among other things, as disclosed by the record: "But I must say there are things in this lawsuit that are so very peculiar to me that they are inex

trymen. And it is an awful thing, a hor

tiary, and take away his liberty, if it is done by evidence that is not true. And I must confess that the evidence of the com

plaining witness in some particulars does not come to me in the way that it should.

*

One other thing about this case, to

say the least of it, and I must state, after
a very careful reflection, that undoubtedly
it was the main cause of this verdict:
Here were guns of the latest manufacture,
and of the oldest manufacture, all sorts
and kinds of guns, cudgels, knives, slung-
shots, and I don't know as all the evidence
was introduced, I don't know as I am stating
the facts in the case, but the valise contain-
ing all this paraphernalia was sitting under
me here, where I could see into it, and I
discovered knucks and other cudgels and in-
That this
struments of warfare.
evidence that this gun came from the Fits-
patrick house, there is some very strong evi-
dence in corroboration of that fact; very
strong evidence in corroboration of that
fact.

* * *

*

But I don't believe, I can't believe, that all the facts in this case have been told. That is exactly the way I feel now. And, as I said before, it strikes me that that is what brought about, more or less, this verdict that was returned by this jury; and right here there is another thing that militated against this defendant in my opinion, and that is that from the day of the opening this has been a place

and rendezvous for crime of that character. | which the trial judge has to perform, and, All a man had to do was to go before a jury with a plea of self-defense or insanity, or something of that kind, and he was turned loose, turned loose upon our streets to annoy and harass the public. That has something to do with this verdict. We are 14 years old and more. This country is becoming civilized, and this theory of carrying guns and pistols wherever you go, even to social functions, ready for trouble, ready for affray, I tell you, gentlemen, the juries of this country are going to do away with that; absolutely do away with it." Plaintiff in error contends when the verdict of the jury was challenged by a motion for a new trial, upon the ground that it was contrary to the evidence, that it was the duty of the trial judge to weigh the evidence, and unless he was convinced of the guilt of defendant, and could conscientiously approve the verdict as a just one, he should have sustained the motion and awarded a new trial. And when the record discloses that the trial court was not convinced of the defendant's guilt, and did not conscientiously approve the verdict of the jury, it is the duty of this court to reverse the cause and direct the lower court to grant a new trial. This brings squarely before us for determination: What is the duty of a trial judge in passing on a motion for a new trial when the verdict of the jury is challenged upon the ground that it is not supported by the evidence? In People v. Knutte, 111 Cal. 453, 44 Pac. 166, the Supreme Court of California, in discussing this question, said: "While it is the exclusive province of the jury to find the facts, it is nevertheless one of the most important requirements of the trial judge to see to it that this function of the jury is intelligently and justly exercised. In this respect, while he cannot competently interfere with or control the jury in passing upon the evidence, he nevertheless exercises a very salutory supervisory power over their verdict. In the exercise of that power, he should always satisfy himself that the evidence as a whole is sufficient to sustain the verdict found; and, if in his sound judgment it does not, he should unhesitatingly say so, and set the verdict aside." In considering the question of "reasonable doubt," the court further said: "Nor does it affect the question that the evidence in the case may have a legal tendency to prove all of the material facts. Guilt is to be established beyond a reasonable doubt; and, while there may be some evidence to support each fact, this does not signify that it is necessarily such as to satisfy the conscience of the judge that a case is made which warrants conviction." In People v. Chew Wing Gow, 120 Cal. 298, 52 Pac. 657, the Supreme Court of California again, opinion by Justice Temple, in discussing the duty of the trial judge to weigh the evidence, said:

when no efficient review of his action can
be had, it is peculiarly incumbent upon the
judge to weigh the evidence with care and
conscientiously grant a new trial, when in
his opinion the interest of justice requires it.
In my opinion there is no more prolific
cause of miscarriage of justice than the re-
luctance of the trial judges to grant new
trials in criminal cases." In Garton v. Sterne
and Others, 121 Cal. 347, 53 Pac. 904, the
Supreme Court of California again said: "It
is the province of the trial judge upon mo-
tion for a new trial to inquire into the suf-
ficiency of the evidence upon which a verdict
or findings was found, and it is his duty to
grant a new trial when, in his judgment, the
evidence was insufficient to support the de-
cision. * * * It has been repeatedly held
that upon motion for a new trial it is the
duty of the trial court to examine the evi-
dence, even though it be conflicting, and,
if dissatisfied with the conclusion reached,
to grant a new trial." In Serles v. Serles
and Others (Supreme Court of Oregon) 35 Or.
289, 57 Pac. 634, in the body of the opinion,
the court in passing upon this question said:
"It must be understood, of course, that a
mere dissatisfaction of the judge with the
verdict is not sufficient ground for disturb
ing it, but the court must exercise its judg-
ment in each particular case, and if from all
the testimony given the jury it is satisfied
that the verdict is against the clear weight
or preponderance of the evidence, or that the
jury has acted unreasonably in returning
the verdict, or has been misled or misdirect-
ed, or has acted through improper motives,
it is the duty of the court to set it aside
and grant a new trial. * *
In Kansas
City W. W. & N. W. R. Co. v. Ryan, 49 Kan.
1, 30 Pac. 108, the Supreme Court of Kansas
in an opinion by the late Chief Justice Hor-
ton said: "It has been the unvarying decision
of this court to permit no verdict to stand
unless both the jury and the court trying the
cause could within the rules prescribed ap-
prove the same. When the judgment of the
trial judge tells him the verdict is wrong,
whether from mistake or prejudice or other
cause, no duty is more imperative than that
of setting it aside and remanding the ques-
tion at issue to another jury. While the
case is before the jury for their considera-
tion, the jury are the exclusive judges of
all questions of fact; but, when the matter
comes before the court on a motion for a
new trial, it then becomes the duty of the
trial judge to determine whether the ver-
dict is erroneous. He must be controlled by
his own judgment, and not by that of the
jury. When a trial judge overrules a mo-
tion pro forma, and declines to look into
the facts or pass upon its sufficiency, he mis-
conceives his duty and commits fatal error."
Atyeo v. Kelsey, 13 Kan. 212; Williams v.
Townsend, 15 Kan. 563; Railway Co. v.

a judge empowered to instruct them on the law, relative to the issues of fact involved in the case, and to set aside their verdict when, in his opinion, it is contrary to the law or the evidence. Trial by jury does not mean simply a trial before 12 men, duly impaneled and sworn to render a true verdict according to the law and the evidence given them, but means a fair and impartial jury, duly impaneled and sworn according to law, pre

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 and approve it? I think not. To do so would be to take away from the judiciary the power that rightly belongs to it under our system of government. It is eminently proper that the people should make the law by which they are to be governed, but this does not mean that they should interpret, or that they are competent to interpret, it in such a way that justice may prevail. They have realized their inability to do this, and estab-sided over by a competent court, with power lished for that purpose a judicial system. Upon the judiciary depends the destiny of this republic. Therefore its power should not be curtailed so as to prevent it from properly administering the law. The duties and responsibility of a judge should be placed above all others. He is to pass final judgment between the government and the prisoner at the bar, whom that government is prosecuting. The President of the United States, the Governor of a state, may, by virtue of the pardoning power vested in them, remove the punishment inflicted upon an innocent man, but the trial judge, if he be a just judge, holding the scales of justice in his hands, may go further and prevent the sting of conviction and disgrace being placed upon an innocent man and his posterity by seeing that the law is properly administered, and that no verdict be permitted to stand which in his judgment does not meet the ends of justice. It is not the mere suspicion of guilt that justifies a jury in returning a verdict | of guilty, or that justifies the court in approving the verdict, but it must be competent and legal evidence, adduced in a legal way, sufficient to satisfy the minds of the jury beyond a reasonable doubt of the defendant's guilt, and, unless this is done and the trial court conscientiously approves the verdict as a just one, no proper judgment can be entered.

Section 6, art. 2, of the Constitution of this state, provides: "The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong, and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice." Section 20, art. 2, provides: "In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed. Construing sections 6 and 20 of article 2, supra, of our Constitution, together, it must be taken as established by virtue thereof that a party charged with crime has a constitutional right to be tried by a fair and impartial jury of his county, presided over by a competent court, who shall see to it that justice is administered, without sale, denial, delay, or prejudice; that a trial by jury means a right to be tried by a fair

* *

and superintending control over them. In a capital case it requires the concurrence of 12 jurors to return a verdict of guilty, but, before judgment can be entered upon the verdict, it requires the concurrence of the thirteenth man, the trial judge, and unless the trial judge can, and does, approve the verdict as a just one, right and justice has not been administered as guaranteed by our Constitution. It is therefore the imperative duty of a trial judge, where the verdict of the jury is challenged by a motion for a new trial, which contends as one of the grounds therefor that the verdict is contrary to the evidence, to carefully weigh the evidence, and unless he is satisfied in his own mind, and his conscience tells him that the evidence is sufficient to sustain the verdict as a just one, to set it aside and grant a new trial.

The learned judge who wrote the majority opinion holds that the language of the trial judge in acting upon the motion for a new trial constitutes no part of the record, and will not be considered by this court. To this part of the opinion I cannot agree. The language of the trial judge appears in the case-made, which was signed and approved by him, and we must therefore accept this portion of the case-made as absolutely true, and as speaking the exact language of the trial judge in passing upon the motion for a new trial. In Yarnell v. Kilgore, supra, which has been specifically approved in recent decisions of our Supreme Court, the language of the trial judge in acting upon the motion for a new trial was incorporated into the case-made and the language of the trial judge was the very point, and only point upon which the Supreme Court of Oklahoma Territory predicated its judgment of reversal. If the court in a civil case, involving merely rights or property, make the language of the trial judge, acting upon a motion for a new trial, not only a part of the record, but the basis of a judgment of reversal, how can this court, sitting in judgment upon the life and liberty of a citizen, refuse to consider the language of the trial judge, as shown in this case? The learned judge who wrote the majority opinion in passing upon this point says: "There was no order of the trial judge directing that the remarks made in this case should be incorporated into the

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 desires this court to review. Passing upon a motion for a new trial is a part of the proceedings of the trial, and, if the trial judge makes any statement in passing upon the motion for a new trial, and before entering final judgment, which the appellant deems necessary for this court to review, it is right and proper that he should have the same incorporated into the record, and certified to this court.

What right has this court to presume that the learned trial judge did not intend his remarks to become a part of the record and be considered by this court, when he has certified them to this court? The learned trial judge evidently knew that in Yarnell v. Kilgore, supra, the Supreme Court of the territory of Oklahoma had considered the language of the trial judge in passing upon the motion for a new trial as a part of the record, and had predicated its judgment of reversal upon the remarks of the trial judge. I think, instead of assuming that the trial judge did not intend for this court to consider his remarks, we should assume at the time he made the remarks, and at the time he certified them to this court, that he was familiar with the decision of the Supreme Court of the territory of Oklahoma in Yarnell v. Kilgore, supra, and the decisions of our Supreme Court in approving the same; that he then intended such remarks to become a part of the record, and that they should be so considered by this court. Section 6951, Snyder's Comp. Laws 1909, in part is as follows: "A party desiring to have any judgment or order of the district court (superior county court), or county court or a judge thereof, reversed by the Supreme Court (Criminal Court of Appeals), may make a case containing a statement of so much of the proceedings and evidence of other matters in the action as may be necessary to present the errors complained of to the Supreme Court (Criminal Court of Appeals). The case so made, or a copy thereof, shall within thirty days after the judgment or order is entered, be served upon the opposite party, or his attorney, who may, within three days thereafter, suggest amendments thereto in writing, and present the same to the party making the case, or his attorney. The case and amend ments shall be submitted to the judge, who shall settle and sign the same and cause it to be attested by the clerk or county judge, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case. Such original case-made shall be filed with the petition in error. The ex

It is true there is some evidence in this case to justify the verdict. It is also equally true that there is overwhelming evidence to justify the plea of self-defense, and if the writer was to take the cold record as he sees it, and were permitted to pass upon it, he would unhesitatingly say that the defendant was justified. I do not believe, however, that it is the duty of this court, in a case like the one at bar, to search the record to ascertain whether or not it can find sufficient evidence to warrant the verdict, or sustain the theory of the defendant that he was justifiable. In my judgment there is only one question for this court to determine in this case, and that is whether or not the trial judge approved the verdict, and, if he did not approve the verdict, has the defendant had a trial as guaranteed him by the laws and Constitution of this state?

We believe it is apparent to any fair and impartial mind from the statement of the trial judge in this case that he did not approve the verdict. It is also equally apparent that he was conscious of the fact that he was permitting a verdict to stand, which in his judgment was not sustained by sufficient evidence, but was based upon public sentiment and prejudice against a plea of selfdefense in homicide cases.

.This record clearly discloses to my mind that the judgment of the lower court has nothing upon which to stand, except the misconception of duty of the trial judge, and to permit it to stand would be a miscarriage of justice, and contrary to the letter and spirit of our Constitution, declaring that right and justice shall be administered without sale, denial, or prejudice.