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found and the actual value it was represent-, pleadings of the plaintiff fix the actual value ed to be as represented by the purchase price of the land at the purchase price, and the paid for the land. This is the rule the jury court by its rule fixes the same sum, not were instructed to follow, and is the correct as the actual value of the land, but as the rule of damages under the pleadings in this purchase price paid for the land, which is

the same thing. Consequently, the effect of An examination of the verdict of the jury the rule given, and the rule contended for will disclose, however, that the damages by appellant, is identical upon the same asfound for the defendant are not measured sumed facts, under plaintiff's pleadings and by the rule as given by the court. Under evidence of value. the evidence, the plaintiff attempted to show Either rule followed by the jury, after that the land was worth $110, and was cheap finding the amount of the sterile worthless at that price. Other witnesses testified that land to be 15 acres would have produced a land in the vicinity, in 1913, sold at prices verdict for the defendant of $1,650 as his ranging from $100 to $135 per acre. We damages. But the jury evidently followed have above mentioned the evidence fixing neither rule, for the reason they found the the amount of sterile land in the tract from defendant was damaged in the sum of $1,nothing to as much as 30 acres. The jury 286. In order to have reached this exact evidently believed that the tract contained sum, and also to have found that 15 acres of some sterile land. They evidently believed the land were' worthless, they evidently that the reason the spots in the land do not found that land of the character this land produce crops is that such spots are sterile was represented to be in the vicinity where spots as claimed by the defendant; that the this land is located was actually worth more amount in the aggregate of such spots is 15 than $110 per acre; that such land was acacres. The plaintiff conditionally estimates tually worth $115.60 per acre as some of the the barren spots on the land at 15 acres.

witnesses testified; consequently that 65 The jury were fully justified in finding, if acres of land was of the character as repthey did find, that the barren spots are resented, and was therefore worth $115.60 sterile, worthless land, and such land per acre, or $7,514; that the 15 acres of amounts in the aggregate to 15 acres.

land was worthless, but that defendant was Assuming that the jury so found as a not injured to the full extent of the sum he fact that 15 acres are worthless, then, fol- actually paid for the 15 worthless acres of lowing the rule they were instructed by the land, but that he was injured in a sum equal court to follow, in measuring the damages, for the whole tract, having bought at a

to the difference between the amount he paid viz, to find the difference between the pur- bargain, and the sum the land which was of chase price, $8,800 and what it is actually the character it was represented to be was worth, they evidently found that 15 acres

actually worth at the time, or a difference are admittedly worthless. Then the land

between $8,800, the purchase price paid, and was actually worth $8,800, less the purchase price of 15 acres, viz. $1,650, the amount of $7,514, the actual value of the land at the

time, viz. $1,286. Hence the jury found that the damages under the rule given. The rule contended for by the appellant, this land, of the quality the plaintiff repre

the actual value of land in the vicinity of viz. to find the difference between the value sented it to be, was actually worth more of the land at the time of purchase, if it than the purchase price agreed upon by the had been as it was represented, and its ac- parties, and actually worth more than plaintual value at that time, if applied, would tiff contended for it. And because defendant bring what result? The plaintiff having al- did not pay the full worth for 65 acres of leged that the land was actually worth the such land, his injury by reason of paying price paid for it, $8,800, such is the value of $110 per acre for 15 acres of worthless land the land at the time of purchase if it had only amounted to the difference between the been as it was represented. What was its sum he paid less than the actual value of the actual value at that time? Assuming that 65 acres of the character of land represented the jury found that 15 acres of the land were to him he was buying and the price paid for worthless, then the value of the 65 remain- the worthless land. In other words, he paid ing acres of land is as it was represented to $1,650 for 15 acres of worthless land. He be, and worth the amount of $110 per acre paid $7,150 for 65 acres of land worth $7.514. paid for it because plaintiff alleges the land Hence he paid $364 less for the 65 acres of was of that value. Consequently the 65 land than such land was actually worth. acres of land was actually worth $7,150. Therefore he was benefited in that respect to The difference between the value of the land the amount of $364, and damaged to the at the time of the purchase, if it had been amount of $1,650, by reason of the worthles as it was represented to be, that is, the dif- 15 acres of land. He suffered actual damference between $8,800 and its actual value ages, to the amount equal to the difference at the time, viz. $7,150, is the sum of $1,650, between the sum he was injured, viz. $1,650, the identical amount of damages produced and the sum he was benefited, viz. $364, or from the rule given by the court, because the in the sum of $1,286.

CULTY.

Thereby a rule is followed by which the the record for which reason a discussion is jury ascertained the difference between the of no benefit and will be omitted. actual value of the land at the time of the I find no reversible error in the record. sale and the value of the land had it been The judgment is affirmed. as it was represented to be, which not only

FRANKLIN, C. J., and ROSS, J., concur ignores the court's instructions and the plain

in the judgment. tiff's allegations of value, but is the rule that is approved, and here insisted upon, by the

(13 Okl. Cr. 304) appellant, notwithstanding the allegations of

BASHARA V. STATE. (No. A-2306.) his reply, which would have made the strict application of the rule to his disadvantage.

(Criminal Court of Appeals of Oklahoma. [3] I can find no injury resulting from an

April 26, 1917.) instruction given which was not followed by

(Syllabus by the Court.) the jury. And the jury evidently did not 1. CRIMINAL LAW Cm761(6)—INSTRUCTIONfollow the instruction the court gave in this ASSUMPTION AS TO PROVOCATION OF DIFFI. respect, but did follow a rule in measuring the damages which was just and equitable “You are further instructed, gentlemen of the

The court instructed the jury as follows: both to the plaintiff and the defendant and jury, that while the law permits a person to gave neither the benefit of a bargain. The defend himself or his wife against real or apinstruction complained of is without injury parent danger, such is defensive and not of

fensive; and therefore you are instructed that . to the appellant's rights, and was therefore a person under the law cannot arm himself and harmless.

invite and provoke a difficulty, and thereupon [4] The second paragraph of the instruc- assault and slay his adversary, and invoke the tion, quoted, is complained of as prejudicial gentlemen of the jury, if you believe from the

right of self-defense. And you are instructed, "for the reason that it is a direct charge to evidence in this case beyond a reasonable doubt the jury to find some sum for the defendant that this defendant armed himself with a rifle in excess of the amount admitted to be owing or in conjunction with his wife, for the purpose

and sought the deceased, either acting alone to the plaintiff in the event the jury should of provoking or engaging in a difficulty with find that the defendant had suffered any the deceased, and in furtherance of any such de damages whatsoever.” The language of the sign between husband and wife either husband

or wife invoke and provoke a difficulty with instruction permits of such an understanding the deceased, and thereupon the defendant shot of its meaning. The language used is as and killed the deceased, then the defendant canfollows:

not invoke the right of self-defense." Held,

that the foregoing instruction does not assume "If you find the defendant has suffered dam- that the appellant invited or provoked a difficulages, then you will deduct from the amount of ty with the deceased. his damages, the amount of the plaintiff's note, and the interest thereon and sums due him on Law, Cent. Dig. § 1731.]

[Ed. Note.-For other cases, see Criminal his open accounts, and return a verdict for de fendant for the balance of amount."

2. HOMICIDE 300(7)-INSTRUCTION-SELF

DEFENSE PROVOCATION OF DIFFICULTY

EVIDENCE. The verdict of the jury on its face specially Evidence examined, and held sufficient to sets forth that the jury finds that the de- authorize the trial court to give the aforesaid

instruction in this case. fendant has been damaged in the sum of $1,

[Ed. Note.-For other cases, see Homicide, 286, from which sum the jury deducts $1,171 Cent. Dig. 8 622.] as the total amount of the plaintiff's claim. 3. CRIMINAL LAW 1038(1)-HARMLESS EBHow could such instruction, here complained ROR-INSTRUCTION. of, conceding that it is erroneous, have re Where no objection is made or exception sulted to appellant's prejudice, when the face taken to the giving of an instruction at the time

it is given, and said instruction is partially erof the verdict gives to the plaintiff credit roncous, the giving of said instruction is not reagainst the damages found for the defendant, versible error, unless some constitutional or exto the full amount claimed by the plaintiff, press statutory right of the defendant has been

invaded. and $1 additional? If a reversal of the judgment should be ordered in such circum- Law, Cent. Dig. § 2646.)

(Ed. Note.-For other cases, see Criminal stances, such reversal would be granted because of a clear technical error, which on

Appeal from District Court, Grady County : its face actually wrought no injury. Rever- Frank M. Bailey, Judge.

Charles Bashara was convicted of man. sals for such reasons should not be granted as of right, and this court ought not grant a

slaughter in the first degree, and he appeals. reversal in such case for the further reason

Affirmed. the Constitution prohibits the reversal of a The appellant, Charlie Bashara, was a merjudgment for technical errors in pleadings chant in the town of Tuttle, Okl. His place and proceedings when upon the whole case of business was located on the north side of justice has been done. Such appears to be Main street. The deceased, Selby, was enthe situation presented by this record.

gaged in the real estate business in said Other alleged errors are assigned, but upon town, and his place of business was situatconsideration no reversible error appears in sed just east of Bashara's store. There was

moFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

an open space about 18 inches wide between | rifle upon him and fired the fatal shot; that the buildings occupied by these parties. In when he fired Selby had his hand inside of windy weather a considerable amount of his sweater, and was attempting to withtrash blew into this space, and Selby went draw something from it, and that he saw to Bashara and got permission to place some something move around that looked to hin upright planks across this opening. Some like a ball. The witnesses for the state testime later Bashara became angry at the tifying that at the time Selby was shot he manner in which he claimed Selby was us. was making no attempt whatever to draw a ing this place between the buildings, claim- gun or to make any other demonstration of ing that the manner of its use was very violence toward this applicant; that the apannoying to him and his family. After that pellant stepped out from the west side of these planks were torn down, and on the his building and told his wife to stand back, morning of this occurrence they were found and that she stood back against the wall of in the street in front of the premises. Selby the building, and that the appellant immeand his partner, Steward, got the planks and diately fired tbe fatal shot; that at that nailed them between the opening again. Im- time Selby was standing on his own porch mediately thereafter Bashara came out and merely admonishing Mrs. Bashara not to retore them down and threw them back into move the planks. He reeled to the rear and the street. Again they were nailed up by fell dead just inside of the front door of his Selby, and thereafter Bashara went to see a office. After his death an automatic sixjustice of the peace about it, but the jus- shooter was found buttoned up under his tice refused to do anything, and Bashara re- sweater. Several witnesses testified on returned home, informing his wife of that fact. buttal for the state that a short time after Immediately Mrs. Bashara told her husband the killing the appellant said, in explaining that she would tear the planks down if they the homicide, that at the time he shot the had to be torn down. This was agreeable deceased he was making a motion with his to Bashara, and Mrs. Bashara then proceed- right hand toward his hip pocket. This oced to attempt to tear the planks down with curred in Chickasha while he was in the cusher hands. While she was making this at- tody of the sheriff. It is evident that actempt Selby stepped out in front of his build-cording to the testimony of the witnesses ing and admonished her not to tear the for the state the crime committed here was planks down; that if they were on her prem- murder. The evidence on the part of the ises, he would tear thein down himself., Mrs. defendant tends to sustain his plea of selfBashara remarked that she did not propose defense. The parties to the transaction had to have that space used for the purpose for had some minor difficulties prior thereto, but which it had been used, and that she intend- nothing of a serious nature. Certain evied to tear those planks down. She then pro- dence was introduced tending to show that ceeded to go to a little building in the rear the deceased had on one or two occasions of her store to get an axe, and she imme- threatened the appellant. The jury found diately returned with the axe and commenc- the appellant guilty of manslaughter in the ed to knock the planks down. Selby still ad- first degree, and sentenced him to imprisonmonished her to leave the planks alone, and, ment in the penitentiary for a term of 10 according to the witnesses for the defendant, years. From this judgment of conviction an laid his left hand upon her and pushed her appeal was taken to this court. back and away from the planks. According Barefoot & Carmichael, Bond, Melton & to the witnesses for the state Selby never Melton, and E. E. Riddle, all of Chickasha, touched her. About this time the appellant for plaintiff in error. S. P. Freeling, Atty. appeared upon the scene at the west end of Gen., and R. McMillan, Ass't Atty. Gen., for his store building. He says that he told his the State. wife not to let Selby hurt her; that at that time Selby was pushing her with his hand;

MATSON, J. (after stating the facts as that he thought Selby intended to hurt her; above). [1] The only alleged errors relied that Selby's attention was attracted to him, upon for reversal in this case are the giving and he immediately remarked, “You

of certain instructions, the first of which is coward, why don't you come and re-instruction No. 15, to which instruction objecmove these planks?" Selby was wearing a tion was made and exception taken at the knit sweater which was entirely buttoned up time of its giving, and which instruction is in front. At this remark the defendapt says as follows: he stepped back into a little building occu

"You are further instructed, gentlemen of the pied by him as a dining room and kitchen jury, that while the law permits a person to dejust to the west of his store building, and fend himself or his wife against real or apparprocured his Winchester rifle, immediately ent danger. such is defensive and not offensive:

and therefore you are instructed that a person returning. When he returned he says Selby under the law cannot arm himself and invite and made the remark, “You

cow-provoke a lifficulty, and thereupon assault and ard, I will plug you one,” and accompanied slay his adversary, and invoke the right of self

defense. And you are instructed, gentlemen of this remark with a motion of his right hand the jury, if you believe from the evidence in this to his breast; that thereupon he levied his case beyond a reasonable doubt, that this de

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fendant armed himself with a rifle and sought this conflict on the part of this appellant. the deceased, either acting alone or in conjunc- As we view the evidence, from his own testion with his wife, for the purpose of provoking | or engaging in a difficulty with the deceased,

1 timony, the appellant is at least guilty of and in furtherance of any such design between manslaughter in the first degree. The teshusband and wife, either husband or wife in timony of his wife would also corroborate voke and provoke a difficulty with the deceased, and thereupon the defendant shot and killed the

this view. The testimony of the only other deceased, then the defendant cannot invoke the

witness for the defendant does not show a right of self-defense."

justification or excuse for the homicide. The contentions of counsel for appellant [2] As to the further contention that the that this instruction is erroneous are as fol-foregoing instruction is not warranted by lows:

sufficient testimony in the record, we con"The court clearly in this last language as

clude that this contention is not meritorious. sumes without sufficient testimony, which point We have carefully examined this record and was controverted, that the defendant, to carry reach the conclusion that the acts and conout the design which he had formed to slay the deceased, and in furtherance of such design and duct o

duct of the appellant and his wife on the occonspiracy between him and his wife, invited or casion of this homicide disclosed a state of provoked a difficulty, etc. If there were any facts which fully authorized the giving of testimony tending to show a collusion or conspiracy between the defendant and his wife, cer

this instruction. Considered then, from all tainly the jury should have been permitted to the angles complained of, we are of the opinhave passed upon and determined that issue." ion that the trial court did not err in giv

"The court in the case at bar, in giving the instruction complained of, very strongly intimates

ing the aforesaid instruction on the law of a conspiracy or collusion between the defendant self-defense. and his wife to provoke a difficulty with the de- [3] It is also contended that the court ceased for the purpose of slaying him. We

erred in giving instruction No. 19, as foldoubt if there is sufficient testimony in the record warranting the court to charge upon an is

lows: sue of conspiracy by and between the defendant

"Evidence has been offered in this case, genand his wife: but if there be such testimony, la

tlemen of the jury, relative to certain previous certainly a jury should have been permitted to

| difficulties and threats, and certain opprobrious determine this issue; and the detriment to the defendant by the court's assuming such state of

epithets alleged to have been used by the deceasfacts cannot be calculated."

ed as against the defendant. You are instruct

ed that even though you should believe from We cannot agree with these contentions.

the evidence that the deceased used such epi

thets and engaged with the defendant in previ. First, said instruction does not assume that

ous difficulties, such previous difficulties nor the defendant invited or provoked a difficul epithets cannot serve as a justification or de ty. The instruction assumes nothing. It fenge in this case, unless you should find the

defendant justifiable and excusable in doing will be noted that the court instructed the

what he did under the evidence and the instrucjury that if they believed beyond a reason- tions given you in this case." able doubt from the evidence that the defendant armed himself and sought the de An examination of the record discloses ceased, either acting alone or in conjunction that no objection was made or exception takwith his wife, for the purpose of provoking en to the giving of this instruction. In the or engaging in a difficulty with the deceased, I absence of any such objection or exception, and in furtherance of any such design did an erroneous instruction could not be ground provoke a difficulty with the deceased, and for reversal unless fundamentally wrong. thereupon killed him, then the defendant The instructions are to be considered as a could not invoke the right of self-defense. whole, and we find that in this case the The clause, “If you believe from the evidence court, by instruction No. 17, fully informed beyond a reasonable doubt," qualifies every- Ithe jury relative to threats and former difthing that follows it in the sentence. This ficulties. In instruction No. 17 the court, was a correct exposition of the law, as this among other things, said that such threats court has repeatedly held in the following were competent for consideration by the jucases: Moutry v. State, 9 Okl. Cr. 623, 132

ry, together with all the other facts and cirPac. 915; Koozer v. State, 7 Okl. Cr. 336, 123 cumstances in the case, “in determining the Pac. 554; Rollen v. State, 7 Okl. Cr. 673, 125 guilt or innocence of this defendant." ConPac. 1087.

sidered as a whole, and in view of the fact But it is contended that the court should that the defendant under his own testimony have gone further and instructed the law to and that of his witnesses is at least guilty of be that, if after any such design on the part manslaughter in the first degree, this court of the defendant to seek the deceased for cannot say that there was prejudice in the the purpose of engaging in a difficulty he giving of this instruction, which counsel for abandoned such design and then thereaft- the defendant did not see fit to object to at er his life was put in immediate danger, he the time. It is the duty of counsel to call would have the right to defend himself. the trial court's attention to alleged errors The court is only required to instruct up-in instructions, in order that he may have on the law as applicable to the facts. In this an opportunity to correct them; and, where case there was not a syllable of evidence this is not done, this court has repeatedly falling from the lips of any witness on either held that only such errors in the instrucside that there was any withdrawal from tions as directly conflict with the constitutional and plain statutory rights of the de- , alleging that the said affidavit was false, and fendant will be considered.

that the said defendant at the time knew Upon an examination of the entire record that it was false, and that the same was filed we find no error prejudicial to the appellant, in said divorce proceeding for the purpose of and the judgment is accordingly affirmed. procuring service of summons by publica

tion; the material allegations contained in DOYLE, P. J., and ARMSTRONG, J., con- said affidavit so filed being as follows: cur.

"That the said defendant did not know wheth

er said Rhoda A. West was at the time in the (13 Okl. Cr. 312)

state of Oklahoma; that the last time he had

heard of her was about 18 months prior thereto, WEST v. STATE. (No. A-2426.) * : and at that time the said Rhoda A. West was (Criminal Court of Appeals of Oklahoma.

in St. Louis, in the state of Missouri; that he April 26, 1917.)

was unable to procure service of summons upon

the said Rhoda A. West within the state of (Syllabus by the Court.)

Oklahoma for the reason that he did not know

her whereabouts; and that her whereabouts 1. WITNESSES 52(7) - COMPETENCY-WIFE could not be ascertained by any means within AGAINST HUSBAND.

his control." In a prosecution against a husband for willful and corrupt perjury in making a false af

The state clearly established upon the trial fidavit in a suit for divorce against his wife in every material allegation of the offense. The order to obtain service of summons by publica- Tonly to

only testimony introduced on behalf of the tion as required by the statutes of this state, the wife is a competent witness for the state on

defendant was as to his previous good reputhe trial of such criminal prosecution.

tation for truth and as a law-abiding citi(Ed. Note.-For other cases, see Witnesses, zen. Cent. Dig. $$ 132-134.]

Two alleged errors are called to the atten2. CRIMINAL LAW Omw 824(1)-HARMLESS ER- / tion of this court by reason of which counsel BOR-INSTRUCTIONS-PENALTY.

for appellant claim that this judgment should Where the statute fixes the maximum punishment for a crime, but fails to provide a def- be reversed: First, that the court erred in inite minimum punishment therefor, and the admitting the testimony of Rhoda A. West, court instructs the jury as to punishment prac- the wife of appellant, over his objection and tically in the language of the statute, and no more definite instruction as to the minimum

exception; second, that the court erred in term of imprisonment is requested by counsel failing to instruct the jury as to the minifor the defendant, the giving of such instruction

| mum punishment which could be inflicted in the absence of such request is not prejudicial

for said offense. error. (Ed. Note.-For other cases, see Criminal

Section 5882, Revised Laws 1910, provides: Law, Cent. Dig. $$ 1996, 2004.]

"Except as otherwise provided in this and 3. CRIMINAL LAW 1186(1)-HARMLESS ER

the following chapter, the rules of evidence in

R- civil cases are applicable also in criminal cases: BOR-INSTRUCTIONS Mere technical objections to the wording of

Provided, however, that neither husband nor

wife shall in any case be a witness against the the court's instructions do not meet with the

other except in a criminal prosecution for a favor of this court. The judgment of convic

crime committed one against the other, but tion will not be reversed on the ground of mis- the

they may in all criminal cases be witnesses for direction of the jury unless in the opinion of

each other, and shall be subject to cross-examithis court, after the examination of the entire

nation as other witnesses, and shall in no event record, it appears that the error complained of

on a criminal trial be permitted to disclose comhas probably resulted in a miscarriage of jus

munications made by one to the other except on tice or constitutes a substantial violation of a

a trial of an offense committed by one against constitutional or statutory right of the defend

the other." ant.

(Ed. Note.-For other cases, see Criminal [1] It is contended on behalf of the appelLaw, Cent. Dig. $8 3215-3217, 3219, 3230.)

lant that perjury committed under the cirAppeal from District Court, Oklahoma cumstances as above set forth is not a crime County; George W. Clark, Judge.

committed against the wife within the mean. Roy T. West was convicted of perjury, anding of the above statute, and that therefore he appeals. Affirmed.

the wife is an incompetent witness against Pruiett. Sniggs & Tripp. of Oklahoma City. her husband in such a proceeding. With this for plaintiff in error. S. P. Freeling, Atty.

contention we cannot agree. It may be adGen., and R. McMillan, Asst. Atty. Gen., for

mitted that, if our statute was simply a decthe State.

| laration of the common-law rule, then the

wife would be incompetent to testify in this MATSON, J. This was a prosecution proceeding. Under the common law neither against the appellant lodged in the district the wife nor the husband were competent witcourt of Oklahoma county charging him with nesses either for or against the other, but the crime of perjury, in that in said court, from the necessity of things an exception in an action which the appellant had then obtained to this rule, and the rule was enpending against his wife, Rhoda A. West, for larged upon to the extent that in criminal divorce, the said appellant filed a false affi- prosecutions against one for personal viodavit in order to procure constructive sery- lence committed upon the other either the ice of summons upon the said Rhoda A. West wife or the husband, as the case might be, by publication, the information in substance, were permitted to testify against the other

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

•Rehearing denied June 2, 1917.

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