The most liberal advocate of the doctrine of harmless error could not insist that a conviction secured under such circumstances should be allowed to stand. Every person brought to the bar of justice is entitled to a fair and impartial trial under the law. [2] The action of the court in this case, in ordering the defendant into the custody of the sheriff on a charge of perjury upon the request of the county attorney, was in effect saying to the jury that the court was of the same opinion as that expressed by the county attorney. Trial courts should carefully refrain from allowing their actions or words to indicate to the jury any opinion whatever 2. CRIMINAL LAW (§ 656*)-TRIAL-CONDUCT as to the merits of any case upon trial beOF JUDGE COMMENT ON WITNESS. It is the duty of trial courts to refrain from allowing their actions or words to indicate to the jury their opinion of the credibility of any witness who testifies in a case upon trial before them, or of the merits of any such case. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. 8 656.*] Appeal from Custer County Court; A. H. Latimer, Judge. Charlie Reed was convicted of selling intoxicating liquors, and appeals. Reversed and remanded. Holcombe & Bulow, for plaintiff in error. Fred S. Caldwell, for the State. ARMSTRONG, J. The plaintiff in error, Charlie Reed, was convicted in the county court of Custer county on the 10th day of October, 1908, for selling intoxicating liquor, and has perfected his appeal in this court. [1] The only question necessary to consider in determining this appeal is the allegation of misconduct on the part of the trial court and county attorney. It appears that the trial court ordered the plaintiff in error, upon the request of the county attorney, in open court and in the presence of the jury, to be held on a charge of perjury alleged to have been committed in giving his testimony in the trial, at the close of the defendant's testimony, and before he left the stand. The record discloses the following proceeding: "The county attorney asks that the sheriff hold this boy in his custody-that he believes that he has willfully perjured himself. Whereupon, in the presence of the jury, the court had the defendant placed in the custody of the sheriff for perjury. To which the defendant excepts." Such conduct as this on the part of trial courts and prosecuting attorneys cannot be overlooked by this court, and a judgment of conviction, had upon a record showing such procedure, will be set aside on appeal, and a new trial awarded. Prosecuting attorneys and the trial courts cannot be excused for making such blunders. fore them, or their idea of the credibility of any witness who testifies, before a verdict is rendered, and especially so in the trial of criminal cases. There are other errors in this record; but for that indicated the judgment is reversed, and this cause remanded to the county court of Custer county, with directions to grant the plaintiff in error a new trial. (a) When there is evidence in the record from which the jury could legitimately draw the will not be set aside upon the ground that the conclusion of guilt, a judgment of conviction evidence does not support the verdict, unless the testimony is such as to show that the jury was influenced by improper motives in arriving at their verdict. (b) For statement of testimony sustaining a verdict for murder, see opinion. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. $$ 3074-3083; Dec. Dig. 1159; Homicide, Cent. Dig. 88 515-517; Dec. Dig. 250.*] 2. CRIMINAL LAW (§ 371*)-HOMICIDE (§ 156*) -ADMISSIBILITY OF EVIDENCE. (a) Any fact is admissible in evidence which tends to shed light upon the intention of a defendant in the commission of an act for which he is upon trial, even though it may prove a separate and independent crime. (b) It is competent in a case of homicide to put in evidence the conduct, actions, and general demeanor of a defendant before the killing and in a vicious humor, provided such conduct for the purpose of proving that he was armed is so near the time of the homicide that it tends to show the state of mind of the defendant at the time of the killing. [Ed. Note. For other cases, see Criminal Homicide, Cent. Dig. §§ 286, 287; Dec. Dig. § Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371;* 156.*] 3. CRIMINAL LAW (§§ 7202, 1171, 859, 728*)-| the buggy and step back and fire a pistol; CONDUCT OF TRIAL-ARGUMENT OF PROSE- that when he fired the shot the deceased CUTOR-RIGHT OF JURY TO HAVE TESTIMONY fell out of the buggy; that the witness was REPEATED APPEAL-REVIEW. about 300 yards from the place of the shooting. (a) A prosecuting attorney has the right to discuss the evidence as he understood it, and from the standpoint of the defendant's guilt; and an erroneous statement of the evidence, if not conceived in a spirit of unfairness or fraud, will not be ground for reversal. (b) If the jury are in doubt as to what the evidence really was, it is their privilege to have the witness recalled and directed to restate what his testimony was upon the point in dispute, or the court stenographer may read his notes as to what the witness testified. (c) The prosecuting attorney may state his opinion as to the defendant's guilt when he also states that this opinion is based upon the evidence in the case. (d) To warrant a reversal on account of the argument of the prosecuting attorney, such argument must be grossly improper and unwarranted, upon some material point which injuriously affected the defendant's rights. (e) If the prosecuting attorney indulges in remarks calculated to improperly influence the jury, after the argument is concluded, it is the duty of counsel for the defendant to request the trial court to instruct the jury to disregard such remarks. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1677, 3126, 3127, 2064, 1691; Dec. Dig. §§ 7202, 1171, 859, 728.*] Appeal from District Court, Muskogee County; John H. King, Judge. Thomas Williams was convicted of murder, and he appeals. Affirmed.. W. F. Schuermeyer, Owen & Stone, and Bailey & Wyand, for appellant. Smith C. Matson, Asst. Atty. Gen., for the State. FURMAN, P. J. [1] First. The first assignment of error is that the verdict is contrary to the evidence. The homicide in this case occurred in Muskogee county, near the town of Taft. The defendant was the husband of the deceased. The state's witness, Daisy Barnett, testified that she was at the home of the defendant, and that the defendant and the deceased were in the kitchen, and that the defendant called Lula Frazier into the kitchen to witness something about Dr. Morris; that while these three parties were in the kitchen the witness heard the defendant say that if he came to town and found it to be true he was going to fix her. The defendant then went into the house and got his pistol and loaded it, and then went to the lot and got his buggy. The deceased was in the house crying. This occurred on Sunday afternoon. The state's witness, Ross Lee, testified that on Monday evening he saw the defendant and the deceased in a buggy coming from Taft; that they were talking, but he could not understand what they said, except that he heard the defendant curse the deceased; that the witness was out hunting for horses; that when he heard the defendant curse the deceased, the witness stopped and looked at them; that he saw the defendant get out of Anna Banks, a witness for the state, testified that on the evening of the homicide the defendant came to her house. She then testified as follows: "A. Why, he came to my house, and he says, 'Oh, Lordy, oh Lordy, Mrs. Banks, I have killed my wife! I have killed my wife! Ain't that bad?' I said, 'It certainly is.' I says, 'How in the world did He says, 'Come and go over, you do it?' Mrs. Banks; for God's sake, come and go over.' I went over, and when I got there I found her laying on the gallery. Q. On the porch? A. Yes, sir; her head was crooked over, and one hand kind of crooked under her and the other stretched out. And I goes in the house, and he comes and he says, 'What a sinful wretched man I am. Never did I think this time last year I would have killed my wife.' He says, 'Mrs. Banks, Mrs. Banks' I says, 'Sir?' 'I was making money fast enough; as fast as I would put one dollar in my hand, another would come in; but money has brought me to this.' And afterwards Mr. Frazier come in, and he says, 'Brother Frazier, Brother Frazier-tell it, Mrs. Banks; I can't tell it,' and I says, 'He says that he killed his wife accidentally.' Then afterwards he says, 'I went to shoot at a hawk and the horse jumped'-and that part that I don't understand-and he says, "The pistol went off accidentally and killed my wife.'" Anna Lee, a witness for the state, testified that on the day after the homicide she saw the body of the deceased, and that she was shot in her right temple. Dr. Butler testified that he examined the deceased and found a gunshot wound that entered her right temple and came out at the base of the brain; that he also found a wound on the top of her head; that he found that her skull was cracked or rather opened, which had the appearance of being made by a blow from some sharp or partially sharp instrument. The defendant testified that the deceased met him with a buggy at Taft, as he was returning home from Muskogee. Defendant's account of the shooting was as follows: "A. And we started on home, and on the way home I seen one of those rabbit hawks, and I went to get out of the buggy to shoot it; and I don't know whether my gun went off as I went to get it out, or after I hit the ground; but it went off and shot my wife." The defendant testified that he carried his pistol in his hip pocket, and that it was a No. 38 Colt's automatic. The defendant further testified that he was riding on the left side of his wife, and the reason of his doing so was because the springs on the left *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes The side of the buggy were stronger than on the right side, and that he got out of the buggy on the left side when he went to shoot the hawk; and that at this time his wife was facing the direction in which they were traveling. It is true that the defendant denied all of the incriminating evidence against him, except the fact of the killing, and claimed that this was accidental. Lula Frazier also denied the testimony of Daisy Barnett. Defendant proved a good character. jury saw and heard all of the witnesses and were in a much better position to judge of their credibility than we are. Whenever there is evidence in a record from which the jury could legitimately arrive at the conclusion that the defendant is guilty, this court will not set aside the verdict upon the ground of the insufficiency of the testimony, unless the evidence is such as to show that the jury was influenced by improper motives in arriving at their verdict. If the witness Daisy Barnett is worthy of belief, it is clear that the defendant was jealous of the relations existing between his wife and Dr. Morris. Other testimony in the record shows that Dr. Morris resided at Muskogee, and that he was the attending physician of the deceased. If the witness Ross Lee is worthy or belief, the defendant, after cursing his wife, deliberately got out of the buggy, stepped back, and shot her with a pistol. The statement of the defendant that he was riding on the left side of the buggy, and that, in getting out of the buggy on the left side, he did not know whether the gun was fired as he went to get out of the buggy, or after he got on the ground, is very much against the defendant. Even the able counsel for the defendant, in their brief, did not attempt to explain how it would be possible for the defendant to shoot his wife in the right temple, it being the opposite side from him, while he was getting out of the buggy on the left side, and when deceased was looking in the direction in which they were traveling. This evidence was strongly persuasive of the fact that defendant's claim that the killing was accidental was a pure fabrication. He either murdered this woman in cold blood, or the killing was accidental. We think that the jury was fully warranted in rejecting the theory of accident and in convicting the defendant of murder. fendant was drinking; that the defendant pulled out a pistol, and said that it was a good pistol, and that he had the money to back it. The evidence of both of these witnesses was objected to by the defendant upon the ground that it was incompetent and immaterial. This objection was overruled by the court, and the defendant reserved exceptions to its admission. Counsel for the defendant, in their brief, say: "There is no rule better settled than that where a person is put on trial for an offense he is to be convicted, if at all, by evidence which shows him guilty of that offense alone; and proof of the commission of some other offense ought to be excluded, unless it sheds some light upon the intent with which he committed the alleged offense he is being tried for." If this statement had omitted the word "alone" following the word "offense," it would have been a clear and correct statement of the law. With this exception, we will now proceed to determine the admissibility of the evidence objected to by the rule furnished by counsel for the defendant. It will be remembered that the state's witness, Lula Frazier, testified to the conversation which occurred in the kitchen of the defendant on the afternoon of the day before the homicide in which the name of Dr. Morris was mentioned, in which the defendant said that, if he came to town and found it to be true, he was going to fix her; in which the deceased was crying, and the defendant went out and got a pistol and loaded it. It was also proven that the defendant immedi ately went to the town of Muskogee. In view of the fact that the defendant killed the deceased while returning home from Moskogee, and that, too, with the same pistol which he had loaded and with which he had armed himself when he made the threat be fore going to Muskogee, we are of the opinion that all that was said and done during that time by the defendant tending to throw light upon his mental attitude was competent, especially in rebuttal of the defendant's testimony that he was in an even frame of mind, and that the killing was an accident. Counsel for the defendant contends that this testimony should have been excluded, unless it sheds light upon the intent with which the defendant killed his wife; if, on the other hand, it tends to shed light upon the intent with which the defendant killed his wife, then under the rule laid down by coun [2] Second. In rebuttal the state placed Esther Richards on the stand, and she testified that on Sunday afternoon before the kill-sel for the defendant the evidence was coming on Monday she saw the defendant down petent and properly admitted. The defendat the Midland Valley depot, and that she ant had testified that he had gone to Muskosaw him with a pistol in his hand, and that gee on Sunday afternoon to see a fire insurshe saw him point it at a man there, and ance agent to adjust a loss, but could not tell that the defendant went on the cars to Mus- who this agent was. The evidence objected kogee. The state placed Frank Doyle on the to showed the state of mind of the defendstand in rebuttal, and he testified that on ant from the time he left home until he rethe afternoon of the day on which the de- turned and killed his wife, and it thereby fendant killed his wife he saw the defend- tended to throw light upon his intention in excluded by the fact that it is extraneous. Thus, on a trial for murder, evidence that the prisoner, on the same day the deceased was killed, and shortly before the killing, shot a third person, was held admissible, un sion of the defendant to Muskogee was not one of peaceful business as he claimed, but that he was drinking and armed, and was in a reckless and vicious frame of mind, and was ready for mischief. This tended to support the theory of the state that the defend-der the circumstances of the case, notwithant visited Muskogee for the purpose of investigating the relations existing between his wife and the doctor named, and with the intention of killing his wife if he was not satisfied with what he there discovered. We believe that the evidence is reasonably susceptible of this construction, and therefore evidence was admitted that the prisoner had, its admission did shed light upon the intention with which the defendant killed the deceased, and it was properly admitted. standing the evidence tended to prove a distinct felony committed by the prisoner; such shooting, and the killing of the deceased, appearing to be connected as parts of one entire transaction. On a trial, also, for breaking into a booking office of a railway station, on the same night, broken into three other booking offices of three other stations on the same railway; the four cases being connected." Mr. Wigmore, in vol. 1, § 363, lays down what we conceive to be the just and reason- In the case of State v. Smalls, 73 S. C. 516, able rule which should govern the admissi- 53 S. E. 976, we find the following: "The bility of evidence of this character: "The deceased was shot to death on the public intent principle receives constant application; highway. In their appeal the defendants for the intent to kill is in homicide practi- first complain of the admission of evidence cally always in issue, and is to be proved by to the effect that, while walking on the pubthe prosecution; and the recurrence of other lic road on their way to the place where the acts of the soft tends to negative inadver- killing occurred, they were under the intence, defensive purpose, or any other form fluence of liquor and shot off their guns sevof innocent intent. For this purpose, there- eral times; that their conduct was boisterous fore, the evidence is receivable irrespective and threatening toward Jackson Granville, of whether the act charged is itself conceded who overtook them a short time before the or not. Where (as usually) it is not conced- homicide, and that after the homicide had ed, the evidence of intent goes to the jury been committed, still carrying their guns, to be used by them only on the assumption they went to the home of the deceased. The that they find the act to have been done by same point was made in State v. Miller, 73 the accused; it is then to be employed by S. C. 277 [53 S. E. 426, 114 Am. St. Rep. 82], them in determining the intent. This use of where the facts were remarkably similar. such evidence is universally recognized. As In that case the court said: "The general to the similarity of the other acts, no fixed rule is that proof of distinct and independent rule can be formulated. They certainly need offenses is not admissible on the trial of a not have been done to the same person; person accused of crime, but there are excepthey need not have accompanied more or less tions to or modifications to this general rule, immediately the act charged, and they may as where such evidence reasonably tends have been done even at a subsequent time. to show the malice, intent, or motive of The precedents show every variety of circumstances, and a correct application of the principle would receive any evidence of the sort which conveys any real probative indication of the defendant's intent." This is sustained by an overwhelming citation of authorities from the American and English courts. We have frequently examined the citations made by Mr. Wigmore and have invariably found them to be entirely reliable. See, also, section 3029, vol. 4, Elliott on Evidence, as follows: "It is held to be competent in a case of homicide to put in evidence the conduct, actions, and general behavior of the accused immediately before the killing, in order to show that he was armed and in a vicious humor, even though such testimony discloses another offense. And it has been held that one who met the accused three-quarters of an hour after a murder may testify that he appeared excited." Mr. Wharton announces the same doctrine. See section 31, Wharton's Criminal Evidence (9th Ed.): "When an extraneous crime forms part of the res gestæ, evidence of it is not the defendant with respect to the crime charged, or where the offense is so closely connected with the crime charged as to bring it within the rule of res gestæ. Wharton's Crim. Ev. (8th Ed.) §§ 30-47. See, also, a full and elaborate note to People v. Molineux [168 N. Y. 264, 61 N. E. 286] 62 L. R. A. 193. The testimony admitted tended to show that the defendants were, a short time before the homicide, approaching the place where it occurred armed with a deadly weapon and with a mind ready for mischief. The conduct, actions, and general Behavior of the accused immediately before the killing are admissible to show that he was armed and in a vicious humor. 4 Elliott on Evid. § 3029.' See, also, State v. Smith, 12 Rich. Law, 430; State v. Thrailkill, 71 S. C. 140 [50 S. E. 551]." We think that the case of Kernan v. State, 65 Md. 258, 4 Atl. 124, is conclusive of this question: "So eminent a legal writer as Roscoe (7th Ed.) p. 90, says the notion that the evidence in itself discloses another offense makes it inadmissible is now exploded,' and he cites We are therefore of the opinion that the court did not err in admitting the evidence objected to. [3] Third. The case-made contains the following recitals: "The county attorney in making his closing speech to the jury used the following language, to wit: 'I don't know what you think or how you value human life, gentlemen of the jury, but I submit to you that if the time has come in this country that a flimsy defense like the one that has been put in this case when the defendant takes the stand and is not corroborated upon anything that he says-I say, if the time has come when that testimony, and that alone, can wring from a jury a verdict of not guilty, then I want to submit that the responsibility Mr. Bailey: is with you, and not with me. We object to the county attorney stating the defense is flimsy, and I ask that the court exclude it from the jury, and to instruct the jury not to consider them. Mr. Owen: And stating the defendant's testimony was not corroborated. Mr. Crump: I certainly have By the Court: Go got to argue this case. ahead. Mr. Bailey: We except. Mr. Crump: Now I want to discuss the testimony for a short time, and I will try not to detain you long; but I say to you frankly that I regard don't think a more important case has been this as a case of the utmost importance. tried in this country, and I simply want to attention to the law they did not call your present to you now the reason, and call your I numerous authorities in support of his posi- | a distinct felony, and thus prejudice the action, but, as we said, we do not decide that cused." question. The evidence was clearly not offered or admitted for the purpose of showing another offense at or near the time and place of killing. It cannot be said that it proves any such offense. It was evidently offered to show the movements of the prisoner and his general conduct immediately preceding the offense of which he has been convicted; to show that he was armed and prepared for mischief and was seemingly, at that moment, bent on mischief, and in a frame of mind likely to result in mischief. It cannot have been offered to show his character for turbulence, and was not admissible for such purpose. A simple act of that kind would not prove that he had that character. But such an act, so soon followed by the killing of a man, did show a reckless and mischievous frame of mind at a period so near the killing as to be admissible, though the thing itself may not, possibly, be legitimately part of the res gestæ. We think it was evidence to show he was armed and prepared to kill, though it did not of itself show intention to kill the deceased. If it had been offered to show that he then and there procured the pistol, it would have been clearly admissible, just as much so as if it had been shown he procured it some hours before. He was then armed with a deadly weapon-had already prepared himself for the worst-and was recklessly exhibiting it. What was said and done by others, at the same time and in company with him, was only a part of what he was directly connected with, and was insep- testimony, and I want to show you that unarably connected with the history of his con- der this testimony this defendant is as guilty duct at the time, and necessary to an intelas was ever arraigned at a bar of justice. ligent appreciation of his doings. We think Mr. Bailey: I object to that last remark, the law is correctly extracted from the author- and ask the court to exclude them from the ities and summarized in the eighth edition jury, and instruct the jury not to consider of Wharton on Evidence, §§ 31, 32. It is them. By the Court: Objection is overruled. there laid down that evidence of the char- Mr. Bailey: Defendant excepts. Mr. Crump: acter there involved is admissible for the pur- How often did they tell you he was innopose of showing and explaining the move- cent; yet they don't want me to say that I ments and general conduct of the prisoner think the testimony shows you he is as guilty before and after' an offense which immedi- a man as was ever brought to a bar of jusately preceded the one for which he is being tice. Mr. Bailey: I object again. Mr. Crump: tried. The case of Regina v. Gardner, 5 Cox If I don't think he was guilty, I wouldn't be Crim. Cases, 140, notably sustains Mr. Whar-standing here. Mr. Owen: We object to that ton in the statement of the law he makes." statement that he would not prosecute if In the case of Clay v. State, 40 Tex. Cr. R. 593, 51 S. W. 370, the court said: "On a trial for murder, it is admissible, competent, and relevant, as tending to show the condition of defendant's mind immediately preceding the homicide, to permit the state to prove that defendant and his brother, who was acting with him, were shortly before the difficulty drinking and carousing, and manifesting a turbulent and lawless disposition." In the case of Vickers v. United States, 1 Okl. Cr. 452, 98 Pac. 467, Judge Doyle, speaking for this court, said: "Evidence is admissible that tends directly to prove the defend attention to. Now I want to rehearse the he did not believe he was guilty. Mr. Owen: There is another statement he made that wasn't proper, and we didn't object to it at the time. He says we can go out of the record as often as we want to, and that he had no way of correcting it. I think it is the court's duty to keep the attorneys on both sides inside the record. By the Court: I think so too. Now, if there is any reversible error in the county attorney saying what he expects to prove, I don't know it. By the Court: I want to say now I noticed a while ago that the statement of the county attorney that the defendant's attorneys could go |