(Syllabus.) 1. Appeal and Error — Continuance Within Court's Discretion. Applications for a continuance are addressed to the discretion of the trial court and a judgment of conviction will not be reversed because of the refusal of the trial court to grant a continuance, unless a manifest abuse of discretion appears.
2. Continuance — Continuance for Merely Cumulative Evidence Denied. Where a continuance is asked to permit defendant to obtain evidence of witnesses residing without the state, and it is not made to appear from the face of the motion that such evidence will be material, and further it appears from the motion that, if material, it will be cumulative of other evidence available to applicant, the continuance is properly denied.
3. Trial — Assistance of Private Counsel in Prosecution — Authority for Appearance. The assistance of private counsel in the trial of criminal cases is not prohibited. Where county attorney instituted the prosecution and appeared in and conducted the trial, it is discretionary with the trial court to require private counsel to state to the court (for the benefit of the defendant) by what authority he appears to assist in the trial.
4. Same — Failure to Require Private Counsel to State not Reversible Error. Where the prosecution appears from its inception to have been instituted and carried on in the name of the state, and it is not made to appear that private counsel was guilty of any misconduct prejudicial to the substantial rights of the defendant at the trial, the mere failure of the trial court to require private counsel to state by what authority he appears to assist in the trial will not be held reversible error.
5. Trial — Homicide — Instructions to be Applicable to Evidence — Failure to Instruct on Second Degree Manslaughter not Erroneous. The instructions should be applicable to the evidence. In a prosecution for murder the failure of the trial court to instruct on manslaughter in the second degree is not erroneous; there being no testimony tending to reduce the homicide to that of manslaughter in the second degree.
6. Witnesses — Impeachment by Showing Statements Contradictory to Testimony — Laying Predicate. A witness may be impeached by showing that he has made, out of court, statements material to the issues, contradictory of his testimony at the trial. Where the attention of the witness is first called to the time, place, and persons involved in the supposed contradictory statements in a manner sufficiently definite to reasonably refresh his recollection, and to call his attention to the substance of the subject-matter and statements upon which it is intended to impeach him, the predicate is sufficient.
7. Instructions Approved. The instructions as a whole held to fairly and fully cover the law of the case, and to be not misleading or contradictory.
MATSON, P.J. (after stating the facts as above).
It is first contended that the trial court erred in overruling the motion for continuance.
The application for a continuance is based upon two grounds: First, lack of opportunity by counsel to prepare the defense; second, absence of material witnesses.
It has been repeatedly held by this court that motions for continuance are addressed to the sound discretion of the trial court, and that the judgment will not be set aside for a failure to grant a continuance unless a manifest abuse of discretion appears. Reed v. State, 14 Okla. Cr. 651, 174 P. 800; White v. State, 9 Okla. Cr. 442, 132 P. 381; Tucker v. State, 9 Okla. Cr. 587, 132 P. 825.
The defendant was a poor person, and on the 6th day of July, 1921, the court appointed W.B. Merrill and J.G. Clift as attorneys to defend him in this prosecution. The case had been previously set for trial on the 11th day of July following. The inability to prepare defense is based upon the proposition that one of the defenses to be interposed was that of insanity, and that, if given an opportunity, counsel would be able to procure the testimony of witnesses residing without the state who would testify that the father of the defendant became insane at about the age of the defendant at the time defendant killed the deceased. The motion was properly overruled as to this ground for several reasons: First, it is not made to appear who these witnesses would be, and where located; second, the materiality of this testimony is not made to appear from the face of the motion; third, it is apparent from the motion that the evidence, if procured, would be cumulative.
As to the second ground stated it appears from the record that one of the witnesses for whom a continuance was asked was produced and testified in behalf of the defendant, and that the testimony of the other witnesses whose attendance is sought was cumulative of that produced at the trial. It is sufficient to state that, considering the motion for continuance as a whole in the light of the record before us, it appears no rights of the defendant were prejudiced, and there was no manifest abuse of discretion on the part of the trial court in overruling the motion.
Next it is contended that the trial court erred in permitting private counsel to appear and assist in the prosecution. No objection was raised to private counsel assisting in the trial at the beginning of the trial. In Reed v. State, 2 Okla. Cr. 589, it was held: "The laws of this state only prohibit persons other than the county attorney or his deputy from performing such acts in the prosecution of crimes as are strictly official, such as appearing before and advising the grand jury, verifying and filing informations, approving complaints, etc.," and it was further held in that case that "the assistance of private counsel in the trial of criminal cases is not prohibited."
The county attorney appeared and conducted this prosecution on behalf of the state. The information was filed by the county attorney, and indorsed by him, and the record shows that all the preliminary steps taken to institute this prosecution were taken by the county attorney, the official representative of the state in that capacity. It was perhaps discretionary with the trial court to require private counsel to state to the court by what authority he appeared, but there is no statute requiring the proceedings in a criminal case to be stayed until such authority is shown such as section 4099, Compiled Statutes 1921, applicable to civil proceedings.
In view of the fact that the assistance of private counsel in the trial of criminal cases is not prohibited, and in view of the further fact that this prosecution appears from its inception to have been instituted and carried on in the name and by the authority of the state of Oklahoma, and in view of the further fact that it is not contended that there was any misconduct by any private counsel prejudicial to the substantial rights of the defendant, we deem the assignment of error wholly without merit.
Next it is contended that the trial court erred in failing to give an instruction on the law relative to manslaughter in the second degree. We have carefully examined the transcript of the evidence in this case, and fail to find any testimony which tends to reduce the degree of this homicide to that of manslaughter in the second degree.
In Newby v. State, 17 Okla. Cr. 291, 188 P. 124, it is held:
"The refusal to give manslaughter instructions in a prosecution for murder is not error, if there is no evidence tending to reduce the degree of the crime from murder to manslaughter in either degree." See, also, Williams v. State, 17 Okla. Cr. 375, 188 P. 890; Williamson v. State, 19 Okla. Cr. 430, 200 P. 461; Ussaery v. State, 22 Okla. Cr. 397, 212 P. 137; Smith et al. v. State, 22 Okla. Cr. 383, 212 P. 1012.
Next it is contended that the trial court erred in admitting certain testimony over the objections of the defendant.
This assignment relates to the testimony of certain witnesses introduced by the state in rebuttal for the purpose of impeaching the testimony of the defendant. Certain witnesses were permitted to testify in rebuttal to certain statements made by the defendant shortly after the killing of the deceased, which statements, if true, were contradictory to the testimony of the defendant given at the trial on matters material to the issue. Testimony of this character is proper for impeachment purposes. Smith v. State, 3 Okla. Cr. 629, 108 P. 418; Kuykendall v. Lambert et al., 68 Okla. 258, 173 P. 657; Freels v. State, 18 Okla. Cr. 456, 195 P. 1094.
The only objection urged to the admission of this testimony is that the question asked the impeaching witness did not conform to the predicate laid. In this connection it is sufficient to state that an examination of the record discloses that the attention of the defendant was first called to the time, place, and persons involved in the supposed contradictory statements or conversations in a manner sufficiently definite to reasonably refresh his recollection, and to call his attention to the substance of the subject-matter and statements upon which it was intended to impeach him. We think the predicate laid sufficient, and, in addition, the trial court instructed the jury that such evidence was introduced solely for impeachment purposes, and could not be considered as substantive proof of any of the alleged facts detailed by the impeaching witnesses in such conversations.
Certain instructions given in the general charge to the jury are contended to be erroneous. We have carefully examined the entire set of instructions, and find that certain of the instructions complained of have heretofore been approved by this court where the issue of self-defense was involved, and further that the instructions as a whole fairly and fully cover the law of the case from every angle; indeed more favorably to the defendant than the evidence probably warranted. The general charge covered the law of the case, and in the opinion of this court was not misleading, contradictory, or unfair to the defendant.
The conclusion is reached that the defendant had a fair and impartial trial; that there is nothing contained in this record to indicate that the defendant could have a more fair trial had the cause been continued to a later term of court; that no reversible error is presented, and that the judgment of the trial court should be affirmed. It is so ordered.
BESSEY and DOYLE, JJ., concur.