Kennamer v. State

Full title: PHIL KENNAMER v. STATE

Court: Criminal Court of Appeals of Oklahoma

Date published: Apr 17, 1936

57 P.2d 646 (Okla. Crim. App. 1936)

57 P.2d 646

Opinion

No. A-8937.

March 14, 1936. Rehearing Denied April 17, 1936.

(Syllabus.)

1. Homicide — Conviction for First-Degree Manslaughter Sustained. The evidence upon a trial on an information for murder considered, and conviction of manslaughter in the first degree affirmed.

2. Witnesses — Scope of Cross-Examination — Impeaching Questions Relating to Matters not Testified to in Chief. On cross-examination of a witness, as a general rule, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief; but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they relate to matters independent of the questions testified to in chief.

3. Same — Discretion of Court as to Scope of Cross-Examination. When cross-examination is directed to matters not inquired about in the examination in chief, its course and extent are very largely subject to the control of the court in the exercise of a sound discretion; and, unless it affirmatively appears that this discretion was abused, the rulings of the court will not be reviewed on appeal.

4. Same — Laying Foundation for Proving Prior Statements of Witness Contradicting Testimony. It is always permissible on cross-examination to lay a foundation for impeaching a witness by proving prior statements which are inconsistent with or which contradict his testimony at the trial.

5. Same — Conflicting Statements Made to Newspaper Reporter. The attention of a witness for defendant may be directed to conflicting statements made to a reporter and published in a newspaper, and inconsistency established by testimony of the reporter who made notes of the statements when made.

6. Same — Right to Show Inconsistency Between Belief of Witness as Reflected by Prior Statements and Belief as Indicated by Testimony. If there is an inconsistency between the belief of a witness as indicated by his statements prior to the trial, and his belief as indicated by his examination in chief, the prior statements may be shown by way of impeachment, though they are not directly contradictory of any specific statement made by him on his examination in chief.

7. Appeal and Error — Review — Presumption of Regularity in Proceedings at Trial. Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial.

8. Appeal and Error — Necessary Objection at Trial — Improper Argument. — Objectionable argument on the part of the prosecuting attorney, not called to the attention of the trial court, cannot ordinarily be taken advantage of on appeal.

9. Same — Necessity for Urging Errors in Motion for New Trial and Saving Exceptions to Ruling. Before error, other than fundamental, occurring at the trial, can be considered in this court, it must be incorporated in the motion for a new trial, and thereby submitted to the trial court, and its ruling thereon excepted to and afterwards assigned as error in this court.

10. Trial — Waiver by Defendant of Rights not Inalienable. A defendant in a criminal case may waive any right not inalienable, given him by the Constitution or by the statute, either by express agreement or conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.

11. Appeal and Error — Review — Error not Predicable Upon Mere Unexplained Excerpts From Counsel's Remarks to Jury. Ordinarily error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.

12. Appeal and Error — Trial — Proper Scope of Argument. The right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide. Counsel for both the state and the defendant have a right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it. It is only when argument by counsel for the state is grossly improper and unwarranted upon some point which may have affected defendant's rights that a reversal can be based on improper argument.

13. Homicide — Insanity as Defense — Question of Fact for Jury. On a trial for murder, where evidence is introduced which in any degree tends to support the defense of insanity at the time of the commission of the homicide, the issue as to whether or not the defendant was then sane or insane is a question of fact for the jury to determine under proper instructions from the court.

14. Criminal Law — Test of Criminal Responsibility. Section 1797, St. 1931, Penal Code, provides: "All persons are capable of committing crimes, except those belonging to the following classes: * * * Fourth: Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness." Held, that, under this provision, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act.

15. Homicide — Insanity as Defense — Burden of Proof — Evidence Shifting Burden of Proof — Duty of Jury to Acquit Where Reasonable Doubt of Sanity of Accused. Section 3076, St. 1931, Procedure Criminal, provides: "Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." Held, that where the defense sought to be established is insanity, the legal presumption of sanity must be overcome by evidence which is sufficient to raise a reasonable doubt of the defendant's sanity at the time of the commission of the homicide. When that is done, the presumption of sanity ceases, and the burden of establishing the sanity of the defendant is upon the state, which is then required to prove his sanity as an element necessary to constitute the crime, and if upon consideration of all the evidence, together with all the legal presumptions applicable to the case, the jury have a reasonable doubt as to whether the defendant was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing, he should be acquitted.

16. Criminal Law — Test of Criminal Responsibility for Acts. A man who has sufficient reason to know that the act he is doing is wrong and deserves punishment is legally of sound mind and is criminally responsible for his act.

17. Same — Insane Delusion Ordinarily not Defense. An insane delusion is not a defense to a prosecution for crime, unless it would excuse the crime if the facts about which it exists are true.

Appeal from District Court, Pawnee County; Thurman S. Hurst, Judge.

Phil Kennamer was convicted of manslaughter in the first degree, and he appeals. Affirmed.

It appears from the record that an information was filed in the district court of Tulsa county, December 20, 1934, charging that in said county, on the 29th day of November, 1934, the defendant, Phil Kennamer, did kill and murder John Gorrell, by shooting him with a pistol.

On the defendant's application the court granted a change of venue to Pawnee county.

On the 11th day of February, 1935, he was placed on trial in the district court of Pawnee county. On the 21st day of February the jury rendered their verdict finding "the defendant guilty of manslaughter in the first degree as charged in the information, and being unable to agree upon the punishment leave the penalty to be assessed by the court."

On February 25th, after motion for a new trial had been made, presented, and overruled, the court rendered judgment and he was sentenced to imprisonment in the state penitentiary for a term of 25 years. On March 1st a supplemental motion for a new trial was filed and overruled. From the judgment of conviction and from an order denying his supplemental motion for a new trial, the defendant appeals.

Upon the trial the defendant admitted the killing of John Gorrell, but claimed that it was excusable because he was insane at the time, and also that it was justifiable in self-defense.

The theory of the state is that the method and manner of this killing shows that it was a willful, deliberate, and premeditated murder.

In order to better understand the assignments of error and to fully comprehend the rulings of the court thereon, it will be necessary to give a brief statement of facts disclosed by the testimony, and also to quote excerpts from the testimony of certain witnesses for the state and on behalf of the defendant.

It appears that the homicide was committed on the night of November 29, 1934, Thanksgiving night; that the deceased was shot and killed with his own pistol; that his death was due to two gunshot wounds in the head. That shortly after midnight his body was found in his automobile, parked on one of the streets of Tulsa. The second day after the tragedy, Phil Kennamer, the defendant, a young man 19 years of age, went to the office of Flint Moss, an attorney, and told him that he had shot and killed John Gorrell. Then with his attorney, Mr. Moss, he went to his home, from there to the sheriff's office, and surrendered, stating, "I shot John Gorrell."

Both the defendant and the deceased were living with their parents. The defendant comes from a prominent family; his father, Judge F. A. Kennamer, being United States District Judge N.D. of Oklahoma, and formerly an Associate Justice of the Supreme Court of Oklahoma.

The deceased also came from a prominent family; his father, Dr. J. F. Gorrell, being a well-known physician in the city of Tulsa.

Dr. Gorrell testified that he has been engaged in the practice of medicine in the city of Tulsa for 18 years; that John Gorrell, the deceased, his son, age 21 years, attended the grade schools in Tulsa, graduated from the Military Academy, Mexico, Mo.; the next two years student Tulsa University; also student A. and M. College, at Stillwater; attended the Spartan School of Aeronautics of Tulsa. On February 23, 1934, he was licensed as an air pilot by United States Department of Commerce. About the middle of September entered the Kansas City Dental College. On Thanksgiving morning returned from Kansas City to his home, leaving home that evening between 7 and 7:30.

Miss Eunice Word testified:

"My home town is Huttonville, Ala. I have been a student nurse in St. Johns Hospital the past 16 months. I had a date with John Gorrell. He came to the hospital for me in a Ford coupe about 7:30 Thanksgiving evening. We stopped at several places, I saw John put a pistol in the door pocket on the left hand side of the car as we came back to the hospital. John parked his car in front of the hospital and left the car door open and the motor running, he walked with me to the hospital door, I guess the door is one hundred yards from the street, it was ten fifty when I signed the check in book, he left me at the hospital door and I never saw him any more."

Wesley Cunningham testified that:

"I live at 2787 South Utica. On Thanksgiving night, about midnight, on my way home I noticed a body in a car parked on an island on Forest Boulevard, I discovered the body with my spot light as I passed, and turned around and came back to see what was wrong. One of the things that attracted my attention was the unusual position of the car, one of the wheels was over the curbing, I could see blood on the person's head, I immediately went home and my stepfather called the police. It was then twelve five, I met the officers at the corner of Forest Boulevard and Utica, and went with them to the car. It was a wet night and snow was falling. The next morning I learned that the body I saw in the car there was that of John Gorrell."

Jack Snedden testified:

"My age is 16 years, have lived in Tulsa practically all my life; was not acquainted with John Gorrell in his life time, have known Phil Kennamer about seven years and know Virginia Wilcox, having dated her to dances for about a year, met the defendant in the Quaker Drug Store the day he went to Kansas City, talked ten or fifteen minutes, then took him home to get packed, then went home myself and cleaned up, then I came back, picked him up and took him to the Spartan air port, northeast of Tulsa, had a conversation with him as to why he was going to Kansas City. He said he was going up there to see if Gorrell was going through with the extortion plot and, if he was, he was going to kill him. He said Gorrell had a gang up at Kansas City that were planning to kidnap Virginia Wilcox. That he would be back the next day and asked me to be at the airport at three o'clock to bring him in to town. Went back to the airport the next day at three o'clock, but there were no planes up that day, the weather was too bad. I next saw Phil Kennamer the night he got back from Kansas City down at the Quaker Drug Store, had a conversation with him about his trip to Kansas City, he showed me a note that John Gorrell gave him or was supposed to have given him, I read the note. On Thanksgiving night I saw Phil down at the Owl Tavern, two doors east of the Quaker Drug Store, that afternoon he called me and told me to, meet him down there; Beebe Morton and George Reynolds were there when Phil came in. He called me back and pulled open his coat and showed me a hunting knife, he said he had a date with Gorrell at 11 o'clock. Beebe Morton took the knife off of Phil, it was in a scabbard. I asked him if he was going out there to kill Gorrell and he said 'yes,' then I talked to him about his mother and the Gorrells and the trouble it would cause and he put his hands in his pocket and started whistling. I left him talking to Beebe Morton. He turned and went out the front door and yelled back that he would be back in five minutes. I waited there, he never did come back, I imagine it was around 10:30 or quarter to 11 when he left."

Richard T. Oliver testified:

"My home is in Tulsa, I am a student at the Kansas City Dental College, and prior to Thanksgiving had roomed with John Gorrell, was introduced to Phil Kennamer in the lobby of the hotel the night of November 20th, John called me over and said, 'Dick, I want you to meet a friend of mine that I have been telling you about. This is Bob Wilson.' They went upstairs and I did not see them any more, I later learned that Bob Wilson's true name was Phil Kennamer. Saturday morning after Thanksgiving the defendant boarded the train that I was on in Chelsea, I recognized him as the boy that had been introduced to me as Bob Wilson, I got off the train at Claremore."

On cross-examination he was asked:

"What had he told you about Wilson?" And he answered: "He told me 'When this fellow comes in I want you to look at him and notice him so that when you see him again you will be able to recognize him, because if I ever get killed and murdered that will be the fellow that did it.' "

Ted Bath testified:

"I have lived in Tulsa about three years, age 21 years, attended the Tulsa University and Oklahoma A. M. College, now employed by Sinclair-Prairie at Longview. Texas, was well acquainted with Johnnie Gorrell in his life time. On the 12th or 13th of September, 1934, John Gorrell was in my car across the street from Jewetts Cafe, my car had a Texas license, John got out of the car and went across the street and came back with Phil Kennamer and introduced him to me, they got into the car and I drove to the Brown Derby on South Main, there the three of us went to one of the booths in the rear and ordered beer." He was then asked: "Now, at that time, Mr. Bath, did you have any conversation in which Phil and Johnnie and yourself engaged?" Against the defendant's objections he was permitted to answer: "A. The conversation of course was general as we first sat down, talking of matters that were of interest to all three of us. And then Phil made the remark that he needed a little money, and John and I both made the statement we also could use a little. The conversation then led on, and Phil remarked on the fact that my car had a Texas license, and that I would be leaving in a few days. He said he knew a place on East Eleventh street, I don't remember the name of the place, where they sell beer and sandwiches, I have never been there, that he knew that on Monday mornings, probably early in the morning, one or two o'clock, there would be a sum of money there, probably three or four hundred dollars, and suggested." Objection interposed and overruled. "That he and I and John should hijack this place and get that money, and use it to further something else in which more money could be made. I remarked that there would probably be three or four men there and that they would be well equipped to safeguard any valuables they had, and that if anything like that was gone into it would result in bloodshed, somebody might get killed. The conversation switched then. I left for a minute and came back. As soon as I sat down, Phil asked me if I knew Miss Barbara Boyle. I said I did. As soon as I had said that, John said to leave her name out of it, that she was a very close friend of his family. Phil asked me if I knew Virginia Wilcox. I said 'No.' He said then, he asked me if it would be possible for me to take off from work for a couple of months. I told him not unless there was something of importance, unless I was doing something else. He suggested then that he would defray all of my expenses if I would make an effort to ingratiate myself with Virginia Wilcox as to be able to get her into a compromising situation, so that some pictures could be taken of her. I said I wouldn't be interested."

Floyd J. Huff testified:

"I live in Kansas City, Mo., a U.S. licensed aeroplane mechanic. Met the defendant about a week before John Gorrell's death, he came in a taxi with Gorrell to the Fairfax air port, Kansas City, was introduced to him by John Gorrell, they were trying to rent an aeroplane that morning, said they wanted to take a ride above the clouds. Mr. Brillhart, manager, made an excuse on account of something wrong with it and refused to rent the aeroplane. They left the Fairfax air port with me and rode to the Kansas City, Mo., airport; they sat in the lobby there and talked a few minutes, then Kennamer sent a couple of telegrams, I saw him take his return ticket to the window and give it to the attendant, he told him to put it away for him, that he might get drunk and lose it; it was a Braniff Air Way return ticket, we went out to my place and Gorrell called a number over the 'phone, talked to Mr. Gardner, and asked him if he had anything to drink over there, he said we would be over there right away, we went over to 2015 Linwood Boulevard, Kansas City, Mo., Mr. Gardner lives in Enid, he was going back on the return trip to Tulsa, the weather was so bad that he could not return to Tulsa that day, I told Kennamer that I was going to Blackwell to see about some aeroplane parts, and I would let him off at Bartlesville, Kennamer said he would be just as bad off there as he would be in Kansas City, so I told him if he wanted to buy a little gas and oil I would drive him on to Tulsa, so he arranged with Mr. Gardner to buy his return ticket; Gardner gave him the money for the ticket. Gorrell went to the telephone and Kennamer and myself left the apartment and went down town, we stopped at the Missouri Hotel drug store and Kennamer bought a short quart of Scotch whisky, it was then about 4:30 in the afternoon, we started on highway 73 to Ft. Scott and Pittsburg, for Tulsa. On the way Kennamer asked me if I knew why he came up to Kansas City, I told him I did not and asked him why, and he said, 'I came up to kill Gorrell,' I looked at the boy and he said, 'You do not believe me,' and reached over, opened his bag and brought out this dagger, about eight inches long, brand-new, and in a new scabbard, when he finished telling about the knife he told me his intention was to rent this aeroplane over at Fairfax, which I just told about, that they were going to take a ride above the clouds and when they got up there he was going to hit Gorrell over the head and jump out, he was going to jump out in a parachute I guess, the only way he could have gone if he intended to live. As we went on down the road he was talking about Gorrell coming down the next week to Tulsa, and that he would get him there. He said he would take him out on a by-road, the way he expressed it, out in the dark and make like he had a flat tire and get out and then he was going to let him have it. He said he thought an awful lot of the Wilcox girl, and he said this extortion plot was going to come up, then he pulled out this note, wrapped in a piece of paper, a letter in a plain envelope with pen and ink writing on it, it was addressed to H. Wilcox, I don't remember the other initial, Tulsa, Oklahoma. He stated this letter was written by Gorrell; that he was supposed to be in with them and would mail it when he arrived in Tulsa. I told him that I would turn it over to the police, he said no, he was not going to do that, that he was going to keep it to use to protect this Wilcox girl, that he wanted to try to help her out and he liked her an awful lot. At Pittsburg we got a room and went to bed. We left Pittsburg the next morning and arrived in Tulsa about 10:30, on the way he re-hashed the story he had told the day before. The next time I saw him was in Tulsa, at his preliminary trial."

Randall Morton testified:

"I am a student at the Kansas University, have lived in Tulsa nine years, was at the Owl Tavern in Tulsa about ten o'clock or a little later Thanksgiving evening talking to Jack Snedden, and Phil Kennamer came in and called Jack to the rear of the Tavern, I heard Jack talking in rather a loud voice and went back to see what was going on, I happened to see the knife in the scabbard attached to Phil's belt, so I took the knife and turned around and started to walk off, Phil followed me and said, 'Come here, sit down, I want to tell you something.' We sat down in a rear booth, he said, 'I want you to see this.' He handed me a letter addressed to H. F. Wilcox, Tulsa, Oklahoma, I opened the letter, it was in black ink, and from what I made out, it was an extortion note demanding twenty thousand dollars, or that one of his children, or Virginia, I don't recall which, would be harmed. Phil said, 'Do you see that letter,' I said 'yes,' he said, 'John Gorrell wrote that in Kansas City and gave it to me to mail, but I did not mail it.' Then he said, 'Gorrell is going to kidnap Virginia Wilcox,' I said, 'is he,' he said, 'yes, and I am going to stop it, I am going to kill Johnnie Gorrell tonight.' I said, 'With this knife?' he said, 'yes,' and then I asked him if he really was going to, and he said, 'Yes,' I said, 'Well, Phil, do you think it is worth it,' he said, 'Yes, sir, I am terribly in love with Virginia Wilcox, and this is the only thing I can do about it,' he said, 'Johnnie Gorrell intends to kidnap her and I am going to protect her if I can.' I said, 'Well, Phil, I do not believe you would, but if you really are going to use it, here is your knife.' He said, 'Well, it is either Gorrell's life or my life tonight, you will read about it in the morning paper.' I said, 'All right, Phil,' and I got up and walked to the front of the tavern, then Phil came up and I said, 'Phil, maybe I had better take that knife, I may want to use it going hunting,' and I just reached over and got it and put it in my overcoat pocket, and he said, 'Beebe, are you going to send me out with these bare hands to kill Gorrell.' I said, 'Yes, if that is the way you want to go, Phil,' and he just walked out and left the tavern. I didn't see him any more that night."

Miss Mary Jo. Hafford testified:

"I work at the Quaker Drug Store. Sidney Born in his life time was a customer of mine, I saw him in the drug store on the night of November 29th, early in the evening, and then I saw him come in the store about fifteen minutes until eleven. Phil Kennamer came into the store and he said, 'I want you take me somewhere,' and Sidney told him to take the keys to his car, he said no, he didn't want the car, and they went out, I didn't hear any more conversation."

Jake Easton testified:

"I have lived in Tulsa about fifteen years, I go to school at O. U., I am not acquainted with Phil Kennamer, I saw him at the Quaker Drug Store between 10:30 and a quarter of eleven Thanksgiving night, he came in the drug store and asked Sidney Born to take him somewhere, Sidney said 'no,' but would give him his keys and let him take his car out there, and Phil said, 'no, you come on and take me,' and they walked out the door."

It appears from the record that Sidney Born, a short time after this particular homicide, was found dead in his car, parked on a street in Tulsa; his death resulting from a gunshot wound.

The state's evidence further shows that the officers found a pistol on the floor of the car with two empty shells. The state also introduced a photograph of the body in the car and a photograph of the head of the deceased.

On the part of the defense a number of witnesses who had known the defendant several years, including his father and his married sister, testified that at times they considered him irrational and mentally unsound. The following reasons, among others, were given why they considered him insane: That he was at times unreasonable in his conversations and actions. He told his sister and his boy and girl friends that he was going to France and join the Foreign Legion, also that he intended to go to Mexico as a soldier and fight, using planes and machine guns; that he intended to go to China and there as a soldier fight the Japanese; that several times he talked of committing suicide; that he would go out and crawl through a fence and shoot himself so that it would appear that his death was accidental; that Miss Virginia did not care for him, and his existence on earth was a useless one.

Dr. Karl Menninger of Topeka, Kan., testified as a psychiatrist, specializing in nervous and mental diseases. In answer to the hypothetical question covering over 20 pages of the transcript and fully stating the facts relied upon to sustain the defense that he was insane at the time the homicide was committed, stated:

"I think he was irrational. I think he did not fully understand the consequences of his own acts. I do not think he was able to distinguish between right and wrong because of his mental illness at the time, and that his mental illness was of such a nature that he was incapable of grasping the ordinarily accepted standards, but rather substitute his own. His egotism is so great and his belief in his own omnipotence, his own greatness and his own perfection seem to me to have been so great that he had rather his own moral code, which to him seemed the proper one rather than that which the rest of society, including ourselves, ordinarily accepts. This mental illness has been classified in the modern books and by the profession generally as psychopathic personality."

Dr. E. A. Werner, of Oklahoma City, qualified as an expert alienist, specializing in mental and nervous diseases, and testified that he visited the defendant in jail on January 12, 1935, also on the following day and again a week later, with a view to discover his mental condition, and in answer to the hypothetical question stated that he did not believe the defendant knew the difference between right and wrong, and did not on the night of the tragedy understand and appreciate the consequences of his own acts.

The defendant's Exhibit 1 is addressed to: "H. F. Wilcox, 1351 East 27 Place, Tulsa, Oklahoma." In the lower right-hand corner the words, "Air Mail"; lower left-hand corner the word, "Personal."

The defendant's Exhibit 2 reads as follows:'

"Sir,

"You will secure $20,000 (twenty thousand dollars) in bills of the following amounts — ten thousand in 5-(five) dollar bills, five thousand in $10 (ten) dollar bills, and five thousand in one dollar bills. You will be given further instructions later on, either by phone or mail by an operator who will identify himself by the symbol at the close of this letter. Failure to comply with our demands will result in certain and painful "DEATH" for one or more of your children. Keep the said sum in your immediate house, for a moments notice. You must secure the money, not later than friday noon. You will keep this money on hand, so that if you are notified in two days or two weeks, you will save us lots trouble, and yourself lots of misery.

"Yours in expectation, John Doe.

"Symbol — This is H. F. W. speaking.

"Strict silence, even in your family, must be observed."

Miss Virginia Wilcox testified:

"I have lived in Tulsa with my parents all my life, age 19 years, first became acquainted with Phil Kennamer about four years ago, did not know John Gorrell, had four or five dates with Phil Kennamer, the last in February 1934, dinner at the Mayo Hotel and Hi-Hat dance in the Snedden home. Jack Snedden first told me of the plot on the part of John Gorrell to kidnap me; my brother Homer Wilcox, Jr., also told me of this kidnap plot; I didn't tell my father or my mother about it before this tragedy."

As a witness in his own behalf the defendant testified:

"I was working at the Frates Company, an insurance agency, Philtower Building, Tulsa, Preston Cochran called me and asked me to come to his room in the Wells Hotel, only a block or so down the street; I went down there and he told me he had a fellow whom he wished me to meet, I went in and was introduced to John Gorrell, it was either the last part of August or the first of September, 1934. I saw Cochran shortly afterwards and he told me that Gorrell had approached him with a scheme to kidnap one of the Wilcox children. A day or two later I saw Pat Burgess and he reiterated Cochran's statement, I would say roughly it was the latter part of September. I communicated it to her brother, Wilcox Jr., sometime in October. I next met Gorrell the 20th of November, he called that morning and asked me to meet him at Jewetts cafe, I went there, shortly afterwards Gorrell came in and told me to come outside, that he had a fellow in the car who he wished me to meet; that this friend was a strong arm man from Texas, and introduced me to Ted Bath. Before I went to Kansas City I saw Pat Burgess and Preston Cochran and told them I was going to Kansas City to ascertain if Gorrell had made any definite plans along the line which he had outlined to them, and if possible, I would get such plans and take some sort of action to forestall them. I had received a letter from Gorrell asking me to come to Kansas City, he said connections had been made on a deal in which there was plenty of easy money. I went to Kansas City on Tuesday, November 20, 1934, Jack Snedden drove me to the municipal air port that day. I expected to return on the plane the next day and asked Snedden to meet me at the air port. The letter I received from Gorrell disappeared from the desk in my room, I have no knowledge at all what became of it. I contacted Gorrell at the Linmont Apartments, Kansas City, 10:30 Wednesday morning, November 21st. I walked in the door, I would say offhand there were six or eight fellows there, all of them appeared to be drunk, I walked up to Gorrell and said, 'Hello, John,' and he said, 'Hello, Bob,' and introduced me to each of the persons there under the name of Bob Wilson, spoke a few words and he said come on upstairs to his apartment, we went in and Gorrell pulled out a pistol which he laid on the table. We sat down together; I said, 'Well, how have you been getting along.' He replied that he was doing quite well. Then he said, 'Why haven't you been up here before,' I explained that I had this accident, that I had been short of money and could not come up before. He said, 'Well, I have got a red hot proposition.' I said, 'I think I know about it, you talked it over with Pres and Pat.' He said, 'Yes, but you don't know which one.' I said, 'You mean the Wilcox deal.' He said, 'Yes.' I said, 'What have you done on it?' He said, 'Where do you fit in?' I said, 'Well, I can fit in anywhere.' He said, 'Well, I have my plans definitely made.' About that time the door opened and Everett Gardner came into the room and another fellow I don't know. Gardner came over and looked at me and turned to Gorrell and said: 'Is this fellow all right?' Gorrell said, 'Yes, he is all right, I have known him for years.' Gardner said, 'All right,' and they started out. I asked Gorrell, 'what is this?' He said, 'Those are a couple of fellows like the boys down stairs, they are all working for me.' I said, 'What do you mean, working for you?' He said, 'We have been fooling with a bunch of petty hi-jacking, now we are ready for some big stuff.' I said, 'This Wilcox deal?' He said, 'That is it.'

"Then he outlined a scheme to me, and he told me that Gardner had two planes, a Waco and a Spartan, two or three of those fellows he had introduced to me down stairs were to go to Tulsa and lure one of the Wilcox children out in the country, crowd them off the road in the automobile, transfer them to another automobile, and take them to a field where one of Gardner's planes would be waiting, fly to Kansas City to a similar field there and the victim to be transferred to an automobile, driven by either Gorrell or Gardner, and taken to a house in suburban Kansas City, the plane then to be flown to a regular air port, Fairfax field. He said there was one little hitch, that was the matter of handling the ransom, that he wanted some one in Tulsa to take care of that. That he had planned to use the services of Cochran and Burgess, and asked me if I would assist them, I told him that I would. He asked me to go to Gardner's apartment with him and talk it over further, I agreed, we walked in and Gardner was not there. I told Gorrell we had better go down to my hotel and discuss the thing further. There I told him I did not think it was feasible thing, he asked me what my objections to it were, I told him there were too many people involved. The idea of using airplanes was complicated and depended on too many contingencies which might arise, and the whole thing was top heavy, especially inasmuch as it involved too many people. I offered an alternative, suggested that we write an extortion note. Gorrell said that would be all right, except for the fact that there would be no reason why money should be paid without an actual kidnapping of one of the children. I told him I thought under the circumstances the threat to kidnap would be sufficient to secure a sum somewhat less than that he had originally asked, which was one hundred thousand dollars; so he finally compromised on the sum of $20,000. He started to write the note that night, but burned the portion of it he had written, at my suggestion that he was too drunk. He went to bed with me that night and woke me up the next morning. Then he sat down and composed the extortion note while I was dressing. That is the note that has been introduced in this case. When I received the note he had it wrapped up in two sheets of paper and was starting out of the door. I said, 'What are you going to do with it, John?' He said, 'I am going to mail this thing, it is going to ride back to Tulsa with you on that Braniff.' I said, 'Wait a minute, it is going to ride back to Tulsa with me, but it is going in my pocket, but not in the mail sack.' He said, 'Why?' I mentioned the fact of my coming to Kansas City, and the extortion note being received from there might constitute too big a coincidence, and that I would mail it from Tulsa, and he said, 'That would perhaps be a better idea.' He gave me the note, and I told him I would mail it. My purpose was to forestall Gorrell with the possession of the note, I thought that with the note in my possession that certainly he would not make any effort to go through with the scheme. After failing to get a plane I found a way to return in an automobile with this man Huff. When I told Gorrell good bye, he said he would be in Tulsa Wednesday evening or Thursday morning, and for me to call him.

"I purchased the knife in Kansas City for two purposes, the first and primary one was the fact I figured in the event that Gorrell suspected any treachery on my part there might very well be trouble, and the second one was I am accustomed to going deer hunting every year and I had lost the deer knife that I had. When I returned to Tulsa, I showed the note to Jack Snedden, Preston Cochran and Sidney Born, and told them how I had obtained it; that I was going to see Gorrell upon his return to Tulsa, and simply tell him with the note in my possession, that if he made any attempt to carry out his scheme I would turn it over to the authorities. I called him Wednesday evening but he was not at home, and I left my name telling them to tell Mr. Gorrell to call me up. About seven o'clock Thanksgiving night Gorrell called me and arranged to meet me at the Crawford Drug Store, 20th and Utica, directly across the street from St. Johns Hospital, possibly a mile and a half from the Quaker Drug Store, and the Owl Tavern, he told me to meet him there at 7:30. I arrived there a few minutes before Gorrell. Two girls were in the drug store, one of them Miss Eunice Word who testified the other day. They asked the clerk to tell Gorrell when he came in there that they had returned to the hospital, and have him to pick them up at the hospital. A few minutes after they had gone across the street Gorrell came in. I said, 'Your girl friends have gone over to the hospital.' He said, 'Step out here a minute.' We stepped outside. He said, 'How is this thing coming along?' I said: 'John, you are too busy now, I can't talk to you, I will see you tomorrow.' He said, 'I will be through early tonight. I will have those girls here by eleven o'clock. Suppose I see you then.' I said, 'Shall I meet you here?' He said, 'No, meet me at the corner of 19th and Utica.' I replied that I would. I called a cab and went to the Owl Tavern, there I met Randall Morton and Jack Snedden. Morton said: 'What are you going to do?' I said, 'I am going to have a show down with Gorrell.' He said, 'You are going to kill him, aren't you?' I said, 'No, Beebe, I am not.' We argued some little time and finally Beebe insisted that I give him the knife so I handed it to him, and made some joking remark to the effect if anything happened, I hope you are comforted, that I was going out with my bare hands. I left and went next door into the Quaker Drug Store and Sidney Born was standing at the fountain and I asked him and said, 'Sid, I want you to take me some place.' He pulled out the keys to his car and said, 'Here, take the keys.' I said, 'No, Sid, I may be gone quite a little while, I don't want to leave your car sitting in the street. You come and take me.' And we went out and got into the car together and started off. I had told Sidney who I was going to see, and for what purpose. Sidney stopped his car on the north side of the street, facing west, Gorrell was parked across the street on 19th, just below Utica a few feet, with his head facing east. Sidney said, 'He is there, all right.' I said, 'Yes, there he is, and got out of the car and went over and got in the car with Gorrell. We started driving almost immediately. There were some few remarks about how have you been and how is Kansas City, just trifling remarks. We were driving 35 or 45 miles per hour, going down Utica south, when Gorrell turned to me and said, 'Did you mail that letter?' I said, 'No.' He said, 'What is the idea?' I said, 'I never had any intention of mailing the letter.' He said, 'Why not?' I told him that if ever at any time he ever considered going through with a proposition of that character in regard to the Wilcoxes, or of any one else who I counted my friend, that I would turn the letter over to the authorities, and if that would not be sufficient basis for action that I would kill him. Gorrell said, 'You will never do anything with that letter,' and reached over and got the pistol, and swung it over with an upward and then a downward movement, directly in my face, then he pulled the trigger and the gun snapped. I grabbed the pistol in the hand that was pointing it, and with my left hand I was pushing Gorrell in the face, and attempting successfully to turn the pistol towards him. When I did that there was an explosion and I presume I pulled the trigger, though I wouldn't swear to that, and of course on the second explosion I of necessity pulled the trigger. It occurred simultaneously with the car striking the curb. I believed I had to do that to save my own life. I left the automobile and went to the Owl Tavern and there met John Newlin, and asked him to take me home. On the way home as we passed the Sunset Cafe I decided I would stop there and get a cup of coffee. Robert Thomas, with whom I was quite intimate, was there. I called him over and said, 'Tommy, I am in a jam.' He said, 'What sort of a jam?' I said, 'I just killed John Gorrell.' He said, 'In a wreck?' And I said, 'No, I shot him.' He said, 'Why?' I said, 'I had to.' He said, 'Where did it happen?' I said, 'Out in Forest Hills.' He said, 'Take me out and show me the body.' He was laughing, and I said, 'Tommy, for God's sake, this isn't a joking matter.' Then I asked him to take me home, and he said he couldn't, and asked Tommy Taylor to take me home, and he did. The next morning I went out with my father to our farm a few miles past Chelsea, I did not tell my father that day about it. The next morning I took a train at Chelsea for Tulsa. I went to Mr. Moss' office and told him that I had killed John Gorrell and wanted to surrender, we got in his car and drove up to the farm to talk with my father; there it was agreed that I should return immediately to Tulsa and surrender, I returned with Mr. Moss and surrendered."

The state in rebuttal called three alienists: Dr. G. W. Robinson, of Kansas City, Mo.; Dr. D. W. Griffin, superintendent of the Oklahoma Hospital for the Insane at Norman; and Dr. F. M. Adams, superintendent of the Oklahoma Hospital for the Insane at Vinita. Each of these medical experts testified that in his opinion the defendant was a "psycopathic personality," as that term is used in medicine, but without psychosis, and that he was not irrational or irresponsible, and that he was able to distinguish between right and wrong as applied to the act of killing in this case, and that he was not legally insane.

A number of witnesses in rebuttal, on the part of the state, testified that the defendant's acts, conduct, and conversations at the various times they had known him were rational and natural; that in their opinion he was sane and knew the difference between right and wrong at the time of the alleged offense.

Otto Kramer testified:

"I have been closely acquainted with the defendant the past two or three years, having had several conversations with him in which the name of Virginia Wilcox was brought up, the last about a year ago."

In answer to the question: "State the substance of what he said?" witness answered:

"A. Well, he said that he was very fond of Miss Wilcox and thought a lot of her at one time, and she didn't care for his attention, that she disliked them and spurned them, and he felt very bitter towards it all, not only to her but to her family, and he expressed himself as going to get even sometime, if it took him to his last days."

C. C. Knoblock testified, among other things:

"I have the Knoblock-Woods Laboratory in the Medical Arts Building in Tulsa, having been engaged in the profession of Toxicology approximately 17 years." Handed state's Exhibits Nos. 6 and 7, he said that in his opinion "the one in the anterior part of the forehead was fired first."

He further testified that the two shots must have been fired as long apart as one minute, giving the reasons upon which he based his opinion.

There were other witnesses on the part of the state, and there are other circumstances and physical facts tending to show that there was no mutual combat, and that the aggression and violence were altogether on the part of the defendant in carrying out a deliberate design to kill.

C. B. Stuart, A. Flint Moss, C. A. Coakley, and McCollum McCollum, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., Holly Anderson, Co. Atty., and W. F. Gilmer, Jr., and Tom L. Wallace, Asst. Co. Attys., (J. Berry King, of counsel), for the State.

DOYLE, J. (after stating the facts).

Appellant, Phil Kennamer, was informed against and tried of having murdered John Gorrell, in Tulsa county. The jury brought in a verdict of manslaughter in the first degree, but were unable to agree upon the punishment. A new trial was denied. Thereupon the court sentenced appellant to imprisonment in the state penitentiary for a term of 25 years.

Upon a petition alleging numerous assignments of error, counsel for appellant have brought the record to this court for review, upon which they ask that the judgment be reversed.

Considering the assignments in the order in which they appear in the record, the fifth and sixth assignments of error are based upon the action of the court in permitting the cross-examination of the witness Franklin E. Kennamer upon the subject of an interview published in the Tulsa Tribune.

Judge Kennamer, father of the defendant, testified at length as to the conduct, actions, and declarations of his son Phil from the time of his birth up to the night of the tragedy. He stated that he had sent him to the New Mexico Military School, at Roswell, in 1930; that he ran away from there the following spring; that in 1931 he sent him to the Southeastern Normal School, at Durant; the next year his mother being in poor health went to San Angelo, Tex., taking him with her; that he disappeared from San Angelo; later he was located at New Orleans, and from there he went to Miami, Fla.; that he made two trips to New York, and he sent him to Los Angeles, Cal.; that when he returned to Tulsa he entered high school, later quit high school, attended Cascia Hall three or four months; that he had a very emotional disposition and at times he was very unreasonable in his conversations and actions; that he had told him seriously that he was well equipped in knowledge of military tactics and wanted to join a revolution in some foreign country. On some occasions when he was despondent he talked of joining the French Foreign Legion, saying it would be a good way to banish himself from decent society; that he secured various positions for his son, when he started out to make a living for himself, and he would work a few weeks and quit; that Thanksgiving evening, between 7 and 7:30 he took Phil in his car to the Crawford Drug Store, about three blocks from his home and across the street from St. Johns Hospital, gave him 50 cents, and told him to get some cigars and bring them out to the car. When he came back he said, "Phil, you had better get in the car now and go back home with me, this is a bad night, I would like for you not to be out," and he promised him he would come home early. That he came home that night between 12:30 and 1 o'clock.

He further testified as follows:

"By Mr. Moss: Q. Judge, please, sir, did Phil ever discuss with you the subject of what he should do in the event that he ascertained the existence of a kidnapping plot or kidnapping plan, or kidnappers engaged in plying their trade? A. This last summer he discussed very seriously with me that subject. Q. Will you tell the court and jury about that, please, sir? A. He asked me one night after supper, I was in the front room reading, and he came in, and he said, 'Dad,' he says, 'If I knew of a bunch of blackmailers, kidnappers and extortionists, don't you think it would be a fine thing if I would catch them?' And I turned around to him, I was really astounded at the statement. I said, 'Phil, you couldn't get that information or have any knowledge of any such thing as kidnappers and extortioners and blackmailers except from a bunch of gangsters; that is the only kind of people that engage in that kind of business.' And I says, 'That would never do on earth for you to undertake any such thing of that kind because you are liable to get killed and get all of the family killed.' I said, 'Furthermore, if you ever hear of any such thing as that, you come and report to me, and I will turn it over to the postal authorities and the department of justice agents that are employed by the national government to run down that kind of people and that kind of business.' Well, he said he thought it would be a good thing to catch them. I says, 'Sure, it would be a good thing, and they ought to be caught, all right, but you are not the one to do the catching.' That is about the substance of the conversation."

He further testified:

"Q. Now, then, keeping in mind, please, Judge, all of these things that you have known about Phil through the years, which you have heretofore detailed, his conduct and demeanor during the fall of 1934, keeping in mind, too, please, sir, his condition on the night when this killing took place, and acting upon the assumption that it did occur sometime between 11:30 and 12:15 or 12:30, tell the jury whether or not in your judgment on that night, as you knew your son Phil, he was rational or irrational? A. I have no doubt at all that he was irresponsible and irrational.

"Q. In your judgment did he that night understand and appreciate the consequences of his own acts, or know the difference between right and wrong? A. I do not think so."

Cross-examination by assistant county attorney, Gilmer:

"Q. Judge, let me ask you this: Did you on the 24th day of September, 1933, say to a correspondent of the Tulsa Tribune, referring in particular to the Machine Gun Kelly trial, this or this in substance: 'The government has had enough of this kidnapping nonsense, and it intends to quash it now, and what is more, the government can do it. Criminals of course are just as individual as are law-abiding citizens. There are fat criminals and lean criminals; strong criminals and weak criminals; smart criminals and stupid criminals; but in my observation extending over a number of years, I have come to the conclusion that most of them, the habitual type especially, have one trait in common, namely a strange quirk of mind which gives them an anti-social tendency; it is not strong enough to be classed as insanity, but it is akin to it.' Did you make that statement? A. No, I never made any such statement.

"Mr. Moss: I object.

"A. I want to answer that. If the Tulsa Tribune has got any interest in this case, I will answer it now, and I think they have. The latter part of the statement, that is not my language at all, I don't speak that language. I just said that the government of the United States was able to cope with the kidnapping situation, yes, sir.

"Well, Judge, do you agree or do you disagree with the sentiment expressed in that?

"Witness: Let me answer that.

"Mr. Stuart: Your Honor, if he is going to lay the basis for impeachment, he has got to name the time, place and man.

"The Court: If this is for the purpose of impeachment, you will have to lay the foundation by showing the time and place and person to whom the statement was made.

"Mr. Gilmer: I have shown the time and place, Your Honor, on September 21, 1933, and in your chambers.

"By Mr. Stuart: Name the man.

"Q. To Mr. Jenkin Jones, the correspondent of the Tulsa Tribune. A. Not the statement you have read. I made a statement to him.

"A. I can tell the substance of the statement I made to him, I believe it was following the conviction of somebody charged with kidnapping. He was going around town, seeing what different people thought about the conviction and what they thought of kidnapping, and I said to him the government of the United States in my judgment was able to cope with the situation, and I still think so. I said furthermore criminals of course are just as individual as law abiding citizens. I did not use the words 'fat criminals and lean criminals,' but I said there were different classes of criminals. I said to him that there were criminals of organized bands and criminals that were individual criminals; criminals of petit crimes and criminals of high crime, and I still think that is correct. This statement is about like the usual garbled newspaper story.

"Q. With particular reference, Judge, to that part of it about criminal insanity, do you recall whether or not you made that part of the statement, that particular portion of it? A. I don't remember that I ever made any statement to him about any insanity of criminals. Oh, I may have stated to him, yes, that confirmed criminals were of a peculiar type, in other words I tried to convey: And this word 'quirk' is, I know that is not my language, that part of it, but the idea was that a confirmed criminal has a peculiar mind. In other words, he becomes a diseased criminal. Q. I see, then the part there 'but that is not insanity, but is akin to it,' do you recall that particular portion of it, Judge? A. I don't recall very much about it, except as I have stated to you."

After the defendant rested, Jenkin L. Jones was called by the state in rebuttal and testified:

"I am a newspaper reporter on the Tulsa Tribune, I had occasion to talk with and interview Judge Kennamer in his Chambers in the Federal building in Tulsa, on the occasion of the Machine Gun Kelly trial in Oklahoma City. This article is not an accurate, definite quotation of Judge Kennamer's language. I used some words in there that possibly the Judge never used. That is what the Judge told me in substance as near as I can recall."

Counsel for appellant in their brief say:

"That this irrelevant and incompetent interview with Judge Kennamer was forced into this case, contrary, we think, to every known rule of evidence, and could not have been done except for the purpose of prejudicing the minds of the jurors against the testimony of Judge Kennamer. And that the trial court committed manifest error in permitting Mr. Jenkin Jones to testify with reference to this interview."

No authorities were cited upon this last proposition.

We do not agree with counsel's contention.

As to what is the proper practice on cross-examination of witnesses, there are two well-recognized rules, known as the English or orthodox rule, and the so-called American rule. In some cases the orthodox rule obtains in all civil cases, and in respect to the cross-examination of witnesses for the prosecution in criminal cases, while the American rule governs the cross-examination of witnesses for the defense. According to the orthodox rule, the opposing party is not confined in his cross-examination to matters upon which the witness is examined in chief, but may extend the cross-examination to every issue in the case. According to the American rule, a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in the direct examination.

In some jurisdictions where the American rule is followed, it is held that the trial court may, in the exercise of sound discretion, relax the rule and allow the cross-examination to extend to matters pertinent to the issue, but not within the scope of the direct examination.

This court in Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736, held that:

"On cross-examination of a witness, as a general rule, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief, but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they may relate to matters independent of the questions, testified to in chief."

The extent, manner, and course of the cross-examination of a witness, even though it extends to matters not inquired about in his examination in chief, is very largely subject to the control of the court in the exercise of a sound discretion, and unless it affirmatively appears that this discretion was abused, the rulings of the court will not be reviewed on appeal. Hopkins v. State, supra.

In the case of Creek v. State, 16 Okla. Cr. 492, 184 P. 917, it was held by this court that:

"The cross-examination of a witness is not to be confined to the particular questions asked, nor the precise subjects called to his attention, on direct examination. The correct rule is to allow the cross-examination to extend to any matter not foreign to the subject-matter of the examination in chief, which tends to limit, explain, or modify the same."

Regardless of the rule as to the scope of cross-examination on material matters, it is always permissible on cross-examination to lay a foundation for impeaching a witness by proving prior contradictory statements. Not only may a witness' inconsistent statements be proven, but his inconsistent acts and conduct may be shown also.

It is said that contradictory statements of a witness, to be admissible for the purpose of impeachment, must be material to the issue, and must also ordinarily be a statement of facts and not a mere opinion of the witness, though it would seem that this would not be true of an opinion contradictory of another opinion, where both are based on the same set of facts.

It is also said that if there is an inconsistency between the belief of a witness as indicated by his declarations prior to the trial and his belief as indicated by his examination in chief, the prior declarations may be shown by way of impeachment. 28 R. C. L., pars. 219, 220.

The seventh assignment of error is based upon the action of the court in permitting Mr. King, special prosecutor, to ask Dr. Menninger on his cross-examination the following question: "Q. If you were a composite jury, if you had the power that these twelve men are going to have, to dispose of this defendant, now from your standpoint, what would you do with him?" The record shows that Dr. Menninger qualified as an expert in the field of psychiatry. It appears that he had graduated at Harvard and other universities in this country and abroad, was the author of what is admitted to be an outstanding book upon this question, "The Human Mind," and was the director of the clinic at the Menninger Sanitarium at Topeka, Kan. The whole course of Dr. Menninger's testimony has tended to support the contention of counsel that the defendant was insane and should have confinement and treatment to bring about, as counsel expressed it, "a restoration to sanity upon his part." The witness answered: "I would recommend that he be confined in such a way that he could be guarded as much as possible against escape, until he is adjudged cured by an impartial appointed group of psychiatrists, that is, he should have confinement and treatment."

Our Penal Code (section 1797, St. 1931) provides:

"All persons are capable of committing crimes, except those belonging to the following classes: * * * Fourth. Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness."

In the case of Alberty v. State, 10 Okla. Cr. 616, 140 P. 1025, 1029, 52 L. R. A. (N.S.) 248, it is said that:

"Under this provision the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has the mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act." Smith v. State, 12 Okla. Cr. 307, 115 P. 699; Roe v. State, 17 Okla. Cr. 587, 191 P. 1048.

In the case of Adair v. State, 6 Okla. Cr. 284, 118 P. 416, 420, 44 L. R. A. (N.S.) 119, it is said:

"It is immaterial what standard scientists or medical experts may fix to determine, or by what rules they determine, that a person is in a state of insanity; the accused under this provision of the law is a lunatic, or insane, or of unsound mind, or temporarily or partially deprived of reason, to such an extent as will excuse him from criminal responsibility, only when he is incapable of knowing the wrongfulness of the act committed and charged, and incapable to understand the nature and consequences of such act, and this is a question of fact for the jury to determine under all the evidence in the case. * * *

"Every defendant is presumed in law to be sane and capable of knowing right from wrong, and able to choose between them. This presumption, however, upon a trial for murder, is overcome whenever evidence is adduced sufficient to raise a reasonable doubt of the defendant's sanity at the time of the commission of the homicide. The law thereupon imposes upon the state the burden of establishing the sanity of the defendant the same as any other material fact necessary to warrant a conviction; that is, beyond a reasonable doubt."

Where one is being tried for murder, and his defense is insanity, lunacy, or unsoundness of mind at the time of committing the act, the defendant, in the first instance, is presumed to be sane and of sound mind, and the burden is upon him to introduce sufficient evidence to raise a reasonable doubt as to his sanity. When he has done this, the state, before a conviction can be had, is required to prove his sanity beyond a reasonable doubt.

In the course of the opinion in the Adair Case, supra, it is said:

"Modern research has done much to elucidate what was formerly very obscure touching the true pathology of insanity, although no invariable or infallible test of the existence of insanity has ever been found. Says Mr. Bishop:

" 'Many attempts have been made to discover, what has been assumed to exist, a form of words, termed a test of insanity, which, put into the hands of jurors, can be used by them as a sort of legal yardstick, to measure the evidence and determine whether or not the prisoner had a sufficient length of mental alienation to escape responsibility for his act. But the test has never been found, not because those who have searched for it have not been able and diligent, but because it does not exist.' Bish. New Crim. Law (8th Ed.) § 381.

" 'The symptoms and causes of insanity are so variable, and its pathology so complex, that no two cases may be just alike. The fact of its existence is never established by any single diagnostic symptom, but by the whole body of symptoms, no particular one of which is present in every case.' Ray's Med. Jur. Ins. par. 22.

"Persons suffering from this unhappy malady are here placed under the care and custody of the state by laws requiring their confinement in state asylums and hospitals for treatment. The establishing of asylums and hospitals for the insane, and the enactment of laws requiring the compulsory confinement of persons accused and acquitted of crime on the ground of insanity, has in a large measure tended to relax the rigid rules which once governed this defense."

See section 3106, St. 1931.

We deem it sufficient to say that adhering to the rule heretofore stated, we do not think the question was improper and prejudicial.

After a careful examination of the record and the exceptions taken to the rulings of the court on the admission and rejection of testimony, we are satisfied that, within well-settled rules sustained and upheld by the decisions of this court, no material error was committed by the court in any of its rulings.

The next assignment of error is:

"Unethical, unfair and prejudicial conduct of the attorneys for the state in presenting as a witness Mrs. O. L. Harman, whose testimony and conduct before the jury was highly prejudicial, and whose testimony the state's attorney knew before they introduced her was prejudiced."

It appears from the record that Mrs. O. L. Harman, the fifth witness called by the state, testified in part as follows:

"Q. Do you know the defendant, Phil Kennamer? A. Honorable judge, I am afraid to testify in this case; my life has been threatened, and my family —

"Q. Just wait a minute.

"Mr. Moss: I want her to tell it all.

"Mr. Anderson: If she wants to tell something to the judge —

"Mr. Moss: That is all right, let's let the jury and all hear it; we don't want to have any secrets in this lawsuit.

"The Court: Go ahead.

"A. I am afraid to testify in this case and I want to be excused from it. My family has been threatened time and time again in the last 24 hours, they have been threatened with death, and that they would get me if I go up and testify; they have had that threat put up to them time and —

"Mr. Moss: That isn't the reason she is afraid to testify; I know this woman.

"The Court: Mrs. Harman, you have been subpoenaed here and you must answer the questions now as they are asked.

"The Witness: I am sorry I will have to refuse. My children means more to me than anything on earth, and I will have to take whatever the penalty is. But when my little girl says to me, 'Mother, don't testify in this case.' They have called and told them, they have told my children they would kill them and kill me.

"Mr. Moss: I now move the court to strike from the consideration of the jury all statements made by this witness and to declare this a mistrial because of the prejudice resulting from these bombastic statements made by this witness.

"Mr. Anderson: If the court please, I ask this witness not to talk, and Mr. Moss insisted that she do.

"The court excuses the jury.

"The Court: I want to make this record now. Mr. Moss, if the court will admonish the jury to disregard not only the statement that she has made here, but the county attorney will withdraw from the consideration of the jury the statement with reference to what her testimony would be, is there any objection then to proceed with the trial?"

A statement was drawn up withdrawing that part of the opening statement made by Mr. Wallace in reference to Mrs. Harman's testimony; Mr. Anderson, the county attorney, made this statement:

"Now if the court please, the scene just created in this court room a little while ago had undoubtedly left some influence, some coloring upon the minds of the jury in this case. For that reason I want to join the defense counsel in requesting that this be declared a mistrial, and I furthermore want to reiterate that this witness be held for further action of this court.

"Mr. Stuart: Now, your Honor, let's see about this. We made a motion to have a mistrial take place here. It is the duty of the court of course to try and dissipate and destroy whatever influence was carried by this scene from this stand. When we went out these gentlemen came to me, Mr. Johnson did, and asked me if he made a statement, if we would withdraw our motion to declare a mistrial, leading us to believe that if we did that, it would be perfectly satisfactory to the state.

"Mr. Anderson: I still insist on a mistrial, I confess the motion.

"Mr. Moss: I withdraw the motion so that we have nothing to confess.

"Mr. Stuart: Your Honor will have power to tell this jury to disregard everything that occurred. This is not the first time that these untoward things have occurred in courts of justice. You should tell the jury to disregard it all, and now you are going to tell the jury to withdraw this statement.

The Court: You gentlemen come up here, I want to confer with you.

"Following this conference:

"The Court: Gentlemen of the Jury, I am going to ask you this question: Is there a man on this jury who would be influenced either for the state or for the defendant by what has occurred with reference to the testimony of this lady, who was put on the stand, Is there a man who will be influenced in any way, or let it influence your verdict in this case? If so, hold up your right hand.

"The Court: You gentlemen tell me then on your oaths that you will not be influenced by what has happened here in the court room? Do you all do that?

"The Court: Is there a man on the jury who is prejudiced against either side in this lawsuit by reason of what has happened with reference to Mrs. Harman?

"The jurors make no answer.

"The Court: What do you all say about that, you men know?

"All jurors answer: I am not.

"The Court: You would not be. In view of the answers of the jury I am going to proceed with the trial of this lawsuit, but I am going to admonish the jury now that they must not permit this incident to influence you in the least in the trial of this lawsuit. Call your next witness for the state."

Thus it appears that the defendant in the lower court expressly waived the right he otherwise would have had to claim that he should be granted a mistrial by reason of the misconduct of this witness. The state offered the defendant a mistrial; the defendant refused to accept it.

The irregularity now complained of was not presented as a ground for a new trial in either the first or subsequent motion for a new trial.

In the case of White v. State, 23 Okla. Cr. 198, 214 P. 202, 205, this court held that:

"Where a constitutional right is for the sole benefit of the accused, in the nature of a privilege, that right may be waived by express consent or by implication, from conduct indicative of consent; or by failure to claim or assert the right in seasonable time."

In Daniels v. State, 55 Okla. Cr. 298, 29 P.2d 997, this court held:

"A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, either by express agreement or conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state."

It is so well settled as to be elementary, that the doctrine of waiver and estoppel applies to a defendant in a criminal case, and he cannot be permitted to take one position in the court below and assume an entirely different position in the appellate court. Bishop's New Criminal Procedure, pars. 117, 118, 119.

We have often held that only those questions can be considered on appeal, unless jurisdictional or of a fundamental character, which were raised in the trial court on exceptions taken, and unless incorporated in the motion for a new trial, and thereby submitted to the trial court, the same will not be considered on appeal. Dooling v. State, 3 Okla. Cr. 491, 106 P. 982; Mitchell v. State, 7 Okla. Cr. 563, 124 P. 1112; Cardwell v. State, 20 Okla. Cr. 177, 201 P. 817; Signs v. State, 35 Okla. Cr. 340. 250 P. 938.

It appearing that this assignment does not set forth any jurisdictional or fundamental error, it was waived by failure to present it to the trial court in the motions for new trial.

The next assignment is that the court erred in giving instruction No. 13.

It appears that at the close of the testimony the defendant's counsel presented a body of instructions and asked the court to give them to the jury, which request was refused. It also appears that the defendant's counsel took an exception to each instruction given by the court.

No assignment is urged here as to the giving or refusal of instructions except on account of the giving of instruction number 13.

The criticism directed against this instruction is that it is in effect a charge upon the weight of the evidence.

This instruction reads as follows:

"No. 13. You are further instructed that even if John Gorrell had planned and threatened to kidnap Virginia Wilcox for the purpose of extorting money from her father, and was about to carry such plan into execution, nevertheless the defendant had no right to kill him to prevent the plan being carried out. Therefore, if you believe beyond a reasonable doubt that the defendant killed John Gorrell for the sole purpose of preventing him from carrying out said plan to kidnap Virginia Wilcox in order to extort money from her father, and the same was done with a premeditated design to effect the death of said John Gorrell, then and under those circumstances you should convict him of murder, unless you believe from the evidence, or entertain a reasonable doubt thereof, that the defendant is justifiable on the ground of self-defense, or that the defendant was insane at the time he fired the fatal shots."

We have uniformly held that the instructions given by the court must be construed as a whole. The instructions fully, fairly, and correctly state the law of the case, and the instructions on the question of insanity, when considered altogether, state the law fully and very liberally for the defendant. We think this assignment is manifestly without merit.

One of the grounds of the motion for a new trial, and upon which error is assigned, is that assistant county attorney, W. F. Gilmer, during the closing argument, made use of inflammatory language while referring to the defendant, which was entirely unwarranted by the evidence, and made other remarks that were improper and prejudicial.

It appears from the record, however, that no objection was made at the time, nor was the attention of the trial court in any manner called to the alleged abuse of privilege.

The record shows that the opening arguments were made by Mr. Wallace, for the state, and Mr. Moss for the defendant, followed by Mr. King for the state and Mr. McCollum for the defendant, then Mr. Rowe, for the state.

The closing arguments were made by Judge Stuart for the defendant and Mr. Gilmer for the state, which is the only argument appearing in the record. The following excerpts of Mr. Gilmer's closing argument appear in the briefs:

"Judge Stuart says, 'Let's tear off the veil.' All right, judge, you won't have to wait, because I am going to tear it off and I am going to tear it into shreds so nobody can put it back on again, if there is any veil there.

"Here is what we are up against, and you gentlemen of the jury, and it is borne out by the record in this case. We are fighting the strong influence and deliberate influence of the federal court of our district. We are fighting that and they are using it and I wouldn't mention it if they hadn't done it first. All right, we are fighting that.

"Then we have got more than that to contend with. We have got the unlimited wealth in the northern part of the state of Oklahoma to fight, that is what we are up against, and you gentlemen have got to believe that we are sincere, and that we are fighting to the very best of our humble ability. We have got to believe that, we have shown it."

And again he said:

"Now, here is a thought that occurred to me during the trial of this case, and I think possibly you gentlemen might have noticed that. I left that out a while ago when I was telling you the proposition we were up against about getting somewhere in the conviction for this murder.

"You have noticed every day, I presume, that even after his honor comes in and sits down on the bench, and everybody is seated, then in walks some spectators, all dressed up in expensive clothing; I don't know who they are or from whence they come, but it takes money to get yourself a reserved seat in the front row in the trial of this case.

"And let me tell you this. If it didn't just happen that you twelve men were just called in here as jurors, as a coincidence, and if it didn't happen that I just came here on the prosecution side of this case and have got me a chair that they can't take away from me, do you think that us boys could have got in here on a front seat? You know good and well we couldn't. We would have been lucky to get in here at all, much less walk in after the judge sits down, and take a seat that has been reserved.

"I don't know how they do it, but they didn't do it without money, I tell you that.

"You have got a picture of one industrious boy and then you have got a picture of a pampered wastrel, that it what you have got. And it is a clear enough picture that anybody in the world can see it. Killer, kidnapper Kennamer, there he sits, that is what he is and you know it and I know it, and I think Flint Moss and C. B. Stuart know it."

And again:

"Now, I am going to close. There has been something said about what to do with the defendant. I am going to tell you what I think ought to be done, and I am going to give you my reason for it, and you can take it for what it is worth.

"I tell you what I think of the punishment in this case. They all say that he ought to be confined; nearly everybody in the case said he ought to be sent to some institution. All right. Now Dr. Griffin says, 'I have got no place in my institution for him; he should go to a penal institution.' That is a penitentiary. That is what they all say.

"Now, let me tell you this, I am sincere in it, and I mean no disrespect to anyone, but as sure as you send that boy to the penitentiary, as sure as you do, the natural reaction on the part of his father — so help me, my own father would do the same thing, and I would honor him for it, but on the day he is sent down there, he is going to start trying to get him out, and I don't blame him for doing it, my father would do the same thing, but he is going to try to get him out the day you put him in.

"So on behalf of the state of Oklahoma, I am going to ask you to inflict the extreme penalty and send this boy to the electric chair, with the same calm, cool, deliberate action that on Thanksgiving night, 1934, he sent the immortal soul of John Gorrell hurtling into eternal oblivion. Send him down there and rub him out."

There have been innumerable decisions in different jurisdictions as to when improper remarks by prosecuting attorneys in their arguments to the jury require a reversal and a new trial. It is impossible upon such a subject to formulate a general rule infallibly applicable in all cases. Each case is tested by itself in a measure.

This court, in Nance v. State, 41 Okla. Cr. 379, 273 P. 369, 372, said:

"The settled rule is that the prosecuting attorney has the right and privilege in his argument to the jury to refer to the evidence, and state his deductions therefrom, and urge upon the jury the truth or falsity of any testimony given in the case, and the remarks of the prosecuting attorney in his argument will be considered and construed in reference to the evidence. In order to constitute reversible error, the impropriety indulged in must have been such as may have improperly influenced the verdict."

In Allen v. State, 13 Okla. Cr. 395, 164 P. 1002, L. R. A. 1917F, 210, it is said:

"In our opinion, this argument could have been cured by its withdrawal from the consideration of the jury by the trial court, and counsel for the appellant should have requested its withdrawal in order that the court might have cured the error, if any. This was not done. Counsel at the time only saw fit to object and take an exception without any ruling by the trial court upon the impropriety of certain of these remarks. Others the trial court of its own motion, as heretofore indicated, saw fit to withdraw and admonished the jury not to consider. It is not every species of improper argument that justifies this court in reversing a judgment of conviction. * * *

"We hold, therefore, that where the guilt of the appellant is clearly established, and there is no good reason to believe that upon a second trial an intelligent and honest jury could or would with reason and propriety arrive at any other verdict than that of guilt, a new trial will not be granted except for fundamental error."

This court in Brown v. State, 52 Okla. Cr. 307, 4 P.2d 129, 130, held that:

"The right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide. Counsel for both the state and the defendant have a right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it. It is only when argument by counsel for the state is grossly improper and unwarranted upon some point which may have affected defendant's rights that a reversal can be based on improper argument."

It is earnestly insisted that "the court erred in not controlling the above argument even though no objection was made in the court below, bearing in mind that the court below did not stop the argument; did not reprimand the attorney or advise the jury not to consider his improper remarks." Citing and quoting from opinions in the following cases: Holcomb v. State, 16 Okla. Cr. 1, 166 P. 755; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Akin v. State, 86 Fla. 564, 98 So. 609; Read v. United States (C. C. A.), 42 F.2d 636.

This court in Ussaery v. State, 22 Okla. Cr. 397, 212 P. 137, held that:

"When the entire argument on both sides is not before the court, and the county attorney contends that his argument is in reply to argument advanced by defendant's counsel, and the trial judge overrules the objection to such argument, this court will not pass on the alleged error, unless the argument complained of constitutes a violation of some constitutional or statutory right of the defendant. Under such circumstance the presumption will be indulged on appeal that the trial judge ruled that such argument was permissible as reply argument, as the burden is upon the appellant to affirmatively show error in the ruling of the trial court."

In Wilson v. State, 24 Okla. Cr. 332, 217 P. 885, it is held that:

"Ordinarily error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel."

In order for this court to review errors assigned, error must affirmatively appear from the record. It is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The settled rule, often announced by this court, is that the plaintiff in error must affirmatively show prejudicial error; otherwise, the judgment of the lower court will be affirmed. Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Keeter v. State, 15 Okla. Cr. 139, 175 P. 263; Proctor v. State, 22 Okla. Cr. 445, 211 P. 1057; Bird v. State, 40 Okla. Cr. 80, 267 P. 281.

In the recent case of Cummings v. State, 57 Okla. Cr. 428, 48 P.2d 879, it is held:

"To preserve the question of alleged misconduct of the county attorney in his argument to the jury, the attention of the court should be called to the argument at the time by proper objection and a ruling had thereon and an exception to the adverse ruling reserved and the same assigned as error in the motion for new trial and the petition in error. When this is not done, the question is not presented to this court for review."

This court in Payne v. State, 21 Okla. Cr. 416, 209 P. 334, held that:

"Where the record is incomplete touching upon alleged disparaging remarks made in the closing argument, this court will presume that the trial court ruled correctly."

In most instances reversals have been ordered for improper remarks where the prosecuting attorney asserted and argued facts not in evidence bearing upon the guilt of the defendant, and in few for intemperate abuse of the defendant. Thurmond v. State, 57 Okla. Cr. 388, 48 P.2d 845.

The sole object of all argument is the elucidation of the truth, greatly aided in matters of fact as well as in matters of law by full and fair forensic discussion. Argument may violate ethics and not violate law. It may be improper, but not illegal. Improper remarks by the prosecuting attorney in the argument do not require a reversal, where they appear to be strictly in reply to allusions of counsel for the defendant.

Even if it were to be conceded that the language of Mr. Gilmer was somewhat outside of the pale of legitimate argument, it does not affirmatively appear that counsel abused his privilege, or that it was the duty of the trial court to interfere.

We are satisfied that the contention of counsel for appellant is untenable for another reason. In this connection the trial court gave instruction No. 17, which reads as follows:

"You will now listen to the argument of counsel, and you are instructed that the argument constitutes a material and legitimate part of the trial, and you should carefully hear and consider any suggestions made by counsel when it tends to aid or assist you in analyzing the testimony of the witnesses and applying the law as given by the court, taking care however that such argument be not conflicting with the testimony of the witnesses, nor the instructions herein given you. You should entirely disregard any statement of counsel not based on the evidence, or which is not a fair deduction therefrom, and you should also disregard any question that may have been asked to which the court sustained an objection."

Finally, it is urgently insisted that the punishment imposed is excessive.

Counsel in their brief say:

"Assignment of error number 15 suggests that the sentence imposed by the court is excessive, and, under the evidence, amounts to cruel and unusual punishment."

The record shows that the supplemental motion for new trial filed March 1, 1935, concludes as follows:

"This excessive punishment, we believe, and, therefore allege the facts to be, was brought about by the trial court's being temporarily swept off his feet by the clamor of the public press; that, during the trial of this cause, there were approximately forty newspaper reporters and agents of newsgathering agencies furnished special seats and accommodations in and about the front portion of the courtroom; by reason of their presence, the atmosphere was charged with their mania for making this a nationwide trial — a big event. The presence of these reporters and news-gathering agents was everywhere during the trial of the cause and during periods of recess. Late editions of the paper were present, not only in the courthouse, but on the floor of the courthouse where this trial was being held. Even newsboys were selling these papers in the corridors of the building and on the floor of the building where the trial was being had. These papers, in their news comments as well as editorials, were demanding the conviction and punishment of this boy. For these reasons, we allege the facts to be that the trial court was unconsciously influenced by this clamor and bedlam, this spirit of a Roman holiday.

"Premises considered, this defendant asks that said judgment and sentence be vacated and set aside and that he be given a new trial, or, if a new trial be denied, that said sentence be reduced to the minimum of four years, so that this mentally sick boy can be recovered, perhaps, within time to save, if possible, what remains of his mentality."

Where the evidence is so conclusive and convincing of the guilt of the defendant of the degree of the crime of which the jury found him guilty, before this court may modify the judgment and reduce the punishment it must clearly appear that the court abused its judicial discretion in assessing the punishment.

In the light of the facts of this case we are of opinion that the court did not err in overruling the supplemental motion for a new trial.

The defendant was ably represented in the trial court, and his rights fully protected in every respect, throughout the trial and in this court. However, it is our conclusion after reading this voluminous record, covering over nine hundred pages, with great care, and having weighed with all due consideration every objection urged by counsel for appellant to the trial which was accorded him, that no error was committed to his prejudice; and upon the whole case we are satisfied that the defendant, beyond all reasonable doubt, had a fair and impartial trial before an unbiased jury, free from any undue influence of prejudice or passion; and this is all to which he was entitled.

It follows that the judgment of the trial court should be affirmed, and it is so ordered.

EDWARDS, P. J., and DAVENPORT, J., concur.