circumstances that might not be true, and it is for the jury, viewing the facts and circumstances in evidence from the defendant's standpoint, to determine how this may be in each case." A motion for a new trial was filed and overruled, and exceptions saved. The most insistent contention of the de fendant is that the court committed fundamental error in admitting in evidence the letters written by the defendant to his brother John, prior to the homicide and with this contention we are not in accord. [1] The offense of which the defendant was convicted, manslaughter in the first degree, is defined by subsection 2 of section 2320. Revised Laws, as follows: "When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide." Hence, where the killing is done, as in the instant case, "in a heat of passion by means of a deadly weapon," it is not necessary to show previous malice and premeditation to sustain a conviction of manslaughter in the first degree, and as the only office of the letters of the defendant to his brother was to show expressed malice toward the deceased and premeditation to kill him, if it was error to admit such letters in evidence, which we do not hold, such error was not such as to entitle the defendant to a reversal in this case. Section 6005, Revised Laws. [2] We do not think that the letters put the character of the defendant in issue, nor that the fact that the letters were obtained by unlawful search of John's trunk, in viola tion of provisions of the Constitution of this state, rendered said letters inadmissible in evidence. was We think requested instruction No. properly refused, as the phase of the case therein stated was fully covered by general instructions of the court, in which the court fairly presented both sides of the case, and that Green v. United States, 2 Okl. Cr. 55, 101 Pac. 112, cited by defendant, does not support his claim of fundamental error in refusing to give said requested instruction. In Green v. United States, supra, it is shown that the trial judge "did not correctly and sufficiently cover the said phase of the case," the condition in which the defendant might act in defense of himself or of his brother, while in the instant case the court by its instruction did "correctly and sufficiently cover said phase of the case." The motion for a new trial was properly overruled. When two persons are jointly charged with murder and separately tried, letters written by one of them to the other, expressing malice towards and a premeditated design to kill the person slain, are admissible in evidence against either one of the said defendants, if there be any evidence tending to show collusion between them to cause the death of the person with whose death they are charged. 2. CRIMINAL LAW 394–Illegal SeaRCHADMISSION OF DOCUMENTARY EVIDENCE. Letters obtained by an illegal search are not thereby rendered inadmissible in evidence, because the search by which the letters were obtained was violative of section 30 of the Bill of Rights of the Constitution of this state; the true rule being that the admissibility of evidence, other than confessions, is not affected by illegality by which the same is obtained. 3. HOMICIDE 338(5) — ADMISSION OF EVIDENCE HARMLESS ERRob. In the trial of a murder charge, erroneous admission of evidence tending to show malice and premeditated design, even though such evidence be incompetent and prejudicial, becomes harmless when a verdict of manslaughter is returned by the jury. Appeal from District Court, Oklahoma County; John W. Hayson, Judge. John Knight was convicted of manslaughter in the first degree, and appeals. Affirmed. Ben F. Williams, of Norman, and Jean P. Day and Pruiett, Sniggs & Patterson, all of Oklahoma City, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. ARMSTRONG, J. The plaintiff in error, John Knight, hereinafter called defendant, was with his brother, Jesse Knight, informed against jointly for the murder of George E. Long, a severance granted, the defendant tried separately, and convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary at McAlester for a term of 15 years. To reverse the judgment rendered, he prosecutes this appeal. [4] Finding no reversible error in the recThis is a companion case to that of Jesse ord, the judgment of the trial court is af-Knight v. State (No. 2890) 182 Pac. 734, recently affirmed by this court, but not yet officially reported. firmed. DOYLE, P. J., and MATSON, J., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) armed with a pistol. The defendant moved for a new trial, which was overruled, and exceptions saved. "The right of the people to be secure in their person, houses, papers and effects. against unviolated; and no warrant shall issue, but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized." reasonable searches and seizures shall not be With said contention we cannot agree, as this court has several times held adversely thereto. In Silva v. State, 6 Okl. Cr. 97, 116 Pac. 199, it is held: "Evidence obtained by means of a search warrant is not inadmissible, either upon the grounds that it is in the nature of admissions under duress, or that it is evidence which the defendant has been compelled to furnish against himself, or on the ground that the evidence has been unfairly or illegally obtained, even if it appears that the search warrant was illegally issued." The defendant in his brief has not, as required by the rules of this court, abstracted the evidence, and does not argue in his brief that the evidence is insufficient to sup- [1, 2] The only material contention insistport the judgment rendered, but rests a re-ed upon by the defendant in his brief is versal of this case upon the alleged funda- that the said letters were inadmissible in mental error of the court in admitting in evidence against him, and unquestionably evidence letters written the defendant by so because they were obtained by a violation Jesse Knight, his brother. Therefore we do of section 30 of the Bill of Rights of the not think it necessary to recite the evidence, Constitution of this state, which reads as believing it sufficient for an intelligent re- follows: view of the question involved to say that it shows that prior to being shot by the defendant's codefendant, and in the toilet which adjourned the fire hall in which deceased was shot, the deceased was severely wounded by the defendant with a knife, and immediately thereafter the deceased, accompanied by the defendant, came into said fire hall, where the defendant's codefendant was, and very shortly thereafter was shot by said codefendant, fell down, and immediately expired; that the letters in evidence were written after the writer, who at the time resided in Texas, had been informed by letters to him from the defendant that he (defendant) had been induced by the deceased to visit a house of prostitution in Oklahoma City and had there contracted syphilis; that at that time he was employed by the deceased, who was fire chief of the S. & S. Company, located at Packingtown; that after defendant had contracted said disease the deceased, who had authority to discharge employés of the said fire department, cursed and abused the defendant, kicked him, and discharged him from his said employment; that the said letters expressed a strong brotherly attachment on the part of the writer for the defendant, and that he was very much outraged at the treatment that had been accorded The said rule announced by Judge Doyle his brother by the deceased, expressed mal-finds support and approval in the following ice against and a premeditated design to cases, viz.: Ripper v. U. S., 178 Fed. 24, kill deceased, and advised the defendant to 101 C. C. A. 152; Dum Yan v. U. S., 193 Fed. kill the deceased if he could do so with im- 970, 115 C. C. A. 122; Martin v. State, 1 punity, and that in order to look after his Ala. App. 215, 56 South. 3; People v. Warbrother that the said writer of the said let ren, 12 Cal. App. 730, 108 Pac. 725; Cohen ters came to Packingtown, and that after. State, 7 Ga. App. 5, 65 S. E. 1096; Minor being discharged. upon having improved as to his affliction, the ill feeling of the defendant towards the deceased was removed; that they apparently became friends, and the defendant was again employed in the said fire department by the deceased; that defendant left said second employment, and with his said brother visited their parents in Tennessee, remained there about 60 days, and then returned together to Packingtown, and that the defendant desired to be again employed in the said fire department, but that he did not so succeed; that the said defendant and his brother constantly associated closely together, and on the night of the homicide came together to the said fire hall, the said codefendant being at that time 182 P.-47 In said case Judge Doyle announces the accepted rule to be: "That the admissibility of evidence is not affected by the illegality of the means through which the witnesses were enabled to obtain the evidence." v. Atlanta, 7 Ga. App. 817, 68 S. E. 314; Young v. State, 12 Ga. App. 86, 76 S. E. 753; State v. Turner, 82 Kan. 787, 109 Pac. 654, 32 L. R. A. (N. S.) 772, 136 Am. St. Rep. 129; Shreveport v. Knowles, 136 La. 770, 67 South. 824; People v. Campbell, 160 Mich. 108, 125 N. W. 42, 34 L. R. A. (N. S.) 58, 136 Am. St. Rep. 417; People v. Trine, 164 Mich. 1, 129 N. W. 3; People v. Aldorfer, 164 Mich. 676, 130 N. W. 351; State v. Rogne, 115 Minn. 204, 132 N. W. 5; Nixon v. State, 92 Neb. 115, 138 N. W. 136; State v. Wallace, 162 N. C. 622, 78 S. E. 1, Ann. Cas. 1915B, 423; State v. Booker, 68 W. Va. 8, 69 S. E. 295. The letters admitted in evidence were written in response to letters written by the defendant to his codefendant, and evidenc ed malice on the part of his codefendant | No. A-2890, 182 Pac. 734, not yet officially reagainst the deceased and a formed design ported. to kill him, and the court properly instructed the jury that, before they could consider said letters as evidence, they must find from the evidence that the defendant and his codefendant acted in concert to effect the death of the deceased. We think there was evidence, if said letters be entirely disregarded, that warranted the jury in finding that the death of the deceased was brought about by the collusion of the defendant and his codefendant, and that the said letters were properly admitted in evidence, notwithstanding that after the said letters were written the defendant and deceased apparently resumed friendly relations, and the defendant was again employed by the deceased in the said fire department. Whether or not friendly relations were in good faith entertained by the defendant and his codefendant toward the deceased at the time of the homicide was a question of fact for the jury. "Slight evidence of collusion is all that the law requires to admit the acts and declaration of a conspirator in evidence against his co-conspirator." "The least degree of concert of action or collusion makes the act of one conspirator the act of all." Ex parte Hayes et al., 6 Okl. Cr. 321, 118 Pac. 609; Price v. State, 1 Okl. Cr. 358, 98 Pac. 447. In Ex parte Hayes et al., supra, it is said: "While there is no direct testimony of the existence of a conspiracy between petitioners as contended for by the Assistant Attorney General, and while it is true that the circumstances testified to in behalf of the state, if taken alone and simply by themselves, would have but little strength, yet, when all these circumstances are taken together, we are satisfied that this letter is admissible in evidence as against both of the petitioners. It has been expressly deIcided that written correspondence and entries made in books and other documents by one conspirator, having reference to the common design of the conspirators, are admissible in evidence against a co-conspirator. See Carter v. State, 106 Ga. 376, 32 S. E. 345, 71 Am. St. Rep. 262; State v. Cardoza, 11 S. C. 195; Bloomer v. State, 48 Md. 524." Finding no error in the record, the judgment of the trial court is affirmed. DOYLE, P. J., and MATSON, J., concur. (17 Okl. Cr. 26) BURNS et al. v. STATE. (No. A-2936.) (Criminal Court of Appeals of Oklahoma. Aug. 5, 1919.) (Syllabus by the Court.) 1. LEWDNESS 1 LIVING IN STATE OF - ADULTERY-ELEMENTS OF OFFENSE "OPEN Having occasional illicit intercourse, without a public or notorious living together, is not sufficient to constitute the offense of living in a state of open and notorious adultery. To constitute "open and notorious adultery," the parties must reside together publicly, in the face of society, as if the conjugal relation existed between them. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Open and Notorious Adultery.] MATSON, J. This is an appeal from the district court of Jefferson county, wherein [3] If, however, the admission of said let-plaintiffs in error, J. E. Burns and Lula Bond, ters in evidence was error, as to which we hold adversely, as malice and premeditation are not elements of manslaughter, the offense of which defendant was convicted, such error was harmless. "In the trial of a murder charge, erroneous admission of evidence tending to show malice and premeditated design, even though such evidence should be incompetent and prejudicial, becomes harmless, when a verdict of manslaughter is returned by the jury." Knight v. State, were convicted of living together in open and notorious adultery, and their punishment fixed at fines of $350 and $250, respectively. From such judgments of conviction each has appealed, and among other grounds assigned as reasons for reversal is that the evidence wholly fails to support a conviction of living together in open and notorious adultery within the meaning of the Oklahoma statute defining said crime and the decisions of this court construing the same. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) This prosecution was founded upon an [notorious adultery, the facts show that the indictment returned by the grand jury of Jef- convicted parties, although unmarried, lived ferson county which charged the said de- together in the same house as husband and fendants with living together in open and wife, and that such relationship continued notorious adultery. The court in instructing for a prolonged length of time even after it the jury limited its consideration to the guilt became generally known in the community of the defendants of the crime of living to- that the parties were not married to each gether in open and notorious adultery. The other. verdicts of the jury found each defendant guilty of the crime charged in the indictment, and upon such verdicts the court pronounced judgments of conviction against each of the defendants of the crime of living together in open and notorious adultery. While the evidence discloses that the husband of the defendant Bond appeared before the grand jury, and that it was through and by his efforts that this indictment was returned against the parties to the crime, so that it could properly have been held that the prosecution was commenced and carried on against these parties by the husband of one of the defendants, so that a conviction of ordinary adultery as distinguished from open and notorious adultery would have been permissible under the charge and the evidence, yet, because the court did not submit that issue for the consideration of the jury, this court is limited in considering the evidence to the sufficiency of the same to support a conviction of the crime of living together in open and notorious adultery. [1] Before proceeding to a consideration of the evidence of the state's witnesses upon which reliance is based to support this conviction, it is appropriate to call attention to certain definitions of the crime of "open and notorious adultery" heretofore given by this court. In Copeland v. State, 10 Okl. Cr. 1, 133 Pac. 258, it is held: "To constitute living together in open and notorious adultery the parties must reside together publicly, in the face of society, as if the conjugal relation existed between them, and their illicit intercourse must be habitual." In Kitchens v. State, 10 Okl. Cr. 603, 140 Pac. 619, while it is held that it is not necessary that the parties claim to be husband and wife if they live together in the same house in the familiar manner of husband and wife, yet, in order to constitute the offense of living together in open and notorious adultery, it is necessary that their lewd and lascivious cohabitation and conduct be open and notorious. In the latter case a reading of the statement of facts discloses that the parties convicted lived together in the same house by themselves, and that their conduct was lewd and lascivious, and that several witnesses saw the parties in compromising positions and taking indecent liberties with the persons of each other. In the case of Spencer v. State, 14 Okl. Cr. 178, 169 Pac. 270, L. R. A. 1918F, 592, where the evidence was held sufficient to support a conviction of living together in open and In the recent case of Barber et al. v. State, 15 Okl. Cr. 179 Pac. 790, wherein it was held that the evidence was insufficient to sustain a conviction of living together in open and notorious adultery, the facts are not dissimilar to those in this case. In that case it was also held: "To constitute 'living in open and notorious adultery,' under the statute, there must be something more than occasional illicit intercourse indulged in; the parties must reside together publicly in the face of society, as if conjugal relations existed between them, and their so living must become generally known in the community in which they live." [2] In substance the evidence relied upon to support the conviction in this case is about as follows: G. M. Bond testified in part: "I reside at present in this county out east of Addington with my son. I am a married man, and know the defendant Lula Bond. She is my wife. We were married to each other in Dallas, Tex., in May, 1893, about 23 years ago now. I have never been divorced from 'Lula Bond, and she and I have remained husband and wife from the date of our marriage to this time. We went to the place where Mrs. Bond lives now the second year after we came to Oklahoma, and for two years we lived over there where Mrs. Bond now lives on the Grove land; that is right on the banks of Red River, and about 31⁄2 miles southeast of Terral, Jefferson county, Okl. She and I went away from Oklahoma to Baltimore, Md., and we were there when President Wilson was inaugurated, and then she came back home a month before I did, and this was just a month before my little daughter graduated in May at Dallas, Tex., which would make it about the year 1913, and four years ago next month. Wife wrote me a great many letters. In every letter I would get from her she told me not to hurry home, but to stay and After I came home I had have my visit out. She told me she had been out in the pasture five a conversation with her relative to her conduct. or six miles from home with Mr. Burns and had stayed there with him nearly all day. I then told her the character that Burns had, how he stood in regard to morality. Well, she told me she had been out riding with him, and what she said to him was in response to what I had said to her. I remonstrated with her for six months about Burns. The only reason she ever gave for riding around at night with him was that she was trying to reform him. Never did she, but one time, agree that she would quit going with him. I had to go over to Ardmore on some business, and when I came back off the trip she told me she had had a dance the night before, and that Burns was there, and that the next day was Sunday, and that she and Burns had gone out to the pasture again. [ed away, and I didn't see her any more until She and I have been separated about two this summer. Her brother came here and took years, and on that separation I gave her very charge of the place. I saw the outline of the near all the property I had. Burns separated fellow who shot in the window, and we measurfrom his wife a little after I separated from ed track, and I picked up the bullet after him, mine, about two years ago. I don't know where and I have it yet. I am brother-in-law of the he lived after his separation from his wife only defendant Burns. While we were there I saw from hearsay, but I have seen him at the house Burns in Mrs. Bond's bedroom. He would walk of my wife. On our separation my wife kept in and speak to her, and then walk out. I nevour home place. I supposed on seeing him there er saw them go away from the house together that he was in charge of the place, but her often; sometimes they would go away on busibrother was living there at the same time. The ness, would go over to the field to see the catfirst time I talked with her about associating tle, and they went in plain, open daylight. I with Burns was just after I returned home, aft- don't think I ever saw them out together at er President Wilson's inauguration. After I night but one time. They went to Mr. Bailey's came back here she told me she had been out one night, and stayed until about 10 o'clock and with Burns. This was the first time I had ever returned." known of her associating with him. She and I drew up our papers of separation about two years ago. I didn't see her riding around with Burns, and have only what she told me about it. After I had remonstrated with her she wouldn't live in the same room or occupy the same room with me, refused to sleep with me, and in fact would not have anything to do with me at all. After she and I had got to occupying separate rooms she was out several nights, repeatedly coming in at 2 or 3 o'clock, and she said she. was out with her friends. One night she didn't come in at all. I only know from hearsay where she was. She said it was none of my damn business." Curtis Ramsey: I "I live at Terral, Okl., and know the defendants, and have known them several years. know where Mr. Bond's place is, and I lived there last year, and rented the place from Mrs. Bond, I mean for 1915, but I left there in the I. F. Tillman: "I live 61⁄2 miles northeast of Terral, Okl., and have known the defendants for four years. I live in about six miles of Mrs. Bond's house. I don't know about Burns staying around her place after she and her husband separated, but I have seen the two defendants together, sometimes two or three times a week. They would pass my house together sometimes, going east of my house. They were going down to the pasture, in some places in the pasture there were thickets, some open. I recall seeing them going down there one Saturday afternoon, but I didn't see which way they went out. Then I recall seeing them go west just after night, after dark, traveling horseback, each riding a separate horse. Then I saw them again one night with some other parties after dark, riding horseback. For awhile I saw them together two or three times a week. I saw them driving cows by there some. At one time they drove a bunch of cattle by, and he cut out one for me, but I believe Mrs. Bond's daughter was with them that time. The most of the time I saw them pass they were alone, only with each other. That was two years ago last spring that I saw them driving the cattle. I have seen them also along with others, and I have seen Mrs. Bond without Burns being along." Albert McKinley: early part of the spring. Mrs. Bond lived "I live at Terral, Okl., and live in town. Mrs. Bond lives down the river. I know her, and also defendant Burns. I saw them together over in Texas at a café there in Nocona. They were there at supper, and it was after dark. There was a girl with them, and they were eating supper. Mrs. Bond introduced me to the young lady, and asked me to come to see her; that she was visiting her. I have been living at Terral since 1901. Have been to Mrs. Bond's house. This Nocona trip was the first thing J. O. Linton: I "I live in three-fourths of a mile of Mrs. Bond's house, and there is a road that goes straight through to her place and by my house. There is a gate there, but it stands open. remember when Mr. Bond and his wife separated, and also the time when Burns and his wife separated. Up to the time of these separations I don't remember that I ever saw Burns at the Bond house, but I have seen him going and coming from the Bond place. Judge Bond |