The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1900-03-28

In Reviowing tho Case.
The following Is the syllabus Of the
opinion handed down by Chief Justice
Burford OF the supreme court. revers-
ing the Taylor Kirk case and remand
ing IL back TO Canadian county for re-
hearing:
1. II is no abuse Of discretion TO
overrule an application for continu-
ance where no diligence ia shown 10
procure the attendance Of non-resident
witnesses.
2. II is error for the trial Judge,
during the trial OF one accused of muir
der. to express, IN the presence Of the
OF the Jury, an opinion as TO the char
acter or credit of witness.
8. On the trial of one charged with
murder, where the killing is admitted,
but there Is no evidence, however
slight, tending TO support such plea,
the court cannot weigh such evidence,
but must, when requested, submit an
instruction properly embracing she
law of self defense, and stating under
what circumstances the defendant was
not required TO retreat; and IL is error
to refuse such an instruction unless
the subject is properly covered by the
general charge.
"S. AS 70 whether the circumstanc.
es atteding the killing were such rs TO
require the defendant TO retreat be-
fore firing the fatal shot, was a ques-
ton of fact for the determination Of
the Jury; and the court had no right
to assume that the facts proven made
il his duty TO retreat; and the giving
of an unqualified obstruction TO the
effect that the defendant was bound
to retreat, If he could do so without
subjectlng himself TO the risk of death
or great bodily harm, was reversible
error.
"5. Where the deceased has sought
out the prisoner with q deadly weapon
for the purpose of taking his life, or
where the prisoner is violently at
tackled in his own house or In place
where he has q right to be, or where
he is assaulted with q deadly weapon,
and he has not provoked the assault
or brought on the difficulty. he is not
bound to retreat, but has q right to
stand and defend himself, and IL the
necessity arises for taking the life OF
his adversary In order to save himself
from great bodily injury, such killing
is justiHsble on the grounds of self
defence"
"6. 1t 10 not every correct PROPOSE
tion of law that is proper TO be sub
mitted to the jury as an instruction In
the trial of cause. In charging
jury due regard must be had to the
state OF the case, the character and
amount Of proof, and the law, as stat
/ ed to the jury, must be applicable to
the pleadinRs and the testimony.
~. The court has no right in char
ging the jury to submit any proposi-
tion which assumes an5 particular
controverted fact to be proven, which
Is an expression upon the weight OF
the evidence or credit of witness, or
which requires the jury TO give more
weight to one class of evidence than
TO some other. The Jury must be left
entirely free 20 determine all facts,
the weight of the testimony and the
credit TO be given the witnesses.
"s. Where the competency Of con-
fessions are objected 20 on the ground
that they were not voluntary or were
made under duress or promises Of lem
iency, the court should withdraw the
jury and hear al the facts and circum-
stances attending such alleged con-
fession and determine It's competency
IN tue buhenCc Oh tuc jury Al ~ -
held incompetent the matter should
go no further; but II held competent
and proof Of same admissible, then
the jury should be recalled and are en-
titled TO all the facta and circumstan-
ces attending such confession; not FOR
the purpose Of passing on its comPe-
tency, but in order TO determine the
N weight and credit to be given such
confession 1t is not prejudicial error
to hear such evidence in the presence
a Of the jury, where. on such hearing the
confessions are found 70 be competent
aud evidence Of such confessions is
admitted. II could only be prejudic
ial error to hear lsuch evidence In the
presence of the jury, where, on such
hearing the court should hold the con
fessions incompetent and exclude the
evidence OF the confessions And ev'
en- then IL might not be prejudicial err
rOr. This question should be deter
mined from u consideration of the en-
tire record Of the trial."