giving of said instruction in Oklahoma

1963And as we have set forth in many decisions, as. stated in Oates v. State, Okl.Cr., 303 P.2d 317 : “Alleged error in the giving of an instruction will not be considered on appeal in the absence of an exception saved to the giving of said instruction, unless it is so basically erroneous as to mislead and confuse the jury as to the issues of the case.” Defendant’s next contention is that the trial court created bias and prejudice in the minds of the jurors by misconduct during the course of the trial, by several1 statements made to the defendant.

1961This Court said in the case of Oates v. State, 303 P.2d 317 , 318: “Alleged error in giving of an instruction would not be considered on appeal, in absence of an exception saved to the giving of said instruction, unless so basically erroneous as to mislead and confuse the jury as to the issues of the case.” Also see Cherry v. State, Okl.Cr., 276 P.2d 280 ; Whisenhunt v. State, Okl.Cr., 279 P.2d 366 ; Gentry v. State, 86 Okl.Cr. 92 , 189 P. 2d 626 . *708 The instruction given was no doubt the result of testimony about the money found in the billfold of defendant amounting to $30.

1980Emerson v. State, Okl.Cr., 393 P.2d 541 (1964); Ferrell v. State, Okl.Cr., 475 P.2d 825 (1970); Haggy v. State, Okl.Cr., 509 P.2d 936 (1973). *1367 In her next assignment of error defendant alleges the trial court erred in failing to grant a mistrial after being advised that a member of the jury was prejudiced regarding the trial of defendant and had made statements to the jury panel concerning defendant’s guilt.

1980Emerson v. State, Okl.Cr., 393 P.2d 541 (1964); Ferrell v. State, Okl.Cr., 475 P.2d 825 (1970); Haggy v. State, Okl.Cr., 509 P.2d 936 (1973). *1367 In her next assignment of error defendant alleges the trial court erred in failing to grant a mistrial after being advised that a member of the jury was prejudiced regarding the trial of defendant and had made statements to the jury panel concerning defendant’s guilt.

1980Emerson v. State, Okl.Cr., 393 P.2d 541 (1964); Ferrell v. State, Okl.Cr., 475 P.2d 825 (1970); Haggy v. State, Okl.Cr., 509 P.2d 936 (1973). *1367 In her next assignment of error defendant alleges the trial court erred in failing to grant a mistrial after being advised that a member of the jury was prejudiced regarding the trial of defendant and had made statements to the jury panel concerning defendant’s guilt.

1968Co. v. Van Hoy, Okl., 268 P.2d 582, 584 , we quoted with approval as follows: “ ‘Although an instruction may not contain a proper statement of the law or may not be applicable to the issues involved, yet, if it it clearly apparent from the whole record that no prejudice has resulted from the giving of said instruction, the error will not be considered on appeal.’ ” See Clements v. McConnell, Okl., 368 P.2d 242 .

1968Co. v. Van Hoy, Okl., 268 P.2d 582, 584 , we quoted with approval as follows: “ ‘Although an instruction may not contain a proper statement of the law or may not be applicable to the issues involved, yet, if it it clearly apparent from the whole record that no prejudice has resulted from the giving of said instruction, the error will not be considered on appeal.’ ” See Clements v. McConnell, Okl., 368 P.2d 242 .

1961This Court said in the case of Oates v. State, 303 P.2d 317 , 318: “Alleged error in giving of an instruction would not be considered on appeal, in absence of an exception saved to the giving of said instruction, unless so basically erroneous as to mislead and confuse the jury as to the issues of the case.” Also see Cherry v. State, Okl.Cr., 276 P.2d 280 ; Whisenhunt v. State, Okl.Cr., 279 P.2d 366 ; Gentry v. State, 86 Okl.Cr. 92 , 189 P. 2d 626 . *708 The instruction given was no doubt the result of testimony about the money found in the billfold of defendant amounting to $30.

1961This Court said in the case of Oates v. State, 303 P.2d 317 , 318: “Alleged error in giving of an instruction would not be considered on appeal, in absence of an exception saved to the giving of said instruction, unless so basically erroneous as to mislead and confuse the jury as to the issues of the case.” Also see Cherry v. State, Okl.Cr., 276 P.2d 280 ; Whisenhunt v. State, Okl.Cr., 279 P.2d 366 ; Gentry v. State, 86 Okl.Cr. 92 , 189 P. 2d 626 . *708 The instruction given was no doubt the result of testimony about the money found in the billfold of defendant amounting to $30.

1961This Court said in the case of Oates v. State, 303 P.2d 317 , 318: “Alleged error in giving of an instruction would not be considered on appeal, in absence of an exception saved to the giving of said instruction, unless so basically erroneous as to mislead and confuse the jury as to the issues of the case.” Also see Cherry v. State, Okl.Cr., 276 P.2d 280 ; Whisenhunt v. State, Okl.Cr., 279 P.2d 366 ; Gentry v. State, 86 Okl.Cr. 92 , 189 P. 2d 626 . *708 The instruction given was no doubt the result of testimony about the money found in the billfold of defendant amounting to $30.

1961This Court said in the case of Oates v. State, 303 P.2d 317 , 318: “Alleged error in giving of an instruction would not be considered on appeal, in absence of an exception saved to the giving of said instruction, unless so basically erroneous as to mislead and confuse the jury as to the issues of the case.” Also see Cherry v. State, Okl.Cr., 276 P.2d 280 ; Whisenhunt v. State, Okl.Cr., 279 P.2d 366 ; Gentry v. State, 86 Okl.Cr. 92 , 189 P. 2d 626 . *708 The instruction given was no doubt the result of testimony about the money found in the billfold of defendant amounting to $30.

1954Co., 94 Okl. 149 , 221 P. 711 , wherein the court said : “Although an instruction may not contain a proper státement of the law or may not be applicable to the issues involved, yet, if it is clearly apparent from the whole record that no prejudice hás resulted from the giving of said instruction, the error will not be considered on appeal.” To the same general effect are Cosden Pipe Line Co. v. Berry, 87 Okl. 237 , 210 P. 141 ; and Day v. Ferguson, 129 Okl. 22 , 263 P. 126 .

1954Co., 94 Okl. 149 , 221 P. 711 , wherein the court said : “Although an instruction may not contain a proper státement of the law or may not be applicable to the issues involved, yet, if it is clearly apparent from the whole record that no prejudice hás resulted from the giving of said instruction, the error will not be considered on appeal.” To the same general effect are Cosden Pipe Line Co. v. Berry, 87 Okl. 237 , 210 P. 141 ; and Day v. Ferguson, 129 Okl. 22 , 263 P. 126 .

1954Co., 94 Okl. 149 , 221 P. 711 , wherein the court said : “Although an instruction may not contain a proper státement of the law or may not be applicable to the issues involved, yet, if it is clearly apparent from the whole record that no prejudice hás resulted from the giving of said instruction, the error will not be considered on appeal.” To the same general effect are Cosden Pipe Line Co. v. Berry, 87 Okl. 237 , 210 P. 141 ; and Day v. Ferguson, 129 Okl. 22 , 263 P. 126 .

1954Co., 94 Okl. 149 , 221 P. 711 , wherein the court said : “Although an instruction may not contain a proper státement of the law or may not be applicable to the issues involved, yet, if it is clearly apparent from the whole record that no prejudice hás resulted from the giving of said instruction, the error will not be considered on appeal.” To the same general effect are Cosden Pipe Line Co. v. Berry, 87 Okl. 237 , 210 P. 141 ; and Day v. Ferguson, 129 Okl. 22 , 263 P. 126 .

1954Co., 94 Okl. 149 , 221 P. 711 , wherein the court said : “Although an instruction may not contain a proper státement of the law or may not be applicable to the issues involved, yet, if it is clearly apparent from the whole record that no prejudice hás resulted from the giving of said instruction, the error will not be considered on appeal.” To the same general effect are Cosden Pipe Line Co. v. Berry, 87 Okl. 237 , 210 P. 141 ; and Day v. Ferguson, 129 Okl. 22 , 263 P. 126 .

1954Co., 94 Okl. 149 , 221 P. 711 , wherein the court said : “Although an instruction may not contain a proper státement of the law or may not be applicable to the issues involved, yet, if it is clearly apparent from the whole record that no prejudice hás resulted from the giving of said instruction, the error will not be considered on appeal.” To the same general effect are Cosden Pipe Line Co. v. Berry, 87 Okl. 237 , 210 P. 141 ; and Day v. Ferguson, 129 Okl. 22 , 263 P. 126 .

1951“Although an instruction may contain an improper statement of law, if it is clearly apparent from the whole record that no prejudice has in fact resulted therefrom, the error will not be considered.” Covington State Bank v. Jayne, 103 Okla. 55 , 229 P. 465 ; Defi- *98 anee Oils, Inc., v. Hardzog, 178 Okla. 61 P. 2d 572.

1951“Although an instruction may contain an improper statement of law, if it is clearly apparent from the whole record that no prejudice has in fact resulted therefrom, the error will not be considered.” Covington State Bank v. Jayne, 103 Okla. 55 , 229 P. 465 ; Defi- *98 anee Oils, Inc., v. Hardzog, 178 Okla. 61 P. 2d 572.

1951“Although an instruction may contain an improper statement of law, if it is clearly apparent from the whole record that no prejudice has in fact resulted therefrom, the error will not be considered.” Covington State Bank v. Jayne, 103 Okla. 55 , 229 P. 465 ; Defi- *98 anee Oils, Inc., v. Hardzog, 178 Okla. 61 P. 2d 572.

1936Co., 174 Okla. 69 , 49 P. (2d) 686 , we find this court analyzing- an instruction on contributory negligence, wherein the trial court stated certain facts constituted contributory negligence, and we find that this court considered all of the instructions given by the trial court, and not any particular part of one instruction, and holding that the giving of said instruction on contributory negligence did not constitute an error sufficient to justify a reversal.

1936Co., 174 Okla. 69 , 49 P. (2d) 686 , we find this court analyzing- an instruction on contributory negligence, wherein the trial court stated certain facts constituted contributory negligence, and we find that this court considered all of the instructions given by the trial court, and not any particular part of one instruction, and holding that the giving of said instruction on contributory negligence did not constitute an error sufficient to justify a reversal.

1936In Oklahoma Gas & Electric Co. v. Oliphant, 172 Okla. 635 , 45 P. (2d) 1077 , where the employee, an experienced electrician, in the performance of his duties, was sent to investigate, and repair, if necessary, defects in the lighting system of a patron, and while attempting to make said repairs came in contact with high voltage electricity and was killed and an action was brought for his wrongful death, the court gave the following instruction: “You are further instructed that to entitle the plaintiff to recover, it is not only necessary that she have established that the defendant was neglig

1936In Oklahoma Gas & Electric Co. v. Oliphant, 172 Okla. 635 , 45 P. (2d) 1077 , where the employee, an experienced electrician, in the performance of his duties, was sent to investigate, and repair, if necessary, defects in the lighting system of a patron, and while attempting to make said repairs came in contact with high voltage electricity and was killed and an action was brought for his wrongful death, the court gave the following instruction: “You are further instructed that to entitle the plaintiff to recover, it is not only necessary that she have established that the defendant was neglig

1932In the case of Bardon v. Endejan, 128 Okla. 293 , 262 P. 698 , this court held: “Possession being a fact continuous in its nature, when its existence is once shown, it will be presumed to continue until the contrary is proved.” From our examination of the record we find that the record fairly substantiates the instruction given and that the giving of said instruction was not error.

1929If. upon the evidence, both of the state and the defendant, a reasonable doubt is created as to the guilt of the defendant, he is entitled to * * * it.’ McClatchey v. State, 12 Okla.

1929Cr. 619 , 180 Pac. 253 , the Criminal Court of Appeals of this state, following the established rule of thati court, said: “The seventh paragraph of t'h'e instructions ■given by the trial court we think too involved, invaded the province of the jury, and placed the burden of proving an affirmative defense upon the defendant, and the giving of said instruction was reversible error. “ ‘The burden does not rest upon the defendant to establish even to a reasonable probability the truth of an affirmative defense.

1927We reach the conclusion, therefore, that although the giving of said instruction be considered erroneous, no proper objection having been made or exception taken thereto in the manner required by law, and, the error complained of not being fundamental in character, it is without prejudice to the substantial rights of the defendant in this case.” See, also, Ford v. State, 5 Okla.

1927Cr. 240 , 114 P. 273 .

1925While the giving of said instruction numbered 4 was error, the same being more favorable to> defendant, under our holding that the contractor was not an independent contractor and that the court should have so charged the jury, than defendent was entitled to, the error committed was therefore harmless.” In the case of Pullman Palace Car Co. v. Smith (Tex.) 14 S. W. 993 , the following rule is announced involving the question of contributory negligence: “Where there is no evidence of contributory negligence on the part of the plaintiff, error in a charge relating thereto is harmless to the defe

1925While the giving of said instruction numbered 4 was error, the same being more favorable to> defendant, under our holding that the contractor was not an independent contractor and that the court should have so charged the jury, than defendent was entitled to, the error committed was therefore harmless.” In the case of Pullman Palace Car Co. v. Smith (Tex.) 14 S. W. 993 , the following rule is announced involving the question of contributory negligence: “Where there is no evidence of contributory negligence on the part of the plaintiff, error in a charge relating thereto is harmless to the defe

1923This court in a long line of decisions has adopted a rule as announced in the second I>aragr.aph of the syllabus of the case of Kinney v. Williams, 66 Okla. 167 , 168 Pac. 196 , which is as follows: “In order to bring up for review to this court the instructions of the court, exceptions thereto must be saved in the manner prescribed by statute, and the error in giving the same must be assigned in the motion for new trial and in the petition in error.” No reversible error having been properly presented to this court, the judgment of the trial court is affirmed.

1923This court in a long line of decisions has adopted a rule as announced in the second I>aragr.aph of the syllabus of the case of Kinney v. Williams, 66 Okla. 167 , 168 Pac. 196 , which is as follows: “In order to bring up for review to this court the instructions of the court, exceptions thereto must be saved in the manner prescribed by statute, and the error in giving the same must be assigned in the motion for new trial and in the petition in error.” No reversible error having been properly presented to this court, the judgment of the trial court is affirmed.

1921Co. v. Bentley, 43 Okla. 469 , 143 Pac. 179 ; and by applying the law announced therein to the case at bar, the giving of said instruction would not constitute error.

1921Co. v. Bentley, 43 Okla. 469 , 143 Pac. 179 ; and by applying the law announced therein to the case at bar, the giving of said instruction would not constitute error.

1919As the errors pointed out must work a reversal of the judgment rendered, we deem it inadvisable to lengthen this .already extended opinion by a review of the other errors assigned. *352 However, we deem it proper to direct the attention of the trial court for guidance, in the event of another trial of this case, to the rule as announced in State v. Rule, 11 Okla.

1919Miller v. State, 9 Okla.

1919But we are unable, after an examination of the entire record, to see that the giving of said instruction “resulted in a miscarriage of justice.” The court did not commit reversible error in giving said instruction. *533 “The judgment of conviction will not be reversed on the ground of misdirection of the jury unless in the opinion of this court, after the examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right of the defendant.” West v. State, 13 Okl

1919Cr. 312 , 164 Pac. 327 , L.

1919Cr. 241 , 170 Pac. 277 , which was a conviction for the larceny of live stock, the information describes the property alleged to have been stolen in the identical words of description as in the information in the instant case, “two certain cows,” and in the opinion in said case Presiding Judge Doyle says: “The information in this case is unquestionably sufficient,. and would be good on a demurrer thereto.” We are of the opinion that the court did not err in overruling the motion to set aside or in overruling the demurrer to the information in this case. *627 The seventh paragraph of the instru

1918In Standard Fashion Co. v. Joels. 60 Okla. 195 , 159 Pac. 846 , it is held: “Payment is not presumed, and when the •antecedent existence of an indebtedness is proven the burden of proving its discharge by payment is upon the debtor or person alleging the payment.” In 22 A. & E.

1918In Standard Fashion Co. v. Joels. 60 Okla. 195 , 159 Pac. 846 , it is held: “Payment is not presumed, and when the •antecedent existence of an indebtedness is proven the burden of proving its discharge by payment is upon the debtor or person alleging the payment.” In 22 A. & E.