author: DOYLE, Judge.

text:
    W. L. GARNSEY v. STATE.
    No. A-157.
    Opinion Filed December 1, 1910.
    (112 Pac. 24.)
    1. INDICTMENT AND INFORMATION — Felonies Committed Before Statehood — Necessity of Prosecution by Indictment. Article 5 of the amendments to the Constitution of the United States, providing that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” guarantees to a defendant charged with the commission of a felony in Oklahoma Territory, prior to statehood, an unalterable right to be accused by indictment only.
    2. SAME. 'In such cases the indictment is a necessary requisite to give the court jurisdiction, and 'without indictment the court has no jurisdiction to try.
    3. SAME — “Infamous Crime.” A crime punishable by imprisonment for a term of years at hard labor is an “infamous crime,” within the provision of the fifth amendment of the Constitution of the United .States.
    4. CONSTITUTIONAL LAW — Prosecution by Indictment — Ex Post Facto Laws. The constitutional guaranty constitutes a substantial right under the laws of Congress a.nd the laws of Oklahoma Territory, and any state law which operates as a denial of this right alters the situation of the accused to his disadvantage, and is therefore ex post facto as to such offense.
    (Syllabus by the Court.)

      Appeal from District Court, Beaver County; B. H. Loofbourrow, Judge.

      W. L. Garnsey was convicted of rape, and he appeals.
    Reversed and remanded.

      Harris & Wilson and Claude Nowlin, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson. Asst. Atty. Gen., for the State,
   DOYLE, Judge.

W. L. Garnsey (hereinafter designated defendant) was prosecuted for the crime of rape, alleged to have been committed in Beaver county, territory of Oklahoma on the 20th day of April, 1907. On May 4, 1907, an information charging the crime of rape was filed before a justice of the peace. Defendant was arrested, waived examination, and was bound over to await the action of the district court. On February 29, 1908, no grand jury action having been taken thereon, the county attorney filed a duly verified information in the district court of 'Beaver county, charging defendant with the crime of rape. Defendant filed a general demurrer to said information, which demurrer was overruled and exception allowed. On this information defendant was tried and found guilty of the crime of rape,, and on the 20th day of March, 1909, was by the court sentenced to imprisonment for five years at hard labor in the state penitentiary. From this judgment and sentence defendant perfected an appeal by filing with the clerk of this court on May 4, 1909, his petition in error with a duly certified transcript of the record attached thereto, together with proof of service of notices of appeal.

Counsel for defendant contend that:

“The district court of Beaver county, state of Oklahoma, erred in' permitting the prosecution of the plaintiff in error upon'the charge of having committed a felony in the territory of Oklahoma, prior to the adoption of the Constitution of the state of Oklahoma, upon information of any kind, and without an indictment duly returned by the grand jury of said county.”

On June 8, 1910, on the part of the state, there was filed a confession of error, which concludes as follows:

“The Attorney General concurs with the contention of counsel for defendant that the district court of Beaver county was without jurisdiction to proceed to the trial of defendant for the crime charged by information, and therefore, in view of the decisions of this honorable court in the eases above cited (Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042; Hayes v. State, 3 Okla. Cr. 1, 103 Pac. 1061), confesses that this cause should be reversed and the same remanded to the district court of Beaver county, there to be proceeded with in accordance to law.”

The only question which the record presents is: Can the state proceed by information against a person charged with the commission of a felony before statehood, or must the proceedings in such cases be by indictment? Otherwise stated: Is the provision of the state Constitution which provides for the prosecution of felonies by information ex post facto as to offenses committed prior to statehood ? This question has not been directly passed tip-on by this court. As it is involved in-several pending causes, we will here state our views.

The offense is alleged to have been committed prior to state-, hood, in that part of the territory of Oklahoma which was formerly a part of the republic of Texas; however, a greater portion of the area now constituting the state of Oklahoma was included within the province of Louisiana.

Article 3 of the treaty ceding Louisiana to the United States provided that:

“The inhabitants of the ceded territory shall be incorporated in the union of the United States, and admitted as soon as possible, according to the principles of the federal Constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States.” (8 Stat. 200.)

The fifth article of the amendments to the Constitution of the United States provides that:

“No person shall be held to answer for a capital, or otherwise, infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”

The federal and state courts, without diversity of opinion, have uniformly held that the provisions of the Constitution of the United States do not' apply to criminal prosecutions under state laws, except in cases where the states are named. The authorities have been reviewed by this court in the case of In re McNought, 1 Oída. Cr. 528, 99 Pac. 241, and need no further discussion here.

The Constitution of Oklahoma, by the enabling act, as well as by its own provisions, did not become operative until the President’s proclamation of November 16, 1901. This was more than six months later than the time alleged in the information of the commission of the crime charged. It has been uniformly held by federal courts that the provisions of the Constitution of the United States apply to all criminal prosecutions in the organized territories.

In the case of Rassmussen v. United States, 197 U. S. 516, 25 Sup. Ct. 514, 49 L. Ed. 862, Mr. Justice White, who delivered the opinion of the court, fully reviewing the authorities, in part said:

“This brings us to the second proposition, which is * * * 2. That even if Alaska was incorporated into the United States, as it was not an organized territory, therefore, the provisions of the sixth amendment were not controlling on Congress when legislating for Alaska. We do not stop to demonstrate from original considerations the unsoundness of this contention and its irreconcilable conflict with the essential principles upon which our constitutional system of government rests. Nor do we think it is required to point out the inconsistency which would arise between various provisions of the Constitution if the proposition was admitted or the extreme extension, on the one hand, and the undue limitation on the other, of the powers of Congress which would be occasioned' by conceding it. This is said, because, in our opinion, the unsoundness of the proposition is conclusively established by a long line of decisions. Webster v. Reid, 11 How. 437, 13 L. Ed. 761; Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223; American Publishing Co. v. Fisher, 166 U. S. 464, 17 Sup Ct. 618, 41 L. Ed. 1079; Springville v. Thomas, 166 U. S. 707, 17 Sup. Ct. 717, 41 L. Ed. 1172; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873; Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801. The argument by which the decisive force of the cases just cited is sought to be escaped is that as when the cases were decided there was legislation of Congress extending the Constitution to the District of Columbia or to the particular territory to which a. ease may have related, therefore, the decisions must be taken to have proceeded alone upon the statutes, and not upon the inherent application of the provisions of the fifth, sixth and seventh amendments to the District of Columbia or to an incorporated territory. And, upon the assumption that the cases are distinguishable from the present one upon the basis just stated, the argument proceeds to insist that the sixth amendment does not apply to the territory of Alaska, because section 1891 of the Revised Statutes only extends the Constitution to the organized territories, in which, it is urged, Alaska is not embraced. Whilst the premise as to the existence of legislation declaring the extension of the Constitution to the territories with which the cases were respectively concerned is well founded, the conclusion drawn from that fact is not justified. Without attempting to examine in detail the opinions in the various cases, in our judgment it clearly results from them that they substantially rested upon the proposition that where territory was a part of the United States the inhabitants thereof were entitled to the guaranties of the fifth, sixth and seventh amendments, and that the act or acts of Congress purporting to extend the Constitution were considered as declaratory merely of a result which existed independently by the inherent operation of the Constitution. It is true that in some of the opinions both the application of the Constitution and the statutory provisions declaring such application were referred to, but in others no reference to such statutes was made, and the cases proceeded upon a line of reasoning leaving room for no other view than that the conclusion of the court was rested upon the self-operative application of the Constitution. Springville v. Thomas, 166, U. S. 707, 17 Sup. Ct. 717, 41 L. Ed. 1172; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873; Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801. And this result of the cases will be made clear by a brief reference to some of the opinions. In Thompson v. Utah, considering a law of the state of Utah, which provided that a jury in a criminal cause should consist of only eight persons, the statute was held to be ex post facto■ and void in its application to felonies committed before the territory became a state, ‘because, in respect of such crimes, the Constitution of the United States gave the accused, at the time of the commission of his offense, the right to be tried by a jury of twelve persons, and made it impossible to deprive him of his liberty except by the unanimous verdict of such a jury.’ In Springville v. Thomas, it was contended that the territorial Legislature of Utah was empowered by Congress, in the organic act of the territory, to dispense with unanimity of the jurors in rendering a verdict in a civil case. The court said (at page 708 of 166 U. S., at page 718 of 17 Sup. Ct. [41 L. Ed. 1172]) : Tn our opinion the seventh amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common law cases, and the act of Congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so,” Again, in Capital Traction Co. v. Hof, 174 U. S. 1, 5, 19 Sup. Ct. 580, 582 [43 L. Ed. 873], no reference 'whatever being made to the statute of February 21, 1871, extending the provisions of the Constitution to the District of Columbia (chapter 62, 16 Stat. 419) it was declared: ‘It is beyond doubt, at the present day, that the provisions of the Constitution of the United States securing the right of trial by jury, whether in civil or criminal cases, are applicable to the District of Columbia.’ And in Black v. Jackson, 177 U. S. 349, 363, 20 Sup. Ct. 648, 653 [44 L. Ed. 801] speaking of a law of the territory of Oklahoma, it was said: ‘And it also fails to recognize the provisions of the seventh amendment securing the right of trial by jury in ‘‘suits at common law,” where the value in controversy exceeds $20. That amendment, so far as it secures the right of trial by jury, applies to judicial proceedings in the territories of the United States. Webster v. Reid, 11 How. 437, 460 [13 L. Ed. 761]; American Publishing Co. v. Fisher, 166 U. S. 464, 466 [17 Sup. Ct. 618, 41 L. Ed. 1079] ; Springville v. Thomas, 166 U. S. 707 [17 Sup. Ct. 717, 41 L. Ed. 1172]. So that a court of a territory authorized, as Oklahoma was, to pass laws not inconsistent with the Constitution of the United States (Act May 2, 1890, 26 Stat. 81, 84, c. 182, § 6), could not proceed in a "common-law” action as if it were a suit in equity and determine by mandatory injunction rights for the protection or enforcement of which there was a plain and adequate remedy at law, according to the established distinctions between law and equity.’ As it conclusively results from the foregoing considerations that the sixth amendment to the Constitution was applicable to Alaska, and, as of course being applicable, it was controlling upon Congress in legislating for Alaska, it follows that the provision of the act of Congress under consideration, depriving persons accused of a misdemeanor in Alaska of a right to trial by a common-law jury, was repugnant to the Constitution and void.”

Mr. Justice Harlan, concurring, in part'said:

"No tribunal or person can exercise authority involving life or liberty, in any territory of the United States, organized or unorganized, except in harmony with the Constitution. Congress cannot suspend the operation of the Constitution in any territory after it has come under the sovereign authority of the United States, nor, by any affirmative enactment, or by mere non-action, can Congress prevent the Constitution from being the supreme law for any peoples subject to the jurisdiction of the United States. The power conferred upon Congress to make needful rules and regulations respecting the territories of the United States does not authorize Congress to make any rule or regulation inconsistent with the Constitution or violative of any right secured by that instrument. The proposition that a people subject to the full authority of the United States for1 purposes of government, may, under any circumstances, or for any period of time, long or short, be governed, as Congress pleases to ordain, without regard to the Constitution, is,. in my judgment, inconsistent with the whole theory of our institutions. If the Constitution does not become the supreme law in a territory acquired by treaty, and whose inhabitants are under the dominion of the United States, until Congress, in some distinct form, shall have expressed its will to that effect, it would necessarily follow that, by positive enactment, or simply by nonaction, Congress, under the theory of ‘incorporation/ and although a mere creature of the Constitution, could forever withhold from the inhabitants of such territory the benefit of the guaranties of life, liberty, and property as set forth in the Constitution. I cannot assent to any such doctrine. I cannot agree that the supremacy of the Constitution depends upon the will of, Congress. As these are my views upon the underlying questions presented by the record, I cannot concur in all the reasoning in the opinion of the court. But I entirely concur in the judgment holding the act of Congress in question to b.e void. I do so, not upon the ground that Alaska had been previously ‘incorporated’ into the United States by the legislation of Congress, but upon the ground that the right of the accused to a trial by thé jury of the Constitution became complete immediately upon the acquisition of Alaska by treaty, and before any legislation upon the subject by Congress — indeed, without any power in Congress to add to or impair or destroy that right.”

Mr. Justice Brown, concurring, in part said:

‘‘I am disposed to concur in the conclusion of the court upon the ground that, by the treaty of cession with Eussia, it was provided that the inhabitants of the ceded Territory shall be admitted to enjoy all the rights, advantages, and immunities of citizens of the United States.”

As the statute authorized, the court pronounced a sentence of five years’ confinement at hard labor in the state penitentiary. There can be no question but what defendant was charged with an infamous crime. Ex parte Wilson, 114 U. S. 426, 5 Sup. Ct. 935, 29 L. Ed. 89; Mackin v. United States, 117 U. S. 352, 6 Sup. Ct. 777, 29 L. Ed. 909; U. S. v. De Walt, 128 U. S. 393, 9 Sup. Ct. 111, 32 L. Ed. 485.

In Ex parte Wilson, supra, Mr. Justice Cray, after reviewing the history of the proposal, and adoption of this provision of the Constitution, used this language:

“The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment; not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment, if convicted, he has the right to insist that he shall not be put upon his trial except on the accusation of a grand jury. Nor can we accede to the proposition which has been sometimes maintained, that no crime is infamous, within the meaning of the fifth amendment, that has not been so declared by Congress. * * * For more than a century imprisonment at hard labor in the state' prison or penitentiary, or other similar institution, has been considered an infamous punishment ih England and America.”

The laws of Oklahoma Territory provided (chapter 68, art. 6, par. 168 [section 5304]> Wilson’s Bev. & Ann. St, 1903) that “Every felony must be prosecuted by indictment in the districr, court.” The Enabling Act (Act June 16, 1506, e. 335, 34 Stat. 277) provides:

“Section 21. * * * All laws in force in the territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state, except as modified or changed by this act or by the Constitution of the state. * * *”

Section 20, as amended March 4, 1907 (Act March 4, 1907, c. 2911, § 3, 34 Stat. 1287) :

“ * * * All criminal cases pending in the United States courts in the Indian Territory, not transferred to the United States circuit or district courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory.”

Section 1 of the Schedule of the Constitution provides:

“No existing rights, actions, suits, proceedings, contracts or claims shall be affected by the change in the form of government, but all shall continue as if no change1 in the form of government bad taken place.”

These provisions of the Enabling Act and the Schedule preserve the rights of persons who are charged with the commission of offenses prior to the admission of the state, and render them liable to punishment under the law.

For. this reason we are clearly of opinion that the constitutional provision providing for the prosecution of felonies by information was not intended to be retrospective or retroactive in its operation, and has reference only to prosecutions for crimes committed after statehood. However it is immaterial whether the Enabling Act permitted, or the framers of our Constitution intended to provide, a new method for the prosecution of crimes committed before statehood, because in respect to such crimes the Constitution of the United States gave to the accused an unalterable right to be accused by indictment only, and this provision of our state Constitution is ex post facto in its application to felonies committed before Oklahoma was admitted as a state. The Constitution of the United States (section 9, pars. 3 and 10 of art. 1) prohibits the passing of ex post facto laws.

The courts of several states have held that under the particular provisions of their state Constitutions the right to substitute prosecutions by information in place of prosecutions by indictment was within the limits of the legislative control over legal procedure and did not thereby disparage any substantial right or constitutional guaranty. State v. Kyle, 166 Mo. 287, 65 S. W. 763, 56 L. R. A. 115; Lybarger v. State. 2 Wash. St. 552, 27 Pac. 449, 1029; In re Wright, 3 Wyo. 478, 27 Pac. 565, 13 L. R. A. 748, 31 Am. St. Rep. 94, and cases there cited. Those eases are clearly distinguished from cases where the crime was committed before the admission of the state into the Union.

The distinction between legislative changes from time to time in methods of procedure and ex post facto laws is distinctly recognized in text-books and decisions.

In the case of Thompson v. State of Utah, 110 U. S. 343, 18 Sup. Ct. 630, 43 L. Ed. 1061, Mr. Justice Harlan, delivering the opinion of the court, used this language:

“It is not necessary to review the numerous cases in which the courts have determined whether particular statutes come within the constitutional prohibition of ex post facto laws. It is sufficient now to say that a statute belongs to that class which by its necessary operation and 'in its relation to the offense, or its consequences, alters the situation of the accused to his- disadvantage.’ U. S. v. Hall, 8 Wash. C. C. 366, Fed. Cas. No. 15,285; Kring v. Missouri, 107 U. S. 221, 228, 2 Sup. Ct. 443 [27 L. Ed. 5061 ; In re Medley, 134 U. S. 160, 171, 10 Sup. Ct. 384 [33 L. Ed. 835]. Of course, a statute is not of that class unless it materially impairs the right of the accused to have the question of his guilt determined according to the law as it was then when the offense was committed. And, therefore, it is well settled that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offense charged against him. Cooley, in his treatise on Constitutional Limitations, after referring to some of the adjudged cases relating to ex post facto laws, says: 'But, so far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the Legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice and heard only by the courts in existence when its facts arose. The Legislature may abolish courts and create new ones, and if may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime.5 Chapter 9, *272. And this view was- substantially approved by this court in Wring v. Missouri, above cited. So, in Hopt v. Utah, 110 U. S. 574, 590, 4 Sup. Ct. 202 [28 L. Ed. 262], it was said that no one had a vested right in mere modes of procedure, and that it was for the state, upon grounds of public policy, to regulate procedure at its pleasure. This court, in Duncan v. Missouri, 152 U. S. 378, 382, 14 Sup. Ct. 570 [38 L. Ed. 485], said that statutes regulating procedure, if they leave untouched all the substantial protections with which existing law surrounds the person accused of crime, are not within the constitutional inhibition of ex post facto laws. But it was held in Hopt v. Utah, above cited, that a statute that takes from the accused a substantial right given to him by the law in force at the time to which his guilt relates would be ex post facto in its nature and operation, and that legislation of that kind cannot be sustained simply because, in a general sense, it may be said to regulate procedure. The"difficulty is not so much as to the soundness of the general rule that an accused has no vested right in particular modes of procedure as in determining whether particular statutes by their operation take from an accused anjr right that was regarded, at the time of the adoption of the Constitution, as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him. Now Thompson’s crime, when committed, was punishable by the territory of Utah proceeding in all its legislation under the sanction of and in subordination to the authority of the United States. The court below substituted, as a basis of judgment and sentence to imprisonment in the penitentiary, the unanimous verdict of 8 jurors in place of a unanimous verdict of IS. It cannot, therefore, be said that the Constitution of Utah, when applied to Thompson’s case, did not deprive him of a substantial right involved in his liberty, and did not materially alter the situation to his disadvantage. If, in respect to felonies committed in Utah while it was a territory, it was competent for the state to prescribe a jury of eight persons, it could just as well have prescribed a jury of four or two, and, perhaps have dispensed altogether with a jury and provided for a trial before a single judge.”

That the right to be exempt from prosecution for an infamous crime, except upon presentment by a grand jury, is of the same nature as the right to a trial by a petit jury of the number fixed by the common law, has been held by the Supreme Court of the United States, in the ease of Maxwell v. Dow. 176 U. S. 582, 20 Sup. Ct. 448, 494, 44 L. Ed. 597. Mr. Justice Peekham, who delivered the opinion of the court, used this language:

“In our opinion the right to be exempt from prosecution for an infamous crime, except upon a presentment by a grand jury, is of the same nature as the right to a petit jury of the number fixed by the common law. * * * The right to be proceeded against only by indictment, and the right to a trial by 12 jurors, are of the same nature, and are subject to the same judgment, and the people in the several states have the same right to provide by their organic law for the change of both or either.”

In Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849, Mr. Justice Miller reviews the fifth amendment to the Constitution of the United States, and considers the nature and value of the institution of the grand jury:

“The importance of the part played by the grand jury in England cannot be better illustrated than by the language of Justice Field, in a Charge to a Grand Jury, reported in 2 Sawy. (U. S.) 667 [Fed. Cas. No. 18,255] : ‘The institution of the grand jury,’ he says, ‘is of very ancient order in the history of England —it goes back many centuries. For a long period its powers were not clearly defined; and it would seem from the accounts of commentators on the laws of that country, that it was first a body which not only accused, but which also tried, public offenders. However this may have been in its origin, it was, at the time of the settlement of this country, an informing and accusing tribunal only, without whose previous action no person charged with a felony could, except in certain special cases, be put upon his trial. And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against-prosecution in his name; until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen which required the existence of the grand jury as a protection against oppressive action of the government. Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity. No person shall be required, according to the fundamental law of the country, except in the eases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than 16 nor more than 23 good and lawful men, selected from the body of the district, shall declare upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial/ The case of Hurtado v. People, 110 U. S. 516, 4 Sup. Ct. 111 [292, 28 L. Ed. 232], was a writ of error to the Supreme Court of that state (California) by a party who had been convicted of the crime of murder, in the state court, upon an information instead of an indictment. The writ of error from this court was founded on the proposition that the provision of the fourteenth amendment to the Constitution of the United States, that no state shall 'deprive any person of life, liberty, or ^property without due process of law/ required an indictment as. necessary to due process of law. This court held otherwise, and that it was within the power of the states to provide punishment of all manner of crimes without indictment by a grand jury. The nature and value of a grand jury, both in this country and in the English system of law, were much discussed in that case, with reference to Coke, Magna Charta, and to other sources of information on that subject, both in the opinion of the court and in an exhaustive review of that question by Mr. Justice Harlan in a dissenting opinion. It has been said that since there is no danger to the citizen from the oppressions of a monarch, or of any form of executive power, there is no longer need of a grand jury. But, whatever force may be given to this argument, it remains true that the grand jury is as valuable as ever in securing, in the language of Chief justice Shaw in the case of Jones v. Robbins, 8 Gray (Mass.) 329, 'individual citizens from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial, before a probable cause is established by the presentment and indictment of such a jury; and in case of high offenses it' is justly regarded as one of the securities to the innocent against hasty, malicious, and oppressive public prosecutors/ It is never to be forgotten that in the construction of the language of the Constitution here relied on, as, indeed, in all other instances where construction becomes necessary, we are to,place ourselves as nearly as possible in the condition of the men who framed that instrument. Undoubtedly the framers of this article had for a long time been absorbed in considering the arbitrary encroachments of the crown on the liberty of the subject, and were imbued with the common-law estimate of the value of the grand jury as part of its system of criminal jurisprudence. They therefore must be understood to have used the language which they did in declaring that no person should be called to answer for any capital or otherwise infamous crime, except upon an indictment or presentment of a grand jury, in the full sense of its necessity and of its value. We are of the opinion that an indictment found by a grand jury was indispensable to the power of the court to try the petitioner for the crime with which he was charged. The sentence of the court was that he should be imprisoned in the penitentiary at Albany. The case of Ex parte Wilson, 114 U. S. 418, 5 Sup. Ct. 935 [29 L. Ed. 89], and the later one of Mackin v. United States, 117 U. S. 348, 6 Sup. Ct. 777 129 L. Ed. 909], established the proposition that this prosear! hm was for an infamous crime within the meaning of the constitutional provision. It only remains to consider whether this change in the indictment deprived the court of the power of proceeding to try the petitioner and sentence him to the imprisonment provided for in the statute. We have no difficulty in holding that the indictment on which he was tried was no indictment of a grand jury. The decisions which we have already referred to, as well as sound principle, require us to hold that after the indictment was changed it was no longer the indictment of the .grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at -the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as joresented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite to an indictment in reality no longer exists. It is of no avail, under such circumstances, to say that the court has jurisdiction of the person and of the crime, for, though it has possession of the person, and would have jurisdiction of the crime if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment. If there is nothing before the court which the prisoner, in the language of the Constitution, can be “held to' answer/ he is then entitled to be discharged so far as the offense originally presented to the court by the indictment is concerned. The power of the court to proceed to try the prisoner is as much arrested as if an indictment had been dismissed or a nolle prosequi had been entered. There was nothing before the court on which it could hear evidence or pronounce sentence.”

The Supreme Court of Utah, after the decision of the Supreme Court of the United States in Thompson v. Utah, supra, held, in the case of State v. Rock, 20 Utah, 38, 57 Pac. 532, that:

“As to all offenses committed against the laws of Utah prior to its admission as a state, section 4688, Kev. St. 1898, alters the situation of a partjr charged with an offense committed prior to-statehood to his disadvantage, and is an ex post facto law. A person charged with having committed an offense prior to statehood had a constitutional right, under the laws of Congress and the territorial laws then in effect, to be prosecuted only upon indictment presented by a grand jury, and he may not be prosecuted by way of information.”

Justice Miner, delivering the opinion of the court, used this language:

“To hold that a state could deprive the accused of his liberty by examination before a magistrate, and by the filing of an information by the prosecuting attorney, without the presentment of an indictment found by a grand jury, for an offense committed while Utah was a territory, and under the laws of Congress, would be to recognize in a state power to do that which Congress could not do by legislation, and the right to take from the accused a constitutional right which belonged to him when the offense was committed. * * * Under the decision of Thompson v. Utah, supra, it must follow that the prosecuting attorney had no authority to file the information against the respondent for the offense committed prior to the admission of the state into the Union. The grand jury is the proper tribunal before whom the accused should be brought.”

In McCarty v. State, 1 Wash. St. 377, 25 Pac. 299, 22 Am. St. Rep. 152, it was held:

“One charged with a larceny in Washington Territory, prior to its admission as a state, is entitled under the Constitution of the United States to a presentment by a grand jury,' and cannot be prosecuted by information under the authority of the Constitution of Washington and the act of January 29, 1890, in pursuance thereof, since the substitution of prosecution by information for that by indictment was not a mere change of procedure, but affected a substantial, right, which could not be taken away by retroactive legislation.”

See, also, State v. Kingsley, 10 Mont. 537, 26 Pac. 1066; State v. Ardoin, 51 La. Ann. 169, 24 South. 802, 72 Am. St. Rep. 454.

In Miller v. State, 3 Okla. Cr. 457, 106 Pac. 810, this court held that:

“In determining questions of federal cognizance, this court is bound to enforce the protection of the federal Constitution and to adopt and be governed by the rule of decision adjudicated in the Supreme Court of the United States.”

Applying the principles of the foregoing authorities to the question presented, we believe they establish our conclusion, that the state cannot proceed by information against a person charged with the commission of a felony in the territory of Oklahoma before statehood. It may be that in a popular government the grand jury is not as important as it is when used to protect the citizen from the tyrannjr and oppression of kings, and that it is no longer considered one of the “greatest bulwarks of liberty.” That a preliminary examination gives to the accused ¿11 the protection, and even more than he would have had from a grand jury, is a plausible argument that meets popular favor. Nevertheless, experience has shown that even in popular governments the rights and privileges of the citizen may be. ruthlessly invaded, as shown by the conditions that led to the adoption of the fifth article of the amendments to the Constitution of the United States. The framers of our state Constitution provided that: “The Legislature may make the calling of a grand jury compulsory.” Section 18, Bill of Rights. It may be, in the interest of good government, that the trial of offenses by indictment should bo dispensed with; however, whether or not it is wise, so to do is a question which is addressed to the people, and not to the courts.

The courts of this state; in exercising the jurisdiction conferred upon them by the Enabling Act and the state Constitution over crimes committed in Oklahoma Territory, cannot deprive the accused of substantial rights secured to him by the Constitution of the United States, such as depriving him of the right to be accused by indictment for an infamous crime, or the right to be tried by a common-law jury. The constitutional guaranty is a substantial right given by the law in force at the time the crime charged is alleged to have been committed, and any law which operates as a denial of this right alters the situation of the accused to his disadvantage, and is therefore ex post facto as to such crime.

Adopting the language of Judge Denio, in Hartung v. People, 22 N Y. 95:

“No one can be criminally punished in this country except according to law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time.”

A formal accusation is essential to every trial for crime. And, where the law requires a particular form of accusation, that form of accusation is essential. Without it the court acquires no jurisdiction to proceed. In the language of the Supreme Court of Massachusetts:

“Though it is desirable that all offenders against our penal laws should be punished, yet it is better that one should occasionally escape than that the fundamental principles of the criminal law should be violated.” (Com. v. McDonough, 13 Allen, 581.)

We are of opinion that the district court of Beaver county did not, upon the ease shown by the record, have jurisdiction to try, convict, and sentence defendant for a crime charged to have been committed in Oklahoma Territory.

The judgment is reversed, and the cause remanded.

FURMAN, Presiding Judge,' and BICHABDSON, Judge, concur.


source: Caselaw Access Project

author: BICHAPCDSON, Judge.

license: Public Domain

text:
    STEWART et al. v. STATE.
    No. A-235.
    Opinion Filed June 8, 1910.
    Rehearing Denied December 22, 1910.
    (109 Pac. 243.)
    1. CRIMINAL LAW — Crimes—What Constitutes. It is the exclusive province of the Legislature to declare what shall constitute a crime; but it is the duty of the courts to determine whether a particular act done or omitted is within the intendment of a general statute.
    2. CRIMINAL LAW — Crimes—Description. The Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result.
    3. BREACH OF THE PEACE — Disturbing the Peace — Validity of Statute. Section 2782,, Snyder’s Comp. Laws Okla., which provides that “every person who wilfully and wrongfully commits • any act * * * which grossly disturbs the public peace or health, * * * although no punishment is expressly prescribed therefor by this code, i® guilty of a misdemeanor,” is not void for uncertainty; and whooping and yelling and uttering loud and vociferous language are acts prohibited thereby, if they grossly disturb the public peace.
    4. CRIMINAL LAW — Crimes—Common-Law Definition. There are no common-law crimes in this state; but, where the Legislature creates, without defining, an offense which was a crime under the common law, the common-law definition of the crime will toe adopted.
    5. NEW TRIAL — Bias of Juror. Where a motion for a new trial in a criminal case alleged that one of the trial jurors was prejudiced against the defendant, and prior to the tirial had stated that the defendant was guilty and should be convicted, which fact was unknown to the defendant or his counsel until after the trial, and which allegation is supported by the affidavit of the person to whom the juror is alleged1 to have made the statement, such allegation thus supported by affidavit tenders an issue which the prosecution should meet and the court should try out; and, if no counter showing is made by the state, the allegation will ordinarily be taken as true.
    6. SAME — Guilt Admitted. Where the accused testifies in his own behalf and admits his guilt under oath, a new trial should not be granted on account of the prejudice of a trial juror.
    (Syllabus by the Court.)

      Appeal from Cleveland County Court; N. IS. Sharp, Judge.

    Fred Stewart, Claude Stewart, Earl Stewart, Charlie Wilson, Frank Wilson, Charley Blanton, Jess Blanton, Ira Butler, and Walter Butler were convicted of grossly disturbing the public peace, and their punishment was assessed at a fine of $15 each. They filed a motion for a new trial, which was heard and overruled, and they appeal.
    Affirmed.

      Williams & Williams and S. A. J-Im'ton, for plaintiffs in error.

      Chas. West, Atty. Gen., Chas. L. Moore, Asst. Atty. Gen., and George G. Graham, Co. Atty., for the State.
   BICHAPCDSON, Judge.

The information in this- case charged that the plaintiffs in error did “unlawfully, wilfully, and wrongfully commit divers acts of yelling, hollering, and uttering loud and vociferous language, thereby grossly disturbing the public peace of said community.” The information was drawn under running section 2650, Wilson’s Bev. & Ann. St. 1903 (section 2782, Snyder’s Comp. Laws), which reads as follows:

“Every person who wilfully and wrongfully commits any act which * * * grossly disturbs the public peace or health, * * * although no punishment is expressly prescribed therefor by this chapter is guilty of a misdemeanor.”

We are met at the threshold of our consideration of this ease by the contention that this statute is void for uncertainty; that the Legislature, and not the courts, must declare what acts are criminal; and that it cannot be left to the court or the jury trying the cause to determine.what acts do or do not constitute an offense. In support of this contention it is urged that there are no common-law crimes in this state, for the reason that our statutes (Snyder’s Comp. Laws, § 2019) provide that “no act or omission shall be deemed criminal or punishable except as prescribed or authorized by the statutes of this state,” and that, therefore, the common law cannot be resorted to for the purpose of supplying the omissions or correcting the uncertainties of the act in question. Also, there is cited the case of Jennings v. State, 16 Ind. 335, where it is held that a statute declaring it an offense for anjr person to be guilty of public indecency creates no crime, for the reason that the term "public indecency’'' is not defined by the act, and has no fixed legal definition. We are also referred to the ease of Hackney v. State, 8 Ind. 494, where it is held that there are no common-law crimes in Indiana; that the courts cannot look to the common law for the definition of a crime created but not defined by the Legislature; and that an act prohibiting the maintenance of a common nuisance and prescribing a punishment therefor creates no crime, in that it fails to provide what shall constitute a public nuisance. We find, however, that those cases have been overruled by the Supreme Court of Indiana.

That it is the exclusive province of the Legislature to declare what shall constitute a crime, and that neither the court nor the jury have any such power, is undoubtedly true. But the statement of that fact'alone furnishes no answer to the question raised. Ordinarily the Legislature speaks only in general terms, and for that reason it often becomes the duty of the court to construe and interpret a statute in a particular case for the purpose of arriving at the legislative intent, and of determining whether a particular act done or omitted falls within the intended inhibition or commandment of such statute. And the lawmaking power in this state has laid down for the courts in section 2027, Snyder’s Comp. Laws Okla., a rule for the construction of criminal statutes, as follows: '

"The rule of the common law that penal statutes are to be strictly construed has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”

Section 2020, Snyder’s Comp. Laws Okla., defines a crime or public offense in substance to be an act or omission forbidden by law to which a punishment is annexed upon conviction. Now, in creating an offense the Legislature, we apprehend, may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces or is reasonably calculated to produce a certain defined or described result. As one instance of the former, it is made an offense by our statutes for any person to carry concealed on or abont bis person, saddle,- or saddle bags any pistol, revolver, bowie knife, etc. That is a certain described act. The result of the act is immaterial, and the offense can be committed only by doing the certain act, namely, carrying one of the prohibited weapons concealed about the person, or about one’s saddle or saddle bags. On the other hand, let us examine the law defining murder. Under our statutes (section 2268, Snyder’s Comp. Laws Okla.) murder is the killing of one human being by another in the following cases:

“(1) When perpetrated without authority of law, and with 'a premeditated diesign to effect the death of the person killed or of any other human being. (2) When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. (3) When perpetrated without any design to effect death by a person engaged in the commission of any felony.”

Here no particular act is defined or described. Any act, whatever it may be, done under the circumstances stated, and which produces a certain result, namely, the death of a human being, is denounced as murder. Under the first subdivision, it may be committed by shooting, stabbing, striking, hanging, burning, drowning, poisoning, or by any other act which is capable of producing the death of a human being. It may even be committed by a parent by wilfully starving his child, or by abandoning it so that it die. And the same is true of the second subdivision of the definition of the crime — any act done which is imminently dangerous to others and evinces a depraved mind, regardless of human life, and which results in death is murder, even though there be no actual intent to injure any one. Section 2272, Snyder’s Comp. Laws. And the same may be said of the general definitions of manslaughter in both the first and second degree. The Legislature does not undertake to describe the act or acts by which any of the degrees of unlawful homicide may be committed. It makes unlawful any act committed under the circumstances stated, and which produces the death of a human being. This is true, also, of many other of our statutes creating crimes and offenses. The statutes of many of the states defining murder and manslaughter, as well as many other crimes, are almost identical with ours; and yet we have never heard the validity of any of these statutes questioned. And, if they are valid, we can see no reason why the statute under which this prosecution was instituted and carried on is not good. If the statute in question is void for uncertainty because the Legislature failed to enumerate or describe the particular acts constituting it, then what can be said of the statutory definition of murder, and especially the second subdivision thereof, which says that homicide is murder “when perpetrated by an act imminently dangerous^ to others and evincing a depraved mind, x’egardless of human life, although without any premeditated design to effect the death of any particular individual”? The statute under consideration says that “every person who wilfully and wrongfully commits any act which grossly disturbs the public peace is guilty of a misdemeanor.” Is one any more uncertain than the other? In the former the act must be imminently dangerous to others and must evince a depraved mind, regardless of human life, and must result in the death of a human being. In the latter the act must be wilful and wrongful, and it must produce a certain result, namely, the gross disturbance of the public peace.

Now the expressions “public peace,” “breach of the public peace,” and “disturbance of the public peace” are legal terms, often defined and well understood. They had a fixed and definite meaning under the common law. Neuendorff v. Duryea, 6 Daly (N. Y.) 276; State v. Benedict, 11 Vt. 236, 34 Am. Dec. 688. In Galvin v. State, 6 Cold. (Tenn.) 294, it was said that “a breach of the peace is a violation of public order; the offense of disturbing the public peace. An act of public indecorum is also a breach of the peace.” In People v. Bartz, 53 Mich. 493, 19 N. W. 161, it is said:

“The term ‘breach of the peace’ is generic, and includes riotous and unlawful assemblies, riots, affrays, forcible entry and de-tainer, the wanton discharge of fire arms so near the chamber of a sick person as to cause injury, the sending of challenges and provoking to fight, going armed in public without lawful occasion in such manner as to alarm the public, and many other acts of a similar character.”

And it was there held that the discharge of a firearm in a public place was a breach of the peace.

In Davis v. Burgess, 54 Mich 514, 20 N. W. 540, 52 Am. Rep. 828, it is said:

“Now what is understood by breach of the peace? By ‘peace’ as used in the law in this connection is meant the tranquility enjoyed by the citizens of a municipality or community where good order reigns among its members. It is the natural right of all persons in political society, and any intentional violation of that right is a breach of the peace. It is the offense of disturbing the public peace, or a violation of public order or public decorum. Actual violence is not an essential element in the offense. If it were, communities might be kept in a constant state of turmoil, fear and anticipated danger from the wicked language and conduct of a guilty party, not only destructive of the peace of the citizens, but of public morals, without the commission of the offense. The good sense and morality of the law forbid such a construction.”

This definition is discussed and approved in State v. White, 18 R. I. 473, 28 Atl. 968. In Scougale v. Sweet, 124 Mich 311, 82 N. W. 1061, the former definition given by the Supreme Court of Michigan was reviewed and approved, and it was there stated that “a breach of the peace is a violation of public order; the offense of disturbing the public peace. An act of public indecorum is also a breach of the peace” — citing Bouvier’s Law Dictionary.

It is true that there are no common-law crimes in this state, but nevertheless, when the Legislature creates without defining an offense which was a crime under the common law, the common-law definition of the crime will be adopted. This is reasonable, and is sustained by plenty of authority. For instance, there are no common-law crimes against the United States and the United States courts can take cognizance only of offenses made punishable by some express provision of the Constitution, laws, or treaties of the United States. United States v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591; Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419. But it is uniformly held in the United States courts that, when Congress creates a common-law offense without defining it, the courts will look to the common law for the definition of the crime. In re Greene (C. C.) 52 Fed. 104; United States v. Cardish (D. C.) 143 Fed. 640. In Pettibone v. United States, supra, Chief Justice Fuller said:

. “The courts of the United States have no jurisdiction over offenses not made punishable by the Constitution,.laws, or treaties of the United States, but they resort to the common law for the definition of terms by which offenses are designated.”

No statute of the United States defines murder. Section 5339 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3627) merely provides that “every person who commits murder” in any place under the exclusive jurisdiction of the United States • “shall suffer death,” and by Act Jan. 15, 1897, c. 29, 29 Stat. 487' (U. S. Comp. St. 1901, p. 3620), it is provided that the jury may qualify their verdict so as to provide for life imprisonment, instead of the assessment-of the death penalty. And the United States courts have uniformly said that, inasmuch as the statutes do not define the crime of murder, resort must be had to the common law for its definition. United States v. King (C. C. 34 Fed. 302; United States v. Lewis (C. C.) 111 Fed. 630; United States v. Outerbridge, 5 Sawy. 620, Fed. Cas. No. 15,978.

In State v. De Wolfe, 67 Neb. 321, 93 N. W. 746, it is said that, while there are in Nebraska no common-law crimes, yet the definition of an act, forbidden by statute, but not defined by it, may be ascertained by reference to the common law. To the same effect are the cases of Benson v. State, 5 Minn. 19 (Gil. 6), and Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833. In Wall v. State, 23 Ind. 150, the cases of Hackney v. State, 8 Ind. 494, and Jennings v. State, 16 Ind. 335, plaintiffs in error’s sole reliance, were expressly overruled. And in the case of Burke v. State, 27 Ind. 430, which reviewed a prosecution under a statute providing that “every person who shall erect, or continue and maintain, any public nuisance, to the injury of any part of the citizens.of this state, shall be fined,” etc., the court said:

“It is argued that as offenses in this state are created exclusively by statute, and, as we have an act requiring them to be defined by statute (1 Gr. & H. 416), the section above quoted is void, because it does not give the definition of a public nuisance. In Wall v. State, 23 Ind. 150, we had occasion to consider whether the Legislature, at one session, had any power to trammel a future session, as was supposed to be done by the enactment last referred to. It was held in the negative. But in any event, it would not avail the defendant in this case. There is no difficulty in understanding the section of the statute upon which this prosecution was founded. The phrase ‘public nuisance’ had a very definite meaning in the law long before the statute was enacted. To annex a definition of each word employed in the section was certainty never within the purpose of the- Legislature. Such absurdity is not'to be imputed to the law-maldng power. Was it then intended that in creating a crime, words having a comprehensive and exact legal meaning, embracing much in brief, must not be employed; that the virtue of such legislation should depend upon the vastness of its circumlocution? It is hardly conceivable that anything more was intended than that there should be no criminal prosecution in this state for any act, unless the Legislature had first declared it a crime, in intelligible terms, and fixed the punishment therefor. In that sense the enactment against public nuisances is consistent with it. It defines — i. e. marks out, with distinctness — a public nuisance as a crime.”

In State v. Oskins, 28 Ind. 364, the same court held a statute-good which provided that.“any"person who shall molest or disturb any meeting of inhabitants of this state met together for any lawful purpose shall be fined,” etc., saying that “the words ‘molest or disturb’ have a well-defined meaning.” See, also, Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, and State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117, in which latter case the court, said, in substance, that while there are no common-law offenses in Indiana, and criminal prosecutions can be maintained only for offenses prescribed by statute, yet, where the statute does not specifically define the offense created, the common-law definition will be adopted. Here the court also refers to the overruled case of Hackney v. State, and says: “All we need say of that case is that the doctrine which it declared has been completely exploded.”

New York has a statute' almost identical with the one under consideration; the only difference being that where our statute uses the expression, “which grossly disturbs the public peace or health;” the New York statute reads, “which seriously disturbs or endangers the public peace or health.” And in People v. Most, 36 Misc. Rep. 139, 73 N. Y. Supp. 220, the statute was held good; the court saying:

“The plain and obvious intent of this was to leave in the Code a little-of the flexibility of the common law to meet cases which they had failed to specify in the preceding sections. That the words of this section are general is just what might be expected from the nature of the case. The purpose of the section is to try offenders for something not ‘expressly prescribed by this Coded If the offense was one expressly prescribed bv the Code, then clearly the offender must be tried under the section prescribing it. It is only offenses not prescribed in the Code that can be tried under this section.”

And in People v. Wallace, 85 App. Div. 170, 83 N. Y. Supp. 130, a conviction under the same statute was sustained. It is our conclusion that the statute is valid and enforceable; that any act which is wilful and wrongful, and which results in grossly disturbing the peace, is within its terms; that the acts charged in the information were well calculated to grossly disturb the peace, and if they actually did so, as the‘jury found, they constituted a violation of the statute in question, and were punishable.

The only other question presented and properly raised is that plaintiffs in error did not have a fair and impartial trial, in that one of the trial jurors was prejudiced against them, and had previously declared his belief of their guilt. This was alleged in the motion for a new trial, and was supported by the affidavit of one person who swore that prior to the trial he talked with said juror, and that the latter stated that in his opinion plaintiffs in error were guilty and should be convicted. The state offered nothing in rebuttal of tbis affidavit, but stood on the statements of the juror made under oath on his voir dire to the effect that he knew nothing about the case and had formed or expressed no opinion in regard to the guilt or innocence of plaintiffs in error. We doubt whether the state may do this. Such an affidavit would seem to require a counter showing on the part of the state, especially if the oral testimony or the affidavit of the juror is obtainable. In other words, such an allegation supported by affidavit tenders an issue which the state should meet and the court should try out; and ordinarily, where no counter showing is made, the statements in the affidavit must be taken as true.

But in this case this matter furnishes no ground for a reversal, for the reason that all of the plaintiffs in error took the stand and admitted their guilt except Ira Butler, and practically all of the others testified that he was a participant in the offense. The testimony shows that they congregated at a public schoolhouse at night without the permission and against the will of the board of trustees, that they continually rang the large school bell, and whooped and yelled at intervals for an hour or two; that they were heard for more than a mile; that they disturbed at least two families in one of which there was an old lady feeble and sick. Here is a sample of plaintiffs in error’s own testimony:

“Q. Did you holler? A. Why, we hollered a little. Q. Did you holler very loud? A. Sometimes we hollered I guess loud. Q. Was the hollering you did out there calculated to disturb' anybody’s peace? A. It might have.”

As was said by Justice Harlan in Motes v. United States, 178 U. S. 458, 20 Sup. Ct. 993, 44 L. Ed. 1150, where the court held the defendant’s constitutional right to have been violated by the introduction of certain evidence against him, “it would be trifling with the administration of the criminal law to award him a new trial because of a particular error committed by the trial court, when, in effect, he has stated under oath that he was guilty of the charge preferred against him.”

Error in certain of the instructions given is urged, but the record discloses no exceptions saved to the instructions complained of.

The judgment of the county court will therefore be affirmed.

FURMAN PRESIDING Judge, and BOYLE, Judge, concur.'


text:
    ANGELO GRETTI v. STATE.
    No. A-382.
    Opinion Filed December 24, 1910.
    WEAPONS — Carrying and Pointing — Information—Duplicity. Where the defendant was charged in the information with carrying a deadly weapon with the intent of injuring his fellow men, and in the same count also charged with unlawfully pointing a deadly weapon at another person, said information is bad for duplicity, and a demurrer thereto should be sustained.
    (Syllabus by the Court.)

      Appeal from County Court, Coal County; B. U. Wells, Judge.

    Angelo Gretti was convicted of pointing a deadly weapon at another, and he appeals.
    Reversed and remanded,

      A. D. Brown, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge.

Angelo Gretti, plaintiff in error, was convicted in the County Court of Coal County for the crime of pointing a deadly weapon at another person. The jury assessed his punishment at a fine of one hundred dollars and three months’ imprisonment in the county jail. The judgment and sentence was entered on August 25, 1909. From such judgment an appeal was perfected by filing in this court on October 23, 1909, a petition in error with case-made attached.

The information, omitting the title and verification, reads as follows:

“In the name and by the authority of the State of Oklahoma. Now comes J. B. Wood, the duly qualified and acting county attorney in and for Coal County, State of Oklahoma, upon his official oath and gives the County Court of Coal County, State of Oklahoma, to know and be informed that one Angelo Gretti. did, in Coal County, State of Oklahoma, on or about the 3rd day of April, in the year of our Lord, nineteen hundred and nine, commit the crime of carrying and pointing a deadly weapon in the manner and form as follows: that the said Angelo Gretti did wil-fully and maliciously carry a certain deadly weapon, to wit, a double barrel shotgun with the intent of him, the said Angelo Gretti, then and there to injure his fellow man, to wit: the said Elizabeth Catarello, and for the avowed purpose of him, the said Angelo Gretti, then and there to injure her, the said Elizabeth Catarello. And your informant does further say that on the said 3rd day of April, 1909, in said County of Coal and State of Oklahoma, the said Angelo Gretti did then and there, unlawfully, wilfully and maliciously point a deadly weapon, to wit, a double barrel shotgun, at another person, to-wit, the said Elizabeth Catarello, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.”

Upon arraignment the defendant filed a demurrer, on the ground that more than one offense is charged in the information:

“The said information charges the said defendant with having colnmitted two separate and distinct offenses, in this to wit: ‘That, in violation of section 2751, Snyder’s Statutes, the defendant did carry a deadly weapon with intent to injure his fellow man.’ That in violation of section 2752, Snyder’s Statutes, ‘The defendant did unlawfully point a deadly weapon at another person.’ ”

Which demurrer was by the court overruled, and exception allowed.

We can see no reason why the information is not bad for duplicity. It charges two substantive offenses in the same count. It follows that the demurrer to the information was well taken and it was error to overrule the same. The question presented has been frequently passed upon by this court. Wells v. Territory, 1 Okla. Cr. 469, 96 Pac. 483; Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Degraff v. State, 2 Okla. Cr. 519, 103 Pac. 538.

The judgment oí conviction is therefore reversed and the canse remanded.

FURMAN, Presiding Judge, and RICHARDSON, Judge, concur.


author: FTJBMAN, PRESIDING Judge. PEE CUBIAM.

text:
    JOHN BOUTCHER v. STATE.
    No. A-165.
    Opinion Filed November 23, 1910.
    Rehearing Denied January 5, 1911.
    1. TRIAL — Opening Statement to Jury. After the jury has been empaneled, and before the witnesses have testified in the case, the county attorney has the right to make an opening statement of the facts to the jury so as to enable them to understand the issues presented and see the relation of the facts to each' other as they are introduced in evidence. This opening statement is made subject to the control of the trial judge.
    2. INSTRUCTIONS — Requests Covered by General Charge. When the jury are correctly instructed as to the law of the case in the general charge of the court, it is not error to refuse special instructions, though correct, when those requested are only a repetition of that which had been previously given to the jury.
    3. JURY — Disqualifications—Excusing by Court Without Challenge. If, for any reason, the trial court is of the opinion or even suspects that any juror is not fair and impartial, it is the right and duty of such court to excuse such juror, either upon the challenge of one of the parties; or upon motion of the court, and such action will he upheld upon appeal unless it clearly appears from) the record the trial court had abused Its discretion to the injury of the defendant.
    4. APPEAL — Instructions—Necessity of Exceptions. Where no exceptions) are reserved to the instructions of the court, none except fundamental errors will he considered by this court.
    5. ■ HOMICIDE — Self-Defense—Mutual Combat. When a defendant voiuntarilv enters into a mortal combat with the deceased, knowing or having reason to believe that it will or pronaDly may result in death or serious bodily injury to himseir or to the deceased, the defendant cannot claim that he acted in self-defense in taking the life of the deceased, it matters not to what extremity he may he reduced in the conflict; and such killing- will be murder, unless before the fatal -shot is fired, he in good faith withdrew or attempted to withdraw from the combat, , and either by word or act made that fact known t'o the deceased, and the latter thereafter continued to press him, and gave the defendant reasonable cause to believe that he was in danger of being killed or of receiving great bodily injury at the deceased’s hands.
    6. HOMICIDE — Manslaughter—Sufficiency of Evidence. Por facts sustaining a conviction for manslaughter upon the ground of mutual coriibat, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Coal Comity; A. T. West, Judge.

    Defendant was convicted of the crime of manslaughter and sentenced, to four years’ confinement in the state penitentiary, and he appeals.
    Affirmed.

      Cutler, Tmce & Mclnnis, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FTJBMAN, PRESIDING Judge.

First. Counsel for the appellant complain that “the court erred in permitting the county attorney, over the objection of plaintiff in error, to state to the jury what facts he expected to prove on the trial of said cause, said statement being made before the giving of any testimony in the ease, and just after the empaneling of the jury.” This question has been passed upon adversely to the contention of counsel in the case of Sturgis v. State, 2 Okla. Cr. 362. There this court saidi

“This statement is made to enable the jury to understand the issues before them and more readily see the relation of each fact relied upon to the issues presented. It is therefore proper to state fully the questions which the jury will be called upon to decide, so that they may start their investigation with a clear conception of what is before them.”

The opening statement should be made subject to the control of the-trial judge.

Second. The killing was admitted and the plea of self-defense was interposed. A number of special instructions upon the law of self-defense were, requested by the defendant and refused by the court. Upon examination we find that the law contained in the special instructions requested and refused was contained in the general instructions given to the jury. Where the law is correctly giten in the main charge of the court, it is not error to refuse special instructions which, though correct, are only a repetition of that which was previously given to the jury. We therefore hold that the court did not err in refusing to give the. special instructions requested by the defendant, because the law had already been given in the general charge of the court.

Third. Counsel for the defendant complain that the court ■■erred, while the jury was being empaneled, by holding that the .jurors Marsh Landon and W. R. Hunt were disqualified. The record discloses the following facts with reference to said jurors:

“Marsh Landon, one of the jurors testified as follows: Q. You live at Lehigh? A. Yes. Q.' You were present at the preliminary examination of this case? A. Yes, a part of it. Q. You .heard witnesses testify in the case? A. Yes. Q. State whether ■or not from the testimony that you heard, you formed an opinion •as to the guilt or innocence of this defendant? A. No, sir; I do not know that 1 formed any opinion. Q. Did you remain in the ■court room until this preliminary trial was concluded? A. No, •.sir; I think not. The Court: Did you hear the defendant testify in the case? Mr. Woods: He did not testify. Q. Have you now any opinion as to the guilt or innocence of the defendant? A. No, sir. Q. How many witnesses did you hear testify in the preliminary examination? A. I could not say. Q. Did you hear ■as many as two? A. Yes, I think as many as two. Q. Did you hear the Indian testify? A. No, sir; I did not hear him. Q. Were the witnesses you heard men or women? A. One woman, -and I do not remember the man; there was one called directly after her — I do not remember his name. Mr. Trice: Q. Have you now any opinion as to the guilt or innocence of this defendant? A. No, sir. Q. Have you from hearsay or otherwise formed such ■an opinion as to the guilt or innocence of this defendant as would influence you in rendering a verdict? A. No, sir. Q. Can you now .go into the jury box and give this defendant a fair and impartial trial according to the law and the evidence in the case? A. Yes. 'The Court: From the witnesses that you have heard testify in the preliminary examination, did they purport to detail the occurence there that morning — in other words, did they go ahead and tell all about the killing? A. Yes, I think that the lady did. Q. She detailed all of the circumstances of the killing? A. Yes. The Court: This juror will be excused. Mr. Trice: The defendant excepts to the ruling of the court. W. B. Hunt, one of the jurors, testified as follows: Q. How many witnesses did you hear testify in this case on the preliminary trial? A. One or two. Q. The witnesses that you heard testify, did they detail the circumstances of the killing? A. Yes, I heard that woman and a man; I do not remember the man’s name. Q. And they detailed the circumstances of the killing there in your presence? A. Yes. The Court: It seems to me that where a juror has sat and listened to the detailed circumstances of the homicide, that he would certainly be disqualified. The cliefendant is entitled to a fair and impartial trial and the state is entitled to a fair and impartial hearing, and I believe that I will excuse this juror. The defendant excepted to the ruling of the court.”

The contention of the defendant is that the court was without power to excuse a juror upon its own motion. With this contention we cannot agree. Necessarily a very large discretion'is vested in the trial court in determining the competency and qualifications of jurors; and its discretion in doing so will never be disturbed by the appellate court, unless the record clearly shows an abuse of this discretion to the injury of the defendant: The defendant has no vested right to have any member of the panel sit upon the jury until after he has been accepted and sworn as a juror. The right of the defendant with reference to the members of the panel is that of rejection rather than of selection. If, for apy reason, the trial court is of the opinion or even suspects that any given juror is not fair and impartial or is otherwise disqualified, it is not only the right but it is also the duty of the court to excuse such juror either upon the challenge of one of the parties or upon the motion of the court without such challenge. In Cochran and Blevine v. U. S., 14 Okla. 111, Judge Burwell said:

“But it is said that the court, on its own motion, excused a juror after the defendant’s challenges were all exhausted. It not only had a right to do so, but, if the juror- was not a proper person, it was its duty to excuse him, and it was under no obligation to assign any reason therefor. The argument that such a rule affords courts an opportunity to Tailroad’ defendants to the penitentiary has no force, for the power could just as easily be used to acquit a criminal. That the inherent power exists, in the absence of statute, there can be no doubt; and if an unbiased, qualified juror is put in his place a defendant cannot complain, as he had no legal right to be tiled by any particular jury. It is only after the jury has been sworn that a defendant can insist that his cause be submitted to them. (City of Guthre v. Shaffer, 7 Okla. 459, 49 Pac. 698). As contended by the defendant, if the court can excuse one juror it may excuse more, but it is reasonable to assume that a trial court will exercise a wise discretion in the matter. If however, the record shows that it has abused its discretion, the appellate court may review its action and grant a new trial. Experience has taught us that more errors are made by trial courts in favor of defendants than against them; and this is because of the fundamental principle which underlies our criminal jurisprudence: That the defendant is entitled to the benefit of every reasonable doubt. This doubt is extended to him, not only by the jury when weighing the evidence, but also by the courts in construing the law; and that courts hesitate to exercise the power complained of hero is evidenced by the fact that this is the first time since the organization of the territory that this court’s attention has been directed to a question of this kind in a criminal case. A trial court might, in a thousand ways, exercise its power to the detriment of a defendant, yet this same power is absolutely essential to his protection, and courts should not exist without it. It is' not claimed that the juror selected in the place of the one excused was not qualified, was not selected as provided by law, or was biased or prejudiced. This being true the defendant cannot complain.”

Fourth. No exceptions were reserved to the instructions given. We find them free from fundamental errors. We therefore will not consider the criticisms contained in the brief on these instructions.

Fifth. It is contended that the verdict of the jury is not supported by the testimony. The defendant and the deceased were brothers-in-law, and for some time prior to the homicide the defendant had lived at the home of the deceased. E. 0. Donham testified that, on the Monday preceding the homicide, the witness traded a pistol to the defendant for a shotgun. This witness also testified that the defendant had told him that he and the deceased had had some difference about a horse; that the defendant had purchased a horse; that the deceased had promised to let him have the money to pay for it, and then refused to do so. Frank Donham, a fourteen year old boy, and a son of B. 0. Donham, testified that, between the time the defendant traded for the pistol from the father of the witness and the homicide the defendant was at the house of the father of the witness, and that the witness heard defendant say to the mother of the witness: “If Charlie Goodale ever fools with me I’ll blow him full of daylight holes.” Mrs. Mollie Goodale, the wife of the deceased and the sister of. the defendant, testified:

“Q. What relation, if any, existed between you and Charles Goodale? A. He was my husband. Q. What relation, if any, existed between you and John Boutcher, the defendant? A. He is my brother. Q. Where is your husband? A. He is dead. Q. Were you present at the difficulty that was had between them last December? A. Yes, sir. Q. Where did this difficulty occur? A. There at home, Q. Where is that? A. Three and one-half miles east of Olney. Q. Is that in Coal county? A. Yes. Q. What time of day was this difficulty? A. It was early in the morning, somewhere between seven and eight o’clock. Q. Had you had breakfast? A. Yes. Q. What day was it? A. It was Saturday, the 14th day of December. Q. 1907? A. Yes. Q. Just go on and relate to the court and jury the transaction of that difficulty just as you know it and in your own way. A. Well, the difficulty first began — my brother was going to be married on Sundaj'-, the next day, and he wanted to borrow the wagon and team; the wagon had some cotton seed on it we had just hauled in from the gin the day before; my brother asked my husband where would he put those cotton seed and he would empty the wagon for him — he wanted the wagon and team the next day. My husband told him that we wanted to use the wagon and team on Sunday; for him to go and get Mr. Grant’s wagon and team. My brother said all right, then. My husband then turned and went out of the house to go out to harness his horses. He was fixing to go after a hog that he had bought. Q. That was your husband? A. Yes, and he told me to get.the check book and fill out a check for the money for the hog. I was sitting there filling out the check; my brother was sitting there in the house— he commenced to make some remarks to me — I don’t remember just what the words were, but he was saying something about it— my husband came back in the house, and when he came in he heard him talking to me like he was and he ordered him out of the house. He got up and went out of the house and asked my husband to follow him, and I went out right behind them, and they commenced fussing. I got between them several times, begging them to hush, but neither one of them wouldn’t listen to me, and I asked my brother to leave, and he said that he would leave; he kept saying that he would, and put the saddle on his horse, but he never offered to leave, just kept standing around there and they kept jawing. I got between them several times and talked to them both, but neither one of them would listen to me at all, and my husband went and got the bridles and started to put them on the horses, but he never got to the horses with the bridles; and then I do not know if there was airy lick passed between them or not, but there was something— The defendant objects. The witness: I cannot remember where I was when my husband started in the house, but I remember of being in the house when he started out with his gun. That is the best that I can remember, and I tried to stop him with his gun and held to his gun until he went out at the door. When he went out of the door, I pushed the door to and went into the other room; when I pushed the kitchen door shut the door came back open again. Q. The 'outer door? A. Yes, the kitchen door; and I starred in the other room a few minutes and started back to them in the yard, and met my husband in the door — I could not tell how many shots were fired, there was some three or four. Q. There were some three or four shots fired? The defendant objects. The court overrules the objection. Q. Did you see your brother when you got out ? A. Yes, when I first seen him he was standing between that house and the smoke house;'then he jumped on his horse and started towards the gate and throwed his gun up and fired twice and went on down the road. Q. What direction did he go ? A. He went out at the big gate and then went east up the road.”

It was proven that deceased died from the effects of the wounds which he then received. The testimony shows that there had been a previous difference between the defendant and the deceased, and that the defendant had stated that if the deceased ever fooled with him he would blow him full of daylight holes. The purchase of the pistol under these conditions is a significant circumstance. When the altercation began in the house between the defendant and the deceased, it is immaterial as to who was in the wrong-, because when the deceased ordered the defendant to leave the house, the defendant replied by'asking the deceased to go out with him. In the light of the testimony in the case the jury was authorized to treat this invitation from the defendant to the deceased as a challenge. It at least indicated such a willingness to fight as would make the defendant liable under the law of mutual combat, and it fully justified the instructions of' the court upon that branch of the case. It is the undoubted law that if a defendant voluntarily enters into a mutual combat with the deceased, knowing or having reason to believe that it will or probably may result in death or serious bodily injury to himself or the deceased, and if, in such conflict, he slays his adversary,, he cannot claim self-defense, it matters not to what extremity he may be reduced in the conflict, and such killing will be murder, unless,. before the fatal blow is struck or the fatal shot is fired, the defendant in good faith withdrew or attempted to withdraw from the combat, and either by word or act made that fact known to the deceased, and the latter thereafter continued the assault and gave the defendant reasonable cause to believe that he was in dang-er of being killed or of receiving great bodily injury at the hands of the deceased.

If the jury had taken an extreme view of the evidence they would doubtless have convicted the defendant of murder; but it is evident that they gave him the benefit of the doubt upon the question of the intention of the defendant in inviting or challenging the deceased to go out of the house with him, and in the altercation which ensued in the yard, and found that it was not the purpose of the defendant to engage in a combat with the deceased which would endanger life or limb, but that the defendant’s intention was to engage in a combat which would not' be more than a battery; and, so believing, they were justified in convicting the defendant of manslaughter. The law with reference to such combats is clearly stated by McAdams, Special Judge, in Wood v. State, 3 Okla. Cr. 553, 107 Pac. 945, as follows:

“* ;!: * A person cannot challenge another to a mutual combat, although without intending to kill, but intending an ordinary battery merely, and avail himself of the right of self-defense, even though his adversary may respond to such challenge with a deadly weapon, and cause him to believe that his life is in danger, or that he is in danger of great bodily harm, without first notifying him by word or act that he intends to abandon the combat; and, if he kills his adversary without notifying him by word or act that he intends to abandon the combat, such killing constitutes manslaughter.
“In this case the defendant himself1 admitted that, while armed with a 45 caliber revolver, he challenged deceased to fight him, got down off his horse for that purpose, and, seeing the deceased with a revolver in his hand, and in an attitude which caused the defendant to believe he was about to be killed, drew his revolver and commenced firing at the deceased. Defendant may not have intended to draw his revolver when he challenged deceased to fight him, and may have intended only an ordinari-battery, yet this intention did not give him the right to invoke the law of self-defense, because at the very time he fired the fatal shot he was carrying out his design and purpose to fight the deceased. He had not, by word or act, given the deceased reason to believe that he intended to abandon the combat. Conceding that defendant, at the time he fired the fatal shot, believed he was in danger of losing his life or suffering great bodily harm, he is estopped, under his own version of the affair, to invoke the law of self-defense, because he did that which, in the very nature of things, was calculated to induce the deceased to do just what he did do, and the defendant must have known, and did know, that his own conduct caused the deceased to act as he did, and this was known to defendant before he shot. Therefore, if the defendant provoked an altercation between himself and the deceased, or challenged the deceased to a mutual combat, without intending to kill deceased, but intending an ordinary battery merely, and the deceased assaulted defendant, or by some act done gave defendant reasonable apprehension of loss of life or great bodily harm, and the defendant killed the deceased to protect himself from the apprehended danger, the killing, under such circumstances, would not be justifiable, but would be manslaughter.”

INSTRUCTIONS — Requests and Objections — Record. When the evidence in a criminal case is concluded the judge should give counsel for the state and counsel for the defendant an opportunity to submit any written instructions -which they may desire to he given to the jury, and should also give counsel an opportunity to be heard, either, in support of or in opposition to instructions to be given to the jury; and the court should require counsel for the defendant, upon such hearing, to point out what objections, if any, they have to the instructions given to the jury, and these objections should be incorporated in the record.

(Syllabus by the Court.)

The jury saw and heard the witnesses and believed the testimony for the state. We cannot say that their verdict is not supported by the evidence. The judgment of the lower court is therefore affirmed. •

DOY1/E and BICHABDSON, Judges, concur.

ON MOTION FOB BEHEABING.

Denied January 5, 1911.

PEE CUBIAM.

Counsel for the appellant, on motion for rehearing, insist that the instructions in this ease were properly excepted to, and they refer to the case-made for the verification of this statement.

After the court had given its charge to the jury, counsel for the defendant stated in open court: “The defendant desires to except to each and every paragraph of the court’s instructions to the jury.” It is true that, in the case of Frank Buck v. Territory, 1 Okla., Cr. 517, this court did consider similar exceptions to the instructions given, but upon more mature reflection we are satisfied that we were in error in this particular. The action of the court in considering Buck’s case could not have operated to the injury of appellant in this ease, because that case was not decided by this court until the 11th day of January, 1909, while the exceptions which are presented here were taken by the defendant on the 17th day of October, 1908, nearly three months before the rendition of the opinion in the Buck case. We think that paragraph 5 of section 6823 of Snyder’s Comp. Laws of Okla. 1909, is decisive of this question. Said paragraph is as follows:

“When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. If the questions of law involved in the instructions are to be argued, the court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions,, and may give or refuse any instructions asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by tire judge, if modified, modification shall be shown in the instructions, and by refusal to, give instructions, or the modification thereof, shall be deemed to be excepted to. When the instructions are thus settled, the jury, if sent out, shall be recalled and the court shall thereupon read the instructions to the jury.”

This section clearly contemplates that instructions to juries in criminal cases should be settled before they are read to the jury, and that if counsel have any instructions which they desire to be given, or if they have any objections to any instructions proposed to be given by the court, it is the privilege and duty of counsel to point out such matters to the court before the instructions are read to the jury. Counsel for the defense have the right to be heard in the trial court upon the law as well as upon the facts. This is fair to all parties concerned, and is necessary to the proper administration of justice. It gives the judge an opportunity to correct any errors which he may have made, and it gives the county attorney an opportunity, if he thinks the charge of the court is erroneous, to join with the defendant in Requesting that such error be. corrected. If couinsel desire to make objections to the instructions which the court proposes to give to the jury and requests permission to do so, it would be error on the part of the trial court to refuse to give counsel such opportunity; but in the absence of any such request appearing in the record in this case, we are of the opinion that íhe exceptions' attempted to be taken by counsel for tbe defendant are altogether insufficient. The instructions given are not above criticism, but in the light of the evidence they are not such as should work a reversal of the verdict. The evidence in the case would support a verdict for murder, and we think that the appellant should congratulate himself upon the zeal and. ability of his counsel in securing a verdict of manslaughter with the lowest possible punishment.

The motion for rehearing is therefore denied.