author: BAKER, Judge

text:
    J. P. Price v. Territory.
    No. 2117,
    Okla. T.
    Opinion Filed January 11, 1909.
    (99 Pac. 157.)
    1. INSTRUCTIONS — Appeal—Waiver of Objections. In a criminal case (other than a capital case), in the absence of airy request by the accused, for specific instruction, it will be held that the accused was satisfied with the instructions as given.
    2. . SAME. When the accused complains that the trial court erroneously instructed the jury, but such instructions were not excepted to by him at the time and the exceptions properly saved in the record, such error, unless of a fundamental character, will be treated as waived by the accused, and exceptions to such instructions will not be considered for the first time in this court.
    3. CRIMINAL LAW — Appeal—Review1—Rulings on Evidence. In all cases except capital offenses, this court will not review the action of the trial court in admitting or rejecting evidence over the objection and exception of the accused, unless such objection and exception appear of record in the proceedings of the trial court.
    4. GRAND JURY — Challenge to Panel — Selection During Term. It is not error for the trial court to overrule a challenge to'the entire panel of the grand jury because the grand jury was selected after the commencement of the term of the district court at which the indictment complained of was returned, instead of before the commencement of such term, as provided by an act of Congress approved February a, 1906 (Act Feb. 9, 1906, c. 155, 34 Stat. 11), entitled “an act to provide for the selection of grand and petit jurors for the district courts in the territory of Oklahoma”; the provisions of said act as to the time of the selection of the grand jury being directory only.
    (Syllabus by the Court.)

      Error from District Court, Pottawatomie County; B. F. Burwell, Judge.

    J. P. Price was convicted of Shooting with intent to kill, and brings error.
    Affirmed.
    On the 17th day of March, 1906, the grand jury of Pottawatomie county, Okla., returned an indictment against the accused, J. P. Price, charging him with the crime of shooting with intent to kill. On the 22d day of March, of the same year, the defendant was arraigned, and entered a plea of not guilty to said indictment, and on said last-named date the cause was set for trial on' the 26th day of March, 1906, and was then continued to March 27, 1906. On March 27, 1906, the cause was tried in sajd court, and resulted in a verdict of guilty as charged in the indictment. The accused in due time filed his motion for .a new trial, which was by the court overruled, to which the accused duly excepted; and thereupon the accused was sentenced to serve a term of 18 months in the territorial penitentiary. Time was given the accused to make and serve a case-made on appeal to the Supreme Court. A challenge to the panel of the grand-jury was interposed by the accused, and was submitted to the court below on an alleged agreed statement of facts in open- court, and overruled, to which ruling the accused excepted. Briefs are filed by both sides.

      L. G. Pitman,, for plaintiff in error.
    On question of challenge to panel of grand jury: Act of Congress Feb. 9, 1906, c. 155, 34 Stat. 11; Sharp v. U. S., 138 Fed. 878.

      W. C. Reeves, Asst. Atty. Gen., for the Territory.
    On same question: Sutherland’s Statutory construction, § 612, p. 1117; Marion v. Territory exrel., 1 Okla. 210; Kenedy v. Oregon Short Line R. Co., 18 Utah, 325; Merchant v. Langworthy, 6 Hill (N. Y.) 646; Pond v. Negus, 3 Mass. 230; People v. Allen, 6 Wend. 486; Reeves v. State, 29 Fla., 529; Burlingame v. Burlingame, 18 Wis. 300; Thomas v. People, 39 Mich, 311; State v. Smith, 67 Me. 332; People v. Wallace, 101 Cal. 281; Missouri v. Pitts, 58 Mo. 556; Colt v. Ives, 12 Conn. 243.
   BAKER, Judge

(after stating the facts as above). The petition in error in this case complains of the following errors:

(1) The court erred in overruling the motion of accused for a new trial.

(2) The court erred in overruling the motion of the accused in arrest of judgment.

(3) The court erred in giving erroneous and misleading instructions to the jury which were duly, excepted to by the accused.

(4) The court erred in overruling the demurrer to the indictment.

(5) The court erred in not sustaining the motion of accused to set aside the indictment upon which the accused was tried.

(6) The court erred in admitting evidence on the part of the territory which was incompetent and irrelevant and prejudicial to the rights of the accused.

(7) The court erred in refusing and ruling out competent and legal evidence offered by the accused.

(8) The court erred in misdirecting the jury on questions of law.

(9) The court erred in ruling on questions of evidence at the time of the trial.

(10) The court erred in overruling the challenge to the entire panel of the grand jury.

Taking the errors assigned in order made in the brief of the accused, we have first the error complained of arising upon the alleged challenge to the panel of the grand jury, and the overruling thereof by the court below. A carful examination of the record fails to disclose such challenge in the'case at bar. The record at page 10 shows that one of the counsel of the accused in behalf of nine prisoners then in custody, or under recognizance in Pottawatomie county, charged with crime, who were.all specifically named in a challenge to the panel of the grand jury; but the name of the accused in this case is not included, and therefore, so far as the court below is concerned, no challenge was then made by the accused in this case, and no exception is saved in favor of the accused, and no benefit therefrom can accrue to the accused, unless the challenge to the panel of the grand jury, as made in this record, raises a jurisdictional question, and as such the accused could legally raise such question for the first time in this court, resolving all the doubt as to the correctness of such practice in favor of the accused, and giving him the full benefit of the record, and the possible legal advantages that the accused might gain therefrom. We will, for the purpose of this case, consider that the accused makes his challenge to the panel of the grand jury, based upon the facts as disclosed by the agreed statement of facts found on page io of the record, in which it is admitted that the grand jury, for the term of the district court in said county, at the time the accused was tried, was not selected before said term of court commenced, as required by the act of Congress approved February 9, 1906, entitled “An act to provide for the selection of grand and pettit jurors for the district courts of the. territory of Oklahoma.” Act Feb. 9, 1906, c 155, 34 Stat. 11.

It is admitted by counsel for the accused that the provisions of said act were all properly complied with except as to time; that all the things necessary to. be done under and by the terms and provisions of said act were in fact done, but that said things were done after the term of court at which the indictment was returned against the accused, instead of before such term commenced, as provided by said act. The accused urges that the provisions of the act in question, as to the time the steps should be taken and things should be done in selecting and impaneling the grand jury, are mandatory, and that a violation thereof is prejudicial error, and entitles him to a new trial. If said provision is mandatory, then the accused should be given a new trial. We have carefully read all the authorities cited on both sides, and such additional authorities as we were able to find after a careful search. The best and most convincing authorities upon this proposition hold said provision directory only.

We call counsel’s attention to the following authorities:

Sutherland’s Statutory Construction, § 612, p. 1117, reads:

“Provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory. Though a statute directs a thing to be done at a particular time, it does not necessarily follow that it may not be done afterwards. In other words, as the cases universally hold, a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties ol others is directory, unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered as a limitation of power of the officer. * * * The time of summoning jurors, except so far as their own convenience is concerned, is quite an immaterial thing, which Could in no wise affect their official acts. And so of other departures from the letter of statutes relating to obtaining jurors” — And numerous cases cited by this author.

In the case of the State of Missouri, Respondent, v. Thomas Pitts, found in 58 Mo. 556, the accused sought to take advantage of an irregularity in the impaneling of the jury, contending that under Sess. Laws 1873, p. 46, the county court is required to summon the regular panel of jurors 30 days before the term of the circuit court, and that the jury which found him guilty was not in fact summoned 30 days prior to the term of the court at which he was convicted, and urged that, by reason of such irregularity, he had not had an impartial trial, and that there was prejudicial error in the court not sustaining his motion to have the jury impaneled from the regular panel >pf jurors. Judge Sherwood, delivering the opinion of the court in said case, says:

“There was no error in overruling the motion of (defendant to have the jury impaneled from the regular panel of jurors. * * * And it was a matter of no moment that the regular panel for the term was not selected by the county court at least 30 days prior to the commencement of the term at which the ■prisoner was tried in accordance with the above mentioned act. That act. can only be regarded as merely directory. To rule that it is mandatory would be to hold that, if by any accident the county court should not meet and select jurors in the time and manner provided by the. act, the wheels of justice would have to stand still, and the circuit court be' prevented from transacting its duties respecting crimes and criminals simply because the county court failed to discharge its duty. No such ruling will be made.”

In the case of State v. Smith, 67 Me. 328 (a murder case), we find that in the state of Maine a.t the time of the trial of said case the provisions of Rev. St. 1871, tit. 9, c. 106, § 8, .required that the venire .for grand jurors to serve at the Supreme Judicial Court should be issued 40 days at least, before the second Monday in September, annually. The accused in this case sought to take advantage of the fact that the jury had not been so selected, and raised the question of the sufficiency and regularity of the grand jury by whom the indictment was found; and on the first day of the term interposed a challenge to the array, and, after the indictment was found and returned into court, he presented a plea in abatement, which was demurred to, and the demurrer sustained; the court holding that the provision regarding the time for the selecting of the jury was merely directory and not mandatory, and supporting the case of Pond v. Negus, 3 Mass. 230, 3 Am. Dec. 131, and People v. Allen, 6 Wend. (N. Y.) 486, which we hereafter cite.

In People v. Allen, 6 Wend. (N. Y.) 486, the court, by Judge Marcy, says:

“The statute, specifying a time within which a public officer is to perform an official act regarding the rights and duties of others, is directory merely unless the nature of the act to be performed or the phraseology of the statute is such that the designation of time must be considered as a limitation of the power of the officer; and it was accordingly held that a brigade order constituting a court martial issued in July, when, by the militia law under which the proceeding was held, it was made the duty of the commandant of the brigade to issue such order on or before the first day of June in every year, was valid.”

In the case of Reeves v. State of Florida, 29 Fla. 527, 10 South. 901, the statute of Florida (section 1, c. 3125, p. 65, Laws 1879) was discussed. The state of Florida at the time of the trial of the above-entitled case had a statute known as above stated, providing a time for the board of county commissioners to select from the registered voters of their respective counties a jury list of persons properly qualified to serve as jurors. Judge Mabry, in handing down the opinion of the court in said case, says that said statute was merely directory, and a failure to comply therewith was not prejudicial to the rights of the defendant, and held the panel to be in all respects regular.

The same doctrine is laid down in the case of Margurite Kennedy et al., Respondents v. Oregon Short Line Railway Co., 18 Utah, 325, 34 Pac. 988, and cases therein cited. This case also approves People v. Allen, supra, and Missouri v. Pitts, supra, and cites many well considered cases in support of its decision.

The same doctrine is held in the case of Colt v. Eves, 12 Conn. 243, and Thomas v. People, 39 Mich. 311.

A very strong case is found in Johnson v. State of Mississippi, 33 Miss. 363, in which the court holds:

“That provision of the local act of 1854 (Laws 1854, p. 468, c. 341), made general in 1856, which enacts that grand jurors ‘shall bé summoned at least five days before the first day of the court’ at which their attendance is required, is merely directory to the sheriff, and for the convenience of the jurors, and not essential to be observed in order to constitute a legal grand jury.”

In the case of Huntley v. Territory of Oklahoma, 7 Okla. 60, 54 Pac. 314, our own Supreme Court has well held:

“In general the provisions of a statute'in regard to the mode of obtaining juries are directory, and a substantial compliance with the requirements of the law is sufficient. The Supreme Court will not reverse the ruling of a district court overruling a challenge to the array upon objections to the manner in which the list of persons from which the panel was selected was made up when such objections are purely technical, and do not affect the substantial rights of the parties.”

Thompson on Trials, c. 2; Burlingame v. Burlingame, 18 Wis. 300; Merchant v Langworthy, 6 Hill (N. Y.) 646.

The accused in support of his contention cites the case of Sharp v. United States, 138 Fed. 878, 71 C. C. A. 258, and relies thereon. We do not think the Sharp Case is analogous to the case at bar, for the reason that the decision in said case is based upon irregularities growing out of the drawing and impaneling of the jury under the provisions of Wilson’s Rev. & Ann. St. 1903, c. 46. This court decided this question in the case of S. C. Cavett v. Territory of Oklahoma (at the last term of the court) ante, p. 493, 98 Pac. 890.

The challenge of the accused to the entire panel is not well taken, for the further reason that it nowhere appears in the record that any material or substantial right of the accused was affected. No claim is made that any person was selected'and served on said grand jury who was not in all respects competent and qualified to serve as a grand juror.

Section 482, Code Cr. Proc. (section 5618, Wilson’s Rev. & Ann. St. 1903), reads as follows:

“(5618) Sec. 482. On an appeal the court must give judgment without regard to technical errors' or defects, or to exceptions which do not affect the substantial rights of the parties.”

In view of this section, although we might be of the opinion that there was technical error in the action of the trial court in overruling the challenge to the entire panel of the’grand jury, yet, unless we find and could -say that the substantial rights of the accused were injuriously affected, we should not disturb the verdict. The court did not err in overruling the challenge to the panel. ■

The second proposition relied on by the accused for a new trial is the alleged insufficiency of the evidence. Notwithstanding the accused failed to properly preserve this question in the record, we have read every word of the testimony, and find it clearly and fully sustains the verdict.

Coming now to the last error complained of in the brief of the accused, which is directed to that part of the charge of the court which reads as follows: “And in this connection you are instructed that if you find by the degree of evidencé stated in this instruction that the defendant unlawfully, willfully, and feloniously shot at the said Annie Price with the intent to kill her, as set forth and charged in the indictment, then it will be your duty to find the defendant guilty. Should you entertain a reasonable doubt of this charge, you should return a verdict of not guilty” — we find the record fails to disclose that the accused objected to the charge as given, or offered any instruction whatever for the consideration of the court to be given in this case. It is a well-settled rule of law that, in the absence of objection and exception to instructions given by the court, the accused (except in capital cases) is presumed to be satisfied with the charge as given, and waives his right to have the appellate court consider any objection he may afterwards find to the charge as given.

This question is well settled by our own Supreme Court in the case of Thomas Douthitt et al. v. Territory of Oklahoma, 7 Okla., 55, 54 Pac. 312. First syllabus:

“In a criminal case, in the absence of any request by the defendant for specific instructions, it will be 'held that the defendant was satisfied with the instructions as given.”

Also in the case of William Huff v. Territory of Oklahoma, 15 Okla., 376, 85 Pac. 241. Second syllabus:

“Where erroneous rulings and decisions of the tria! judge are not excepted to at the time and exceptions properly saved, such errors will be treated as waived by the party affected, and objections will not be considered for the first time in this court.”

Indian Territory Court of Appeals, in the case of Bias v. United States, 3 Ind. T. 27, 53 S W. 471, held:

“'mere is no distinction between criminal and civil cases with regard to the necessity of saving exceptions. It is just as necessary that error be properly excepted to in a criminal case as in a civil case.”

See, also, State v. Bates, 38 La. 491; State v. Holcombe, 41 La. Ann. 1066, 6 South 758; Buel v. People, 78 N. Y. 492, 34 Am. Rep. 555; Mitchell v. Com., 75 Va. 856; Stone v. State, 42 Ind. 418.

There being no prejudicial error disclosed by the record, the 'judgment of the court below is affirmed at the costs of the plaintiff in error, and the sheriff of Pottawatomie county is directed to proceed at once to execute the judgment of the court below.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: FURMAN, Presiding Judge

license: Public Domain

text:
    Frank Buck v. Territory.
    No. 2171,
    Okla. T.
    Opinion Filed January 11, 1909.
    (98 Pac. 1017.)
    1. TRIAL — Arguments of Counsel — Objection, (a) When the prosecuting attorney goes out of the record and makes improper remarks, calculated to prejudice the rights of the defendant, it is the duty of counsel for the defense to promptly interpose an objection to such remarks, and move the court to withdraw them from the consideration of the jury, and to instruct the jury not *0 consider such remarks.
    (b) It is too late to interpose objections to improper remarks of the prosecuting attorney in his argument to the jury, after the argument has closed, unless the remarks were of such a character that their withdrawal from the consideration of the jury would not cure the error committed in- their utterance.
    (c) If counsel for the defense go out of the record and make remarks not authorized by the evidence, they cannot be heard to complain .if counsel for the prosecution are permitted to go outside the record in replying to such statements.
    (d) When it is claimed that counsel for the prosecution went out of the record, and made improper remarks, calculated to prejudice the defendant, and the trial judge certifies in the record that such remarks were made in reply to remarks not authorized by the evidence made by counsel for the defense, such certificate is permissible; and, in the absence of any showing in the record to the contrary, the appellate court is bound by such certificate of the trial judge.
    2. LARCENY — Evidence. See case for statement of evidence, which not only sufficiently corroborates the testimony of an accomplice, but which establishes the guilt of the defendant independently of the testimony of the accomplice.
    3. TRIAL — Exceptions to Instructions, (a) See opinion for objections of the court to the practice of- taking exceptions to each and all of the instructions given to the jury, which practice, while permissible under section 5518, Wilson’s Rev. & Ann. St. 1903, is not to be commended.
    (b) See instruction on alibi, which, while not indorsed as a model, is held sufficient under the facts in this case.
    (c) The laws of Oklahoma are to be liberally construed in the furtherance of justice, and a conviction will not be reversed upon 'a technicality which does not affect the substantial rights of the defendant.
    (Syllabus by the Court.)

      Appeal from District Court, Woods County; T. L. Pancoast, Judge.

    Frank Buck was convicted of larceny, and appeals.
    Affirmed.
    On the 5th day of December, 1906, Frank-Buck (hereinafter called defendant) was found guilty in the district court of Woods county, Okla., upon an indictment wherein defendant was charged with the larceny of domestic animals, and was sentenced by the court to six years’ imprisonment in the territorial prison. Defendant^filed a motion for a new trial, which was overruled by the court; to which defendant duly excepted. An appeal was taken to the Supreme Court of Oklahoma Territory. Upon the admission of the state of Oklahoma into the Union, under the provisions of the Constitution of the state and the Enabling Act, this case was transferred to the Supreme Court of the state. When the Criminal Court of Appeals of Oklahoma was established as directed by law, the case was transferred to this court by the Supreme Court of the state of Oklahoma.

      Wm. Briggs, for appellant.' — ■.
    On question of misconduct of attorney in argument: Abbott’s Trial Brief, 605; People v. Quick, 58 Mich. 321, 23 N. W. 302; Martin v. State, 63 Miss. 505, 56 Am. Rep. 812; Hardke v. State, 67 Wis. 552, 30 N. W. 726; Hamilton v. State, 97 Tenu. • 452: 37 S. W. 194; People v, Dane, 59 Mich. 550, 26 N. W. 781 ; State v. Smith, 75 N. C. 306; People v. Mitchell, 62 Cal. 411; Cross v. State, 68 Ala. 476; Furguson v. State, 49 Ind. 33; Greene v. State, 17 Tex. App. 395; Martin v. State, 63 Miss. 505 ; People v. Kramer, 117 Cal. 647, 49 Pac. 842.
    On question of proper instruction on alibi: Shoemaker v. Territory, 4 Okla. 118; French v. State, 12 Ind. 670; State of Iowa v. Reed, 17 N. W. 150.

      W. C. Reeves, Asst. Atty. Gen., and Charles Swindall, for the Territory.—
    On question of improper remarks of prosecuting attorney: People v. Shears (Cal.) 65 Pac. 295; State v. O’Keefe (Nev.) 43 Pac. 915 ; State v. Regan (Wash.) 36 Pac. 472; Commonwealth v. Tripp (Mass.) 32 N. E. 905.
    On the question of proper instruction on alibi: 12 Cyc. 619; People v. Winters, 57 Pac. 1067.
   FURMAN, Presiding Judge

(after stating the' facts as above). First. One ground relied upon by the defendant to secure a reversal of the conviction in this case is the allegation that he was prejudiced by improper remarks made by the county attorney in his closing argument to the jury. It is the privilege and duty of counsel for the defense whenever the prosecuting attorney goes out of the record and makes improper remarks calculated to prejudice the defendant, to promptly interpose an objection thereto and move the court to exclude the remarks so made and instruct the jury that they are improper and must not be considered by them. It is not good practice for counsel for the defense to sit silently by and make no objections to supposed improper remarks of the prosecuting attorney until after the argument is concluded, as was done in this case. As a general rule, it is then too late to present such matters to the trial court. Good faith and fairness to opposing counsel and the trial court require that objections should be presented in time to prevent, if possible, the commission of error at any stage of a trial. Cases may, however, arise in which the remarks complained of are of such a flagrant character that their withdrawal from the jury would not cure the error committed in their utterance. In such cases the objection may be made after the argument is concluded, but the safe and fair practice is always to check improper argument at the earliest possible moment; otherwise there is danger of waiving any rights which may arise therefrom.

When this matter was presented to the trial judge, after the conclusion of the argument, he appended to the motion of the defendant this statement:

“AÍ1 of said statements, however, were made by the county attorney in the way of argument, and were made in answer to statements upon the same subject made by counsel for the defendant.”

In the absence of. any showing to the cohtrary, we must accept this statement of the trial cohrt. If counsel ror the defense go out of the record and make statements not supported by the evidence, they cannot be heard to complain if counsel for the prosecution is permitted to reply to such statements. We, therefore, hold upon the record as presented that no error was committed in this matter of which defendant has just cause to complain.

We are sustained in these views by the following authorities :

“Remarks of the prosecuting attorney which ordinarily would be improper are npt grounds for exceptions if they are provoked by the defendant’s counsel, and are in reply to his statements.” (12 Cyc. p. 582.)

We could cite authorities without limit to the same effect, but the principle announced is so just that we deem further citation of authority unnecessary. The Supreme Court of California, in the case of People v. Shears, 133 Cal. 154, 65 Pac. 295, uses this language:

“A new trial should not be granted for improper remarks of the district attorney, where defendant merely excepted to the statement, since its effect would have been removed if defendant had asked the court to instruct the jury to disregard it.”

The Supreme Court of Nevada, in the case of State v. O’Keefe, 23 Nev. 127, 43 Pac. 918, 62 Am. St. Rep. 768, says:

“Argument of the prosecuting attorney that defendant’s failure to call as witnesses his alleged -accomplices was evidence of his guilt is not ground for reversal, where defendant failed to request the court to instruct the jury to disregard such argument, though at the time objected thereto, and excepted to denial of his motion to strike out the same.”

In the case of State v. Regan, 8 Wash. 506, 36 Pac. 472, the Supreme Court of Washington uses this language:

“Statements 'of the prosecuting counsel unwarranted by the evidence are no ground for error unless the defense has first moved the court to strike them out, or tell the jury to disregard them.”

See, also, Commonwealth v. Tripp, 157 Mass. 514, 32 N. E. 905; 12 Cyc. 584, 585.

Second. The defendant challenges the sufficiency of the evidence to sustain the -verdict of the jury. The evidence in substance is as follows:

J. G. Bitner testified that he was- the owner of the cattle described in the indictment, and that they were in the pasture of Sam Press in September, 1905, that he had never given the defendant or Ray King his consent to take said cattle, and that he had never sold said cattle to Ray King or the defendant.

Ray King, an accomplice, testified that this defendant and witness went to the pasture of Sam Press and stole the cattle of Bitner, described in the indictment. Defendant said they would drive the cattle off and sell them. Witness and defendant drove the cattle about five miles away, and placed them in Archer’s pasture, and left them there. That witness never saw the cattle again until they were brought back by the Press boys to the place from which they had been stolen.

Samuel Press testified that the five head of cattle described in the indictment belonged to J. G. Bitner, and were in a pasture controlled by his brother, George, and himself, in Woodward county, Okla. T., and were taken from said pasture about the 15th day of September, 1905; that witness saw defendant riding a brown horse, about 2 o’clock on the afternoon of September • 14, 1905; that defendant \Yas riding right along the line between the place of witness and King; that defendant was. not on a road, but was in a horse pasture. Witness saw the cattle that, were stolen on Friday morning, and missed them on Sunday morning. Witness hunted for the missing cattle, and found one of them on Wednesday, and another on Thursday, in Archer s pasture. Witness found the other two stolen cattle on the 12th day of November, in what is called the Texas pasture. When witness saw defendant on the 14th day of September, defendant was just outside the fence of the pasture of witness. Pie was riding a brown horse, and had on a light hat, a light shirt, light pants, and red boots. “The cattle of Bitner were taken from our pasture without my knowledge and consent.”

George Press testified: On or about the evening of the 16th of September, 1905, a little before sundown, witness saw defendant in the pasture of witness and his brother down near a creek. Ray King was with defendant. They were riding north. Defendant and King were about half a mile from the house of witness. On the morning of the 14th of September, 1905, witness saw defendant. He was riding a horse belonging to Ray King. Defendant asked witness where Mr. King lived, and upon being told, rode off in that direction. Testified substantially as the wit.ness Samuel Press had done as to the cattle of Bitner being missed from the pasture, and the search made for them, and their recovery. Also that there were four or five fences and gates between the pasture from which the cattle were missed and where they were found, and that the fence around the pasture from which the cattle were missed was in good repair.

Jennie Pimlot testified: Saw defendant at the house of the home of the father of Ray King about sundown on the 15th day of September, 1905. “When I first saw him he was coming out of a little creek that runs west of King’s house. Defendant and Rajr King came to the house together.”

John F. Nicholson testified: Knows defendant and Ray King. On the 15th day of September, 1905, they came west from George Press’s home about three-quarters of a mile. They had a rope on a steer belonging to Bitner. “When I next saw this .steer he was in Archer’s pasture.” Does not know whether defendant and King saw witness.

A number of other witnesses testified for the prosecution, but it is not deemed necessary to incumber the recard with a statement of their evidence. Defendant set up the defense of an alibi. It was supported by the testimony of five witnesses besides the defendant. The jury saw all of these witnesses and heard their testimony. They accepted the testimony ot the prosecution, and rejected the testimony of the defendant. We think that the testimony for the prosecution is amply sufficient to sus-, tain the verdict.

Third. After the instructions of the court had been read to the jury, the record contains the following statement:

“The defendant excepts to each and every instruction given by the court, and to the refusal of the court to give the instructions offered on behalf of the- defendant.”

In the case af Rhea v. United States, 6 Okla. 258, 50 Pac. 992, the following exceptions were held good

“To the giving of each and every and all of said instructions to the jury by the court the defendant excepted separately at the time, and still excepts.”

The Supreme Court of Oklahoma Territory based this ruling upon a number of Kansas cases, but said: “The method pursued is not to be commended.” We fully agree with this statement. We think that this practice is to be condemned. We regard it as unfair to the trial judge, and unjust to the state. In one paragraph of an instruction, as a mere matter of inadvertence, an error may have been made which, if specifically called to the attention of the court, would have been corrected; but,-under the practice approved, but not commended, a defendant by stating that he “excepts to each and every and all of the instructions given by the court separately” can cover up his real' exception, and if the hazard of the legal battle turns against him, he can in the appellate court abandon his other exceptions, and rely alone upon the inadvertent error, and thus defeat the ends of justice and secure a reversal at great expense to the state, when, if he had presented his real objection openly and fairly, and in good faith, the trial court would have corrected the error before harm was done. This practice enables designing lawyers to dig pitfalls and lay ambuscades for the trial court. No end of justice is promoted by this rule. It cannot serve a single fair purpose in the trial of a case, and results in evil and injury, rather than in fair play and justice. The purpose of an exception is two fold. It should notify the trial court of the specific objection relied upon. The presumption of law is that no judge commits willful error. If‘his attention is called to the specific objection, the presumption of law is that he will correct any error that may be pointed out. If the court fails to make the correction, then the exception preserves the matter alleged to be error, for review in this court. Unless the trial court is put upon notice of the specific point relied upon as error, and if such point can be pointed out for the first time in this court, then this is a court of Original jurisdiction, when, as a matter of fact, as to such matters, this court has appellate jurisdiction only.

The competent and careful lawyer investigates the legal questions involved in his cases before he tries them, and should be able to detect and except to errors in the instructions given at the time. Any fair, judge should, and doubtless would, give reasonable time in which counsel can look over and note exceptions given before they are read to the jury. A refusal to do this would render the trial unfair, which would be in violation of the Constitution, which guarantees to every defendant a fair trial, and would be ground for reversal, if it appeared that any portion of the instructions given were prejudicial to the defendant. It may be urged that the practice saves time. It may save a little time during each trial, but it may result in the loss of much more time, and in great expense to the state, and in the defeat of justice, by requiring the reversal of cases on account of the errors which would-have been cured if the attention of the trial court had been specifically called to,them in apt time. Lawyers should present questions fairly and fully in the trial court. They should do this as an act of justice to themselves, opposing counsel, the trial judge, and the state of Oklahoma. To say that an exception is taken to each, and all, and every paragraph, in instructions given to a jury separately, amounts only to a general exception, unless shadow is of more value than reality. Such exceptions do not carry the stamp of good faith upon their face. It is not believed that such exceptions are taken because counsel honestly believed that 'there was error in each paragraph in an instruction to a jury. It is an ambush, a subterfuge, a mockery, a snare, and a delusion. We are discussing the principle involved in this practice, and are showing its rank injustice. No personal reflections are intended to be cast upon counsel We are simply pointing out the abuses which will creep into our system of criminal jurisprudence if this• practice is allowed to-be continued.

We think that the correct rule is laid down in Peace v. State, 27 Tex. App. 03, 10 S. W. 762. Judge White there said:

“A general rule well established is that ‘a bill of exceptions taken generally to the charge of the court, specifying no particular error or errors, has no standing, and will not be considered by this court. In the absence of a proper bill of exceptions this court will examine the charge of the trial court only with regard to fundamental errors, or such as under all the circumstances of the case were calculated to injure the rights of the accused.’ Smith v. State, 22 Tex. App. 316, 3 S. W. 684; Williams v. State, 22 Tex. App. 497, 4 S. W. 64; Cordway v. State, 25 Tex. App. 405, 8 S. W. 670.”

In the case of Wilson v. People, 3 Colo. 331, the Supreme Court of that state said:

“A general exception was taken to the instruction en masse. We have decided at this term, in the case of Webber v. Emerson, 3 Colo. 248, that such an exception, if any distinct part of the charge is sound, will not be considered. This exception comes within the rule there laid down.”

The Supreme Court of Massachusetts, in Commonwealth v. Tolman, 149 Mass. 236, 21 N. E. 380, 3 L. R. A. 747, 14 Am. St. Rep. 414, says:.

“Under a general exception or objection to a charge, one cannot be allowed to select afterwards particular phrases and found special exceptions thereon. Curry v. Porter, 125 Mass. 94; McMahon v. O'Connor, 137 Mass. 216; Wright v. Wright, 139 Mass. 177, 29 N. E. 380.”

In Commonwealth v. Meserve, 154 Mass. 75, 27 N. E. 997, the Supreme Court said:

“The judge’s attention was not called to any particular defect or insufficiency or inaccuracy in his instructions to the jury, but at the close of the charge the defendants enumerated 20 different portions of the charge to which they excepted, embracing all the four counts which were submitted to the jury, but with no further specification of what they complained of, or wherein thej wished for different rulings. Now in such a case, if any fundamental error in principle is discovered, or anything by means of which it seems probable that injustice may have been done, the defendants should have the benefit of it. But under such circumstances it would hardly conduce to a due administration of justice to search out opportunities for making minute verbal criticisms of the language of the charge, or to look for omissions to say all that might properly have been said.”

In People v. Bristol, 23 Mich. 126, the record shows that the following exception was reserved: “The defendant excepted in due form to the refusals to give the charges requested, and to each and every part of the charge given specifically.” The Supreme Court dismissed the matter with this remark: “The exception to the charge is too general.”

In Van Stone v. Bierce Manufacturing Company, 142 U. S. 128, 12 Sup. Ct. 181, 35 L. Ed. 961, the court says: “A general exception to the charge of the court as a whole cannot be considered.”

An exception which challenges each and every paragraph in an instruction should be treated as a general exception to the instructions given, it matters not in what language it may be couched, unless we consider form rather than substance. We could cite pages of authorities in support of our position, but deem it unnecessary to do so. We have expressed our views fully upon this question for the purpose of calling the attention of the bar and the Legislature to what we 'conceive to be a great evil, which has grown up in our practice on account of section 5518, Wilson’s Rev. & Ann. St. 1903, which,is as follows:

“(5518) 382. In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case it must in addition inform: the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the indorsement ■or answer what part of each charge was given and what part refused.”

This was taken from the,statutes of Kansas, and it was upon this statute and the decision rendered thereon by the Supreme Court of Kansas, that the Supreme Court of Oklahoma Territory rendered the opinion in the case of Rhea v. United States, 6 Okla. 258, 50 Pac. 992. We feel bound by the statute, and the decisions above referred to, but at the same time we regard it as our duty to express our condemnation of the rule. It places a premium upon carelessness, and ignorance upon the part of the attorneys, and if permitted to stand will result in great expense to the state, and even to the defeat of justice in many cases, by forcing this court to reverse convictions on account of errors which might have been prevented, and when the defendants are guilty, and which reversals would be avoided but for this statute. ■'

Under the general exceptions reserved in this case counsel for the defense urge in this court specific objections to instruction No. 7, given by the court to the jury, which is as follows:

“No. 7. You are further instructed that one of the defenses interposed in this case by the defendant is what is known in law as an alibi; that is, that the defendant was at another place at the time the crime was committed, if the crime was committed. The defense of alibi, to be entitled to consideration, must be such as to show that at the very time of the commission, of the crime charged, if one was committed, the accused was at another place, so far away and under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof. In considering the proof upon the question of alibi you will consider the whole of the evidence, both that given for the defendant and for the territory 'applying the same rules as are applied to any other evidence, the law being that when the jury have considered all of the evidence, as well that touching the question of alibi as the criminating evidence introduced by the prosecution, then if they have any reasonable doubt of the guilt of the accused of the offense with which he stands charged, then the jury should acquit. Given exception. J. L. Pancoast, Judge.

We do not regard this instruction as (a model, and we do not advise trial courts to follow it. It would have been better to have informed the jury in clear and affirmative terms that, if upon the evidence of an alibi they entertained a reasonable doubt as to the presence of1 the defendant at the time and place of the commission of the offense charged, they should acquit 'him. But, in view of the clear and overwhelming nature of the evidence as to the guilt of the defendant we do not think that any injury to his substantial rights has been committed. If the evidence had been less satisfactory upon this question, we would feel constrained to reverse the conviction. It is not, however, every inaccuracy in an instruction in a case that will necessarily result in a reversal. Section 5144, Wilson’s Rev. & Ann. St. 1903, declares that the statutes are to be construed “in the furtherance of justice.” Section 5618, Wilson’s Rev. & Ann. St. 1903 is as follows:

“(5618) 482. On an appeal the court must give judgment without regard .to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

We have carefully examined all of the assignments of error in connection with the motion for a new trial in this case, and fail to find any material errors which affect the substantial rights of the defendant. The judgment of the lower court is, therefore, in all things affirmed.

BAKER and DOYLE, Judges, concur.