author: ARMSTRONG, J.

text:
    ROBERT MOODY et al. v. STATE.
    No. A-1958.
    Opinion Filed January 30, 1915.
    1. INDICTMENT AND INFORMATION — Felonious Assault — Sufficiency of Allegations; An information which intends to charge the offense of assault with a sharp and dangerous weapon with intent to do bodily harm, should plead facts, which, if conceded, would be sufficient to sustain a judgment of conviction.
    2. HOMICIDE — Assault With Deadly Weapon — Allegations. When the weapon charged to have' been used is not a deadly weapon per se, then a sufficient description of such instrument, the manner in which it was used, and the effect produced by the use thereof should be set forth. This rule of course would not be necessary if the weapon were deadly per se.
    3. TRIAL — Instructions—Questions of Fact. The trial court is never warranted in giving an instruction which has the effect of determining controverted questions of fact.

      4. TRIAL — -Instructions—Degrees—-Irsues. When an information is held by the court to sufficiently charge assault with a sharp and dangerous weapon with intent to do bodily harm, the court is not warranted in giving an instruction to the effect that the accused must be convicted of the felony charged, or acquitted; and this is especially the rule when the testimony is such as to raise the issue of simple assault and battery.
    5. COURTS- — Jurisdiction—Instructions—Included Offenses. The offense set forth in the information is the one which fixes the jurisdiction of the court, and the court has jurisdiction over any included offense. It is the court’s duty to submit an included offense when any phase of the testimony warrants, and especially so upon request of counsel.
    (Syllabus by the Court.)

      Appeal from District Court, Atoka County; Preslie B. Cole, Assigned Judge.

    Robert Moody and Will Cowan were convicted of assault with a deadly weapon with intent to do bodily injury, and appeal.
    Reversed.

      Linbaugh Bros & Pinson, for plaintiffs in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, Robert Moody and Will Cowan, were convicted at the October, 1912, term of the district court of Atoka county on a charge of assault with a deadly weapon with intent to do bodily harm, and their punishment fixed at imprisonment in the state penitentiary for a period of one year.

A statement of facts is not necessary for the determination of the assignments presented by the petition in error in this cause. The charging part of the indictment upon which this conviction is based is as follows:

“* * * One Will Cowan and Robert Moody, late of Atoka county and within the jurisdiction of this court, did unlawfully, willfully, feloniously, purposely, intentionally, and wrongfully, and without justifiable or excusable cause, make an assault upon the person of one W. May by then and there striking the said W. May with a dangerous weapon, to wit, a wooden plank, with the unlawful, willful, and felonious intent of each of them, the said defendants, to do great bodily harm to the said W. May, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

To this indictment the plaintiffs in error filed a demurrer based upon the ground, among others, that the indictment did not state facts sufficient to charge the accused with the commission of a felony, “* * * assault with a sharp and dangerous weapon * * * with intent to do bodily harm * * * without justifiable or excusable cause. * * *” The demurrer was overruled and exceptions properly reserved. After the introduction of testimony the court, among other instructions, gave to the jury the following:

“Instruction No. 2.
“You are instructed that the particular statute under which this charge is prosecuted provides: that every person who with intent to do bodily.harm and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon or who, without such cause, shoots or attempts to shoot at another with any kind of firearms or airgun or other means whatsoever with intent to injure any person although without intent to kill such person or to commit any felony is punishable by imprisonment in the state penitentiary not exceeding five years or by such imprisonment in the county jail not exceeding one year.
“Instruction No. 3.
“You are further instructed that as a matter of law a dangerous weapon is any stick, plank, or other weapon which is likely to produce death or do great bodily harm.
“Instruction No. 7.
“You are instructed that the indictment charges the offense of aggravated assault and you are further instructed that it may also include the offense of assault and battery. To constitute the offense of aggravated assault, as alleged in the indictment, an assault must have been committed with a dangerous weapon. An assault and battery is any willful or unlawful use of force or violence upon the person of another. You are further instructed that this court has no jurisdiction over the kind of assault and battery, when not committed with a dangerous weapon.”

It is contended by the plaintiffs in error that a reversal of this judgment should be had by them on numerous grounds. The only ones we shall consider are those raised by the demurrer and the instructions of the court, supra. This judgment would not be disturbed on the questions of fact, had the law been followed in the trial. The indictment was drawn evidently under section 2344, Rev. Raws 1910, which is as follows:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause, commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year.”

The charging part of the indictment was, according to the contention of counsel for plaintiffs in error, too indefinite in that it did not describe the plank and designate in what manner it was used; it being their contention that a plank is not per se a deadly weapon; that not being per se a deadly weapon, the county attorney was required to plead facts sufficient to show the character of the plank and the manner in which it was used, and that the facts so pleaded must show that the instrument used was of the character set out in the statute and used in such manner as to be reasonably calculated to produce serious bodily injury.

The Assistant Attorney General contends that the indictment is sufficient and cites State v. Dineen, 10 Minn. 407. In that case the indictment charged the assault was made with a deadly weapon, to wit, a large heavy stone. The Supreme Court of Minnesota held the indictment sufficient. In our judgment the authorities recognize a clear distinction in “a sharp and dangerous weapon” and a “deadly weapon.” There could be considerable difference in the weapon “a plank” and the weapon “a large heavy stone.” It is a matter of common knowledge that a plank can be used as a weapon of offense or defense in numerous ways without inflicting serious bodily injury or intending to inflict such injury. A plank can also be used in a manner calculated to produce death or serious bodily injury. We are of opinion that the information should have set out facts sufficient to indicate that an assault with a sharp and dangerous weapon with intent to do bodily harm without justifiable or excusable cause was committed, in view of the fact that the weapon charged was not necessarily a deadly or a dangerous weapon per se. Such a ruling imposes no burdensome duty upon the county attorneys and in no way tends to interfere with the proper enforcement of the law, but is a reasonable and fair interpretation of the statute, to which the citizenship is entitled. In our judgment the demurrer should have been sustained.

The correctness of the instructions of the court will not be discussed at length. It is sufficient to say that instruction No. 3 should not have been given in any event. A plank is not a deadly weapon per se. Whether or not the plank used in the case on trial was of such character, and was used in a manner reasonably calculated to cause serious bodily injury, was a question of fact for the jury. The court erroneously assumed the power to determine this question for the jury.

Instruction No. 7 should not have been given. The rule therein announced is not the law in Oklahoma and never has been. The doctrine that an assault with intent to kill or intent to do bodily harm, etc., includes every other offense down to simple assault, is as old as our institutions. It is also a rule of equal age that the offense set forth in the indictment or information is the one that gives jurisdiction to the court, and when this jurisdiction is once acquired it is acquired for all purposes. An indictment charging murder may result in a conviction for simple assault and the imposition of a ten dollar fine. The jurisdiction of the court is fixed by the,allegations in the indictment, and the fact that a jury may convict an accused of an included offense which is a misdemeanor does not oust the court of jurisdiction. In the case at bar the accused were entitled to an instruction submitting simple assault and battery, and it would have been error for the court to decline it upon their request. It was more serious for the court to tell the jury that they could not convict the accused persons of simple assault and battery for the reason that his court had no jurisdiction of that offense. The effect of the court’s instructions to the jury was to advise them that they had to convict these men of assault with a sharp and dangerous weapon with intent to do bodily harm, or acquit them. Under the proof disclosed by the record the jury should have been instructed that if they failed to find beyond a reasonable doubt that the plaintiffs in error committed the offense set forth in the indictment, they might convict of simple assault and battery should they find beyond a reasonable doubt that such offense was committed, and not the higher crime.

The Assistant Attorney General does not undertake to justify these instructions.

For the errors indicated the judgment is reversed and the cause remanded for a new trial.

DOYLE, P. J., concurs. FURMAN, J., absent.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    W. P. MILES et al. v. STATE.
    No. 2245.
    Opinion Filed May 1, 1915.
    1. COURTS — Transfer of Causes — Misdemeanor — Indictments. The statute provides that in the transfer of 'indictments for misdemeanor from district courts to inferior courts having jurisdiction of the offense charged, the clerk of the district court shall deliver the indictment, together with all the papers relating to each ease to the proper court or justice, as directed in the order of transfer, and shall accompany each ease with a certified copy of all the proceedings taken therein in the district court, and also with a bill of the costs that have accrued therein in the district court. (Section 5552, Rev. Laws 1910.) Held, that as the statute prescribes no particular form of certificate to such transfer a substantial compliance' with its provisions is all that is required in such proceedings.
    2. APPEAL — Record—What Constitutes. The original indictment and its indorsements constitute a necessary part of the record, and whatever is properly shown by them is considered as shown by the record.
    3. INDICTMENT AND INFORMATION — Regularity of Return-Record. Where an indictment recites that it is presented by the grand jury, and it is properly signed by the coimty attorney, indorsed “A true bill' by the foreman, and indorsed, "presented in open court by the foreman of the grand jury in the piresenee of the grand jurors, and filed in open court, signed by the clerk and filed by the clerk, it will be piresumed, in an absence of a showing to the contrary, that it was duly returned in open court, notwithstanding' that no entry of the fact is made upon the minutes of the journal of the court.
    (Syllabus by the Court.)

      Appeal from County Court, Tulsa County; Conn Linn, Judge.

    W. P. Miles and Bob Miles were convicted of a violation of the prohibitory law, and appeal.
    Affirmed.

      Luther James, for’plaintiffs in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error were prosecuted by indictment returned by the grand jury into the district court of Tulsa county and transferred to the county court of said county, wherein they were charged with the unlawful sale of three bottles of beer to one Joe Horrigan. Upon their trial the jury returned a verdict of guilty and fixed the punishment of each defendant at six months confinement in the county jail and a fine of $500. From this judgment the defendants appealed by filing in this court on April 25, 1914, a petition in error with case-made. The only witness who testified on the trial was Joe Horrigan. Pie testified, that on the 7th day of October he went up into the Metropolitan Plotel and was there several times during the day, and there purchased three bottles of beer. That while there he had a difficulty with one Vanhite and another man; that Vanhite pulled a gun and W. P. (Billy) Miles was sent for. Plorrigan told Miles he should discharge the two men. Miles said he wouldn’t do it; he-further said he had an interest in the place and did not want to have any trouble there, and that Plorrigan was as much at fault as the other men. The next morning after the trouble Bob Miles called Plorrigan by telephone and made an engagement with him; he then saw Horrigan and offered him one hundred dollars if he (Horrigan) would drop the matter, saying that he had an interest in the place and was just getting started and would rather give a hundred dollars than to have the matter brought up in court. About a week later W. P. (Billy) Miles met Horrigan and offered to repay him the money which he (Horrigan) had lost in gambling there.

Upon arraignment the defendants entered a plea to the jurisdiction of the county court to hear and determine the said indictment. The overruling of the plea to the jurisdiction is assigned as -error. The contention of plaintiffs in error’s counsel is stated as follows:

“We maintain that the transfer to the count)'- court was not made according to section 5552, Rev. Laws 1910, inasmuch as the order attempting to transfer the said indictment does not show that the orders embraced in the transfer were lodged with or filed in the minutes of the office of the clerk of the district court; that the orders do not show the names of these defendants, or any crime of which they are charged with committing; or from what court the numbered case attempted to be transferred came. It does not show in the record whether it came from the district court or elsewhere, and the certificate of the judge does not show that it contains all the proceedings had in said case in the district court.”

The certificate of the clerk of the district court is as follows:

“I, W. W. Stucky, clerk of the district court in and for Tulsa county, Oklahoma, do hereby certify that the above and foregoing is a full, true' and correct transcript of the record, together with the original indictment and bill of costs in the above numbered criminal case.
“In witness whereof, I have hereunto subscribed and caused the seal of said court to be affixed this 19th day of December, 1913.
“W. W. Stucky,
“Clerk of the District Court.”

The statute provides that in the transfer of indictments for misdemeanor from district courts to inferior courts having-jurisdiction of the offense charged, the clerk of the district court shall deliver the indictment, together with all the papers relating to each case to the proper court or justice, as directed in the order of transfer, and shall accompany each case with a certified copy of all- the proceedings taken therein in the district court, and also with a 'bill of the costs that have accrued therein in the district court. Section 5552, Rev. Laws 1910.

An examination of the record shows that the transfer of said indictment from the district court to the county court was made in substantial compliance with the requirements of the statute. Taylor v. State, 5 Okla. Cr. 183, 114 Pac. 628.

Nor is there any' merit in the contention that the failure to name the defendant in the order transferring the case to the county court renders such order of no legal effect. Eakins v. State, 7 Okla. Cr. 351, 123 Pac. 1035. Nor is there any merit in the contention that “It does not show in the record whether it came from the district court or elsewhere,” since the indictment and its endorsements show from what court the indictment was transferred.

In State v. Jolly, 5 Okla. Cr. 301, it is said:

“Under the provisions of our criminal code, it is not the duty of the clerk to make an entry upon the minutes or journal of the court of the return of an indictment. It is the clerk’s duty to note on the indictment that it was presented in open court by. the foreman of the grand jury, in their presence, to the court and to file it, and when so filed the original indictment, with all its endorsements, becomes a part of the record of the case, and whatever is properly shown by the caption and the. endorsements is considered as shown by the record.”

The indictment shows that it was returned to the district court of Tulsa county. It is signed: “Pat Malloy, county attorney,” and indorsed: “A true bill. W. PI. Hendren, foreman of 'the grand jury. Presented in open court by the foreman of the grand jury in the presence of the grand jury and filed December 8, 1913. W. W. Stuckey, clerk of the district court, Tulsa county, Oklahoma.”

The plea to the jurisdicetion was properly overruled.

Error is assigned upon the action of the court in refusing to give two requested instructions concerning the criminal re-sponsibilit}^ of the defendants for the sale made by negro porter. The court gave one of these instructions, which is as follows :

“The court instructs the jury that although they may believe from the evidence that the defendants Billy Miles and Bob Miles, or either of them, owned or had an interest in the place where the sale took place, yet they cannot find the defendants or either of them guilty unless they further believe beyond a reasonable doubt that they either participated in the sale of the beer as testified by the witness Horrigan, or had an interest in the sale of the same, and if they have a reasonable doubt upon this question they should find the defendants, or the one to whom they may entertain such reasonable doubt, not guilty. Given, Conn Linn, Judge."

This instruction was as favorable as the defendants had any right to request and the court very properly refused to give the other requested instruction. It is also insisted that the evidence is insufficient to sustain the verdict. The admissions of ownership and the exercise of control over the “joint” are undisputed and make the defendants responsible for the sale made therein by their negro porter.

In the course of his closing argument the county attorney said in substance: “You want to put Billy and Bob Miles in jail for six months."'0 Counsel for the defendants objected to this language as improper. Continuing, the county attorney said: “You will do less than your duty if you give them less than the maximum of a $500 fine and six months in jail.” Counsel again objected and reserved exceptions. It is insisted that the language used was improper and prejudicial, in that it was calculated to unduly influence the jury in assessing the punishment.

The remarks of counsel must be considered in connection with the evidence, and, so considered, it is doubtful if they were objectionable. No error appearing in the record, the judgment of the county court herein is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


author: DOYEE, P. J.

text:
    JAMES HUNT v. STATE.
    No. A-2256.
    Opinion Filed May 6, 1915.
    1. APPEAL — Evidence—Sufficiency. The credibility of witnesses and the weight and value to be given their testimony is a question solely for the jury's determination; and, to reverse a judgment on the ground that the verdict is contrary to 'law and the evidence, this court must find as a matter of law that the evidence is insufficient to warrant the conviction.
    2. INTOXICATING LIQUOR — Sale—Sufficiency of Evidence. In a prosecution for the unlawful sale of intoxicating liquor, tie evidence examined and held sufficient to sustain the verdict.
    (Syllabus by the Court.) )

      Appeal from County Court, Grady County; N. M. Williams, Judge.

    James Hunt, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Barefoot & Carmichael and /. H. Venable, for plaintiff in error. ,
    S'. P. Preeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYEE, P. J.

On information filed in the county court of Grady county, charging that he did sell and deliver to one A. C. Melton one pint of whisky, the plaintiff in error was tried and found guilty and his punishment assessed at confinement in the county jail for thirty days and a fine of fifty dollars. The judgment and sentence was entered on March 18, 1914. It is contended that the evidence is insufficient to support the verdict.

There was but one witness produced by the state. A. C. Melton testified that he was at the time an enforcement officer and deputy sheriff, and had been marshal of the city of Cement; that he was in Chickasha on the 9th day of January, 1914, and that W. I. Grant, another deputy sheriff, was with him, and they went to the .New Grand Hotel in Chickasha, and there witness saw the defendant, James Hunt; witness told Hunt, who appeared to be in charge of the place, that he wanted some whisky; also some girls. He gave Hunt $1.25, and Hunt told him that he would be back in about twenty minutes with the whisky and he brought it back. That he had stayed there two or three other nights and had seen Hunt there several times. That he left that night and went to Waurika; that before leaving he carried the bottle of whisky that he bought from Hunt to Mr. Simpson, county attorney; that he had a previous arrangement with Mr. Simpson to assist in finding where whisky was being sold; that he called for the girls that night and got their names and gave their names to the county attorney before leaving; that he and Grant each took a drink out of the bottle to see if it was whisky; that Hunt told him that he did not deal in anything except what was good.

The defendant as a witness in his own behalf testified that he was a cotton sampler and had been at that business for about fifteen years; that he made as much as three or four hundred dollars per month sampling cotton; that he had seen witness Melton only twice in his whole life, once at the depot and again on the day of trial; that at the time he was night porter at the Grand Hotel, renting out and assigning rooms, and worked from six at night to six in the morning, and that it was his duty to keep the register; that Melton’s name was not on the register for that night; that the rooms on the south side of the hotel where Melton says he sta)red that night were all occupied, but that Melton was not one of the lodgers. That he never let any person stay at the hotel without registering; that two women, one named Sylvia and one named Opal, stayed there; that he never made any dates with Grant and Melton for these girls, or procured any whisky for them; that he never saw Grant.

W. M. Baldry, a groceryman, and W. A. Thompson, deputy sheriff, Arthur J. Berry, Joe Dews, cotton buyers, and Bose Ramsey, deputy sheriff, testified as character witnesses that the defendant’s reputation as to being a law abiding citizen was good.

After a careful examination of the evidence in this case, we are not prepared, to say that the jury were not warranted in finding the verdict returned by them. The credibility of the witnesses and the weight and value to be given to their testimony was a question solely for the jury’s determination; and, to reverse a judgment on the ground that the verdict is contrary to law and to the evidence, this court must find as a matter of law that the evidence is insufficient to warrant the conviction.

We find nothing in the record indicating improper motive or passion or prejudice on the part of the jury, and the court in its charge to the jury very properly called their attention to the proof upon the part of the defense showing the defendant’s good character. The instructions fully and fairly presented the law of the case, and we are unable to find any error in the record. It follows that the judgment must be, and the same is hereby, affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    CHARLEY HAVILL v. STATE.
    No. A-2148.
    Opinion Filed May 8, 1915.
    1. EVIDENCE — Burden of Proof — Reasonable Doubt. In the trial of a criminal ease the burden is never upon the accused to establish any issue beyond a reasonable doubt. In certain cases he may be required to furnish sufficient evidence to raise a reasonable doubt, unless the proof on the part of the state raises such reasonable doubt; but more is never required of him.
    2, APPEAL — Instructions on Burden of Proof — Reversal. If, in the course of the trial, the court submits to the jury an instruction which has the effi'eet of requiring the accused to establish his innocence or any other material fact beyond a reasonable doubt, and a conviction is had, a reversal will follow on appeal.
    (Syllabus by the Court.)

      Appeal from District Court, Cleveland County; R. McMillan, Judge.

      Charley Havill was convicted of maiming, and appeals.
    Reversed.

      B. P. Wolf and /. B. Dudley, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Charley Havill, was convicted at the July, 1913, term of the district court of Cleveland county on a charge of maiming, and his punishment fixed at imprisonment in the state penitentiary for a term of one year and one day.

The Attorney General has filed the following confession in error:

“The plaintiff in error was prosecuted for maiming. There is a sharp conflict in the testimony as to who was the real aggressor. The evidence introduced by defendant tended to prove that the act for which he was being prosecuted was committed in defense of his person. The court instructed the jury as follows:
“ 'There is proof by the defendant going to the fact that the assault was brought on by Vandiver, the state’s witness, and that what the defendant did was in his own necessary self-defense. And if you find from the evidence in this case that Vandiver did bring on the difficulty, and did commit the first assault upon the defendant, and strike and bruise him or attempt to do so, the defendant himself having offered no justifiable provocation for such 'treatment, and that under such conditions they got into a fight, and that while in such fight the defendant, believing from conditions as viewed by him from his own standpoint at the time that it was necessary to do so, you are told that he had the right under such conditions to use such means as were at his command, whether his hands, knees, heels, teeth, or anything else, to resist the assault thus made upon him by the witness Vandiver; and that under such conditions he had a right not only to bite off the ear, but to even take the life of Vandiver, if he in good faith believed it was necessary to preserve or protect his own life and body from great bodily harm, or from death; and if you should so find you should acquit the defendant.
“ '10. On the contrary, if you do not so believe beyond a reasonable doubt, you will not acquit the defendant on the grounds of justifiable self-defense.’
“It appears that defendant excepted to instruction No. 10; that the error in giving said instruction was specifically assigned in the motion for new trial and assigned as error in the petition in error. In our opinion the giving of the instruction constitutes reversible error in that it placed the burden upon defendant to convince the jury beyond a reasonable doubt that he committed the act in self-defense.
“We therefore believe the judgment in the case should be reversed.”

The confession in error is sustained and the judgment is reversed on account of the error contained in instruction No. 10, which instruction clearly places the burden on the accused to establish his innocence in the minds of the jury beyond a reasonable doubt. The court evidently did not intend to place any such burden on the accused, but the effect of the instruction does so none the less.

The judgment will be reversed and the cause remanded to the district court of Cleveland county to be disposed of according to law.

DOYLE, P. J., concurs. FURMAN, J., absent.


text:
    GEORGE CAFFEE v. STATE.
    No. A-2184.
    Opinion Filed May 14, 1915.
    1. EVIDENCE — Rules—Change by Legislature. Existing rules of evidence may be changed at any time by the law-making power, when exercised within constitutional limitations.
    2. SAME — Limitations on Legislative Power. Statutes which undertake to make evidence of certain facts absolute or conclusive proof of guilt are unconstitutional; those, however, which merely declare statutory presumptions affecting the burden of proof are valid.
    3. INTOXICATING LIQUOR — Possession—Prima Facie Evidence of Guilt. A statute making the possession of more than a certain amount of intoxicating liquor prima facie evidence of an intent to violate provisions of the prohibitory law, is not unconstitutional as invading the province of the judiciary, and depriving the accused of the presumption of innocence, or as making prima facie evidence of guilt a fact which has no relation to, or jloesjiot tend to prove, the criminal act.

      4. SAME. — Question for Jury. Under a provision of the aet of 1913, chapter 26, declaring that the keeping in excess of a certain amount of intoxicating liquors shall be “prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors,” evidence of such possession is sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and siffi-eient to justify a jury in finding a defendant guilty, provided it .does in effect satisfy them of his guilt beyond a reasonable doubt.
    5. SAME — “Prime Pací© Evidence” — Legal Weight of Expression. The phrase “prima facie evidence,” as used in the .statute, is such evidence as, in the judgment of the law, is sufficient to establish the fact, if it be credited by the jury, and unless rebutted or the contrary proved, it remains sufficient for that purpose.
    (Syllabus by the Court.)

      Appeal from Superior Court, Muskogee County; Parrar L. McCain, Judge.

    George Caffee, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Crump, Crump & Garrett, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information filed in the superior court of Muskogee county, charging that on the 4th day of November, 1913, he did unlawfully have the possession of nine pints of whisky and one quart of whisky with the intention of selling the same, Geo. Caffee, the plaintiff in error, was convicted and sentenced to be confined in the county jail for thirty days, and to pay a fine of $50 and the costs. The judgment and sentence was entered December 13, 1913. 'From the judgment an appeal was taken by filing in this court on February 6, 1914, a petition in error with case-made.

The evidence shows that F. A. Maloney, a deputy sheriff, in serving a search warrant on the defendant’s place of business, known as the “Busy Drug Store,” 110 North Second street, Muskogee, found two pints of whisky in a little safe, and seven pints concealed in a wall case behind rolls of paper in the drug store, and a quart bottle nearly full of whisky on the prescription case.

The state introduced a certified copy of the. record of the Internal Revenue Collector’s office, showing the payment of the special tax required of liquor dealers: “place, Busy Drug Store, by G. C. Caffee, 110 North Second street, Muskogee, payment made August 7, 1918.”

The one witness introduced by the defendant, F. J. Kell, testified that he was a deputy collector of internal revenue for the district of Oklahoma; that he knows Geo. Caffee, and where his drug store is; that this drug store handles patent medicines and carries beef wine, Mareno, and patent medicines of that description, and upon such the government requires the. payment of the special tax. That where patent medicines or anything else is sold that requires the payment of the special tax, the license issued to a drug store is the same kind of license as that issued to a retail liquor dealer.

The court, with other instructions, instructed as follows:

“You are instructed that, under the laws of the state of Oklahoma, the keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, or of any liquors or compounds of .any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol measured by volume, and which is capable of being used as a beverage (except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States) is prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors. (Given and excepted to by defendant.) (Signed) Farrar L. McCain, Judge.”

Error is assigned and exception taken to this instruction. Counsel for the plaintiff in error contend that the law upon which this instruction is based is unconstitutional, for the reasons stated in Ex parte Wilson, 6 Okla. Cr. 451, 119 Pac. 596. The doctrine of the Wilson case has no bearing upon the question involved here. The statute there considered (section 4, ch. 70, Sess. Raws 1911) made it a crime “for any person to have or keep in excess of one quart of spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor.” The instruction here given was based upon section 6, chapter 26, Sess. Taws 1913, providing:

“Section 6. The keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, or any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, or in any manner permitting any other person to have or keep any such liquors in or about his place of business, or any place of amusement, or recreation, or any public resort, or any club room; provided, however, the foregoing provision of this section shall not apply to bonded apothecaries, druggist, or pharmacist, as to alcohol purchased by them pursuant to the rules and regulations promulgated by the Governor in accordance with the provisions of the laws of this state; or the keeping in excess of one gallon of spirituous, or one gallon of vinous, or more than one cask of malt liquors, or any imitation thereof, or substitute therefor; nor more than one cask of any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors; provided, further, that this section shall not be construed in any way to legalize the keeping of such liquors for unlawful purposes."’

The courts hold that existing rules of evidence may be changed at any time by the law-making power when exercised within constitutional limitations. The Legislature has frequently changed the rules of evidence and declared that certain facts when shown shall constitute prima facie evidence of guilt. With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined upon a consideration of the evidence. In the determination of that question they are required by the statute to consider the keeping of a certain amount of intoxicating liquors as prima facie evidence of an unlawful intent. But that evidence may be rebutted by other evidence in the case, whether shown by evidence on the part of the defense, or by the state in connection with the evidence proving the possession. With such evidence, the jury must also take into consideration the presumption of the innocence of the accused until the contrary is proved beyond a reasonable doubt. It does not change the rule in all criminal cases that, “before a conviction can be had, the jury must be satisfied from the evidence beyond a reasonable doubt of the affirmative of the issue presented in the accusation that the defendant is guilty in the manner and form as charged in the indictment or information.” 3 Rice on Ev., par. 259, and cases cited.

Says Wigmore:

“There remains a question which has no concern with the question of conclusive evidence, but has often been assimilated to it, and has received an undeserved importance and a needless confusion by that' association, namely, the question of. the constitutionality of statutes creating rules of presumption or prima facie evidence. A rule of presumption is simply a rule changing the burden of proof, i. edeclaring that the main fact will be inferred or assumed from some other fact until evidence to the contrary is introduced. There is not the least doubt, on principle, that the Legislature has entire control over such rules, as it has over all other rules of procedure in general and evidence in particular, subject only to the limitations of evidence expressly enshrined in the Constitution. If the Legislature can abolish the rules of disqualification of witnesses and grant the rule of discovery from an opponent, it can shift the burden of producing evidence. Yet this elementary truth has been repeatedly questioned, and courts have repeatedly vouchsafed an unmerited attention to the question, chiefly through a hesitation in appreciating the true nature of a presumption and a tendency to associate in some indefinite manner the notion of conclusively shutting out all evidence and that of merely shifting the duty of producing it. Fortunately, sound principle has almost everywhere prevailed, though at an unnecessary expense of argument and hesitation.” (Wigmore, Ev. par. 1354.)

A well considered case is State v. Barrett, 138 N. C. 630, 1 L. R. A. (N. S.) 626. The court in that case gave an instruction to the jury based upon a statute similar to the one involved here. The opinion of the court, written by Justice Connor, is clear and logical and shows great research. It is in part as follows:

“The defendant next calls into question the validity of the statute because he says the fact made prima facie evidence of the guilty intent has no relation to the criminal act, and does not tend to prove it; first, because the possession of liquor does not tend to show an intent to sell it; and, second, the possession of a quantity more than one quart is entirely consistent with such possession for personal or domestic use. It must be conceded that some of the courts have placed this limitation upon the legislative power. Peckham, J., in People v. Cannon, 139 N. Y. 32, 36 Am. St. Rep. 668, 34 N. E. 759, says: ‘The limitations are that the fact upon which the presumption is to rest must have some fair relation to, or natural connection with, the main fact. The inference of the existence of the main fact, because of the existence of the fact actually proved, must not be merely and purely arbitrary, or wholly unreasonable, unnatural, or extraordinary; and the accused must have in each case fair opportunity to make his defense, and to submit the whole case to the jury, to be decided by it after it has weighed all the evidence, and given such weight to the presumption as to it shall seem proper.’ State v. Beswick, 13 R. I. 211, 43 Am. Rep. 26. This case has been criticised in the following language: The opinion discloses confused notions as to the nature of presumptions and burden of proof. ‘It has occasionally been suggested that these legislative rules of presumption or any legislative rules of evidence must be tested by the standard of rationality, and are invalid if they fall short of it! But this cannot be conceded. If the Legislature can make a rule of evidence at all, it cannot be controlled by a judicial standard of rationality, any more than its economic fallacies can be invalidated by the judicial conceptions of economic truth. Apart from the Constitution, the Legislature is not obligated to obey either the axioms of rational evidence or the axioms of economic science. All that the Legislature does in such an event is either to render admissible a fact which was before inadmissible, or to place the burden of producing evidence on the opposite party. When this has been done, the jury is free to decide; or, so far as it is not, this is because the party has voluntarily failed to adduce contrary evidence. There is here nothing conclusive, nothing prohibitive. So long as the party may exercise his freedom to introduce evidence, and the jurors may exercise their freedom to weigh it rationally, no amount of irrational legislation can change the result.’ (Wigmore, Ev. par. 1354.)
“We think that a full recognition of the limitations does not invalidate the statute under discussion. Certainly the Legislature has the power to prohibit the keeping of liquor with intent to sell. Black, Intoxicating Liquors, 387. It is equally clear that, without any statutory rule of evidence, the keeping is an essential fact to be proved, and necessarily 'relevant. The quantity, place, circumstances, etc., in and under which it is kept, are to be considered by the jury in passing upon the intent. Black, Intoxicating Liquors, 525. This for the manifest reason that they have a relation to the offense charged, to-wit, the keeping with intent to sell. Therefore, when the Legislature gives an additional intensity to the proof of the fact which is, without any statute, relevant as tending to prove the fact in issue, we are unable to see how it can be said that it exceeds its constitutional limitation in this respect. The defendant, however, contends that the quantity named, to wit, ‘more than a quart,’ has no relation to, and does not tend to prove, the offense. The power being conceded, it is difficult to conceive how the court could undertake to fix the limit in respect to the quantity prescribed, as the basis of the presumption. It will be observed that it is not the keeping of a quart, or any fixed quantity beyond a quart, which is made a prima facia case, but ‘more than a quart.’ Of course, the prima facie case would be stronger or weaker according to the quantity kept in excess of a quart. We would find it exceedingly difficult to prescribe any limit to the power of the Legislature in this respect. We must ever keep in mind the fundamental principle that courts must not call into question the validity of statutes because they may not think them wise or wholesome. To do so would be to introduce untold confusion and uncertainty into our jurisprudence. It has been so frequently and forcibly said that, within the sphere of its power, the Legislature is supreme, that it does not need the citation of authority or extended reasoning to sustain it. As enforcing this truth, we quote: ‘Whether the Legislature acted wisely or not is a question with which we have nothing to do. The power being admitted, its abuse can not affect it; that must be for the legislative consideration. It is sufficient that the judiciary claim to sit in judgment upon .the constitutional power of the Legislature to act in a given case. It would be rank usurpation for us to inquire into the wisdom or propriety of their acts.’ Nash, C. J., in Taylor v. Newberne, 55 N. C. (2 Jones, Eq.) 141, 64 Am. Dec. 566. ‘It will not throw much light on a question like this to put extreme cases of abuse of such power to test the existence of the power itself.’ Shaw, C. J., in Norwich v. Hampshire County, 13 Pick. 60. ‘There is no shadow of reason for supposing that the mere abuse of power was meant to be corrected by the judiciary.’ Black, C. J., in Sharpless v. Philadelphia, 21 Pa. 147, 59 Am. Dec. 759. See also Iredell, J., in Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648. In Cunningham's Case, 25 Conn. 193, the act provided that the finding of spirituous liquor in possession of a person, except in his dwelling house, should constitute prima facie evidence that it was kept for sale. In Wiliams’ Case, 6 Gray, 1, the statute provided that the delivery of liquor in any other place than a dwelling house should constitute prima facie evidence. In Merchant’s Case, 103 N. Y. 143, 57 Am. Rep. 705, 8 N. E. 484, the act provided that, where the person is seen to drink intoxicating liquors on the premises of one who had license to sell liquor not to be drunk on the premises, it should constitute prima facie evidence of guilt. In Cannon’s Case, 139 N. Y. 32, 36 Am. St. Rep. 668, 34 N. E. 759, the act made the possession of a junk seller of second handed bottles and kegs presumptive evidence of unlawful use. In Santo’s Case, 2 Iowa, 165, 63 Am. Dec. 487, the statute made the keeping of liquor in any other place than the dwelling or its dependencies prima facie evidence of keeping liquor with intent to sell. These acts were all sustained. See, also, Lincoln v. Smith, 27 Vt. 328; American Fur Co. v. United States, 2 Pat. 358, 7 L. Ed. 450. Notwithstanding the decision in Beswick’s Case, 13 R. I. 211, 43 Am. Rep. 26, we find the Supreme Court of Rhode Island at the same term, in State v. Mellor, 13 R. I. 666, holding that a statute providing that evidence of the sale or keeping of intoxicating liquors for sale shall be evidence that the sale or keeping is illegal, was valid, the court saying: ‘This inference or presumption, without the aid of the statute, would not be available as legal evidence, but we think that it was in the power of the general assembly to make it so; and, when it once becomes evidence, it is for the jury, not the court, to say whether or not it is sufficient to prove the fact for the proof of which’it is adduced.’ We know of no rule based upon sufficiently general observation or experience which would enable this court to say, as a matter of law, that the keeping of more than a quart of liquor in one’s possession has no relation to an intent to sell.”

See, also, Cooley’s Const. Lim. pp. 409, 410; Wharton’s Crim. Ev. 715 a., State v. Sheppart, 64 Kan. 451, 67 Pac. 870.

In Com. v. Kimball, 24 Pick. 366, it is said:

“Making out a prima facie case does not necessarily or usually change the burden of. proof. A prima facie case is that amount of evidence which would be sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending to contradict it, and render it improbable, or to prove other facts inconsistent with it. But the establishment of a prima facie case does not take away from a defendant the presumption of innocence, though it may, in the opinion of a jury, be such as to rebut and control it; but the presumption remains, in aid of any other proofs offered by the defendant to rebut the prosecutor’s prima facie case.”
“The use of the term ‘prima facie; as applied to evidence, does not shift the burden of oroof.” (Bowman v. State, 38 Tex. Cr. 14, 41 S. W. 835.)

The phrase ‘prima facie evidence,’ as used in the statute, is such evidence as in the judgment of the law is sufficient to establish the unlawful intent, and, if it be credited by the jury, it is sufficient for that purpose, unless rebutted, or the contrary proved. Under this construction of the statute there can be no question with respect to its constitutionality.

Finding no error in the record, the judgment is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    PETER CLARK v. STATE.
    No. A-2089.
    Opinion Filed May 14, 1915.
    1. INDICTMENT AND INFORMATION — Sufficiency—Time for Objection. The constitutional right of a defendant to be informed of the nature and cause of the accusation against him entitles him to insist, at the outset by demurrer and after verdiet by motion in arrest of judgment, that the indictment or information shall apprise him of the crime charged with such reasonable certainty that he can make his defense. The question of the sufficiency of the indictment or information must usually be called in question by a motion to set aside, or by demurrer before the trial. If the indictment or information states no offense within the jurisdiction of the court, that fact is fatal at any stage of the proceedings and is not waived by a failure to take advantage thereof by motion or demurrer,
    2. SAME — Objection—Felonious Assault — Description of Weapon. The information charged that the defendant "did then and there wrongfully and unlawfully, with the intent to do bodily harm and without justifiable or excusable cause, commit an assault upon the person of Wah-kah-tah-he-um-pah, by unlawfully and feloniously striking and beating the said Wah-kah-tah-he-um-pah with a dangerous weapon, towit, a long rod or bar of steel or iron.” Held, that the information was insufficient to charge the defendant with assault with a dangerous weapon with intent to do bodily harm as against an objection taken to the introduction of evidence because the information did not charge an offense within the jurisdiction of the court.
    (Syllabus by the Court.)

      Appeal from District Court, Osage County; R. H. Hudson, Judge.

    Peter Clerk, convicted of felonious assault, appeals.
    Affirmed.

      Leahy & McDonald, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Peter Clark, was convicted of assault with intent to do bodily harm. The jury were unable to agree upon the punishment. Motions for new trial and in arrest of judgment were overruled, and on the 8th day of April, 1913, judgment was rendered, and he was sentenced to imprisonment in the penitentiary for a period of one year and one day from the time of his delivery to the warden. From this judgment he appeals.

It appears from the evidence that the prosecuting witness, Wah-kah-tah-he-um-pah, had married the old father of Peter Clark, and lived near the home of Hlu-ho-wah-tah, a Big Bear Indian. On the night of July 7th, a baby was born to defendant and his wife, who was at the home of Hlu-ho-wah-tah. The prosecuting witness went to this place to see the new-born baby and was sitting out near a tent on the ground. Defendant came riding up on a horse belonging to Wah-kah-tah-he-um-pah. She censured him for riding her horse. The defendant abused her for leaving his father at home sick without preparing an evening meal for him. She says the defendant then said “I am going to whip you.” Pie dismounted, picked up a long rod of steel or iron (which was exhibited to the jury) and with it he struck her across the back, rendering her unconscious and for which she received medical attention. The defendant admitted striking her with the rod and says he did so because he was mad at her; that he didn’t mean to kill her and he denies making the statement that he was going to whip her.

The sole contention made for a reversal of the judgment is that the information does not allege facts showing that the district court of Osage county had jurisdiction, and the basis of this complaint is that the information does not allege facts sufficient to show the commission of a felony.

Alleging time and venue, the information charges:

“The said defendant, Peter Clark, then and there being did then and there wrongfully and unlawfully, with the intent to do bodily harm and without justifiable or excusable cause, commit an assault upon the person of Wah-kah-tah-he-um-pah, by unlawfully and feloniously striking and beating the said Wah-kah-tah-he-um-pah with a dangerous weapon, to wit, a long rod or bar of steel or iron, contrary to,” etc.

It appears from the record that on the 4th day of No-, vember, 1912, the defendant, present in person and by his attorneys, waived time to plead and entered a plea of not guilty, and the case was continued for. the term by agreement. The case came on for trial March 12, 1913. No motion to quash or set aside nor demurrer to the information was filed in the case. After the jury had been empaneled and the first witness called and sworn, counsel for the defendant objected “to the introduction of any testimony in this case for the reason that the information filed in the same does not state a cause within the jurisdiction of this court.” Which objection was by the court overruled.

The function of a demurrer, which was not resorted to by the defendant, is to defeat the information without a trial, whenever it appears upon the face thereof that it is subject to one or more of the five objections named in the statute. Proc. Crim. (sec. 5791, Rev. Laws 1910). These objections can be taken only by demurrer, except that an objection to the jurisdiction of the court over the subject of the information, or that tire facts stated do not constitute a public offense, may be taken at the trial under a plea of not guilty and in arrest of judgment. Section 5799, Rev. Laws 1910. Our Procedure Criminal provides that a motion in arrest of judgment “may be founded on any of the defects in the indictment or information mentioned as grounds of demurrer unless such objection has been waived by a failure to demur.” (Section 5939, Rev. Laws 1910.

The only objection taken or question raised to the information was the objection taken to the introduction of evidence, because the information did not charge a felony, and by the motion in arrest of judgment on the ground “that the information does not state an offense against the laws-of the state of Oklahoma of which this court has jurisdiction.”

This court has repeatedly held that if a defendant makes no objection to the form or sufficiency of the indictment or information until after the jury has been empaneled, the objection should be overruled if by any reasonable construction the indictment or information can be sustained. White v. State, 4 Okla. Cr. 146; Edwards v. State, 5 Okla. Cr. 20; Hoyle v. State, 7 Okla. Cr. 342; Ex parte Spencer, 7 Okla. Cr. 113.

The sole question presented for our determination is: Do the facts stated constitute a public offense amounting to a felony?

In considering this question it must be borne in mind that district courts are without jurisdiction to try misdemeanors.

The statute under which this information was prosecuted is as follows:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause, commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.” (Section 2344, Rev. Laws 1910.)

The information alleges all the essential ingredients of the offense defined by this section. It is true that the information is not a model, but failing to interpose a demurrer, the defendant waived all defects not jurisdictional. In framing an information the statute should be carefully followed, and such would have been the better practice in this instance; however, we are inclined to think that the defects are more technical than substantial. Under the provisions of our Procedure Criminal it is sufficient that the act charged as the offense is clearly set forth in ordinary and concise language in such a manner as to enable a person of common understanding to know what is intended, and that the facts constituting the crime shall be alleged with sufficient certainty to enable the court to pronounce judgment upon a conviction according to the right of the case. Section 57-16, Rev. Laws 1910. It is further-provided that:

“No indictment or information is insufficient nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” (Section 5741', Rev. Laws 1910.)

We are of opinion that the facts stated are sufficient to charge the crime of assault with a dangerous weapon with intent to do bodily harm. It follows that the district court had jurisdiction to try the information and that the objection as made was properly overruled. The judgment of the district court of Osage county is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    JEROME BROWN v. STATE.
    No. A-1936.
    Opinion Filed May 15, 1915.
    1. COURTS — Terms of Court — Expiration. Where a general term of the court has been once regularly convened, on the day fixed by law, it can expire only by operation of law, or by an adjournment sine die, and will not so expire by operation of law until the first day of the next general term.
    2. APPEAL — Challenge to Juror — Prejudicial Error. Where there is nothing in the record to show that an incompetent, disqualified or otherwise objectionable juror was forced upon the defendant, this court will not consider assignments of error based upon rulings of the court on challenges for cause.
    3. TRIAL — Instructions. Where the instructions requested, so far as legal and pertinent, were fully and fairly covered by the instructions given, the instructions requested were rightly refused.
    (Syllabus by the Court.)

      Appeal from District Court, Johnston County; Robt. M. Rainey, Judge.

    Jerome Brown, convicted of manslaughter in the first degree, appeals.
    Affirmed.

      Cornelius Hardy, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information filed in the district court of Johnston county, charging him with the murder of Richmond Tyubby, the plaintiff in error, Jerome Brown, was tried and found guilty of manslaughter in the first degree. The jury failed to agree on the punishment. On the 4th day of October, 1912, the court rendered judgment and sentenced the defendant to imprisonment in the penitentiary for the term of ten 3^ears. From this judgment an appeal was taken by filing in this court on March 14, 1913, a petition in error with case-made.

From the record it appears that the first trial of this information, in October, 1911, resulted in a mistrial; the jury having failed to agree. It appears that all the parties concerned were Indians; that on the day of the homicide the defendant and the deceased and Edmondson Porter were at the home of the deceased and from there went together in a buggy to the nearby town of Ravia; that early in the evening they left Ravda and went to Troy and from there to the home of the deceased. They were drinking whisky together that day in the town of Ravia and were all somewhat intoxicated when they arrived at the home of the deceased that evening. Shortly after they returned the defendant shot the deceased twice with a pistol. One ball entered the face and the other entered the groin. Tyubby died the next day. _ '

_ J. C. Sleuts testified that he was sinking a shaft about two hundred yards from Tyubby’s house and could see the house from where he was working; that these parties stopped and stayed about fifteen or twenty minutes with him that evening; that just before they got to the'house the defendant fired a pistol and he saw them pass something from one to the other, and then another shot was fired and they went into the house; that he next saw Tyubby and his wife coming towards him on the run; that Tyubby stopped and his wife and two children went on down the hollow; that Tyubby did not have a weapon of any kind. In about five minutes Tyubby went back to the house; that witness watched him and saw him step up on the porch and in less than a minute he heard a shot and saw him fall. The man that fired the shot was close to the corner of the porch; their another shot was fired; that he did not go up there that evening.

Edmondson Porter testified that when they returned that evening the home folks were there, Lila, Betsey, and Sarah Hawkins, Ethel Sealey, Johnston Jimmy, Ester Sealey, and two small children, but most of the women left right away; that he was about two steps from Richmond when the defendant shot him. He heard Ester Sealey say, “Don't shoot him”; that Richmond was just standing there and when the defendant fired the first shot he fell forward; that the defendant stepped towards him and Ester Sealey caught his hand, but he fired the second shot and then went off with the pistol.

Ester Sealey testified that she was a sister of the deceased and was present when the shooting occurred; that when she heard the gun fire she looked around and saw the defendant with a pistol in his hand; that he went to -where the body was lying and fired again; that about that time she got to where he was and took hold of his hand that held the pistol; that he told her to let loose and she did so.

The defendant testified as to the circumstances of the shooting as follows:

“Q. After you put up the team then what did you do? A. We went to the house — we met Richmond about half way of the yard, coming out. Q. Did you have any talk with Richmond there at that time? A. Yes, sir; he said the women folks was gone and I said that was too bad the way he had treated his folks and Richmond said he didn’t give a damn and I said I did not either, it was not none of my folks and as I started to walk on by he kick me and I turned around and hit him. Q. What with? A. My fist. Q. Then what occurred? A. We started onto the porch and right at the porch Edmondson told us not to do that. He said ‘Don't fight, boys.’ And he grabbed Richmond and Richmond run up and hit me in my back. Q. Then what happened? A. I turned around and struck him and Edmondson grabbed Richmond and carried him into the room —they both went in there. Q. What room? A. In the-south side. Q. How long did they stay in there? A. They were in there when I walked in the side room — they may have been in there ten minutes. Q. Then what did you do after they went into the side room? A. Then I walked in the side room and-sat down on the bed and I listened and I heard somebody walk out and go around the house on the porch and I sat there a while and studied and I thinks while they are gone I will take my gun and go. My grip was sitting under the bed and I pulled it out and unlocked it and took out my pistol and as I walked out Richmond met me in the door. Q. What happened then? A. He asked me where I was going and I told him I was going around the house and he said ‘you come back’ and I said ‘I will be back directly,’ and he said ‘you god damn son of a -, you come back,’ and he walked up and got hold of my arm. Q. What else — what hand? A. My right. Q. Then what happened? A. He said T am going to kill you,’ and I told him please to not do it and he said ‘there is a hundred dollar reward on you.’ Q. Then what happened? A. He drew his gun on me. Q. Then what? A. I threw up my left hand and the gun went off. over my head. Q. What else, go on? A. He pushed me against the wall and stepped back and started to shoot me again and his gun snapped. Q. What did you do, if anything? A. By that time I got mine out — I had it in my hip here — and the third time he made a move I got mine out and shot him. Q. What happened then? A. Why, I shot him and when he was falling I shot him again. Q. After he fell what did you do? A. After he failed I seen he was not able to shoot me again and I turned around and walked off. Q. Where did you go? A. To Julia Brown’s. Q. Now, Jerome, why did you kill Richmond? A. Self-defense, he was trying to kill me.”

He further testified that Ester Sealey came to his bed room on the morning of the clay of the, killing and told him he ought to be dead and in his grave; that the deceased had told her to hold him there until he and Edmondson Porter could go to Ravia and get some whisky and that they would get him drunk and kill him, and that she and Edmondson would swear that he was trying to kill, and he would then get out of killing the defendant. Pie also produced a letter which he testified he received through the mail September 20th at Woodville, in part as follows:

“If you come back to Troy you will not go back alive Because me and my Brother is agoing to have you Killed and Rich-mon Edmon ready for you when you come back to Troy you can have your coffin ready when you come we dare you to come * * * we are going to have you cilled if we have to poison you ourself well you can call yourself a dead man this is the last When you do come you are gone to hell that all (Signed) East Seely.”

—That the deceased was a half brother of Ester Sealey. He also testified that the deceased had told him that he wanted him to go back and live with Ester Sealey, and if he did not he would kill him.

Several witnesses testified that they had heard the deceased threaten to kill the defendant.

The testimony for the defense tended to show a conspiracy between Richmond Tyubby, the deceased, and Ester Sealey, his half sister, and their cousin, Edmondson Porter, to compel the defendant to marry Ester Sealey after having lived in adultery with her, or kill him.

Approximately 30 witnesses testified, but we deem it unnecessary, however, to further rehearse the testimony, as the foregoing statement is sufficient for the purpose of this opinion.

The assignments of error question the jurisdiction of the court and refer to the overruling of a challenge to the panel and a challenge to a juror, and the rulings of the court in the admission and exclusion of testimony, and exceptions to the giving and refusing to give certain instructions.

On September 9, 1912, when the case was called for trial, counsel for the defendant filed objections to.the jurisdiction of the court,

“for the following reasons: 1st. That this is not a timé when a regular term of this court is required to be held by law. 2nd. That the June term of this court expired by operation of law upon the convening of this court at another place in the district. 3rd. That a term of this court as required by law has been held at Atoka, Atoka county, and at Coalgate, Coal county, subsequent to the convening of the June term at Tishomingo. 4th. That no order adjourning the June term to reconvene September 9th, was made and entered of record in the journal.”

These objections were wholly without merit. Chapter 102, Sess. Eaws 1910, fixes the time of convening the regular term of court in Johnston county on the first Monday in January, June, and October.

The record shows that the district court of Johnston county convened June 3,1912, and thereafter on June 29, 1912, adjourned to September 9th, and on the latter date convened pursuant to adjournment. In the meantime terms of court were held at Atoka and at Coalgate in the same judicial district.

In Tucker v. State, 10 Okla. Cr. 565, 139 Pac. 998, it is said:

“The rule is too well settled to admit of controversy that, where a general term of court has been once regularly convened, on the day fixed by law, it can expire only by adjournment sine die, or by operation of law, and, unless adjourned sine die, will not so expire by operation of law until the first day of the next general term. St. Louis & S. F. R. Co. v. James, 36 Okla. 196, 128 Pac. 279. The trend of the courts is to so construe the law, if possible, as to uphold the sessions of courts actually doing business.”

The objections interposed to the jurisdiction were very properly overruled.

The defendant filed a challenge to the panel, for the reason that the regular panel of jurors summoned in June had not served two weeks as required by law and no order of the court was made and entered of record excusing said jurors for good and sufficient cause. The overruling of the challenge is assigned as error. The challenge is without merit and was very properly overruled. The overruling of a challenge for cause to a juror who stated that he did not believe in the death penalty is assigned as error. We do not find anything in the record showing who the juror was, or whether he served on the jury or whether the defendant was deprived of his right to peremptorily challenge him by reason of having exhausted his peremptory challenges, nor do we find that the ruling of the court on the challenge was a ground in the motion for a new trial.

Where there is nothing in the record to show that an incompetent, disqualified, or otherwise objectionable juror was forced upon the defendant, this court will not consider assignments of error based upon the rulings of the court upon a challenge for cause. Colbert v. State, 4 Okla. Cr. 500, 113 Pac. 558.

We have examined the exceptions taken to the rulings of the court on the admission and exclusion of testimony, and we are satisfied that no error was committed prejudicial to' the substantial rights of the defendant.

In the defendant’s brief, alleged errors in the instructions given are discussed at great length. An examination of the record discloses that no exception was taken to any instruction given by the court. The record does not even show that a general exception was taken to the instructions given. The record shows the refusal of the court to give five instructions requested by the defendant and that said instructions were refused because covered by the instructions given. The instructions of the court were commendably correct and fully and fairly presented the law of the case to the jury.

After a careful examination of the evidence we are convinced that the defendant was convicted of the lowest grade of homicide that the law and the evidence will warrant. The defendant was the principal witness in his own behalf, and his version of the tragedy, which upon its face was extremely improbable, was, as we think, properly discredited by the jury.

We have considered all the questions urged by counsel and we find no reversible error in the record. The defendant had a fair and impartial trial. It follows that the judgment must be, and the same is hereby, affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    FRANK SIBENALER v. STATE.
    No. A-2271.
    Opinion Filed May 15, 1915.
    1. APPEAL AND ERROR — Pardon Pending — Motion to Abate Appeal. The plaintiff in error was convicted and sentenced to serve a term of one year in the penitentiary and to pay a fine of one thousand dollars. Pending the determination of the appeal from the judgment, he was granted a pardon, conditioned that he should pay five hundred dollars of the fine in fifty monthly installments of ten dollars each. He accepted the pardon and filed in this court- a motion to abate the proceedings. Held, that the proceedings do not abate until the condition of the pardon has been fully performed.

      2. SAME — Dismissal. When an appeal from a judgment of conviction is pending in this court, and the fact that a conditional pardon has been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    (Syllabus by the Court.)

      Appeal from Superior Court, Oklahoma County; Bdzvard Dezves Oldfield, Judge.

    Frank Sibenaler, convicted of a felony, appeals.
    Appeal dismissed.

      James B. Twyford, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted on an information charging him with keeping a place with the intent and for the purpose of bartering, selling, giving away and otherwise furnishing liquors. The jury failed to agree on the punishment. On December 10, 1913, judgment was rendered, and the punishment imposed was imprisonment at hard labor in the penitentiary for a term of one year, and that he pay a line of one thousand dollars and the costs. From this judgment an appeal was taken by filing in this court on May 21, 1914, a petition in error with case-made.

The plaintiff in error has filed a motion to abate the action on the ground that he “was granted an absolute pardon for the offense involved in the appeal in this case; that said pardon was accepted by plaintiff in error, and that he has complied with the terms thereof.”

The pardon attached to said motion is as follows:

“State of Oklahoma. Executive Department.
“The Acting Governor of the State of Oklahoma,
“To all whom shall see these presents, Greeting:
“Know ye, that I, J. J. McAlester, Lieutenant Governor of the state of Oklahoma, and as such the acting Governor of the state of Oklahoma, in the absence from said state of the Honorable Lee Cruce, Governor of the state of Oklahoma, under and by virtue of the authority vested in me by the Constitution of the state of Oklahoma, do "hereby grant unto Frank Sibenaler, who was convicted on the 10th day of December, 1913, in the superior court of Oklahoma county, state of Oklahoma, for the crime of keeping a place with the intention and for the purpose of manufacturing, bartering, selling, giving away, and otherwise furnishing intoxicating liquors, and sentenced to imprisonment in the penitentiary at McAlester, Oklahoma, for the term of one year and one day and to pay a fine of one thousand dollars, a full and complete pardon for the offense of which he was convicted as aforesaid. Said pardon to become effective immediately upon the acceptance of the said Frank Sibenaler: Provided, however, that the said Frank Sibenaler shall pay one-half of the aforesaid in the sum of five hundred dollars to the clerk of the superior court of Oklahoma county, Oklahoma, in fifty monthly equal installments of ten dollars each, payable on or before the 10th day of each and every month until the said sum is paid-in full.
“In witness whereof, I have hereunto set my hand and caused these presents to be attested by the Secretary of State and the great seal of the state of Oklahoma to be affixed thereto by said Secretary of State at Oklahoma City, the capital, this 1st day of October.
“24th day of April, 1915.
“J. J. McAlester,
“Acting Governor of the State of Oklahoma.
“Signed 8 a. m., October 1, 1914.
“By the Governor:
“J. L. Lyon, Secretary of State.
“I Frank Sibenaler, do hereby declare that I have carefully read and understand the contents and terms of the above and foregoing pardon and do hereby accept same.
“Dated September 30, 1914.
“Frank Sibenaler.”

The power to pardon is an executive power, expressly vested by the Constitution of the state in the Governor as follows :

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law.” (Article 6, sec. 10 [159 Williams’].)

In Ex parte Crump, 10 Okla. Cr. 133, 135 Pac. 428, it is held that under the provisions of the Constitution, in the absence of the Governor from the state for any purpose, or for any period of time, the constitutional functions of his office devolve pro tempore upon the Lieutenant Governor, and a pardon granted and delivered by the Lieutenant Governor, as acting Governor, in the absence of the Governor from the state, is a valid and effectual pardon.

The power conferred by the Constitution is practically unrestricted, and the power to grant conditional pardons is expressly granted, and the Governor may impose any condition that he pleases, at least provided it is neither immoral, impossible, nor illegal. The condition in this case, to wit, that the plaintiff in error shall pay one-half of the fine “in fifty monthly equal installments of ten dollars each, payable on or before the 10th day of each and every month until the said sum is paid in full,” is neither immoral, impossible, nor illegal. The fact that the operative part of the pardon, which, if taken by itself, would be unconditional, is unimportant. It is well settled that if a person be pardoned, upon a condition, either precedent or subsequent, which he neglects to perform, the pardon is void, and he may be remanded to suffer his original sentence, but upon the question whether he has neglected to perform the condition, and is therefore liable to be thus remanded, he is entitled to a hearing and adjudication. Under the Constitution the Governor would have the right to insert a provision or condition in the pardon itself, reserving the right to determine whether the condition has been violated, and if he determines that it has, to remand him to prison, even without giving the person an opportunity to be heard, and such provision of the pardon would be a condition to which the beneficiary voluntarily subjected himself by the acceptance of the pardon, but the pardon in this case contains no such, condition. If a complaint should be made that the plaintiff in error had failed to perform the condition of his pardon, he should be brought before a court of competent jurisdiction to show cause why execution should not be awarded against him on his original sen-teirce, and touching the question whether he had failed to perform the condition of his pardon, he is entitled to be heard, just as he was entitled to be heard why sentence should not be passed on him when he was originally brought before the bar of the court for sentence after verdict.

While the state has not traversed the allegation that plaintiff in error has so far complied with the condition of his pardon, yet there may be a breach of the condition before the five hundred dollars has been fully paid. For this reason the motion that the proceedings abate is overruled.

By numerous decisions this court has held, when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and tire same is granted, and the fact that a pardon has been granted is brought to the attention of this court, that the appeal will be dismissed as having been abandoned. For this reason the appeal herein is dismissed, and the superior court of Oklahoma county having been abolished, the cause is remanded to the district court of Okla-honra county. •

FURMAN and ARMSTRONG, JJ., concur.


text:
    R. J. ALLISON v. STATE.
    No. A-1898.
    Opinion Filed May 22, 1915.
    1. TRIAL — Evidence—Sufficiency—Demurrer. When the evidence introduced on behalf of the state fails to establish the crime charged in the information, and a demurrer is interposed to the evidence, the same should be sustained and the accused discharged.
    2. EVIDENCE — Burden of Proof — Dismissal. It is the duty of the law officers of the state to introduce testimony to establish the contentions of the state beyond a reasonable doubt in all criminal cases, and when this cannot be done, prosecution should not be instituted.
    (Syllabus by the Court.)

      Appeal from County Court, Tidsa County; N. J. Gubser, Judge.

      R. J. Allison was convicted of gaming, and appeals.
    Reversed.

      Davidson & Williams, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, R. J. Allison, was convicted at the November, 1912, term of the county court of Tulsa county on an information which charged him with permitting certain devices and tables to be set up for the purpose of gambling, -on the ground floor of the Kellman building in the city of Tulsa, and his punishment fixed at a fine of $200.

J. C. Wann and Frank Harlow testified on behalf of the state that they were acting in the capacity of deputies to the township constable; that they went up to the second story of the Kellman building and saw certain gambling games in a room on that floor. Neither of these witnesses gave any testimony which indicated that the plaintiff in error Allison was ever seen in the building or had anything to do with the rooms in question, or. with the second floor of the building in question; nor did they give any testimony that he was in possession of or seen around the games. Nothing is said in the testimony by these two witnesses concerning the ground floor of the building and nothing to indicate that the plaintiff in error had anything to do therewith.

C. W. McCarty was called as a witness on behalf of the state, and he testified that he was' in possession of the ground floor of the building and conducted the Wonderland Theatre there. He further testified that he had a lease on the entire building; that several months prior he had rented the second story of the building to Allison; that he did not know whether Allison was in possession of the same or not; that there were eight or nine rooms on the second floor.

There was no testimony offered to establish Allison’s connection with the offense charged.

Counsel for plaintiff in error interposed a demurrer to the evidence introduced on behalf of the state, and requested the court to advise the jury to return a verdict of not guilty. The demurrer was overruled and the request to advise a verdict denied. The court should have sustained the demurrer and the plaintiff in error should have been discharged on the testimony, for the reason that it was incumbent on the part of the state to establish beyond a reasonable doubt that the plaintiff in error permitted the setting up of the games in question in the place in question. Ignoring the fact that the information alleged that this offense was committed in one place and the proof clearly tended to establish the fact that it was committed in another, if at all, there is no testimony which tends to establish that the plaintiff in error Allison had anything whatever to do with the transaction or knew anything about it. The state should have been able to show that Allison was in possession of the building and that he permitted the setting up of these games as charged in the information. The officers nowhere in their testimony indicate that they ever saw Allison anywhere around the building or about the tables, and offer no other incriminating facts or circumstances.

The judgment is reversed and the cause remanded with directions to grant a new trial.

' DOYLE, P. J., concurs. FURMAN, J., absent.


author: DOYRE, P. J.

text:
    M. W. WILSON v. STATE.
    No. A-2259.
    Opinion Filed May 22, 1915.
    1. INTOXICATING LIQUORS — Quantity in Possession. Under section 6, chapter 26, Session Laws 1913, providing that: “The keeping in excess of - one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, or any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United. States, or in any maimer permitting any other person to have or keep any such liquors in or about his place of business, or any place of amusement, or recreation, or any public resort, or any club room * * * shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors,” it is error to instruct the jury that, “By prima facie evidence is meant such evidence as, in the absence of any other evidence to the contrary, is sufficient to establish and prove any fact or thing beyond a reasonable doubt,” since the statute only means to make such evidence competent to prove the unlawful intent, and sufficient to justify the jury in finding a defendant guilty, provided it satisfies them beyond a reasonable doubt, but not otherwise.”
    2. SAME — “Prima Facie Evidence”- — Question, for Jury — -The phrase “prima facie evidence,” as used in the statute, is such evidence as, in the judgment of the law, is sufficient to establish the fact, if it be credited by the jury, and unless rebutted or the contrary proved, it remains sufficient for that purpose. Whether or not such evidence is sufficient to overcome the presumption of innocence of a defendant, and to establish his guilt beyond a reasonable doubt, when all the evidence including the presumptions are considered, is for the determination of the jury.
    (Syllabus by the Court.)

      Appeal from County Court, Jackson County; J. M. Williams, Judge.

    M. W. Wilson, convicted of a violation of the prohibitory law, appeals.
    Reversed.

      W. T. McConnell, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYRE, P. J.

On information filed in the county court of Jackson county, charging that on or about the 26th day o.f September, 1913, he did unlawfully have in his possession certain intoxicating liquor, to wit, whisky and beer, with the intent to sell, barter, give away and otherwise furnish the same, M. W. Wilson, the plaintiff in error, was convicted and in pursuance of the verdict signed by five jurors he was on the 7th day of March, 1914, sentenced to be confined in the county jail for thirty days and to pay a fine of $50. From this judgment he appeals.

It appears from the evidence that plaintiff in error was a part owner of the Wilson & Heatley garage in Altus; that the sheriff and his deputies on a search warrant searched the place for liquor and found three or four quarts of whisky and about a dozen bottles of beer, some in a closet and some in a bedroom occupied by the defendant Wilson.

The court, with other instructions, instructed as follows:

“6. You are further instructed that the having possession or keeping of more than one quart of whisky in or about one's place of business constitutes and is prima facie evidence of such person’s intention to sell or otherwise unlawfully dispose of such whisky. By place of business is meant the place where one’s business vocation is carried on or conducted. By prima facie evidence is meant such evidence as, in the absence of any other evidence to the contrary, is sufficient to establish and prove any fact or thing beyond a reasonable doubt. Endorsed, Defendant excepts to the sixth paragraph of the court’s instructions and an exception is allowed.
‘J. M. Williams, Judge.”

That part of the foregoing instruction in which the court defined the legal effect of the term “prima facie evidence” is assigned as error.

The instruction attempts to give effect to that part of section 6, ch. 26, Sess. Raws 1913, which provides that:

“The keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, or in any manner permitting any other person to have or keep any such liquors in or about his place of business, or any place of amusement, or recreation, or any public resort, or any club room * * * shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors.”

The Attorney General very properly concedes that this assignment is well taken. We think that the jury could be easily confused by the language used defining the term “prima facie evidence.” Ordinarily the jury would understand the language objected to to mean that evidence of the possession of such amount, in the absence of any other evidence to the contrary, made it their duty to find the defendant guilty, whether convinced of his guilt or not. We think the language used is in effect a comment upon the weight of the evidence.

In the case of Caffee v. State, ante, it is held that:

“The phrase 'prima facie evidence,’ as used in the statute, is such evidence as, in the judgment of the law, is sufficient to establish the unlawful intent, and, if it be credited by the jury, it is sufficient for that purpose, unless rebutted, or the contrary proved,” and that “Evidence of such possession is sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding the defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt.”

Similar statutes of other states in which the words “prima facie evidence” are used have been construed to mean, “That such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt, and not otherwise.”

State v. Intoxicating Liquors, 80 Me. 57, 12 Atl. 794, 7 Am. Cr. Rep. 291; State v. O'Connell (Me.) 19 Atl. 86; State v. Momberg (N. D.) 103 N. W. 566.

“These statutes, it is said, are merely declaratory of the common law, and are valid. But they do not raise a conclusive presumption against the defendant. It is error to instruct the jury that they must find him guilty on proof of such facts alone, for such evidence is competent and sufficient, to justify a verdict only, if the jury are satisfied of defendant’s guilt beyond a reasonable doubt.” (Black on Intoxicating Liquors, par. 509.)

In State v. Hardelein (Mo.) 70 S. W. 130, it is said:

“Where a defendant pleads not guilty, and admits nothing against himself, as in the case at bar, the burden of proof is on the state to first make out a case against him which would entitle it to go to the jury; but this does not change the burden of proof, which remains with the state throughout the trial, and whether or not the evidence is sufficient to overcome the presumption of innocence of defendant, and to establish his guilt beyond a reasonable doubt, when all of the evidence on both sides including the presumptions are considered, is for the consideration of the jury.”

Bishop says:

“It would be a wide departure from the humanity of the criminal law to compel a jury, by a technical rule, to convict one of whose guilt, upon the whole evidence, they had reasonable doubt. And it would reverse the presumption of innocence to hold a defendant guilty unless, taking the burden. on himself, he could affirmatively prove himself innocent. All evidence should be viewed in its entirety, not in detached parts. The whole of any alleged crime must be proved, just as the whole of it must have been committed.” (1 Bish. New Cr. Proc. [4th Ed.] par. 1051.)
“Prima facie evidence” is defined by Starkie (1 Starkie Ev. 479) as:
“That which being inconsistent with the falsity of the hypothesis, nevertheless raises such a degree of probabilitj'' in its favor that it must prevail if it be credited by the jury, unless rebutted or the contrary proved.”

Prima facie evidence in the absence of evidence to the contrary, is sufficient to establish and prove any fact beyond a reasonable doubt, only when it satisfies the jury beyond a reasonable doubt, and not otherwise.

For the reasons stated we are of opinion that the instruction complained of was erroneous and prejudicial.

It follows that the judgment should be, and the same is hereby, reversed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    LOVE SMITH et al. v. STATE.
    No. A-2222.
    Opinion Filed May 22, 1915.
    1. EVIDENCE — Burden of Prosecution — Demurrer to Evidence — Dismissal — When the testimony introduced by the state not only fails to establish the guilt of the accused beyond a reasonable doubt, but negatives any idea of guilt, the trial court should sustain a demurrer to the evidence and discharge the accused.
    2 INTOXICATING- LIQUORS — Insufficiency of Evidence. For evidence which is insufficient to sustain a conviction of two sixteen-year-old boys on a charge of unlawfully giving away whisty, see opinion.
    (Syllabus by the Court.)

      Appeal from County Court, Washita County; b. R. Shean, Judge.

    Love Smith and Charley Mitchell were convicted of giving away whisky, and appeal.
    Reversed with directions to dismiss.

      Smith, Smith & Smith, for plaintiffs in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Plaintiffs in error Love Smith and Charlie Mitchell were convicted at the January, 1914, term of the county court of Washita county on a charge of giving away intoxicating liquor, and their punishment fixed at imprisonment in the county jail for a period of thirty days each and a fine of $50 each. The plaintiffs in error are two boys, each about the age of sixteen years at the time this conviction occurred.

The information charged an unlawful giving away of. whisky to William Gregory. The material testimony given by Gregory is as follows:

“Q. Tell the jury what happened while you was eating your dinner. A. Smith came up and asked me would I go and identify him and get this. Q. Get what? A. Whisky. Q. Where did he-want you to go? A. To the depot. * * * Q. Wh'at did he receive after you identified him and he signed this book? A. A package of liquor. Q. Tell the jury now what you did or what he did with that package of liquor after receiving it. A. What did he do with it? Carried it up the creek there a ways and hid it for a little while in an old stack there. Q. Where did you go? A. I went with him. * *• * Q.Tell whether'or not he broke the package. A. Yes, sir, he did. Q. What else did he do besides break the package, if anything? A. He took a drink. Q. What else? A. I don’t know. Q. What did he do with it after he took a drink? A. ITe hid it. Q. Tell the jury whether or not you got any of it at that time! A. Yes, sir, I got'some of it. Q. Was that before it was hid? A. Not the first time it was not. I never got any before it was hid the first time. Q. How come you to get it that time? A. I watched him hide it and went there and got it? Q. Was it there? A. Yes, sir. Q. Did he see you get it? A. He was not at the whisky. O. Was he waiting for you or not while you was getting the drink? A. No, I don’t think he was waiting for me. Q. Where was he? A. He was down on the creek.”

On cross-examination the witness testified further as follows :

“Q. Are you the boy that went ahead and drank a part of this whisky too, are you not? A. Yes, sir. Q. And Smith never did give you any of this whisky, did he? A. No, sir, he did not. Q. Did Mitchell ever give you any? A. No, sir. Q. Did any one ever give you any? A. No, sir.”

At the close of the state’s case a demurrer was interposed to the evidence, and the court requested to advise the jury to return a verdict of not guilty. The demurrer was overruled and the request denied. Proper exceptions were reserved, and this question presented by assignments of error to this court.

We are unable to determine on what process of reasoning the trial court based his conclusions that the state had made a case. Just why these sixteen-year-old boys should be sent to prison, when the state’s only witness, upon whose testimony the right of the public to make convicts of these boys must rest, positively and unequivocally declares from the witness stand that neither of them ever gave him any whisky at any time, is not clear. The verdict in this case was contrary to the evidence. The trial court should have sustained the demurrer to the evidence and discharged the plaintiffs in error from prosecution.

The judgment is reversed and the cause remanded with directions to the trial court to dismiss the prosecution.

DOYLE, P. J., concurs. FURMAN, J., absent.