text:
    TOM OWENS v. STATE.
    No. A-2078.
    Opinion Filed October 5, 1914.
    (143 Pac. 204.)
    1. APPEAL — Judgment—Evidence. As a general rule, verdicts -which have received the approval of the trial judge will not be disturbed -when supported by evidence sufficient to make out the offense. However, when the evidence is all carefully considered and it appears that it is wholly wanting in respect to some essential element of the offense charged, the judgment will be reversed as insufficient to sustain the conviction.
    2. INTOXICATING- LIQUORS — Unlawful Possesion — Sufficiency of Evidence. Upon a trial for the offense of having possession of intoxicating liquors with the intention of violating provisions of the prohibitory law, where no testimony tending to show such possession, either actual or constructive, was offered, held, that the evidence was insufficient to sustain the conviction.
    3. SAME, See opinion for facts and circumstances held insufficient to support a conviction for the offense of having possession of intoxicating liquors with the intention of violating provisions of the prohibitory law.
    (Syllabus by the Court.)

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

    Tom Owens was convicted of a violation of the prohibitory law, and appeals.
    Reversed.

      W. W. Momyer, for plaintiff in error.

      Chas. West, Atty. Gen., C. J. Davenport, Asst. Atty. Gen., and W. B- Disney, for the State.
   DOYLE, J.

Tom Owens, plaintiff in error, and Jerry Bol-ing, Geo. Mundy, and R. A. Smith were jointly informed against by the county attorney of Muskogee county for the offense of having in their possession on or about the 24th day of May, 1913, intoxicating liquor with the intention on their part of selling the same. At the close of the evidence in chief, the court, on the motion of defendants Geo. Mundy and R. A. Smith, advised the jury to acquit said defendants. When defendant 'Jerry Boling on his request was sworn as a witness for the’ defense, the county attorney announced that he desired to dismiss as to defendant Boling. After Boling had testified as a witness, both parties rested, and the defendant Owens, now plaintiff in error, moved the court to direct a verdict of not guilty, for the reason that there was no evidence connecting him with the place where the liquor was seized by the officers. After having heard all the evidence, the instructions of the court, and the argument of counsel for the state and the defendant, the jury returned three verdicts; the first finding defendants Mundy and R. A. Smith not guilty, the second finding defendant Jerry Boling not guilty, and the third, signed by nine jurors, finding the defendant, now plaintiff in error, Tom Owens guilty as charged, and fixing his punishment at a fine of $100 and confinement in the county jail for 30 days. A motion for a new trial was duly filed and overruled. July 5, 1913, the court pronounced judgment in accordance with the verdict. To reverse the judgment, the defendant Tom Owens appeals.

It is only necessary to a determination of this case to pass upon one question, and that is the sufficiency of the evidence to support the verdict.

Ed Maloney, the first witness for the state, testified that on the day named in the information he, as deputy sheriff, together with Earl W. Smith, D. W. Jackson, and Mr. Selby, deputy sheriffs, served a search warrant on the drug store at the southwest corner of Cherokee and Broadway, known as the East Side Pharmacy; that when they went to the place they found there defendants Boling, Mundy, and Owens; that he went through the back room and from there down into the cellar, and through the cellar up through a trapdoor into the adjoining storeroom and found three or four cases of whisky, and three five-gallon cans of alcohol; that two of these cases of whisk)! were found over the closet of a negro barber shop, separated by a wall that did not reach the ceiling of the storeroom; that he saw defendant Smith in the alley near the drug store; that he had visited the drug store at other times in his official capacity, and frequently found the defendant Owens there; that I. T. Owens was the same person as Tom Owens; that R. A. Smith had been tending this pharmacy about two years, excepting the time Mr. Stafford had the place; that Mundy and Boling were clerks there from the time Stafford gave up the place. On cross-examination he stated that they searched the drug store, but did not find any liquor there.

Earl W. Smith, the second witness, testified to substantially the same state of facts.

C. W. Jackson testified that they found the liquor in the adjoining storeroom; that Maloney went through the basement and through a hole in the wall, then up into the vacant storeroom; that this room had doors opening to the street and alley; that he really did not know' who owned the drug store, but it was known as Tom Owens’ place.

A certified copy of the record of special taxpayers and register was then introduced, showing payment December 26, 1913, “East Side Pharmacy, I. T. Owens, R. L. D. Muskogee, Cor. Brdy. and Cherokee.”

J. T. Beavers, the next witness called by the state, testified that he was the agent for Cammille Elliott, owner of the building where the East Side Pharmacy is located; that defendant R. A. Smith paid the rent for the last two or three months, and before that time the rent was paid by J. D. Kendall. On cross-examination he stated that the defendant Owens had not paid any rent for the building since May, 1913, when he sold the drug store to Stafford; that Mrs. Elliott was also'the owner of the vacant storeroom where the liquors were found; that a few months before, plumbers, repairing the pipes in the building, tore a hole through the wall in the cellar and tore up the floor in the vacant storeroom, and that Elliott said not to fix the floor until he could get a renter.

The defendant Tom Owens, as a witness in his own behalf, testified that he sold his interest in the drug store in May, 1912, to J. E. Stafford, and had a mortgage for part of the purchase price; that Stafford in November, 1912, beat him out of his mortgage by taking bankruptcy proceedings; that he sent back and surrendered his federal license, and asked that it be canceled some time in February, 1912, when his other case was in the superior court. On cross-examination he stated that when the license was taken out he was expecting to have to take the drug store back; that he never did use it, because he never did take the store back; that he received letters from Mr. Knott, Internal Revenue Collector, saying that he would revoke the license; that the defendant Smith now owns the drug store; that Smith bought it from Kendall after Stafford’s bankruptcy proceedings, eight or nine months before; that he did not own the whisky that was seized, and did not know whose whisky it was; that he did not pay clerk hire to defendants Smith, Boling, or Mundy, either directly or indirectly; that he did not carry any account of the drug store sales in the Exchange National Bank; that he thinks defendant Smith carried the account there; and that lie never made a deposit for Smith.

Defendant Geo. Boling testified that he worked for the East Side Pharmacy; that he knew who owned the place; that the defendant Tom Owens did not own it, nor had he anything to do with it since witness was employed there.

It is contended on the part of plaintiff in error that the verdict was contrary to law and to the evidence in the case, in that there was no evidence tending to show possession by plaintiff in error of the liquors seized. In our opinion this contention is well founded. While it is an established rule of this court that verdicts which receive the approval of the trial judge will not be disturbed when supported by evidence sufficient to make out the offense charged, however, when the evidence is all carefully considered, and it appears that it is wholly wanting in respect to some necessary element of the offense charged, it is not only the province, but the duty, of this court to reverse the judgment.

The evidence of the state’s witnesses wholly fails to show that the defendant owned the drug store. In fact, the evidence for the state shows that he sold his interest in the drug store more than a year before the date of the offense as alleged in the information. In a prosecution for the offense charged, in order to prove an intent to violate the law, the possession by the defendant of the intoxicating liquors must first be shown. That was not done in this case. It is contended in the briefs for the state that the evidence, though wholly circumstantial, tends-to show that the defendant Owens owned the drug store, and if he owned the drug store, he must also have had possession of the liquor. With this contention we cannot agree. No inference of guilt can be founded upon circumstances, except such as naturally or necessarily follow from the facts. If the facts and circumstances in evidence are of such a character as to fairly permit an inference consistent with innocence, they cannot be regarded as sufficient evidence to support a conviction. The general rule in criminal cases is that, where the evidence is circumstantial, the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence. Where the evidence at most only raises a mere suspicion of the guilt of the defendant, it is insufficient to sustain a conviction. Suspicion is not proof.

We are of the opinion that the defendant Owens’ motion to direct a verdict of acquittal was as well taken as those of his codefendants, which were allowed by the trial court. It follows that the judgment should be, and it is hereby, reversed.

ARMSTRONG, P. J., concurs. FURMAN, J., absent on account of sickness.


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    A. G. CROSS v. STATE.
    No. A-1983.
    Opinion Filed October 6, 1914.
    (143 Pac. 202.)
    1. APPEAL — Verdict—Conflicting Evidence. Controverted questions of fact are always for the jury, and this court will not disturb a conviction, where the record discloses evidence supporting two theories, one on behalf of the state and a different one by the accused. The jury’s findings in such matters are conclusive.
    2. CONTINUANCE — Refusal—Change of Counsel. When the record discloses the fact that a person is arrested charged with a crime, and has repeatedly become a fugitive from justice, and repeatedly retained and changed counsel, this court will not reverse a conviction because he was forced to go to trial with counsel who was appointed by the court.
    3. SAME — Absence of Witnesses. An application for .continuance on the ground that certain material witnesses have not been secured, and which shows no diligence whatever, should not be filed, but, when it is filed, should be overruled by the trial court.
    4. APPEAL — Presentation for Review. This court will not undertake to discuss or determine misunderstandings between counsel and the court when the record shows, by recitals of the trial court, one state of facts, and the contention of counsel another. Agreements for continuance, postponements, and other matters affecting the rights of the accused should always be entered of record.
    5. TRIAL — Harmless Error — Instructions. An instruction which states a correct principle of law in the abstract, and which could not have materially injured the accused, is harmless.
    6. EVIDENCE — Other Offenses. Evidence is admissible, in the trial of a criminal cause, which tends directly to prove the guilt of the accused, although it may also show, or tend to show, the commission of a separate and distinct felony, and this is true, although the admission of such testimony may arouse resentment in the minds of the jury and result in a greater punishment than would ordinarily be inflicted.
    (Syllabus by the Court.)

      Appeal from County Court, McClain County; R. McMillan, Judge.

    A. G. Cross was convicted of larceny of domestic animals, .and appeals.
    Affirmed.

      B. B. Glaseo and Monroe Osborn, for plaintiff in error.

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

Plaintiff in error, A. G. Cross, was convicted at the October, 1912, term of the district court of McClain county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment in the state penitentiary for a period of six years. In an effort to reverse the judgment, be brings his appeal to this court.

The information was filed in this case on the 24th day of September, 1910. The accused was arraigned in October, 1910. The case was continued until the February, 1911, term, at which time the accused was a fugitive from justice. At the-July, 1911, term, the accused was still a fugitive from justice. In August, 1911, he was arrested in Colorado and returned to the county jail of McClain county, and within a few days broke jail and again became a fugitive from justice. In October, 1911, he was apprehended in Corsicana, Tex., and again returned to Oklahoma and placed in the McClain county jail.

The information charges the larceny of two mares in July, 1910, of the value of $225, and the property of J. Goldsmith, a negro farmer residing in McClain county. The accused was a white man and formerly lived with his family near Blanchard, Okla. The theory of the state is that the accused deserted his family and stole the horses in order to enable him to leave the country with a woman other than his wife. His testimony tends to establish this contention. He left the community in company with a woman, and was seen at Norman, Okla., in her company, driving a team; was later seen at Shawnee in possession of the stolen team, and introduced the same woman as his wife. At Shawnee he sold the animals for $75; was later arrested and placed in jail on this charge. The mares were recovered from a party at Shawnee.

It is contended by the accused that his testimony tends to establish the fact that he bought the animals from Técumseh Goldsmith, a son of J. Goldsmith, and paid him $75 therefor, $54 cash, a gun valued at $20, and settled a debt of $1. The accused testified that the transaction in which he purchased the animals in question occurred at the home and in the presence of Gill Gatewood and Alice Gatewood between sundown and dark on the 19th day of July, 1910. Tecumseh Goldsmith testified on behalf of the state, and denied making the sale or having anything to do-therewith; that he was at another place some distance away conducting a dance at the time the accused contends he bought the animals from him.

It appears that the accused had retained as counsel Monroe Osborn, when he was first arrested, who withdrew from the case seven or eight days before it was called for trial; that he had also retained as counsel J. F. Sharp, who apparently withdrew from the case some time prior to the trial; that, immediately after Monroe Osborn withdrew from the case, E. E. Glaseo was retained. When the case was called for trial, E. E. Glaseo was sick at a hotel in Blanchard, Okla., where he had gone in an effort to secure witnesses and prepare for the trial of the case, whereupon the court appointed Monroe Osborn as counsel for the accused and ordered the case to be tried. An application for continuance was filed on the ground that his counsel, Glaseo, was sick and unable to be in attendance upon the court. That he was sick and unable to attend court there is no doubt. It will be remembered that Mr. Glaseo had only been in the case six or seven days at this time; that Mr. Oteborn had been employed many months, and had withdrawn as counsel only a few days prior to the time, all of which facts clearly appear from the record. This court is not in position to say that the trial court was guilty of an abuse of discretion in appointing Mr. Osborn and requiring the case to be tried. The conduct of the accused in this case is not such that entitles him to complain of the fact that the discretion of the court was exercised against him. Had Mr. Glaseo been the sole and only counsel in the case from the time the accused had been arrested, this assignment would present, a different aspect, but he had been employed in the case only a few days. Mr. Osborn had been interested therein for a long time.

The application for continuance contained other averments, among them the inability of the accused to procure the attendance of Gill Gatewood and Alice Gatewood. The record fails to disclose the exercise of any diligence in an effort to procure ■these two witnesses. They had been for years residents of McClain county, but had some time prior to the trial of this case moved to another county 250 miles away. No process had been sought from the district court to require their attendance from any other county. It is very apparent, from a reading of the record, that the accused was depending more on his ability to jump bond, or break jail, and escape, than he was on the testimony of witnesses. Ample time had elapsed from the date the case was assigned to procure the proper service of process upon these witnesses.

There were other averments in the motion which were determined adversely to the contention of counsel, and which involve a personal misunderstanding between defendant’s counsel and the trial court. The ruling of the trial court on these propositions will not be disturbed. The record nowhere discloses the facts upon which the contentions were based, other than statements by counsel and recitals by the court.

It is contended that the court erred in submitting certain instructions to the jury which advised them that they could convict the accused if he was concerned in the commission of the larceny either directly or indirectly. The instruction possibly was not necessary, under the facts disclosed by the record, but it was not prejudicial.

A careful examination of the record discloses no error which in our opinion entitles the accused to any relief at the hands of this court. The judgment is not excessive, and would not have been disturbed if the punishment had been fixed at ten years’ imprisonment instead of six.

Counsel contend that certain incompetent testimony was introduced tending to show that the accused was guilty of another crime by reason of association with the woman, Mrs. Bur-leson. The theory of the state in this trial justified the introduction of this testimony, and no error was committed thereby. As stated, supra, the contention of the state was that the accused deserted his wife and children and stole these horses in order to enable him'to leave the country with the Burleson woman, Whatever resentment may have arisen in the minds of the jurors by reason of the development of these facts, if any, was brought upon the accused by his own acts.

“Evidence which tends to prove the guilt of the accused is admissible, although it may also tend to establish the commission of a separate and distinct felony, and thus in a measure apparently work injur)'- to the accused.” ,

See Vickers v. United States, 1 Okla. Cr. 152, 98 Pac. 467, and cases there cited.

The judgment, however, does not indicate that they sought to inflict a punishment more than commensurate with the crime. The maximum punishment is ten years. The 'deliberate and malicious theft of a team of animals of the kind this accused stole, the purpose for which they were stolen, and the facts disclosed by this record as a whole merit the maximum punishment. The accused received all he was entitled to receive at the hands of the trial court and the jury.

The judgment is in all things affirmed.

DOYLE, J-, concurs. FURMAN, J., absent on account of sickness.


author: DOYEE, J.

text:
    WARNER v. MATHEWS, District Judge.

    No. A-2166.
    Opinion Filed October 10, 1914.
    (143 Pac. 516.)
    1. PROHIBITION — Grounds—Want of Jurisdiction. The Criminal Court o'f Appeals -will issue a writ of prohibition to prohibit a district court from proceeding- in a criminal action of which it has no jurisdiction, and of which the county court has exclusive jurisdiction.
    2. CLERKS OF COURTS — Criminal Law — Failure to Pay Over Fees to County — Procedure—Nature of Offense — What Law Governs— Jurisdiction. The Penal Code provides (Rev. Laws 1910, sec. 2092): “If there be in any other chapter of the laws of this state a provision making any specific- act criminal and providing the punishment therefor, and there be in this Penal Code any provision or section making the same act a criminal offense, or prescribing the punishment therefor, that offense and the punishment thereof shall be governed by the special provisions made in relation thereto, and not by the provisions of this Penal Code.5' Held that, in a prosecution against a district court clerk for failing and refusing to pay fees charged and collected as clerk’s costs into the county treasury, the specific provision of the fees and salaries act (section 3213, Rev. Laws 1910) must gov-em as against provisions of the Penal Code. Held, further, that when the alleged amount of fees embezzled is $20 or less, the information charges only a misdemeanor, of which the county court has exclusive jurisdiction.
    (Syllabus by the Court.)
    Application of E. J. Warner for writ of prohibition to the District Court of Blaine County and Hon. Frank Mathews, Special Judge, to prohibit further proceedings on certain informa-tions filed against petitioner.
    Writ awarded.

      Wm. 0. Woolman, for petitioner.

      C. J. Davenport, Asst. Atty. Gen., A. L. Bloss, Co. Atty., Seymour Foose, and R. C. Brown, for respondents.
   DOYEE, J.

This is an application for a writ of prohibition to prohibit the district court of Blaine county, and Hon. Frank Mathews, as judge thereof, from proceeding further in the trial.of three informations filed in said district court, in each of which petitioner is -charged as clerk of the district court of Blaine county with the crifne of embezzlement of fees alleged to be due from him to said county as such clerk. One of said informations (omitting formal parts) is as follows:

“In the name and by the- authority of the state of Oklahoma, now comes A. L. Bloss, county attorney in and for the county and state aforesaid, and gives the court to know and be informed that one E. J. Warner at all times from the 9th day of January, A. D. 1911, until the 6th day of December, A. D. 1912, was the duly elected, duly qualified, and acting clerk of the district court of Blaine county, state of Oklahoma, and in said county and state, on or about the 16th day of November,A. D. 1912, the sum of five dollars good and lawful money of the United States, and of the value of five dollars, the property of and owned by one Bessie Wallace, was intrusted by the said Bessie Wallace, by and through Amanda Mannen, to the said EJ. Warner in virtue of his said office as clerk of said district court in the civil action then pending in said court after judgment, wherein the said Bessie AYallace was plaintiff and Win-field C. Wallace was defendant, and numbered on said clerk’s docket 2106, which said money was so intrusted to the said EJ. Warner, and then and there was received and accepted by, and came into the possession and under the control of, the said E. J. Warner in virtue of his said office as clerk of said district court, for the purpose of being disbursed and applied by the said E. J. Warner as such clerk to the payment in full of all the costs of said civil action, which costs amounted to the sum of five dollars, and consisted entirely of fees- earned and charged and taxed by said E. J. Warner as such clerk as costs in said civil action, and due and payable and unpaid to said Blaine county, and not paid into the county treasury of said Blaine county and aggregating the sum of five' dollars, and said sum of five dollars so intrusted to the said E. J. Warner as such clerk as aforesaid was then and there sufficient in amount to pay and satisfy in full all the costs of said civil action, and said civil action had been and was then and there finally determined, disposed of, and closed, except as to the matter of the payment of the costs therein, and it then and there became and was the duty of said E. J. Warner as such clerk of said court in said Blaine county, and at the time said money in said sum of five dollars was intrusted to him in virtue of his said office as aforesaid, to disburse and apply the same to such purpose and in fulfillment of such trust according, and to pay into the county treasury of said Blaine county said sum of five dollars so intrusted to him in virtue of his said office as aforesaid in payment and satisfaction and on account of said fees so earned and charged and taxed by the said E. Jr Warner as such clerk as costs in said civil action, and due and payable and unpaid to said Blaine county, and aggregating the sum of five dollars as aforesaid; and thereafter, to wit, on or about the 3d day of December, A. D. 1912, in said Blaine county, state of Oklahoma, the said E. J. Warner did willfully, unlawfully, fel-oniously, and fraudulently appropriate to his own use and benefit, and to tlie use of other persons to the county attorney unknown, but other than those entitled thereto, the said sum of five dollars, good and lawful money of the United States, and of the value of five dollars, being then and there the said money in the sum of five dollars so intrusted to him, the said E. J. Warner, in virtue of his said office as clerk of said court as aforesaid, and the money due and payable and unpaid to said Blaine county by payment into the county treasury of said Blaine county as and bn account of said fees so earned, charged, and taxed by the said E. J. Warner, as such clerk, as costs in said civil action, and aggregating the sum of five dollars as aforesaid — contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.
“A. L. Bloss,
’’County Attorney of Blaine County, State of Oklahoma

The other two informations are the same in their general allegations. In one it is alleged that in the case of Whirlow v. Harrison et al., numbered on said clerk’s docket 1938, there was of the fees earned, charged, and taxed by said E. J. Warner, as such clerk, as costs in said civil action, payable and unpaid to Blaine county, and not paid into the county treasury of Blaine county, the sum of $10.30. In the other it is alleged that in the case of Seger v. Seger, numbered on said clerk’s docket 3093, there was of the fees earned, charged, and taxed by said E. J. Warner as such clerk, as costs of said civil action, payable and unpaid to the said Blaine county, and not paid into the county treasury of said Blaine county, the sum of $5.70.

To each of these informations the defendant filed a motion to quash and interposed a demurrer thereto, on the ground that said district court had no jurisdiction of the offenses charged or attempted to be charged therein against this defendant, which motions and demurrers were overruled by the court. Thereupon the defendant entered pleas of not guilt}', and the cases were duly assigned and set for trial in said court.

It is further averred in said petition:

“That the said district court, and the said Hon. Frank Mathews, as the acting judge thereof, have no power or authority to hear, try, and determine the said charges and infor-mations, and have no power or authority to assess or inflict -any punishment in said causes and the said informations do not charge any offense the subject-matter of which is within the jurisdiction of said district court. That said charges and infor-mations do not charge a felony, but only misdemeanors, and if triable at all are within the jurisdiction of the county court of Blaine county. That said informations are each and all of them void. That the proceedings and orders thereunder made by the said court and the said judge thereof are void, the holding of this petitioner to answer and to stand trial on said informations and charges in said court is illegal and absolutely void, and said proceedings are oppressive and unnecessarily vexatious, and can finally result only in abortive proceedings if permitted to go on.
“Petitioner further states that each of the above-named three informations stand for separate trials in said court, and the same will be tried separately and distinctly from each other. Separate juries will be called in said causes, and in every respect the expense incident to the trials and to the defenses of criminal actions will have to be undergone in each and all of said prosecutions, and the expense incident to each trial by the defendant therein will have to be borne by him in each separate case.
“Petitioner further states that he has no adequate remedy at law by appeal; that the ordinary remedy by appeal is not adequate, in this, that it would entail, if a conviction thereon should be .had, the expense and vexation of a trial in a court in which plaintiff believes and therefore alleges would have no jurisdiction, and the expense and annoyance oí a trial and preparation of an appeal in these cases would entail a large expenditure of money that never could be recovered by this plaintiff, and would unnecessarily be a waste of time and money, which would be entirely lost to this plaintiff herein and to the state of Oklahoma, in the prosecution of said causes.
“This plaintiff and affiant further shows to the court that, notwithstanding the fact that the said Hon. Frank Mathews, as such judge of the district court of Blaine county, state of Oklahoma, has no jurisdiction of said cause or causes, and has never had jurisdiction of said causes in said court, he threatens to and will, notwithstanding the objections of this plaintiff'in the matter to the court, proceed to hear, try, and determine said causes separately, and will render separate and distinct judgments therein, which he has no jurisdiction to do, and is attempting to use judicial power not granted by law, and is attempting to make an unauthorized application of judicial force, in cases where he has no power to act, to the detriment and damage of -this plaintiff, and that in cases where his action would be a nullity, and in which, if any acquittal were had, this plaintiff could not claim the benefit of it in any future action, and notwithstanding these facts the said court threatens to and will proceed with said causes as hereinbefore set forth.''

Upon the filing of the petition, an alternative writ of prohibition was issued, and to this respondent interposed a demurrer, on the grounds that:

“Said petition and affidavit does not state facts sufficient to entitle the relator to a writ of prohibition, or to the relief prayed for, nor any other relief.”

The cause was submitted on the petition and demurrer thereto. Upon the record, the principal, question presented for our consideration is whether the informations charge felonies or misdemeanors.

In support of the demurrer it is insisted that the informa-tions properly charge a violation of section 2243 of the Penal Code (Rev. Laws 1910), providing:

“Any sheriff, coroner, clerk of a court, constable or other ministerial officer, and any deputy or subordinate of any ministerial officer who either:
“First. * * *
“Second. Fraudulently appropriates to his own use or to the use of another person, or secretes with intent to appropriate to such use, any money, evidence of debt or other property intrusted to him in virtue of his office—
“Is guilty of felony.” (Enacted 1890.)

After a careful examination of certain sections of chapter 69, Session Laws 1910, and certain provisions of the Penal Code it is our opinion that the contention on behalf of respondents cannot be sustained. Sections 9 and 17 of chapter 69, Session Laws 1910, provide as follows:

“Sec. 9. At each monthly meeting of the board of county commissioners the clerk of the district court, the clerk of the superior court, the clerk of the county court, the count}- clerk and the register of deeds shall each file a verified report of the work of the preceding month showing the total fees charged in each case, and the total fees collected in each case, and shall pay all of such fees into the county treasury and file duplicate receipts therefor with the county clerk.”
“Sec. 17. All county, township and district officers who are required by law to 'make monthly or quarterly reports to the board of county commissioners who fail or refuse to make such reports, or who make a false or fraudulent report, shall be deemed guilty of a misdemeanor and in addition to his punishment he shall forfeit his office, and when any such officer shall fail or refuse to account for or to pay over any money in his official capacity, he shall be deemed guilty of embezzlement, and in no case shall anv county officer retain any perquisites of his office; and provided further, that if any officer neglect or refuse to charge the fees provided by law, he shall forfeit double the amount thereof to be deducted from his salary, or to be collected by civil action against any such officer or his bondsmen.”

It will be observed that, under the foregoing sections, at each monthly meeting of the board of county commissioners, the clerk of the district court is required to file a verified report of the work of the preceding month, showing total fees charged and collected in each case, and shall pay all of such fees into the county treasury and file duplicate receipts therefor with the county clerk, and—

“when any such officer shall fail or refuse to account for or to pay over any money in his official capacity, he shall be deemed guilty of embezzlement.”

Section 2681 of the Penal Code (Rev. Laws 1910) provides :

“ “Any person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled.”

Section 2654 provides:

“Larceny is divided into two degrees; the first of which is termed grand larceny, the second petit larceny.”

Section 2655 provides:

“Grand larceny is larceny committed: * * * First: When the property taken is of value exceeding twenty dollars.”

Section 2657 provides:

“Petit larceny shall be punishable by a fine of not less than ten dollars or more than one hundred dollars, or imprisonment in the county jail not to exceed thirty days, or by both such fine and imprisonment, at the discretion of the court.”

Section 2086 provides:

“A felony is a crime which is, or may be, punishable with death, or by imprisonment in the penitentiary.”

Section 2087 provides:

“Every other crime is a misdemeanor.”

It is a familiar rule of construction that, in determining the legislative intention, specific statutory provisions relating to a particular subject must govern in respect to such subject, as against general provisions, and those which do not by a fair and reasonable interpretation include the offense charged. In addition to this rule it is provided by section 2092 of the Penal Code (Rev. Laws 1910) as follows:

“If there be in any other chapter of the laws of this state a provision making any specific act criminal and providing the punishment therefor, and there be in this Penal Code any provision or section making the same act a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof shall be governed by the special provisions made in relation thereto, and not by the provisions of this Penal Code.”

We think this provision is decisive of the question presented. It will also be remembered that, prior to the enactment of the Fees and Salary Act of 1910, the clerk of the district court received all the fees of his office. Under this act it is made a salary office, and the fees taxed, charged, and collected as clerk’s costs are, under its provisions, required to be turned into the county treasury for the purpose of paying salaries as therein provided.

It is not to the pleader, nor to the courts, but to the Legislature that is delegated the power to name and define statutory crimes, to fix the penalty and specify what particular acts in the nature of breaches of trust constitute a felony, statutory larceny, or the crime of embezzlement. We are of opinion that, under the statutory provisions already quoted, the offense charged in each information' is a misdemeanor.

By section 12, art. 7 (section 197, Williams’), of the Constitution it is provided:

“The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which the justices of the peace have not jurisdiction.”

It follows that the district court of Blaine county is without jurisdiction to proceed against petitioner upon said informations.

The next question arises as to whether a writ of prohibition will issue on the application of the defendant in a criminal case on the ground of lack of jurisdiction in the trial court. We deem it sufficient to say that the legitimate scope and purpose of the writ is to prevent an inferior court from proceeding in an action over the subject-matter of which it has no jurisdiction, and of which another inferior court has exclusive jurisdiction, and which action, if proceeded in, may result in injury or damage for which the party has no speedy or adequate remedy in the ordinary and usual course of the law.

If the informations in the case at bar should be tried in the district court, the petitioner will be put to the expense of defending himself in each case in a court that is without authority to try him; and, should he be convicted, he must give bail, or go to jail pending the determination of his appeal. It is our opinion that in criminal cases neither appeal nor habeas corpus would be a speedy, adequate, or complete remedy. In the case af Evans v. Willis, 22 Okla. 310, 97 Pac. 1047, 19 L. R. A. (N. S.) 1050, 18 Ann. Cas. 258, it was held that:

“The lower court having no jurisdiction to hear or determine such case on said information, and there being no other plain, speedy, and adequate remedy at law for the relator, his remedy is by writ of prohibition to restrain action thereon.”

Williams, Chief Justice, delivering the opinion of the court, used the following language:

“If judgment is pronounced against the relator upon the verdict of the jury, it might result in his being incarcerated in jail pending an appeal. An appeal in such an instance would not be such an adequate and speedy remedy as to prevent immediate injury or hardship to the relator, when it appears to the court having jurisdiction to issue the writ of prohibition that the lower court, under any conditions, is without jurisdiction to try the accused, upon the alleged information filed, with all amendments permitted under the law considered as made, to require him to invoke the remedy of appeal, occasioning delay and necessitating a supersedeas bond, or resulting in his being confined in jail pending the determination of his appeal, when the same conclusion as to the lower court being without jurisdiction will be reached, would work an unnecessary and unreasonable hardship upon the accused.”

It appearing to us that this is a proper case for the exercise of the powers of this court to grant the writ of prohibition, it is ordered that the writ issue prohibiting the respondents as prayed for in the petition.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    HENRY A. SEIGLER v. STATE.
    No. A-1951.
    Opinion Filed October 17, 1914.
    1. HOMICIDE — Murder — Indictment and Information — Sufficiency For an information charging murder, approved and held sufficient, see opinion.
    2. CONTINUANCE — -Absent Witnesses — Cumulative Evidence. The denial of an application for continuance, although sufficient on its face, will not justify a reversal of a judgment of conviction when, under the light of other proof in the record, it is clear that the evidence desired from the absent witness would have been of no value if produced, or at best merely cumulative.
    3. HOMICIDE — Self-Serving Declarations — Res Gestae. Declarations which are self-serving in their nature and which do not form a part of the res gestae constitute no part of competent proof in the trial of a homicide charge.
    4. SAME — Self-Defense. When the issues in a homicide case are based upon the contention that the plaintiff in error acted in his necessary self-defense from actual and impending danger, proof of statements made by the deceased relative to remote difficulties he had had with others are not properly admissible; at least, when there is no contention based upon apparent danger, and when the state's case must stand or fall upon the homicide being established as a deliberate, unwarranted, and premeditated murder. The purpose of this character of testimony in all cases is limited to a proper and well defined sphere.
    5. SAME — Inspection of Scene by Jury — Discretion. The rulings of the trial court in sending or declining to send the trial jury to the scene of a homicide for the purpose of permitting them to make a personal inspection of the premises and surroundings will not be disturbed by this court, unless it is made clearly to appear that such court acted arbitrarily and abused its discretion under circumstances which tend reasonably to indicate that the substantial rights of the person on trial were prejudiced thereby.
    6. WITNESSES — Age—Competency—Discretion of Court, (a) Objections to receiving the testimony of a witness on the ground that he was of such tender age as to be incompetent, are addressed to the sound discretion of the court.
    (b) In reviewing an assignment of error based on this contention this court will examine carefully the whole record of the examination of such witness, testing his intelligence and qualifications as well as the testimony given by him at the trial, and unless a clear abuse of discretion is apparent the rulings of the trial court will not be disturbed.
    (c) In this case the objection to receiving the testimony of witness Verne Stanford on this ground is wholly without merit, and the trial court properly permitted him to testify.

      7. EVIDENCE — Rebuttal—-Definition, (a) When the state makes out a olear case in chief, the fact that certain testimony was reserved for rebuttal which would have been admissible in establishing the case in chief but which is clearly in rebuttal of the material defense, or testimony introduced in defense, does not render the same inadmissible in rebuttal.
    (b) Rebuttal testimony is properly that testimony which is given to explain, repel, counteract, disprove, or destroy facts given in evidence by an adverse party. Any evidence may be given in rebuttal which is a direct reply to that produced by the other side or a contradiction thereof, or which tends to destroy the effect of the same. For testimony held to be admissible in rebuttal, see opinion.
    8. APPEAL — Instructions. Instructions of the court are to be considered as a whole, and when so considered, if they do not disclose prejudicial error, will be sustained on appeal.
    (b) Assignments of error based on the refusal to give requested instructions when the record discloses that the material and proper elements of the instructions are given by the court, are without merit.
    9. NEW TRIAL — Newly-Discovered Evidence — Appeal—Review, (a) A motion for a new trial based on the ground of newly-discovered evidence is addressed to the sound discretion of the trial court, and, unless an abuse of that discretion is disclosed by the record brought here for review, the rulings of the trial court will not be disturbed.
    (b) The entire record of the trial, as well as the record made upon the hearing of the motion for a new trial on the ground of newly discovered evidence, will be examined by this court in determining whether or not. the trial court properly exercised its discretion in passing upon such motion.
    (c) For facts which sustain the rulings of the trial court in- denying a motion for a new trial on the ground of newly discovered evidence, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Comanche County; J. T. Johnson, Judge.

    Henry A. Seigler was convicted of murder, and appeals.
    Affirmed.

      Stevens & Myers and J. F. Thomas, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., John Fain, Co. Atty., and W. C. Henderson, Asst. Co. Atty., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Henry A. Seigler, was convicted at the May, 1912, term of the district court of Comanche county, on an information charging him with the murder of W. A. Stanford, and the death penalty imposed as his punishment. The information upon which the conviction is based is as follows:

“I, J. A. Fain, county attorney of the county of Comanche and state of Oklahoma, duly authorized and empowered by law to inform of offenses committed and triable within said county and state, in the name and by the authority of the state of Oklahoma, come now here and give the court to understand and be informed, that at and within said county and state, on the 8th day of-January, 1912, Henry A. Seigler, then and there being, did then and there, willfully, unlawfully, purposely, feloniously and with malice aforethought, and without authority of law, and with the premeditated design then existing in the mind of the said Henry A. Seigler to effect the death of a certain person in being, to wit: W. A. Stanford, with certain deadly and dangerous weapons, to wit: a rock weighing about three pounds, did strike the said W. A. Stanford in and on the head and body, and with a certain shotgun did shoot bullets and leaden shot into the face, head and body of the said W. A. Stanford, and so made mortal wounds in and upon the face, body and head of the said W. A. Stanford, of which mortal wounds so made as aforesaid, the said W. A. Stanford then and there on the 8th ddy of January, 1912, in the county of Comanche and state of Oklahoma, did die, as was intended by the said Henry A.. Seig-ler he should do; and so the said Henry A. Seigler, at the time and place aforesaid, and in the manner aforesaid, feloniously, and with malice aforethought, did without authority of law. and with a premeditated design to effect the death of the said W. A. Stanford, him, the said W. A. Stanford kill and murder, contrary to the form of statute in such case-made and provided, and against the peace and dignity of the state.” .

A demurrer was filed by counsel for plaintiff in error, which was overruled by the court.

Many assignments of error are set out in the petition in error. Most of them, however, are wholly without merit.

The homicide out of which this conviction grew occurred in the northwest part of Comanche county on the 8th day of January, 1912. Sometime prior the plaintiff in error and the deceased had made settlements on the same quarter section of land, each in the endeavor to enter it under 'the homestead laws of the United States. The settlements were apparently made at the same time. The plaintiff in error made his first settlement some distance from where the deceased made his. Later, plaintiff in error built a hut at or near the place upon which the deceased entered the premises and attempted to establish his settlement. There was a small log cabin on the premises at the time these men began their efforts to acquire the land under the homestead laws of the United States. This cabin apparently was claimed by one Spencer. Under rulings of the United States land office Seigler was awarded the homestead entry. Stanford immediately filed a contest in which Spencer was joined. Some other person was also joined with Seigler. Pending a determination of the contest proceedings Stanford went upon the premises and occupied the log cabin, and in addition placed thereon a tent immediately adjoining the cabin. A space of only o a few feet intervened between the cabin occupied by Stanford and the hut erected by plaintiff in error. After making original settlement it appears that the deceased went awajr to visit his family, who lived at Coyle, Oklahoma, and upon his return the plaintiff in error had put up some wire which attached to the log cabin. This wire was taken down by the deceased. The plaintiff in error was away from home at work and returned that night.

The testimony on behalf of the state and that on behalf of the accused differ in many material respects from this time until after the homicide. The testimony on behalf of the state tends to establish the fact that the plaintiff in error was a large man physically, possessed of an overbearing disposition; that upon finding the deceased on the premises he ordered him to take down his tent and get his belongings off the place, using emphatic language and profanity. The deceased declined to comply, contending that he had a lawful right to joint occupancy pending the determination of the litigation. Upon another occasion the plaintiff in error demanded the deceased to move away and told him that the quarter section was too small for both of them to live on. Numerous threats to kill the deceased and threats which implied that he intended to kill him if he didn’t abandon the premises were introduced in evidence by the state. Other circumstances were introduced which tended to show that plaintiff in error had attempted hostile demonstrations against the deceased. Growing out of the differences between these two men and their families several complaints were filed by deceased against the plaintiff in error, none of which were prosecuted to a successful termination. On the day prior to the homicide the deceased had filed two or three additional complaints against the plaintiff in error. On the morning of the homicide the deputy sheriff in whose hands warrants, based on the complaints, had been placed, called the plaintiff in error on the telephone of one Allen, a neighbor, advising that he had the warrants, and arranged for the plaintiff in error to come down to meet him at the office of the township justice of the peace. Plaintiff in error went back to his house and cut a little wood for the use of his wife, and made preparations apparently to go to the office of the justice of the peace. He took his gun and left the house, and, according to the proof introduced by the state, also took a large rock in his hand. The deceased, Stanford, was cutting wood at the corner of his cabin, only a few feet from the door of the hut occupied by the plaintiff in error. The plaintiff in error came out of his hut, walked directly toward where Stanford was, and just before reaching him was seen by Mrs. Stanford, who opened the door and ran out, whereupon the plaintiff in error threw the rock and hit the deceased, who was stooping over chopping wood, on the head, fractured his skull, and knocked him down. Mrs. Stanford interceded with the plaintiff in error and begged him not to kill her husband, whereupon he pointed the gun which he had brought from his hut into her face. She stepped back a short distance. In the meantime the deceased had turned over on his back and had raised up his head slightly. The plaintiff in error pointed the gun immediately upon him and fired, the charge of shot entering the face to the left of the nose, and through the lips; death ensued immediately.

A little son of the deceased, Verne Stanford, was out in the yard where his father was cutting wood at the time of the homicide. Two other children had gone to a well or spring a few hundred yards away for water. As soon as they returned to the house the children were sent to notify neighbors living in the community, a few of whom arrived before the officers reached the scene. The deceased was found lying on his back. The ax with which he had been cutting wood was under his body, the blade being about his hips, the handle extending out from his right side. The right hand of deceased was lying across the ax handle on his right side; his left hand was folded on his breast. A number of the teeth of deceased were picked up around the body. The stove wood which he was cutting.was lying under and near his body.

Mrs. Stanford and her little son testified to the facts occurring immediately before and at the time of the homicide, each of whom say that no other persons, except themselves, the deceased, and the plaintiff in error, were, present. Other witnesses testified to the wound on the head of the deceased, and in response to questions of the county attorney certain witnesses testified there was a large knot on the back of the deceased below the shoulder.

The plaintiff in error and his wife testified in his behalf. Each says that they were both present. Their testimony is to the effect that the plaintiff in error had started to meet the officer according to his promise; that he took his gun and dogs and started along the usual route; that as he approached the cabin of the deceased the deceased was chopping wood; that Mrs. Stanford ran out of the cabin, grabbed hold of plaintiff in error, and began to excoriate him for the way he had treated their family; that the little son, Verne Stanford, began to hack him in the back and on the legs with a buck saw; that the deceased drew his ax and advanced several steps toward him with the ax uplifted in a manner which induced in him, the plaintiff in error, the belief that he was about to be killed; that thereupon he shot the deceased; that the muzzle of the gun was elevated; that the shot ranged upward and that he killed Stanford in his necessary self-defense; that he did not strike deceased with a rock and had no rock or other heavy instrument in his hands at the time.

Immediately after the shot was fired the plaintiff in error went to the home of a near neighbor, called the deputy sheriff whom he had agreed to meet at the office of the justice of the peace, and.' advised him to come up at once. The officer asked him what the trouble was. He replied, “Trouble enough; come on up and see.” This neighbor, Allen, and a brother who lived with him, accompanied the plaintiff in error back to the scene of the homicide, where the plaintiff in error pointed out certain objects, among them a buck saw lying in the yard. In his testimony the plaintiff in error denied each and every threat to kill or injure the deceased that was proved by the state, but admitted each and every conversation in which the state contended the threats were made. He also admitted the times, and places and the persons with whom the conversations were had, there being no material difference except his denial that any threat was made in any of the conversations.

Other witnesses testified for the plaintiff in error, among them an undertaker who said that he saw the knot on the back of the deceased, saw it removed, and that it was a fatty tumor.

On rebuttal the state introduced the testimony of physicians who held a post mortem examination upon the body of the deceased. Their testimony tended to show that the wound in the back of the head was inflicted with a rugged instrument and fractured the skull from the crown of the head to the base thereof, and that this was in itself a fatal wound and was made by an external injury; that the shot which entered to the left of the nose and through the upper lip of deceased ranged, downward and lodged in the muscles of the n'eck; that none of the shot ranged upward and none of them penetrated the brain. These physicians removed the skull and brain and made a thorough examination, and all agree that no shot entered the brain, and nothing indicated any upward range or any deflection of the charge. The tongue was practically severed at its base.

Verne Stanford was called as a witness by the state and testified that he was eight years old; that he was in the yard at the time of the homicide; that he didn't have the buck saw out in the yard at that time; that he did not attack the plaintiff in ■ error with the buck saw, and that his mother did not take hold of said plaintiff in error before he threw the rock and fired the shot; that he brought a buck saw out into the yard after his father had been killed and left it there when his mother told him to run over to a neighbor’s for assistance. A large rock was found near the body of deceased. There were a number of other rocks in the yard, but they were imbedded in the ground and could not be removed on account of the frozen condition of the earth. A large pile of rocks similar to the one found near the body of deceased were shown to have been lying on the ground near where thé plaintiff in error had been cutting wood.

On behalf of plaintiff in error certain testimony was in- . troduced in sur-rebuttal tending to show that there was a blood splotch on a certain log opposite where plaintiff in error contended deceased was standing when he was shot. The log from the hut was introduced in evidence, and, according to the testimony of a physician who made a microscopic examination thereof, the blood splotch was human blood. One witness testified that he noticed the blood on this log on the day of the homicide and that it appeared to him to be a fresh stain.

The state introduced witnesses, among them Justice of the Peace Meers, who said he examined the log on the day of the homicide; that he took no testimony in reference to it because the blood was old and had been dry a long time. Other witnesses for the state testified that a rabbit and o’possum had been fastened to a nail driven in one of the logs of the cabin near where this blood ‘splotch was found and had been skinned and dressed a few days before the homicide.

After the conviction, counsel filed a motion for a new trial, and, among other grounds, set out an allegation of newly discovered evidence. They had had certain tests made of the dried blood found on the log of the hut that was introduced in evidence. These tests were made by an army surgeon at Ft. Sill and the state chemist at Norman, Oklahoma. Each of them testified that in his judgment the splotch was made by human blood. Upon this testimony and supporting testimony as to diligence the allegation of newly discovered evidence was predicated. The motion for a new trial was overruled by the trial court, the death sentence was pronounced in accordance with the verdict of the jury, and the cause appealed to this court. The appeal was filed on March 26, 1913, but no briefs were filed on behalf of plaintiff in error until the 21st day of March) 1914.

The first assignment of error is based on the contention that the court erred in overruling the demurrer of the plaintiff in error to the information in this cause. The demurrer was wholly without merit and frivolous, and was properly overruled.

' The next assignment of error presented is based on the contention that the court erred in overruling a motion for continuance. The affidavit for continuance was based on the ground that Albert Decker had been served with a subpoena to attend as a witness, but that he had left the jurisdiction of the court and could not be obtained at the trial. The application sets out that if Decker were present he would testify that he heard a conversation between plaintiff in error and Art Hinson; that the plaintiff in error did not say that if Stanford interfered with him any more he would make him look more life a half-breed coyote than he was; that the plaintiff in error did not state in substance or words that he could not stand to be dragged into court by Stanford any more, nor that if Stanford pulled him any more he, Stanford, would not 'be at the trial.

In the light of other proof in the record this evidence would not have been of value if produced. Bethel v. State, 8 Okla. Cr. 61, 126 Pac. 698.

The next assignment of error is that the court erred in refusing to permit witness Allen to testify to certain conversa--tions which he had had with plaintiff in error. Counsel attempted to introduce by this witness statements that he had been associated with the plaintiff in error intimately for a long time and that he never heard him say anything against the deceased nor manifest any anger or use any violent language toward the deceased. The objection to this character of examination was properly sustained. It clearly appears from the record that this witness was a strong partisan of plaintiff in error. Such statements were not offered as part of the res gestae and could have only been self-serving statements, which constitute no part of competent proof under the issue on trial.

The next assignment of error is based on the contention that the court erred in refusing to permit witness Allen to testify to a certain statement which had been made to him by the deceased relative to having shot a man sometime in his past life in the state of Texas, and spending $1,800.00 getting out of the trouble; that upon another occasion he had drawn a gun on a banker who refused to pay him for some work, and forced a collection of his debt, and one or two other similar transactions. This testimony was not admissible, and was properly excluded by the trial court. It was entirely too remote and worthless to be of value as indicating any ill feeling on the part of the deceased toward the plaintiff in error. On the trial of this cause the sole and only reliance of the plaintiff in error, was that he acted in his necessary self-defense from an assault then being made upon him with a deadly weapon, and not in the reasonable apprehension of danger on account of threats or the violent disposition of deceased. Under no state' of the case presented by the record was this testimony competent. This character of testimony would be admissible only for the purpose of tending to show that the accused acted in a reasonable manner and under circumstances which disclosed an apparent danger of immediate bodily harm. His testimony and alleged self-defense were not based on apparent danger, but on actual and impending danger. If the state of facts produced were true the homicide w.as justified on the ground of necessary self-defense.

The next assignment of error urged is based on the contention that the county attorney was guilty of misconduct in making objection to the introduction of the foregoing testimony by using the language: “I think it is time this rot was stopped, it violates every rule of evidence.” The rulings of the court disclosed by the record indicate no prejudicial error. The use of such language by counsel on either side should not be indulged in, whether justified or not.

The next assignment of error to be considered is that the court erred in declining to send the jury to the scene of the. homicide for the purpose of permitting them to inspect the premises and surroundings. This contention is wholly without merit. The scene was some 25 or 30 miles from the county seat, in a remote and mountainous country. The trial judge, in considering the application, stated that he had no means of transporting the jury in a body to the scene; that nothing had developed in the trial to indicate any necessity for such action; that he had no objection to sending the jury to the scene if they desired to go and would do so at any time a request might be made by the jury before a verdict was reached that they would like to make a personal inspection of the scene of the homicide. There is not a single suggestion in the record that would' indicate in the remotest degree that any information or light would have been gained by such a visit. It would have been a useless expenditure of the taxpayers’ money of Comanche county and an unnecessary hardship on the officers and jurors to have required such a trip. The rulings of the trial court in declining the request were, in our judgment, entirely proper. A plat of the scene was made by a civil engineer and introduced in evidence. Photographs- of the buildings and surroundings were, also introduced and detailed explanations of all made by experts. A man of ordinary intelligence could have understood all the surroundings of the homicide from the testimony.

The next assignment of error is based on the contention that the court erred in permitting witness Verne Stanford to testify, on account of his tender age. After a thorough and grilling examination by counsel for plaintiff in error this witness disclosed a remarkable degree of intelligence for a person of his age and opportunities. Pie showed entire frankness and a thorough understanding of his duties as a witness. Objections to this character of testimony are addressed to the sound discretion of the court, and, unless an abuse of that discretion is shown, this court will not reverse a conviction on that ground. Upon a careful examination of the testimony of this child and the grilling he received at the hands of counsel we are of opinion that the trial court exercised its discretion properly. The witness apparently was a much more capable and intelligent one than many persons of mature age. The assignment is without merit.

It is further contended by counsel that the testimony of this witness was not competent because it was not proper rebuttal. This contention is also without merit. The major portion of his testimony was wholly in rebuttal. Certain incidental statements possibly were not strictly rebuttal. The plaintiff in error had testified in his own behalf that this witness assaulted him with a buck saw. The witness testified that he did not make such an assault; that the buck saw was not even in the yard at the time. Plaintiff in error testified that he did not throw a rock and strike the deceased. This witness testified that he did throw a rock and strike the deceased. Plaintiff in error had also testified that the deceased was standing up in the act of striking him with an uplifted ax when the shot was fired. This witness testified that the deceased was lying on the ground when he was shot. We are unable to determine under what theory this evidence would not be considered rebuttal. Counsel fail to advap£e any reason in their argument. Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571.

The next assignment of error is based on the contention that the court erred in permitting Drs. Meeker, Gooch, and Broshears to testify to the facts disclosed by their post mor-tem examination. This assignment is based on the contention that these facts should have been introduced by the state in the case in chief and that plaintiff in error was greatly prejudiced by reason of the fact that they were reserved for rebuttal. In support of this contention no authority is cited in the brief and no reasonable argument .is advanced. In this case the killing was admitted; the defense was that of self-defense. All the state was required to prove was the unlawful killing and the circumstances thereof. This was done. In the defense, testimony was introduced tending to establish facts in justification of the killing. Among them was testimony by plaintiff in error himself to the effect that he had the butt of the gun below the waist band of his pants, the muzzle of the gun elevated, and shot the deceased when the deceased was approaching him in an effort to strike him with an ax, and that the shot ranged upward. This testimony in rebuttal exploded the theory of defense and was necessarily strong testimony tending to establish the real facts in connection with the homicide, and in a great measure must have convinced the minds of the jury that the homicide was a ruthless murder. The fact that testimony is admissible in chief does not necessarily exclude it in rebuttal. This testimony was in rebuttal of the theory of self-defense interposed by counsel on behalf of plaintiff in error, and shattered his testimony and his contention that he killed the deceased at a time when he was being assaulted by him. It also strengthens the contention of the state that the deceased was lying on the ground when he was shot. This defense was evidently made upon the theory that the state expected to rely on the contention that the rock thrown by the accused hit him in the back and made the knot which was afterward shown by them to be a fatty tumor and not made by a rock. The proceedings disclose the fact that the county attorney knew all the while that the knot was a tumor and at no time contended that it was made by the rock. The only contention disclosed is that he relied on the theory that the rock was thrown by plaintiff in error and fractured the skull of the deceased, and that he was lying on his back in a helpless condition when he was shot in the face by plaintiff in error. The testimony, in our judgment, was properly reserved for rebuttal and the objection to its introduction properly overruled by the trial court.

Assignments based on certain other evidence in rebuttal are urged, but they are all covered by the disposition of the foregoing. We fail to find any error in the proceedings of the trial court in reference to the introduction of testimony. In fact, out of abundant precaution, the trial court was eminently fair to the plaintiff in error.

Certain assignments are stated in the brief as being based upon prejudice growing out of instructions of the court. An ■examination of the instructions indicates that they are entirely fair. Counsel present no plausible argument' to the contrary. Not an authority is cited and not a line of argument pointing ■out a defect applicable to the state of facts disclosed by the record. Taken all together (and instructions must be considered ■as a whole), they were fair and properly submitted all issues.

Certain assignments arc based on the failure of the court to give instructions requested by counsel for plaintiff in error. An examination of the record discloses that all material elements of the instructions requested were given, and no error is disclosed by the action of the court in refusing to give the requested charges.

The next and only assignment urged which was entitled to serious consideration by the trial - court is based upon an allegation in the motion for a new trial on the ground of newly discovered evidence. The examination of Dr. Farrinbaugh, an army surgeon stationed at Fort Sill, was lengthy and thorough. From this testimony there is no doubt that the blood he examined and which the testimony indicated was taken from a log in the wall of the cabin occupied by the deceased, was human, blood. Fie is supported in this contention by Dr. DeBarr, state, chemist. There is othei testimony in support of the contention, all, however, bearing on the diligence of counsel in connection with this feature of the case and in support thereof by other witnesses. In order for this court to be in position to reverse this conviction on this contention it would be necessary for us to say that the testimony offered by these witnesses is such that the jury in all reasonable probability would have reached a different conclusion had the same been offered at the trial. Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499. It will be remembered that the state’s witness Meers, justice of the peace of the township in which the homicide occurred, testified at the trial that he discovered this blood in question upon the log in question on the day of the homicide, and that he made no note of it in the minutes taken by him at the inquest, and examined no witnesses in reference to it, for the reason that it was old dry blood and apparently had been on the log for a long time. This witness was apparently frank and not a partisan of either side. Another witness, who was a partisan of plaintiff in error and whose testimony as disclosed by the record in many particulars was impeached, shows that he discovered the blood on the log and that he thought it was fresh on the day of the homicide. This latter witness had been in attendance at the examining trial, acting as clerk in taking down the testimony at the inquest, had been at all times in attendance at the final trial in the district court, and only at the close of the trial did he divulge the information to counsel. It will be remembered also that a local physician in Lawton testified that in his opinion the blood in question was the blood of a human being. He admitted, however, that it was possible for him to be mistaken. The two experts examined on the motion for a new trial were very positive in their statements that it was human blood. In our judgment the state could have admitted that the blood in question was human blood — that is, all the testimony would have established — and then a verdict of guilty would not only have been warranted under all the facts, but a reasonable jury could not have concluded otherwise than that this plaintiff in error was guilty of the ruthless and wanton murder of W. A. Stanford. This being true, there was no error committed and no abuse of discretion by the trial court in denying the motion for a new trial on this or other grounds. Martin v. Ter., 18 Okla. 370, 90 Pac. 13; Smiley v. Ter., 15 Okla. 314, 81 Pac. 433; Hurst v. Ter., 16 Okla. 600, 80 Pac. 280; Harvey v. Ter., 11 Okla. 156, 65 Pac. 837; Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Drew v. State, 6 Okla. Cr. 348, 118 Pac. 377; Johnson v. State, 5 Okla. Cr. 1, 112 Pac. 760; Caple v. State, 3 Okla. Cr. 621, 105 Pac. 618.

This record is voluminous, containing about 1,500 pages, all of which have been read and carefully examined by this court, and we are unable to find from a careful and studious examination of the same where a single right of the accused was denied.

The judgment of the trial court is therefore in all things affirmed.

It appears from the record that while this appeal was pending the act of March 29, 1913, regulating the infliction of the. death penalty, became effective. As the day fixed for the execution of the judgment and sentence has passed, the cause is remanded to the district court of Comanche county for the purpose of appointing another day for the execution of the judgment, as provided by secs. 5979 and 59S0, Rev. Laws (Procedure Criminal). Proceedings to be had in accordance with the rule prescribed by this court in the case of Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025.

The warden of the penitentiary will surrender the plaintiff in error to the sheriff of Comanche county, who will hold him in custody pending the proceedings in the trial court, and until, his custody is changed by due course of law.

DOYLE, J., concurs. EURMAN, J., absent and not participating.


author: DOYLE, J.

text:
    LESTER MILSON v. STATE.
    No. A-2060.
    Opinion Filed October 14, 1914.
    (143 Pac. 341.)
    APPEAL — Affirmance. Where the defendant appeals from a judgment of conviction, and no briefs are filed, or oral argument made, this court will make an examination of the information, and the instructions excepted to, and, if no error is apparent, will affirm the judgment.
    (Syllabus by the Court.)

      Appeal from District Court, Carter County; S. H. Russell, Judge.

    Lester Milson was convicted of manslaughter, and appeals.
    Affirmed.

      Champion & Champion; for plaintiff in error.

      Chas. West, Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was informed against for the murder of one John Wingate, by shooting him with a pistol, alleged to have been committed in Carter county on or about the 18th day of August, 1912. Upon his trial he was found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for a term of five years. Judgment and sentence in accordance with the verdict was rendered on October 29, 1912. An appeal was taken by filing in this court on April 26, 1913, a petition in error with case-made. No brief had been filed and no appearance made on behalf of the plaintiff in error, when the case was called for final submission, whereupon the Attorney General moved to affirm the judgment for failure to prosecute the appeal.

In cases of this kind, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in its rulings in the admission or rejection of testimony. Upon a careful examination of the information and the instructions of the court, we have discovered no error which will warrant a reversal of the judgment.

The judgment of the district court of Carter county is therefore affirmed. Mandate .forthwith.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    STATE ex rel. Atty. Gen. v. STANFIELD, District Judge.

    No. A-2107.
    Opinion Filed October 20, 1914.
    (143 Pac. 519.)
    1. PBOHIBITION — Nature of Writ. The writ of prohibition is that process by which an appellate court prevents an inferior court from usurping or exercising unauthorized jurisdiction.
    2. SAME — Grant of New Trial. In a criminal action, after final judgment has been entered and the term has expired, the trial court has no authority to entertain a motion for new trial, unless the motion is made under the provisions of section 5938, Bev. Laws 1910 (Code of Criminal Procedure), which provides that “a motion for a new trial on the ground of newly discovered evidence may be made after judgment at the term in which the case was tried, or in vacation, before the judge, or at the next term of court;” and so, where a district judge entertains a motion for and grants a new trial upon a motion made at the next term after the judgment was entered, which motion was made on the ground of misconduct of the jury, the motion is insufficient to give ihe court or judge thereof jurisdiction to make an order vacating the judgment and granting- a new trial, and upon the state’s application for a writ of prohibition, the writ will be awarded, prohibiting further proceeding except that necessary to carry the judgment and sentence into execution.
    (Syllabus by the Court.)
    Prohibition by the state, on the relation of the Attorney General, against Hon. Wade S. Stanfield, district judge.
    Writ ordered to issue.

      Charles West, Atty. Gen., C. J. Davenport, Asst. Atty. Gen., Vick S. Decker, Co. Atty., and /. P. Lawrence, for relator.

      Thompson & Smith and W. L. Cheatham, for respondent.
   DOYLE, J.

This is an application for writ of prohibition, restraining and prohibiting the respondent, Hon. Wade S. Stan-field, as district judge of the district court of Creek county, from further proceeding in a certain action in said court, wherein Lee Johnson and Sylvert Johnson were jointly informed against for the crime of murder, and upon their trial convicted of manslaughter in the first degree, and 'wherein, on the 15th day of March, 1913, the court rendered judgment and sentenced each defendant in accordance with the verdict of the jury to imprisonment in the penitentiary for the term of fifteen years.

On June 30, 1913, the defendants filed what purported to be a supplemental motion for a new trial, which reads as follows :

“State of Oklahoma, Plaintiff, v. Lee Johnson and Sylvert Johnson, Defendants.
“Supplemental Motion for New Trial.
“Come now the defendants and each of them and, by leave of court first had and obtained, file and present this their supplemental motion for a new trial, and move the court to vacate and set aside the verdict and judgment rendered herein on the -day of-, 1913, and to grant a new trial to each of the defendants for the following causes which affect materially the substantial rights of said defendants, and each of them:
“First. For misconduct of the jury after they had retired to deliberate and consider of their verdict, which misconduct is fully set out in the affidavits of J. H. Townsend and John Cooper, two of the jurors, and attached hereto and made a part of this motion.
“Second. That since said trial, verdict, and judgment the defendants have discovered new evidence which was unknown to them or to their attorneys until long after said trial, verdict, and judgment, and the defendants, nor their attorneys, could not, with due diligence, have discovered such evidence before the trial; that said evidence is material and competent and tends to explain fully the conduct of the deceased in relation to the difficulty ; that said newly discovered evidence is hereto attached and made a part of this motion in the form of affidavits of Mrs. Mary Wilkinson and Mrs. Lucy Sellers.
“For the reasons above stated the defendants, and each of them, most respectfully pray that the verdict and judgment heretofore rendered in the above entitled court be set aside and held for naught, and that the defendants and each of them be granted a new trial by this honorable court.
“W. L. Ci-ieatham,
“Thompson & Smitpi,
“Attorneys for Defendants.”,

In support of said motion were filed the affidavits of two jurors, which read as follows:

“J. H. Townsend and John Cooper, each on his oath being duly sworn, says: That he was one of the jurors that were impaneled and tried Sylvert Johnson and Lee Johnson for the charge of ‘murder’ in the case of the State of Oklahoma v. Sylvert and Lee Johnson, in the district court of Creek county, Okla., at the January, 1913, term of said court. That after the cause was submitted to the jury and the jury was deliberating on the case, Jasper Cox, one of the jurors, stated to the jury, in substance, these words: ‘That old man Johnson had in the past done him, Jasper Cox, a dirty trick or mean turn, and that he now had a chance to get even with him, and he proposed to do so.’ That it was generally stated by several jurors that- some verdict had to be returned into court, or that the members of the jury would be subject to imprisonment. That this affiant was lead to be-Heve the latter statement, and it was only on account of this statement and his fear of imprisonment that he agreed to the verdict. That one of the jurors, Jasper Cox, made an impassioned plea in the jury room in behalf of the widow and children of Pickett, and stated that if the Johnsons were imprisoned for about fifteen years, it would give the widow time to raise her family and get away from the neighborhood, and that he personally knew that Johnson was mean, high-tempered, and hard to get along with.
“Dated this 17th day of June, 1913."

Also the following affidavit:

“Mrs. Mary Wilkinson and Mrs. Lucy Sellers, both residents of Creek county, Okla., being duly sworn on their respective oaths, say: That they are acquainted with Mrs. Warren Pickett and was acquainted with Warren Pickett in his lifetime, and that after the death of Warren Pickett, and in a conversation with Mrs. Warren Pickett, she said, in substance, as follows: That if it had not been for her (Mrs. Pickett) and her actions and encouragement the trouble would have been averted and Warren Pickett would not have been killed. That this foregoing statement and testimony was not disclosed and made known to Sylvert and Lee Johnson until after the trial and conviction of said Johnsons for the killing of Pickett.
“Mrs. Mary Wilkinson.
“Mrs. Lucy Sellers.
“Subscribed and sworn to before me this the 28th day of June, 1913.
'“[Seal] A. H. Purdy,
“Notary Public.
“My commission expires August 8, 1914.”

On the same day the defendants appeared in court in person and by their attorneys, and the state appeared by Vick S. Decker, county attorney, and Rutherford & Lawrence. The following motion was made by the state:

“Comes now the state and moves the court to strike from the files the supplemental motion for a new trial, filed herein by the defendants, and for grounds of objection and for reasons thereof state: (1) That the same is not filed within time. (2) For the reason that the supplemental motion for a new trial-goes into matters that have heretofore been heard by this court and passed upon. (3) Because the supplemental motion for a new trial is filed after the court has passed upon the motion for a new trial, and after the record has been made herein and served upon the county attorney under this statute, and said supplemental' motion is made after notice of appeal has been given to the county attorney and district clerk. (4) For the reason that said supplemental motion for a new trial directs itself to affidavits of jurors, and attempts to impeach the verdict of the jury by the affidavit of jurors, which may not be done under the law. (5) Because there is no sufficient showing to authorize the granting of a new trial because said supplemental motion for a new trial does not state facts sufficient to authorize the court to grant a new trial herein. (6) Because no proper allegations of newly discovered evidence is alleged in said motion for a new trial.
“By the Court: The motion is overruled. (The plaintiff excepts.)
“Mr. Lawrence: Comes now the state and asks permission to cross-examine John Cooper, who is one of the affiants relied upon by the defendants for his motion for a new trial, and offers now to produce him in open court for the purpose of cross-examination.
“By the Court: You may produce him for the purpose of ascertaining if this is his signature, and if these things contained in the affidavit are true, and for no other purpose.
“Mr. Lawrence: The question now which we desire to propound to John Cooper is on cross-examination of the matter set out in the affidavit and nothing more, and it is not the purpose of the state to inquire of John Cooper about any facts save those facts set out in the affidavit.
“By the Court: The request is refused.
“Mr. Lawrence: We would like to have permission to call other jurors'to testify as to the facts set out in the affidavit of John Cooper.
“By the Court: The request is refused.
“Mr. Lawrence: We now wish to file seven controverting affidavits of jurors.”

Thereupon the state filed the affidavits of S. C. Loveall, J. L. Lewis, L. M. Trexler, C. L- Kilpatrick, O. Frazee, Tom Bair, and Lin Ward, each of whom on oath say:

“That he is a resident of Creek county, C>kla., and was one of the jurors in the case tried in the district court of Creek county, Okla., wherein the state of Oklahoma prosecuted Syl-vert arid Lee Johnson on the charge of murder, and that this affiant was one of the jurors who returned a verdict of guilty in said cause. That at no time during the trial of said cause, or during the deliberation of the jury, did Jasper Cox, who was one of the jurors in said cause, make any statement whatever to the effect that he had any feeling toward the Johnsons, or anything that might be so construed, neither was there any statement made at any time by any person to the effect that it was necessary for the jury to return a verdict to avoid imprisonment or punishment by the court.
“Affiant further saith that the only statement made by any juror during the deliberation were those that were ordinarily and customarily made during the deliberation, and that the discussions were participated in by principally all of the jurors, and that no particular juror acted as 'spokesman,’ and there was nothing which occurred in the jury room that would indicate any feeling of any of the jurors personally.
“Affiant further saith that the only statement made by any of the jurors during the deliberation which touched on or tended to show any personal feeling was a statement made by juror John Cooper, who stated, when asked why he voted for acquittal, that he was afraid to vote for a conviction because he lived near Johnson’s, and he feared that they might do him injury, and that some of the jurors said to Cooper at that time that under his oath as a juror he could not consider anything of that character, and it was his duty to vote for a true and just verdict according to the law and the evidence, regardless of any personal feeling he might have, and that the said Cooper voted for conviction thereafter.
“Affiant further saith that at no time or place did any juror insist on a verdict of guilty, or offer any duress or intimidation further than to suggest that he thought, under the law as given by the court and the testimony as given by the witnesses, that the defendants were guilty.
“Affiant further saith that in all of the deliberations by the jury the only question discussed by the jurors was based on the law as given by the court and the testimony of the witnesses, and that no personal feeling or personal reason was ever given except the one given by juror Cooper, as set out above.
“The only statement that I recall that juror Jasper Cox made with regard to the verdict and his personal feeling toward the Johnsons was that the said Jasper Cox stated that 'he was sorry for the Johnsons, and that he was sorry that it was his duty, as he saw it, to return a verdict of guilty. Further .affiant saith not.”

The controverting affidavits were read in open court. Thereupon Mr. Lawrence stated:

“We propose to prove the .same state of facts by all the panel, the whole twelve of them, if permitted to do so on the stand.”

Thereupon the court calls John Cooper to the witness stand, and after witness is first duly sworn, he was examined by the court as follows:

“Q. You are the same John Cooper who was a juror in the case tried in this court, the State of Oklahoma v. Lee and Syl-vert Johnson? A. Yes, sir. O. Did you make this affidavit? A. (Examines affidavit). Yes, sir; I made this, all but this, where it says Jasper Cox used that language. Q. Did you make this statement, ‘That it was generally stated by several jurors that some verdict had to be returned into court, or that the members of the jury would be subject to imprisonment?’ A. Yes, sir. Q. And, ‘That this affiant was lead to believe the latter statement, and that it was only on account of this statement and his fear of imprisonment that he agreed to the verdict,’ is that true? A. Yes, sir. Q. You still make that statement, do you, that it was on account of that fear that you agreed to the verdict? A. Yes, sir.
“Mr. Lawrence: We would like to cross-examine him generally on these matters.
“By the Court: The court will not permit you to do that.
“By the Court: The court is of the opinion that, if there was a juror upon that panel who was so ignorant that he thought they would be imprisoned if no verdict was brought in, was an incompetent juror, and the court does not believe the defendants had a fair trial under these circumstances; the motion for new tried will be sustained.” (To which. ruling of the court the plaintiff excepts.)
“Mr. Lawrence: We reserve this question for the state for the purpose of appealing it to the Criminal Court of Appeals' of the state of Oklahoma; and we now ask the court to grant time in which to prepare and serve case-made upon this question.
“By the Court: The request is refused. (The plaintiff excepts.)”

To reverse the order of the court granting a new trial, the state appealed by filing in this court on July 17, 1913, a petition in error with case-made. On October 8., 1913, the Attorney General filed the petition for a writ of prohibition, wherein it is alleged:

“The said Hon. Wade S. Stanfield, as the presiding judge of said court, has set said cause down for trial in the present term of said court, and threatens to, and unless prohibited by this court will) proceed, although he is without jurisdiction therein, to rehear and redetermine said cause.”

Upon the filing of the petition an alternative writ of prohibition was issued.

The application for the writ of prohibition is presented and based upon the theory that the proceedings upon the supplemental motion for a new trial were not in conformity with the provisions of “Procedure — Criminal,” secs. 5937, 5938 (Rev. Laws 1910), and that for this reason the district court did not have jurisdiction to act thereon.

By the provisions of section 5937:

“A court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only : * * *■ 7th. When new evidence is discovered, material to the defendant, and which he could not with reasonable diligence have discovered before the trial.”

Section 593S provides:

“The application for a new trial must be made before judgment is entered; but the court or judge thereof niay for good cause shown allow such application to be made at any time within thirty days after the entry of the judgment. A motion for a new trial on the ground of newly discovered evidence may be made after judgment at the term at which the case was tried, or in vacation, before the judge, or at the next term of court.”

Under the laws then existing the time of the convening of the regular terms of the district court in Creek county was on the first Monday in each of the following months, to wit: January, April, and September. Section 1793, Rev. Laws 1910. The judgment was rendered at the January term, and the supplemental motion for a new trial was made after judgment at the (April) next term of said court.

In a criminal action, after final judgment has been rendered, and the term has expired, the trial court has no power to entertain a motion for a new trial, unless the motion is made under the provisions of section 5938 of the Code of Criminal Procedure, supra. The trial court possesses no inherent power to grant a new trial after the term in which the judgment was rendered expires, and its power in that respect is derived from section 5938, supra, which provides that a motion for a new trial on the ground of newly discovered evidence may be made at the next term of court after the term in which the case is tried; and to give the trial court jurisdiction to hear and determine such motion, there must be a substantial compliance with the requirements of the statute.

It appears from the record that the defendants’ supplemental motion for a new trial was based upon misconduct of the jury as shown by the affidavits of two jurors. It is the settled law of this state that jurors will not be permitted to impeach their verdict either before or after the judgment is rendered upon the verdict. Pettiti v. State, 2 Okla. Cr. 131, 100 Pac. 1122; Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224.

The affidavit of the two persons who state that they heard the wife of the deceased say that “if it had not been for her [Mrs. Pickett] and her actions and encouragement the trouble would have been averted, and Warren Pickett would not have been killed,” is not shown to be competent or material as evidence.

Confessions or admissions alleged to have been made by persons other than a defendant are not admissible in evidence, either in behalf of the state or the defendant, except for the purpose of impeaching the credibility of witnesses upon proper predicates therefor. Davis v. State, 8 Okla. Cr. 515, 128 Pac. 1097.

The recital in the record that the defendants’ supplemental motion for a new trial was* granted solely upon the ground of misconduct of the jury necessarily implies that the trial court was of the opinion that the second ground of the motion and the affidavit in support thereof were insufficient as an application upon the ground of newly discovered evidence. In our opinion the application for new trial was not based upon any newly discovered evidence, but solely upon the misconduct of the jury as set out in the application. On this ground the trial court had lost -jurisdiction of the defendants’ case for the purpose of a motion for a new trial. People ex rel. Jerome v. General Sessions, 185 N. Y. 504, 78 N. E. 149. A motion for a new trial on the ground of newly discovered evidence should show that the defendant used due diligence to procure and present the evidence on the trial, and the facts constituting the diligence must be shown, so that the court may determine whether the diligence used was sufficient. The supplemental motion for a new trial was not verified by the oath of either defendant, or any other person, and was therefore not in compliance with the requirements of the statute. For the reasons stated we are of opinion that the purported supplemental motion for a new trial was insufficient to confer jurisdiction on the district court of Creek county to make the order vacating and setting aside the judgment of conviction pronounced and entered in said case at the preceding term of said court, and was insufficient to confer jurisdiction upon said court to make the order granting a new trial to the said defendants.

The writ of prohibition is that process by which an appellate court prevents an inferior court from usurping or exercising unauthorized jurisdiction.

It appearing that this is a proper case for the exercise of the powers of this court to grant the writ of prohibition, it is ordered that the writ issue, prohibiting the respondent, ITon. Wade S. Stanfield, as district judge of the district court of Creek county, from further proceeding in the case in said court wherein the state of Oklahoma is plaintiff and Lee Johnson and Sylvert Johnson are defendants.

The clerk of the district court of Creek county is directed to issue forthwith to the sheriff of said county commitments in accordance with the judgment of the court as pronounced and entered on the verdict of the jury.

ARMSTRONG, P. J., and FURMAN, J., concur.