author: BAILEE, Judge,

text:
    Ed McLaughlin v. State.
    No. 335.
    Opinion Filed May 3, 1909.
    (102 Pac. 713.)
    1. INDICTMENT AND INFORMATION — Election Between Counts. When an information charges more than one offense, the prosecutor may, upon motion of the accused, be compelled to elect on which charge he will proceed; and, if the fact that two or more offenses are contained in such information be not discovered until the trial is in progress, the prosecution should then be abandoned, except as to the one offense which the prosecutor elects to proceed upon.
    2. SAME — Amendment—Continuance. An information may be amended in matter of substance, or form, at any time before the defendant pleads, without leave of court, and may be amended after plea on order of the court, where the same can be done without material prejudice to the rights of the defendant. No amendment shall cause any delay of the trial, unless for gobd cause shown by affidavit; and it is not error for the trial court to require the trial to proceed unless the defendant, by affidavit duly filed, shows good cause for delay.
    3. SAME — Cure of Irregularities — lnform,ation After Warránt. When the accused is arrested in a misdemeanor case on a warrant based upon an affidavit filed with a justice of the peace, charging a public offense, and no information is filed in the county court upon such affidavit, and the accused files a demurrer, based upon the insufficiency of the affidavit to constitute a proper prosecution, it is proper, after such demurrer is sustained, for the county attorney to use suc'h affidavit upon which to predicate an information embodying the offense charged in the affidavit; and, the accused being in court, the prosecution may proceed without another warrant being issued upon the information.
    (Syllabus by the Court.)

      Error from Goal County Court; B. E. Wells, Judge.

    Ed. McLaughlin was convicted of an unlawful sale of whisky, and appeals.
    Affirmed.
    The prosecution in this case was commenced against the plaintiff in error, who- will be designated hereinafter as the accused, by filing before J. M. Wilson, a justice of the peace of district 9, Coal county, Olda., an affidavit sworn to by Lewis W. Collier, which states, in substance, that on the 14th day of January, A. D. 1908, in the town of Coalgate, in Coal county, Olda., the accused committed the offense of selling and furnishing intoxicating liquor, to wit, whisky, to James Washington, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma. Upon this affidavit'the following indorsement appears:
    “I, Jas. R. Wood, county attorney of Coal county, state of Oklahoma, do hereby certify that I have examined into the facts of the within styled case, and I recommend that a warrant issue for the arrest of the defendant. Dated January 14, 1908. Jas. R. Wood, County Attorney, Coal County, Oklahoma.”
    Upon said complaint a warrant in due form of law was issued by the county judge of said county for the arrest of the accused, and he was brought into said court, and gave bond for his appearance in said court on the 23d day of January, 1908. On the 2-3 d day of January the accused filed a demurrer, attacking the sufficiency of said complaint, which demurrer was sustained. Thereupon, on ¡the 23d day of January, 1908, the county attorney filed an information in said court, charging, that upon information brought to his notice by the affidavit of L. W. Collier, on'the 14th day of January, 1908, in the town of Coalgate, in the county of Coal, in the state of Oklahoma, the accused committed the offense of selling and furnishing intoxicating liq-ors to wit, whisky, to one James Washington, contrary to the form of the statutes, etc. Afterwards, on the 28th day of January, 1908, an amended information was filed, which was verified by the county attorney, making the same charge against the accused in slightly different language. The accused moved for his discharge for the reason that the complaint against him was dismissed on demurrer, and that’ since such dismissal he has not been arrested. On the same day, March 10, 1908, the accused filed a demurrer to the information, for the reason that the information was filed after demurrer was sustained to the complaint on which this cause was originally brought. Said motion and .demurrer were both overruled, and accused saved exceptions to such ruling.
    This case was tried, and resulted in a verdiict of guilty, and the accused moved for a new trial, alleging: First. “The verdict is contrary to the law.” Second. “The verdict of the jury is contrary to the evidence.” Third. “The court has no jurisdiction of the person of the defendant, for the reason that he has not been arrested upon the information filed herein.” Fourth. The fourth ground of the motion, in substance, states that the jury received evidence outside of court, coming from the members of the jury, stating to the other jurymen upon retiring to consider of their verdict, that said jurors were acquainted with the accused, and knew that he was selling whisky at Coalgáte, independent of the sale charged in the information, and that therefore the verdict was not a fair expression of the opinion of the jury as to the guilt of the accused; that the verdict was based upon other matter; that the jury based their verdict on what they claimed to be other offenses, and upon the erroneous idea that it would not do to set the precedent of acqrutting him, but that in fact the jury did not believe he was guilty of the crime for which he was tried. Fifth. That the information is not based upon a legal affidavit; that the information tends to charge two offenses. Sixth. That the court erred in instructing the jury as follows:

      “Non are instructed, if you believe from the evidence beyond a reasonable doubt that the defendant did, on or about the 14th day of January, 1908, prior to the filing of this information, and since the 16th day of November, IDO1?, at 10 o’clock- a. m. sell and furnish whisky, as charged in the information, you will find the defendant guilty and assess his punishment at a fine of not less than $50 nor more than $500, and imprisonment in the county jail of Coal county, Okla., not less than 30 days nor more than one year.”
    Seventh. The court erred in overruling the motion to discharge the defendant. Eighth. The court erred in overruling defendant’s demurrer to the information. Ninth. The court erred in overruling the objection of the defendant to the introduction of any evidence on the informatiion. Tenth. The jury disregarded the instructions of the court. The accused also filed his motion in arrest of judgment, setting up, in substance, the various matters contained in the motion for nex trial, and reciting the various steps taken b}r the court in this case. The motion im arrest of judgment was overruled, to which the accused duly excepted. Judgment was entered upon the verdict, sentencing the accused to pay a fine of $50 and costs, and to serve a period of 30 days in jail, to which the accused excepted. The accused being advised as to his right of appeal, bond was fixed, and accused given 40 days to prepare and serve case-made. This appeal is prosecuted to reverse said judgment and sentence.

      Balls Bros., for plaintiff in error.

      Fred 8. Galdwell, for the State.—
    On waiver of irregularities by appearance: 12 Cyc. 228.
    On question of dupliicity in information: 22 Cyc. 379; McClain on Criminal Law, § 1275; State, v. Schweiier, 27 Kan. 499; State v. Kerr, 3 N. D. 523; Com. v. Igo, 158 Mass. 199; State v. Stanley, 84 Me. 55; People v. Wade, 101 Mich. 89.
   BAILEE, Judge,

(after stating the facts as above). The accused relies on the following assignments of error:

“(1) The cou-rt erred in overruling the motion to discharge; (2) the court erred in overruling the demurrer to the information; (3) tlie court erred in overruling the motion in arrest of judgment; (4) the court erred in overruling the motion for a hew trial; (5) the court erred in overruling the objection of the accused /to the introductiion of any evidence in support of the information.”

The first three assignments of error raise the question, as to whether or not the accused was properly before the court below, and whether or not the information charges the commission of a public offense or crime, and, if an offense is charged, whether or not more than one offense is charged in the information. The accused contends that sustaining the demurrer to the affidavit or complaint nullified and destroyed it, and that it could not be made the basis for new information; that a new, or other affidavit, charging him with the commission of a specific crime before an information could lawfully be filed, and the fact that an information was filed after the demurrer was sustained, did not have'the force of continuing the jurisdiction of the court over the person of the accused. The learned counsel for the accused failed to cilte any authorities to support this contention. The court undoubtedly sustained the demurrer for one or more of the reasons stated in the demurrer, which are:, (a) That the affidavit or complaint is not sufficient in law to charge the accused with any offense; (b) that it was not signed by the county attorney; and does not purport to be an information filed by the county attorney; (c) because there is no law authorizing the prosecution against the accused without indictment; (d) because there is no law authorizing the court below to proceed or prosecute any cause until the Legislature provides a procedure for the same; (e) because there is no acit of the Legislature providing for the enforcement of the offense attempted to be charged in the complaint. The court could well, and no doubt did, sustain the demurrer for reasons stated in .the first and second grounds of the demurrer, because there was no authority of law authorizing prosecutions of the character set forth in the affidavit, without information being filed by the county attorney, as required by law. We think, therefore, the trial court was right in sustaining the demurrer.

The sustaining of the demurrer, however, did not destroy the affidavit of L. W. Collier, which was, in all respects, a sufficient complaint under oath, and complies with section 5306', Wilson’s Rev. & Ann. St. 1903, of this state. The affidavit in question is specific, and properly charges a public offense, not upon information and belief, but affiant positively and unequivocally swears that thq. accused is guilty of such offense. Upon this affidavit the county attorney predicates the first information, which was filed after the demurrer was sustained to the affidavit for the reasons above stated, and the affidavit in question is filed with the information, and is made a part thereof. The county attorney had the right, under section 5307, Wilson’s Rev. & Ann. St. 1903, of this'state, to amend the information at any time before the defendant pleads, without leave of court and could amend same 'after plea, on order of the court, when the same can be done without material prejudice to the rights of the accused; and no amendment shall cause any delay of the trial, unless for good cause shown by affidavit. This question was decided by this court in Howard v. State, ante, p. 200, 101 Pac. 131, and Markinson v. State, ante, p. 323, 101 Pac. 353. The information, being based upon an affidavit properly sworn to, and charging the commission of a public offense, gave the county court jurisdiction over the accused without again placing him under arrest. This court in Ex parte McNaught, 1 Okla. Cr. 528, 99 Pac. 241, held, that the provisions of the Constitution of this state respecting prosecution by 'information were self-enacting, and therefore legislation vitalizing such provisions was unnecessary.

The accused also contends that he has been improperly convicted, because tire information “tends to charge” two offenses, by charging that he committed the crime of “selling and furnishing intoxicating liquors.” This court does not agree with the contention of counsel for the accused that the information in the case at bar charges two offenses. On the contrary, we are clearly of the opinion that the indictment charges but one offense. Section 1, art. 3, of the Billups Law (Laws 1908, p. 603, c. 69). provides that it shall be -unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish, intoxicating liquors, etc. The manufacture, sale, barter, giving away, and otherwise furnishing such liquors is but one offense, which can be committed in the various ways set out in the statute — that is to say, by manufacturing, selling, bartering, giving away, or otherwise furnishing intoxicating liquors — and can be alternatively charged, and the indictment or information would not be bad for duplicity. If, however, the pleader seeks to charge the offense of unlawfully furnishing intoxicating liquors, the manner and means incident to the furnishing must be alleged im the indictment or information with such particularity as to fully and properly advise the accused as to the exact offense he is called upon to defend. If, however, an information or indictment charges two or more offenses in one count, and the accused sought to take advantage thereof on account of duplicity, it would be necessary for him to take steps to require the prosecutor to elect upon which charge of the offense he would rely for a conviction, and thereupon, by operation of law, the offenses other than'the one upon which the prosecution elected to proceed would, be abandoned. In misdemeanor cases it is too late to interpose an objection to an indictment or information for duplicity after verdict.

The above stated doctrine is well settled; many well-considered cases holding that it applies also to charges of felony. In Fisher v. State, 33 Tex. 792, it is held:

“The true rule is that, when two or more felonies are charged in the same indictment, the indictment may be quashed, or the prosecutor be compelled, to elect upon which charge he will proceed;'and, if the fact that two or more offenses are contained in the indictment be not discovered until the trial is in progress, the prosecution should then be abandoned, except as to the offense which the prosecutor elects to proceed upon.”

Numerous eases sustain the doctrine announced in the Fisher Case, and it appears to us as reasonable and sound, especially, if the record fail to show that the substantial rights of the accused have not been prejudiced by such duplicity.

The accused also alleges in his motion for a new trial that the jury was influenced in arriving at its verdict by evidence outside of court, and upon evidence not submitted to the jury in open court at the trial thereof, to wit, by statements made by members of the jury in relation to other sales of intoxicating liquor made by the accused, to which said jurors claimed to have personal knowledge, and that therefore the verdict was obtained by improper means. In support of this ground of the motion the affidavit of M. B. Hickman, one of the jurors, is filed and made a part of the record in this case. The record also discloses that the affidavits of J. C. Blevins and Arch Forgery, two other- members of the jury in this case, are also filed in the record, and they each deny the statements contained in the affidavits of the juror Hickman. Without referring to the competency of the affidavit of the juror Hickman, which seeks to impeach the verdict in which he participated as a juror, and passing upon the weight of 'the testimony for and against this ground of the motion we find that said ground is not supported bjr the evidence, and therefore said assignment of error must fail for want of proof to sustain it. We fail to find from the record of the case at bar wherein the rights of the accused have in any way been violated or prejudiced. Hence the trial court did not err in overruling the motion to discharge thé- accused, the demurrer, and the motion, in arrest of judgment.

The accused says that the trial court erred in convicting him in this ease because he was drunk, and did not know what he was doing, and hence not capable of committing a crime. This defense was urged in the trial court, and the evidence on both sides submitted to an impartial jury, who determined the issue against the accused, and this court will not disturb the verdict, because we think it is fully sustained by the evidence. This court has little sympathy with defenses which require proof of the commission of another offense to shield the accused from punishment.

Having carefully considered all the questions raised by the brief of the accused, and finding no reversible error, the judgment and sentence of the county court of Coal county is affirmed, and it ordered that a mandate issue from this court to the proper officers of said county, directing that said, judgment and sentence be executed without unnecessary delay.

FURMAN, PeesidiNG Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: FURMAN, Presiding Judge.

license: Public Domain

text:
    Ray Reeves v. Territory.
    No. 78.
    Opinion Filed May 19, 1909.
    (101 Pac. 1039.)

      1. COURTS — Territorial Courts — Admission as State — Transfer of Causes. Section 19, of the Enabling Act (Act Cong. June 16, 1906, 34 Stait. 277, e. 3335), and section 3 of the amendments to the Enabling Act (Act March 4, 1907., 34 Stat. 1287, c. 2911) in connection with section 497, Bunn’s Const.. Okla., are self-executing, and together transferred ail cases pending in all courts of original jurisdiction in Oklahoma Territory and in Indian Territory to similar courts of original jurisdiction of the state.

      2. INDICTMENT AND INFORMATION — Transfer from Territorial Courts — Form. It is not necessary for indictments or informa-tions transferred from territorial courts to state courts to show upon their faces that they are prosecuted in the name and by the authority of the state of Oklahoma or to conclude “against the peace and dignity of the state.”
    3. APPEAL — Questions Not Presented In Briefs — Harmless Error. (a) Questions not fully presented in the briefs of counsel will not be considered upon appeal, unless they relate to fundamental matters, (b) It is the duty of counsel upon appeal to this court, who complain of errors in the proceedings of trial courts, to place their fingers upon the place that hurts, and clearly point out the errors complained of. (c) We are prohibited by statute from reversing a conviction upon any technicality or exception wihich does not .affect the substantial rights of a defendant. It is not enough to show that an error has been committed, but the complaining party must go further and show that such error did injuriously affect some of his substantial . rights. If this is not done, a conviction will not be reversed.
    4. RAPE — Evidence. Por facts which did not make it proper for the defendant to introduce testimony as to his engagement to marry another girl than the prosecutrix, see opinion.
    5. INSTRUCTIONS — Reasonable Doubt. An instruction upon reasonable doulbt substantially in the language of the statute is all that the court is required to give upon this subject. It is not necessary to go further and define the meaning of the words.
    é. RAiPE — Necessity of Corroboration — Evidence. In prosecutions for rape, the court should not instruct the jury that the defendant cannot be convicted unless the testimony of the prosecutrix is corroborated. The want of such corroboration goes only tc> the weight and credibility of her testimony.
    (Syllabus by the Court.)

      Appeal from District Court, Greer County; G. A. Brown, Judge.

    Ray Reeves was convicted of rape and be appeals.
    Affirmed.
    See, also, Reeves v. Territory, ante, p. 82, 99 Pac. 1021.

      B. F. Van Dylce, 8. B. Garrett and J. L. Carpenter, for appellant.

      Charles West, Atty Gen., and B. G. Spilman, Asst. Atty. Gen., for tbe Territory.
    No copies of briefs reached tbe reporter.
   FURMAN, Presiding Judge.

First. Upon tbe trial of this case tbe defendant assailed tbe jurisdiction of the district court of Greer county upon tbe ground that this case was pending in a territorial court, which, on November 16, 1907, ceased to exist as a court. Counsel in their brief say: “Can the new district court, without some act transferring this case out of the old, dead court, and into the new, living court, acquire jurisdiction? We think not.” The contention is that there was no transfer of the case from the territorial court to the state court. The answer to this contention is found in sections 19 and 20 of the Enabling Act (Act Cong. June 16, 1906, 34 St. 277, e. 3335), and the acceptance by the state of the provisions of the Enabling Act. Section 19 of the Enabling Act is as follows:

“That the courts of original jurisdiction of such state shall be deemed to be the successors of all courts of original jurisdiction of said territories and as such' shall take and retain custody of all records, dockets, journals, and files of such courts except in causes transferred therefrom, as herein provided; the files and papers in such transferred eases shall be transferred to the proper United States Circuit or District Court, together with a transcript of all book entries to complete the record in such particular case so transferred.”

Section 20 of the amendments to the Enabling Act is as follows :

“That all causes, proceedings, and matters, civil or criminal, pending in the District Courts of Oklahoma Territory, or in the United States courts in the Indian Territory, at the time said territories become a state, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be proceeded with, held, and determined by the courts of said state, the successors of said District Courts of the territory of Oklahoma, and the United States courts in the Indian Territory; with the right to prosecute appeals or writs of error to the supreme or appellate court of said state, and also with the same right to prosecute appeals or writs of error from the final determination in such eases made by the supreme or appellate court of such state to the Supreme Court of the United States, as is provided by law for appeals and writs of error from the supreme or final appellate court of a state to the Supreme Court of the United States. All criminal cases pending in the United States courts in the Indian Territory, not transferred to the United States Circuit or District 'Courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory.” (Act Cong. March 4, 1907, 34 Stat. 1387, c. 2911, § 3.)

The provisions of the Enabling Act were accepted by the constitutional convention.

“Sec. 497. Enabling Act Accepted by Ordinance Irrevocable. Be it ordained by the constitutional convention for the proposed state of Oklahoma, that said constitutional convention do, by thiis ordinance irrevocable, accept the terms and conditions of an act of the Congress of the United States, entitled, 'An act to enable the people of Oklahoma and the Indian Territory to form a Con-stitutiion and state government and be admitted into the Union on an equal footing with the original states; and to enable the people of New Mexico and of Arizona to form a Constitution and state government and be admitted into the Union on an equal footing wiith the original states/ approved June the sixteenth, Anno Domini, nineteen hundred and six.” (Section 497, Bunn’s Const. Okla.)

Here two sovereignties have reached an agreement — one transfers, and the other accepts, jurisdiction to try a certain class of cases. No machinery of transfer was necessary, and, indeed, we do not see how it could have been created. The territorial •courts could not transfer cases to the state courts before the creation of the state, because there were no state courts then in existence and no one knew that they would, as a -matter of fact, be in existence. The transfer could not have been made after statehood, because the territorial courts passed out of existence the very moment the state' courts were created. So the transfer was made by operation of law, under the provisions of the Enabling Act, which were accepted by the new sovereignty, as soon as such provisions became operative. So there was no error in the ruling of the court upon this question.

Second. Defendant assailed the indictment in this case upon the ground that upon its face it showed that it ivas not prosecuted in the name and by the authority of the state of Oklahoma, but that'it was prosecuted in the name and by the authority of the United States, and further, that the indictment did not conclude “against the peace and dignity of the state,” as our Constitution requires in all eases for the violation of state laws. There is nothing in thiis contention on account of the provisions hereinbe-fore quoted. They are special provisions of the Enabling Act and the constitutional convention. This case was prosecuted under and by authority of the state of Oklahoma, and was against the peace and dignity of the state by virtue of these provisions. Special provisions control general laws upon any given subject. It will be observed that the latter part of section 20 of the amendment to the Enabling Act hereinbefore quoted, and which has been accepted’ by the state, provides that “all criminal cases pending in the United States courts in the Indian Territory, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory.” This conclusively destroys the contention of counsel for the defendant upon this question. Therefore there was no error in the ruling of the court in holding that the indictment was sufficient and that the court had jurisdiction of the case.

Third. Counsel for the defendant in their brief say:

“The trial court erred in the admission of evidence objected to by the defendant and duly excepted to at the time. The record discloses numerous objections made by defendant to the admissibility of testimony, which were by the court overruled and excepted to by the defendant. It would render this brief too voluminous to mention in detail all of these errors and objections. We do not, however, waive them in not specifically pointing them out and discussing the same. We ask the court to reverse and dismiss, or reverse and remand, for errors committed by the court in the admission of evidence objected to and duly excepted to by the defendant.”

This court has tiime and again declared that questions not fully presented in the briefs of counsel will be treated as having been waived, and will not be considered by this court unless they relate to fundamental matters. We, therefore, decline to go into matters so indefinitely referred to. It iis the duty of counsel who complain of errors in the proceedings in trial courts of general, jurisdiction to place their fingers upon the place that hurts and clearly point out the error and give this court the benefit of their views and of the authorities upon which they rely. We have read the record through, and, if any errors were committed coming under the general statement contained in the brief, they are not of such a character as would authorize this court to disturb the verdict of the jury and the judgment of the court. We are prohibited by statute from reversing a conviction upon any technicality or exception which does not affect the substantial rights of a defendant. This is a wise and wholesome provision of law, and we will follow it strictly. It is not enough to show that an error has been committed, but the complaining party must go further and ' show that such error did injuriously affect some of his substantial rights. If thils is not done, this court will not reverse a conviction.

Fourth. Counsel for the defendant further complains' as follows:

“The trial court erred in the exclusion of evidence over the objection of the defendant, which was duly excepted to at the time.”
“Error .No. 1. Third Proposition. The court excluded the following testimony: On page 92 of the transcript this question was aslced the defendant while on the witness stand as a witness-in his own behalf: Q. ‘Were you visiting any of the girls there in the community'!'’ A. ‘Yes, sir.’ Q. ‘What other girls?’ (Objected to as■ irrelevant, incompetent, and immaterial. Sustained. Defendant excepts.) Q. ‘Was jit reported there in the neighborhood at the time you first heard of this complaint that you were to get married?’ (Objected to as leading and suggestive. Sustained. Defendant excepts.) (The jury retires, and this evi-dense is taken ex parle.) Q. ‘Answer the question.’ A. ‘Well, not right at the time.’ Q. ‘At the time of the prosecution, had you at the time of the prosecution, the .commencement of this prosecution in August, had you then become engaged to another girl there?’ A. ‘Yes, sir. Q. ‘What was her name?’ A.‘Bertie Fewell.’ Q. ‘Was it commonly known in the neighborhood that you were paying your respects to this young lady, and that you were engaged?’ A. ‘It was not commonly known that we were engaged, but she was the only girl I was waiting on.’ (Objection interposed by the state is again urged. Objection is sustained, defendant excepts.)”

The contention of counsel is that this evidence should have been admitted for the purpose of showing .the motive of the prosecuting witness and thereby affecting the credibility of her evidence. For this -purpose it would have been permissible .to interrogate the prosecuting witness as to her feelings toward the defendant, and as to the part, if any, which she took in the institution of this prosecution. The defendant did not claim that the prosecuting witness knew of the engagement which'he offered to prove. There is no evidence in the record that the prosecuting witness instituted this prosecution. On the contrary, the record shows that she had not voluntarily taken part in the prosecution. Her parents learned of this matter' from a neighbor, and, when they questioned her about it, she told what had occurred, and then they caused the prosecution to be instituted. We can see no possible connection between the evidence offered and excluded and the substantial merits of this case, except pure conjecture. The refusal of the court to permit the introduction of the offered evidence did not deprive the defendant of any substantial right, and no error was committed in the ruling complained of.

Fifth. Defendant complains that the court did not define reasonable doubt. The instruction of the court was substantially in the language of the statute upon that subject. This is all that the court is required to give. It is a dangerous thing for a court to attempt to go further than charge as the statute requires. This court has repeatedly passed upon this question. In Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, we said:

“The words ‘reasonable doubt’ in our statute are used in their ordinary sense in common acceptance among the people. An instruction in the language of the statute is sufficient, and is by far the safest course to pursue. Any effort to elucidate the meaning of the words ‘reasonable doubt’ is dangerous, as will be found from an examination of the decided eases.”

In the case of Douglas v. Territory, 1 Okla. Cr. 583, 98 Pac. 1023, this court said:

“The phrase ‘reasonable doubt’ is not a technical term. It is generally understood in the common affairs of life, and needs no explanation from the court in instructing the jury. The court, having given the instruction directed by the statute, did not err in refusing to give the instructions requested by the defendant.”

The reasons for and authorities supporting oúr views upon this question will be found in the cases above cited, and may be accepted as the settled policy of this court. We entertain a reasonable doubt as to whether any instruction can be given which will make the meaning of the term “reasonable doubt” any clearer to a jury than it would be without such instruction. We, therefore, advise trial courts -to give the instruction in the language of the statute, and stop there. Any attempted] explanation is dangerous. An examination of the reported cases will show many reversals solely on account of such attempts.

Sixth. The defendant requested the court to instruct the jury that they could not convict him upon the testimony of the prosecutrix unless it was corroborated. This the court refused to do. To this the defendant reserved an exception. This action of the court meets with our entire approval. Our views are fully expressed by Judge Burford in Brenton v. Territory, 15 Okla. 10, 78 Pac. 84. The court said:

“While it may be said that ordinarily a conviction will not be sustained upon the uncorroborated evidence of the prosecutrix in such cases, yet this iis a question to be determined upon the weight of the evidence and the credibility of the witnesses, and not to be laid down as a rule of law.”

The jury in this case saw and heard the witnesses and found the defendant guilty. The trial judge also saw and heard the witnesses. JEe approved the verdict. While we are not bound by this, yet it is strongly persuasive to our minds. The defendant did not assign as error in this court the insufficiency of the evidence to sustain the verdict. No such question is presented to this court, neither was it even hinted at iin the brief. The defendant seeks a reversal upon the bold proposition that there cannot be a conviction of rape in any case unless the testimony of the prose-cutrix is corroborated. To this we cannot assent. This question was passed upon by the Court of Appeals of Texas, when iit was composed of John P. White, James H. Hurt, and Samuel A. Wilson, three of the best, most learned, and greatest judges of criminal law that -this or anjr other country has ever produced. The state was represented by John D. Templeton and James H. Burts, who were both eminent lawyers. The defendant was represented by able and distinguished counsel. So we have every assurance that the question was thoroughly presented on both sides. The court said:

“This appeal is from a conviction of rape, founded upon the uncorroborated .testimony of the injured female, a girl between the ages of nine and ten years. In some states the uncorroborated testimony of the ravished female is not considered sufficient to sustain a conviction. In Iowa it is so provided by statute. State v. McLaughlin, 44 Iowa, 82. In California in the Supreme Court holds that no rape case should ever go 'to the jury on the sole testimony of the prosecutrix, unsustained by facts and circumstances, without the court warning them of the danger of conviction on such testimony. People v. Benson, 6 Cal. 221, 65 Am. Dec. 506; People v. Hamilton, 46 Cal. 540; People v. Ardaga, 51 Cal. 371. But the general rule is that laid down by Lord Hale, which is as follows: “The party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her evidence, and how far she ils to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that may occur in that testimony.' Lord Hale, P. C. 633-635; 1 Bast’s P. C. 445; 1 Buss, on Crimes (9th Ed.) 921; 3 Greenl. on Ev. § 212; Boseoe’s Cr. Elf. 808; 1 Whart. Cr. L. § 565; 2' Bish. Cr. Pr. § 961 et seq. This is the rule adopted in our state. Topolanck v. State, 40 Tex. 160; Goss v. State, 40 Tex. 520. And there may be a conviction for this offense even upon uncorroborated testimony of the injured female, although she be a child under the age of ten years. 2 Bish. Cr. Law, § 968; 1 Russ. on Crimes (9th Ed.) 931.” (Gazley v. State, 17 Tex. App. 277.)

Mr. Wigmore, who is probably one of the most profound writers of ancient or modern times upon the philosophy of the law, in hiis great work on Evidence, vol. 2, § -2060, unqualiñedly states that “the woman is not an accomplice in rape, rape under age, seduction, or abortion.” In section 2061, same volume, he says:

“Section 2061. Uncorroborated Complainant in Bape, Seduction, Enticement, Bastardjq Breach of Marriage Promise, and the like. At common law, the testimony of the prosecutrix or injured person, in the trial of offenses against the chastity of women, was alone sufficient evidence to support a conviction;neither a second witness nor corroborating circumstances were necessary.”

This is not only the rule of the common law, but is also the law in the United States, except when changed by statute. It is true that there are some decisions based upon special statutes which hold that corroboration of the prosecutrix is necessary, but. in the absence of such a statute in this state, we could not agree to establish a rule so repugnant to justice, constituting such a shame upon our civilization; so insulting to decency and so pregnant with danger to weakness and virtue. The following authorities fully sustain our position:

In Boddie v. State, 52 Ala. 395, upon this very question, the court said:

“No principle of law forbids a conviction on her uncorroborated testimony,, though she be wanting in chastity, if the jury •are satisfied of its truth.”

In Barnett v. State, 83 Ala. 45, 3 South. 615, the same court said:

“There is no rule of law which forbids a jury to convict one charged with this crime on the uncorroborated testimony of the prosecutrix. * * * If this were not so, one of the most detestable and atrocious of all criifies known to the law might often go unpunished, as the perpetrators of this offense almost invariably seek to carry out their purpose when the victim is alone and unprotected. It is manifest upon this principle that the seventh charge was properly refused which advised the jury not to convict unless the testimony of the prosecuting witness was corroborated.”

In Cursby v. Territory, 4 Ariz. 371, 42 Pac. 954, the Supreme Court of Arizona held that “a conviction for rape may be had upon the uncorroborated testimony of the victim.”

In People v. Fleming, 94 Cal. 310, 29 Pac. 647, the court said:

“The testimony, as disclosed by the record, upon salient matters pertaining to the commission of the offense, consists of the evidence of the prosecuting witness alone. ■ Still, if her evidence was sufficient to prove the crime and the jury gave credence to it, the verdict should be upheld.”

In Doyle v. State, 39 Fla. 162, 22 South. 274. 63 Am. St. Rep. 159, the court said:

“The weight of authority and better reason, in the absence of a statute, is that there is no law limiting the powers of the jury to convict on the uncorroborated testimony of the prosecutrix.”

In Monroe v. State, 71 Miss. 198, 13 South. 884, the court said:

“Conviction of this detestable crime may be had on the uncorroborated testimony of the person raped.”

Tn State v. Dusenberry, 112 Mo. 292, 20 S. W. 465, the court said:

“It is not true that a party cannot be convicted on the uncorroborated testimony of an accomplice.”

In State v. Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. 1095, it is also held that a defendant may be convicted of rape upon the uncorroborated testimony of the prosecutrix.

In Fulcher v. State, 32 Tex. Cr. R. 621, 25 S. W. 625, the defendant requested the court to instruct the jury that they could not convict the defendant of rape unless her evidence was eorrob-rated. This the court refused to do. The court, in sustaining the conviction, said:

“In this there was no error. * * * This goesj when the question is raised, only to the weight of the evidence. It is not a question of law, but pertains to the effect of the evidence.”

In Lanphere v. State, 114 Wis. 193, 89 N. W. 128, the court held that:

“The uncorroborated testimony of the prosecutrix may be sufficient to sustain a conviction of rape, especially if she is under the age of consent.”

In Tway v. State, 7 Wyo. 74, 50 Pac. 188, the. court held that there is no rule of law which forbids a jury to convict a defendant of rape upon the uncorroborated testimony of an accomplice, but that the court, if not satisfied with the verdict, can set it aside.

We could cite numerous other cases to the same effect.

While the court should not instruct the jury that it is necessary to corroborate the testimony of the prosecutrix in order to convict a defendant of rape, yet the want of such corroboration should be considered by the court, in connection with all the fact! and circumstances of the case, either in advising the jury to acquit the defendant, or in considering a motion for a new- trial. This was probably done by the able and just judge who presided during the trial of this case, and we find nothing in the record to cause us to believe that he abused this discretion. We approve and reaffirm the opinion of Judge Burford in Brenton v. Territory, 15 Okla. 6, 78 Pac. 83. Having held this decision up and gone over the entire question with the greatest care in order that we might arrive at a mature and correct decision, we announce that so far as this court is concerned we will now regard this as-not being an open question in Oklahoma.

Finding no materia] error in the record, the judgment of the trial court is in all things affirmed.

BAKER and DOYLE, Judges, concur.