text:
    W. D. HORTON v. STATE.
    No. A-1626.
    Opinion Filed November 15, 1913.
    (136 Pac. 177.)
    1. APPEAL' — -Harmless 'Error — Jury. Where, after the jury had retired for deliberation, the judge noticed some of the jurors in the open windows of the jury room, and directed the sheriff to tell the jurors to keep out of the windows, and the sheriff told the jurors to “get out of the windows and get together and reach a verdict,” held, that the words spoken were not of such a nature that prejudice to the defendant will be presumed.
    2. NEW TRIAL — Grounds—Disqualification of Jurors. When affidavits charging jurors with having expressed opinions as to the guilt of the defendant prior to their being called as jurors are relied upon to annul the verdict and obtain a new trial, it must be clearly shown that neither the defendant nor counsel for the defendant knew the facts averred in such affidavits at the time the jury was impaneled.
    .3. SAME — Disqualification of Juror- — Objection. Where a defendant accepts a juror without availing himself of the right to examine such juror on voir dire, or without availing himself of the right to challenge him for cause, he will not, after conviction, be allowed to make the objection that the juror had formed and expressed an opinion averse to him, as a ground for a new trial.
    4. JURY — Disqualification—Objection—Waiver. A Known ground of disqualification of a juror, before or during the progress of the trial, is waived by 'withholding it, or refusing or declining to raise the objection until after verdict.
    5. APPEAL — Harmless Error — Disqualification of Jurors. As a general rule, a verdict will not be set aside for reasons that would be-sufficient to disqualify a juror on a challenge for cause, which existed before the juror was sworn, but which was unknown to the defendant until after conviction, unless it appears from the whole case that the defendant suffered injustice from the fact that the juror served in the case.
    6. APPEAL — New Trial — Findings. As a general rule, the finding of the trial court upon an issue of fact, arising upon affidavits and evidence adduced on a motion for new trial, will not be disturbed, where the evidence reasonably tends to support such finding.
    7. JURY — Conduct of Jurors — Conversation with Others. The statutory rule (Rev. Laws 1910, see. 5906), prohibiting conversation between the jurors and the officer in charge, will not prevent the officer from enforcing an order of the court in a criminal ea'se by telling the jurors to keep out of the open window of the jury room.

      Appeal from District Court, Jefferson County; Prank M. Bailey, Judge.

    R. D. Horton was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    The plaintiff in error was convicted of manslaughter in the first degree, on an information charging him with the murder o.f Reuben Horton on the 5th day of August, 1911. On the 19th day of September, 1911, judgment was rendered, and, in accordance with the verdict of the jury, he was sentenced to be imprisoned in the penitentiary for the term of six years; To reverse the judgment an appeal was perfected.
    The evidence shows that the defendant, R. D. Horton, was an elder brother of the deceased, Reuben Horton; that the defendant operated a telephone exchange in his dwelling house at Sugden, which was on the principal street of the town. On the evening of August 5th the defendant was in the telephone exchange and the deceased outside on the porch, and they were quarreling; the defendant stepped out, shooting at the deceased. The deceased fell from the porch, and died almost instantly. There were five wounds in his bod}c The defendant picked up the body and laid it on the porch and walked into his office, and laid down two pistols, an automatic 38 and a 45 Colt’s.
    J. J; Garner, a witness for the. state, testified that he was standing across the street and saw the deceased standing on the porch opposite the door of the telephone office, and the defendant was shooting; the deceased backed, from the porch and fell, the defendant picked him up and laid him on the porch; that he 'did not see any gun in the deceased’s hands, nor did he see him make any effort or attempt to shoot.
    J. O. Sanders, a witness for the state, testified that he was a farmer; that he was standing across the street talking to the witness Garner, and saw the Horton brothers on the porch in front of the phone office; that the deceased was stepping backwards, and the defendant was shooting him; that he did not see the deceased make any demonstration with his hands or arms, and did not see a gun in his hand.

      N. Johnston testified that he was standing about 500 feet away, and saw the difficulty; that the time was about sundown; that when the first shot was fired the deceased was on the porch and started to walk away; the defendant stepped out the door and shot him four or five times more; the deceased took four or five steps, and fell; that he did not see anything in the hands of the deceased.
    Ode Ellis testified that he was engaged in the furniture business at Sugden, and was walking down the street, and saw the deceased step onto the porch, and heard him say something when he reached the door, but did not understand what it was; heard the defendant swear, and tell the deceased not to come in there, to go on; that he walked towards the post office, heard a shot, and looked back and saw the defendant standing in the door shooting at the deceased; that he shot five or six times; that the deceased fell, and witness went for a doctor.
    J. S. Irick testified that he issued the Sugden Signal; that he was in the Signal office, and heard persons quarreling; that he stepped out and saw the defendant and the deceased standing in front of the phone office; that they were both swearing; that the deceased came towards him, and he went back in his office, and the deceased came in and borrowed a match and then walked out; he heard him step upon the porch in front of the phone office, and say, “Well, I would like to talk to you a minute if you will,” and then one shot was fired, an interval, and then several more shots. The defendant picked up a large gun that was lying near the. deceased.
    Several other witnesses for the state testified to substantially the same state of facts.
    In behalf of the defendant, his wife, Mrs. Nellie Horton, testified that her husband, her sister, and herself were eating supper, and her husband had to go into the office to attend to the switchboard; that the deceased came in, and she invited him to eat supper; that she went into the bedroom with her sister to dress, and saw a pistol lying on the bed and asked the deceased where it came from; that the deceased picked up the pistol and put it in the waistband of his pants, and said, “Have you a shirt?” and she said, “Yes,” and the defendant said, “I thought Lizzie wanted one,” and then said, “Have you any supporters?” and she said, “Reuben, you are drinking; you had better go on out” — and her husband said, “Come on,' Reuben, and let the girls get ready for church,” and the deceased said, “I will get out of your G — d d — n house and never set my foot in it again, you are a G — d d — n black son of a b — h.” And her husband said he did not want him to talk that way in his house, and for him to get out, go home, and go to bed. That he went out, and she did not hear any more of him until he came back on the front porch, and he called her husband and said, “Come out here, you damn son of a b — h, and I will shoot your head off,” and her husband told him to go away, and he went over to the Signal office, about twenty steps away; that he came back in a short time and repeated his abusive and offensive language, and called witness a damn liar, and pulled his gun and threw it on her, and she ran into the bedroom and heard five shots.
    Miss Lizzie Wilson testified that she was the defendant’s wife’s sister. Her testimony was substantially the same as that of her sister.
    The defendant as a witness in his own behalf testified: That he noticed the gun lying on the bed; that the deceased used abusive and offensive language to him. That he asked deceased not to swear before the women folks, and he went out. That deceased came back on the front porch and used abusive language and told him to come out, saying he wanted to shoot witness’ damned head off. That deceased then went to the Signal office, and was there a minute or two and came back and began again to curse and abuse witness. That he said to deceased, “You are drinking, Reuben, and go on away, I am not coming out there,” and that after some more abusive language deceased said to witness’ wife, “You are a G — d damn liar,” and drew his gun, and witness then reached for his gun that was on the switchboard. That he heard the deceased’s gun click, and he fired six shots. That deceased stepped off the porch and dropped his gun and fell. That he picked deceased up and laid him on the porch. That he shot deceased “because I knew or believed that he would kill me which he was trying to do.” That his gun was a 88 caliber Colt’s automatic.
    Fred Bear testified that he saw a six-shooter lying between the hand and body of the deceased before the defendant picked the body up.
    Four witnesses testified as to the reputation of the deceased in that community as being a quarrelsome and dangerous man.
    In rebuttal several witnesses testified that the deceased was not intoxicated that afternoon.
    The foregoing statement of facts is sufficient for the purpose of this opinion.

      Stuart, Cruce & Gilbert, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Monroe Osborn, of counsel), for the State.
   DOYLE, J.

(after stating the facts as above). A number of alleged errors in the trial of the case are assigned,. which, in so far as they are deemed essential in reviewing the case, will be discussed in the order presented.

The first four assignments are the usual ones: That the court erred in overruling motion for new trial; that the verdict is contrary to law, and is not sustained by the evidence; and errors of law occurring during the trial.

The fifth assignment is, in effect, that after the case had been submitted to the jury, the sheriff was guilty of misconduct in talking to the jury before they had agreed upon their verdict. The record shows that John Wright, sheriff, had charge of the jury; that the jury room was across the street from the hotel; that some of the jurors would lie in the windows of the jury room, and could be seen from the hotel. The judge and the sheriff noticed this, and the judge told the sheriff to tell the jurors to get out of the windows. The sheriff testified that he told the jurors not to lie up in the windows; that the judge had told him to tell them to “get out of the windows and get together and reach a verdict, or get to work and do something”; that the people gathered outside could hear them.

The defendant’s counsel cite the case of Ridley v. State, 5 Okla. Cr. 522, 115 Pac. 628, and numerous cases from other states, in support of their position.

Our'Code provides (section 5906, Rev. Laws 1910):

“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by ordgr of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”

It is the duty of the court and sheriff to prevent, if possible, any misconduct on the part of the jury, and it is the duty of the officer in charge to see that jurors properly conduct themselves and Observe the requirements of law, and that they do nothing that would prevent a full and fair consideration of the case. The court noticed that some of the jurors were sitting in the open windows within the hearing of people outside, and directed the sheriff, who was the officer in charge, to tell them not to do so. If the court had seen fit to tell the sheriff to remove the jury from that room to another room, the sheriff would have had to tell the jury to enter another room. It may be that the sheriff in enforcing the order of the judge said more than was necessary, but under the evidence in this case nothing short of error prejudicial to the substantial rights of the defendant would justify us in setting aside the verdict. Private communications, or conversations between jurors and third persons, or the officer in charge, are absolutely forbidden by law, and a- defendant is entitled to the presumption that such misconduct would be prejudicial to him, and the burden of proof .would be on the state to show that a defendant suffered no injury by reason of such misconduct. Selstrom v. State, 7 Okla. Cr. 345, 123 Pac, 557. However, this rule has no application to the objection here made. It is manifest that the words spoken by the sheriff in enforcing the order of the court were not of such a nature that injury may be fairly presumed. The language used was neither threat nor advice, nor even a suggestion. We think the objection is without merit.

The sixth assignment of error is that John Spivey, one of the jurors, had formed and expressed an opinion adverse to the defendant previous to his being sworn as a juror. In his verified motion for a new trial the defendant states “that said juror was by his counsel fully examined and stated under oath that he had no opinion as to the guilt or innocence of the defendant, and had no knowledge concerning the circumstances surrounding the killing; that he could try the defendant fairly and impartially, and would do so, and that he had no prejudice against the defendant merely because he was charged with the murder of his brother.” In support of this ground the affidavit of J. T. Tam-pen is attached, wherein affiant states that on the 25th day of August, 1911, he had a conversation with the juror, John Spivey, at Nocona, Tex., and while discussing the defendant’s case, Spivey said:

“From what I heard Dick Horton ought to be mobbed, and I would be willing to help mob him; any man that would take his brother’s life, no punishment would be too bad.”

The juror Spivey, being duly sworn, testified that he made no such statement, nor any similar statement; that he knew the affiant Tampen; that when he was a justice of the peace at Fleet-wood, affiant was convicted of gambling before him.

In Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350, it is said:

“The mere fact that two parties attempted to impeach a juror does not, by any means, settle the question of credibility as between such parties and the juror. If it did, but few verdicts could be sustained, because in almost every case it would be possible to find two or more persons who would make affidavits impeaching a juror. * * * The question of credibility was one to be determined by the trial court, and, in the absence of a showing that this discretion was abused, it cannot be reviewed here. There is nothing in this record to indicate any abuse of discretion on the part of the trial judge.”

It is a settled rule of this court that the finding of the trial court upon a question of fact, arising upon affidavits and evidence adduced on a motion for new trial, will not be disturbed where the evidence reasonably tends to- support such finding.

The seventh assignment of error is that Josh Wheeler, another one of the jurors, had formed and expressed an opinion adverse to the defendant previous to ‘his being_sworn as a juror, as shown by the affidavit of one A. E. Rogers, attached to the motion for new trial. According to this affidavit, Rogers had a conversation with the juror Wheeler at the home of William Rogers on the 10th day of September, 1911, and said juror stated to him, while discussing the defendant’s case, “that he had heard of the case of Dick Horton, and that he was on the jury down at Ryan, and that he did not believe that they would get a jury out of the 24 jurors, because he had been talking to all of them about the case, and he did not think any of them would sit on it, for he would not himself. That he saw him in the courthouse, and when he went out he looked as if he had done nothing more than kill a chicken, and that most any man ought to he willing to sit on his jury, and that any man who would kill his brother ought to have to serve a term, but that he did not want to be the man who put it onto him.” Counsel contend that the trial court erred in refusing to set aside the verdict on account of the disqualification, prejudice, and misconduct of the juror Wheeler, as shown by the affidavit of A. E. Rogers, which the state did not introduce any proof to deny or contradict. For some reason, not apparent from the record, there is considerable difference between the'allegations of the motion for new trial as to the juror Spivey and the juror Wheeler. As to Spivey there is an allegation that in the examination of the jurors on voir dire said juror was asked as to his bias and prejudice, but as to the juror Wheeler, no such allegation is made.. The only evidence showing that the juror Wheeler was ever placed on his voir dire in this case is shown by the record as follows.:

“Thereupon said jurors were duly sworn to true answers make to the questions propounded to them touching their qualifications to serve as jurors in said case. Thereupon said jurors were interrogated by counsel for both the state and the defendant.”

In view of the condition of the record presented, we cannot say that the defendant’s complaint is well founded. In order for the defendant to predicate error on account of the declaration of the juror Wheeler as averred in Rogers’ affidavit, it would be necessary for the record affirmatively to show that said juror had been duly examined on voir dire, and had stated under oath that he was not biased or prejudiced, and had not formed or expressed an opinion as to the guilt or innocence of the defendant. The record contains no recital of such examination. It only appears frorñ the statement of counsel in their brief. It is not even alleged in the verified motion for a new trial. A ■defendant must exercise all the rights that he has under the statutes to find out whether or not a juror is qualified before he can take advantage, after verdict, of such juror’s incompetency ■or disqualification.

A defendant cannot sit supinely by and allow disqualified and incompetent jurors to be selected to try him, and then take advantage of his own indifference or negligence, nor can a defendant call upon this court to presume that he asked a juror •certain questions, in the absence of a showing in the record that such questions were asked. A known ground of disqualification of a juror before or during the progress of a trial is waived by withholding it or refusing, or declining to raise the objection until after verdict. See Queenan v. Territory, 11 Okla. 261, 71 Pac. 218, 61 L. R. A. 324; Id., 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Ed. 1175.

We think it may be safely said that upon principle, if the (defendant accepts a juror without availing himself of the right to examine such juror on voir dire, for the purpose of testing his impartiality, or without availing himself of the right to challenge him for cause, and it should be discovered after verdict that he was incompetent by reason of prejudice, the defendant would not be entitled to a new trial on that ground under our statute.

In the case of State v. Morrison, 67 Kan. 144, 72 Pac. 554, it is said:

“Again, we believe it is a rule of universal application, when a motion for a new trial is supported by affidavits charging members of the jury with having expressed an opinion as to the guilt of the defendant prior to the trial, such affidavits must unequivocally state that both defendant and counsel for defendant were ignorant of' such fact at the time of impaneling the jury. In the case at bar the affidavits filed close with the following language, either in'substance or exact words: ‘The affiant further says that he never told the defendant or any of her attorneys of said conversation until after the trial had closed and the verdict had been rendered in said case.’ Neither the defendant nor any of her counsel made any statement as to their knowledge of the making of such statements alleged to have been made by the jurors prior to the trial of the case. * * * There is no allegation in the affidavits that affiant did not communicate to others than the defendant or her counsel the fact that such statements were made. Error is never presumed. The record is insufficient to show the statements alleged to have been made by the jurors, if made, were unknown to the defendant or her counsel prior to the impaneling of the jury.”

See, also, Robinson v. Territory, 16 Okla. 241, 85 Pac. 451.

In the case of Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271, it is said:

“It is well settled that, as a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify on a challenge for cause which- existed before the juror was sworn, but which was unknown to the accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact'that the juror served in the case.”

Under the evidence in this case, we think it would be -sufficient to say that the verdict returned is almost conclusive of the fact that the defendant was tried by a fair and impartial jury.

Finally, it is claimed that the court erred in giving instruction No. 12. No objection was made or exceptions taken to the instructions given by the court, and no other instructions were requested to be given. We have examined the instruction criti- ' cized, and we think that this instruction correctly states the law applicable to this case, and we further find that the charge of the .court contains a full and fair presentation of the defense.

Having noticed and considered all of the assignments of error presented by the defendant’s brief, and upon a careful examination of the entire record, we are of the opinion that no ■error was committed by the trial court prejudicial to the substantial rights of the defendant. The judgment of conviction is therefore affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    FLOYD CANTRELL v. STATE.
    No. A-1850.
    Opinion Filed November 15, 1913.
    .INTOXICATING- LIQUOKS — Sale—Accomplices. All persons who take part, participate, or engage in the commission of a crime are guilty as principals, and any person who acts as a messenger or agent of the buyer, in going after, purchasing, and bringing back intoxicating liquors is thereby aiding and assisting in the selling of such liquors, and may be prosecuted and convicted for such sale.

      Appeal from County Court, Stephens County; W. H. Admire, Judge.

    Floyd Cantrell was convicted of selling intoxicating liquors, and appeals.
    Affirmed.

      Wilkinson & Morris, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (C. /. Davenport, of counsel), for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the county court of Stephens county, on the 14th day of August, 1912, in which the defendant was found guilty of selling a pint of whisky on the 25th day of March, 1912, and his punishment assessed by a fine of $50 and imprisonment in the county jail for a period of 30 days.

Delmer Medley, the sole witness for the state, testified that he was at a dance at the home of the defendant’s father, and there bought a pint of whisky from the defendant, paying him -one dollar for the same.

As a witness in his own behalf the defendant testified that Medley came to him and told him he had 75 cents and he put in a quarter and went and bought the whisky from another party; that he did not know who he bought the whisky from.

The court instructed the jury in part as follows:

“Gentlemen of the jury, you are further instructed that in order to convict the defendant, you must believe from the evidence, beyond a reasonable doubt, that he was the seller of said whisky, or acted as aider and abetter of said seller.”

The defendant requested the court to instruct the jury as follows:

“Gentlemen of the jury, you are instructed that the defendant in this case has a right as a defense to show that he furnished a portion of the money to purchase the whisky alleged, and if you believe from the evidence or have a reasonable doubt from the evidence that the defendant was interested in the purchase of said whisky by furnishing a portion of the purchase price, then your verdict should be not guilty.”

The court very properly refused this requested instruction.

In Buchanan v. State, 4 Okla. Cr. 645, 112 Pac. 32, this court held that the law of agency as applied to civil cases has no application to criminal cases, and that no person can escape punishment when he participates in the commission of a crime, upon the ground that he simply acted as agent for another party, and that the person who acted as messenger in going after intoxicating liquors and bringing it back is an aider and abetter and therefore is a principal in the sale of such whisky.

In the case of Lamm et al. v. State, 4 Okla. Cr. 641, 111 Pac. 1002, the doctrine of the Buchanan case was reaffirmed. This is the only question presented. A careful examination of the whole case leads to the conclusion that no> error was committed. The judgment is therefore affirmed.

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


author: FURMAN, J.

text:
    JAMES JOHNSON v. STATE.
    No. A-1860.
    Opinion Filed November 15, 1913.
    (135 Pac. 1154.)
    ■ 1. APPEAL — Procedure. An. appeal from a judgment of conviction in a criminal case is a matter of right; but the Legislature may prescribe the manner in which this right must be exercised.
    2. SAME — Conviction of Felony — Notice of Appeal. A notice of appeal must be served after the rendition of the judgment in a criminal case, and before the expiration of the time allowed by law. If served before the rendition of the 'judgment, it is a nullity, and such attempted appeal will be dismissed for want of jurisdiction.

      Appeal from District Court, Seminole County; Tom D. McKeown, Judge.

    James Johnson was convicted of manslaughter, and appeals.
    Dismissed.

      J. Coody Johnson, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, J.

Appellant being on trial in the district court of Seminole county' charged with the offense of murder on the . 24th day of April, 1912, the jury returned a verdict finding appellant guilty of manslaughter in the first degree. On the same day the following notice of appeal was served upon the .clerk of the district court of the said county:

“Notice;.

'■“To R. IT. Chase, Clerk of the District Court, Seminole County, Oklahoma.

“Notice is hereby given that the defendant will appeal from the judgment rendered in the above-entitled cause on the 24-th day of April, 1912.. Of this appeal you will take due notice and govern yourself accordingly. J. Coody Johnson, C. E. Corbett, and E. E. Harris, Attorneys for Defendant.

“State of Oklahoma, Seminole County — ss.:

“I, R. IT. Chase, district clerk in and for Seminole county, state of Oklahoma, hereby accept service of the above and foregoing notice of appeal this the 24th day of April, 1913. R. H. Chase, District Clerk.” .

The motion for new trial was not overruled and the judgment was not rendered until the 10th day of May, 1912. The record fails to show that any notice of appeal was served upon the clerk of the district court subsequent to the rendition of the judgment. It is true that an appeal in a criminal case from a judgment rendered against the defendant is a matter of right; but it has always been held that the manner of taking an appeal may be prescribed by the Legislature, and that when so prescribed it becomes jurisdictional.

Section 5991, Rev. Laws 1910, is as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal must be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony, and misdemeanor cases must be filed as hereinafter directed.”

Section 5992, Rev. Laws 1910, is as follows:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served 'upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the ■district court.”

Prom this it is seen that an appeal in a felony case cannot be taken until after the judgment is rendered by the court, and that the appeal must then be taken within six months from the rendition of such judgment, and that an appeal is taken within this time by service of the notices prescribed by statute. At the time this appeal was attempted to be taken the judgment of the court had not been rendered. There is no such thing as an appeal from the verdict of the jury. A notice of appeal served prior to the rendition of a judgment is a nullity, and will not confer jurisdiction on this court.to consider such an appeal. See Thompson v. State, 7 Okla. Cr. 384, 123 Pac. 853.

As this appeal lias not been taken in the manner provided by law, we cannot do otherwise than dismiss the appeal, with directions to' the lower court to proceed with the enforcement of its judgment. Mandate will issue without delay.

ARMSTRONG, P. J, and DOYLE, J.; concur.


author: ARMSTRONG, P. J.

text:
    A. D. BERRY v. STATE.
    No. A-1617.
    Opinion Filed November 17, 1913.
    (136 Pac. 195.)
    1. JUSTICES OF THE PEACE — Jurisdiction—Residence. A person Holding the office of justice of the peace must reside and Hold Ms court in the district for which he was elected or appointed.
    2. SAME — Perjury—Jurisdiction, (a) Under the law in this state a justice of the peace has no jurisdiction to preside over the trial of any civil or criminal proceeding outside of the district for which he was elected or appointed.
    (b) Any trial had or any business attempted by a justice of the peace outside of the district for which he was elected or appointed is a nullity.
    (e) Perjury cannot be predicated on testimony alleged to have been given in a void proceeding before a justice of the peace, for the reason that such proceedings are entirely without legal force and binding on no one.

      Appeal from District Court, Washita County; James R. Tolbert, Judge.

    A. D. Berry was convicted of perjury, and appeals.
    Reversed.

      Jones' & Bashore, Harris & Nowlin, and Kenneth C. Crain, for plaintiff in error.

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

A. D. Berry was informed against, tried, and convicted in the district court of Washita county, at the October, 1911, term on a charge of perjury and his punishment fixed at confinement in the state penitentiary for a period of five years.

It appears that the plaintiff in error was a party to a civil action tried before G. D. Coker as a justice of the peace in the city of Cordell in October, 1910, and in that trial gave certain testimony upon which the assignments of perjury are based. A statement of the facts is not necessary for the purpose of determining this appeal.

Among many assignments of error is one based on the proposition that the justice of the peace who presided over the trial of the civil action out of which this prosecution grows was without jurisdiction to sit in the trial of said cause, for the reason that he was a justice of the peace of Cordell township and undertook to hold his court in the city of Cordell, said city being a city of the first class and as such a separate township having its own justice oHthe peace; it being the contention of counsel that the proceedings were a nullity and that perjury could not be based on testimony given therein. It appears that C. W. Henson was regularly elected justice of the peace for Cordell township and resigned before the expiration of his term of office; that he was not a justice of the peace of the city of Cordell; that G. D. Coker, a resident of the city of Cordell and not a resident of Cordell township, was appointed to succeed the said Henson; that upon his appointment and qualification he opened an office in the city of Cordell and transacted business as justice of the peace for Cordell township in said city under the mistaken idea that he was justice of the peace for the city of Cordell. These facts are not disputed, and no effort was made on the part of the state tending to controvert them.

In Leiber v. Argaubright, 25 Okla. 177, 105 Pac. 341, the Supreme Court of Oklahoma, discussing the powers of a justice of the peace and his jurisdiction to act as such, says:

“ * * * But one question is submitted for determination, which is: Has a justice of the peace jurisdiction to receive, file, try, and determine an action by consent of the parties outside of the township where he is elected? Neither the Supreme Court of Oklahoma Territory nor of the state has ever had occasion to pass on this question. Section 18, art. 7, of the Constitution (Snyder’s Const, p. 221), creates the office of justice of the peace with jurisdiction coextensive with the county. Section 2, art. 17, of the Constitution (Snyder’s Const, p. 335), enumerates the different county officers provided for under the Constitution, and a justice of the peace is not among them, and then provides for such municipal and township officers as are provided for under the laws of the territory of Oklahoma. Section 3, art. 1, c. 81 (section 6664), Wilson’s Rev. & Ann. St. Okla. 1903, enumerates the different township officers, among which are two justices of the peace. Section 4, art. 1, c. 81 (section 6665), of the same statutes, then provides that ‘all township officers shall reside and hold their offices in the township for which they shall have been elected or appointed,’ etc. Hence we notice' that the office of justice of the peace is not included among those provided for the county .and is specifically included among those for each township.. While the jurisdiction of the justice of the peace is territorially as extensive as the county within which the township in which he is elected is located, yet to our minds the provision of the statute requiring him to reside within his township and to hold his office therein contemplates that he shall be and remain, within his township for the transaction of his official business. Other sections of the statutes to which we have not referred are entirely consistent with and ■strengthen the conclusion herein expressed, and there is no section which conflicts therewith. Counsel for both parties have with commendable zeal briefed this question, and we have with much interest read the authorities cited and considered the arguments made. In addition thereto, we have made an extended, independent investigation but without securing much additional light to that presented by counsel. Many cases tendered were found, on securing the statutes upon which they were written, not to be in point and hence are not noticed in this opinion. The ■office of justice of the peace in Oklahoma is the same, and endowed with .practically the same power and authority, as is the same office in the state of Kansas. Our statutes relating thereto are identical with the statutes of Kansas. This question has been before the courts of that state in several cases, and the views of its Supreme Court, which to a great extent answer the arguments of counsel for plaintiff in error and with which we are in entire accord, are announced in the following authorities: Phillips v. Thralls, 26 Kan. 780; Wilcox v. Johnson et al., 34 Kan. 655, 9 Pac. 610; A., T. & S. F. Ry. Co. v. Rice, 36 Kan. 593, 14 Pac. 229. Justice Brewer, speaking for the court in the case of Phillips v. Thralls, supra, said: ‘Does this extending the limits of their territorial jurisdiction beyond the limits of the territory which elects give them a right to hold court anywhere within the larger limit, or must the locality of the court be confined to the territory which elects and of which they are the officers? My Brethren think the latter, and that, in the absence of express statutory authority, a justice of the peace cannot hold his court outside the locality which elects him and of which he is an officer. Whatever ifche limits to which process may go out of his court, or whatever the extent of the territorial jurisdiction conferred upon him, he is an officer of the township, his court is a court of the township, and his court as a court has no valid existence outside the limits of that township. One purpose contemplated in the organization of these courts was to have neighborhood courts convenient to every individual for the settlement of minor disputes. If one justice may move his court out of his township to any other place in the county, all may; and we may have the spectacle of all the justices of all the townships in a county congregating in the county seat and holding office there. Thus would one of the beneficent purposes of these inferior courts be defeated.’ To the same point, Mr. Justice Valentine, in the case of A., T. & S. F. Ry. Co. v. Rice, supra, said: ‘A justice of the peace is a township officer, under the Constitution, and cannot be a county officer or a state officer. It is true that justices of the peace are in some sense “justices of the peace in their respective counties” and also in the state. It is true that a justice of the peace may, within his own township, perform the duties of an examining magistrate in cases, or hear cases, arising in any part of his county; and it is also true that he may, within his own township, issue criminal process to be served in any part of the state; but it does not follow from these powers given that he may go into any part of the county or into'any part of the state and there perform official acts. He can perform his official acts only in his own township. Criminal complaints must be taken to the justice and not the justice to the criminal complaints. If for any reason it is more desirable to commence a criminal prosecution in one township than in another, it must be commenced before some justice of the peace of that township; but, if it is preferable to commence before some particular justice, then the parties must go to that justice and not transport him into some other township. His office is not migratory.’ We therefore hold that a justice of the peace is without jurisdiction to sit, hear, and determine any action outside of the township where he is elected, and the consent of the parties cannot confer such authority, where it finds no sanction in the statute.”

See, also, Johnston v. Hunter, 50 W. Va. 52, 40 S. E. 448; Hilson v. Kitchens, 107 Ga. 230, 33 S. E. 71, 73 Am. St. Rep. 119.

It appears from the foregoing that our Supreme Court has established the doctrine that a justice of-the peace is wholly without authority to hold court outside of his own district. A justice of the peace who is appointed for one district would have no more authority to hold court in some other district in the county than one who was elected. It does not appear that there was a vacancy in the office of justice of the peace in the city of Cordell. We cannot therefore presume that the appointment was intended to be other than for Cordell township and not the .city of Cordell. The language used by the county commissioners expressly says that Coker was appointed justice of the peace of Cordell township. This being true, the entire proceedings • out '■of which this prosecution grows were a nullity. The justice of the peace was without jurisdiction to administer oaths and try •the cause in the city of Cordell. Perjury cannot be based on •testimony given in such proceedings.

It follows that the judgment should be reversed, and the cause remanded, with directions to dismiss, and it is so ordered.

DOYLE and FURMAN, JJ., concur.


text:
    JIM ROBERTS v. STATE.
    No. A-1839.
    Opinion Filed November 17, 1913.
    (136 Pac. 201.)
    1. APPEAL — Perfecting Appeal. When an appeal is taken to this court from a judgment of the district court, it is the duty óf counsel to attach a petition in error to the case-made and file briefs as provided by law and the rules of this court.
    2. SAME — Perfecting Appeal — Disposition of Cause. When an appeal is taken to this court from a judgment of the trial court, and no petition in error is attached to the case-made, and no briefs filed, and no appearance made for oral argument, such appeal may be either dismissed or the judgment affirmed- in the discretion of this court, for the failure on the part of. counsel to properly perfect and duly prosecute the appeal.

      Appeal from District Cou-rt, Jefferson County; Frank M. Bailey, Judge.

    Jim Roberts was convicted of obtaining money under false pretenses, and appeals.
    Affirmed.

      P. T. Hamilton and /. H. Harper, for plaintiff in error.

      Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Jim Roberts, was tried and convicted at the March, 1912, term of the district court of Jefferson county on a charge of obtaining money from the First National Bank of Ryan, Okla., under false pretenses, and his punishment fixed at imprisonment in the state penitentiary for a period of one year and one day.

A case-made was filed in this court on the 30th day of September, 1912. No petition in error was attached to this case-made at the time it was filed, and none has been filed since. No briefs were filed on behalf of the plaintiff in error, and no appearance was made for oral argument. The appeal has not been perfected as provided by law. It was therefore subject to dismissal upon motion of the Attorney General.

The transcript has been examined for fundamental errors. None appearing, the judgment of the trial court is affirmed, with directions to that court to cause the same to be enforced. Mandate is ordered forthwith.

DOYLE and FURMAN, JJ., concur.


text:
    OSCAR J. PAYNE v. STATE.
    No. A-1636.
    Opinion Filed November 22, 1913.
    (136 Pac. 201.)
    1. CONTINUANCE — Grounds. An application for eontinuainee, for the term, on the ground of the absence of leading counsel, is properly denied, where the defendant is duly represented by his other counsex.
    2. SAME. The refusal of a continuance on the ground of absent witnesses held error, on account of the x>eculiar circumstances of this ease.
    3. TRIAL — Severance—Discretion of Court. As to whether or not - the state shall- ask for a severance is a matter entirely within the discretion of the county attorney; and, when asked for by the state, is addressed to the discretion of the court, but the court cannot on its own initiative order a severance.
    4. EVIDENCE — Declaration of Codefendant — Admissibility. The declarations of a codefendant made in the absence of the defendant, to be admissible, must be so connected with the offense charged' as to constitute a part of the res gestae.
    5. WITNESSES — Cross-Examination of Accused — Collateral Matters. ' It is error to permit the defendant as a witness in his own behalf to be examined as to any distinct collateral fact not brought out in the examination in chief, with the view of impeaching' his testimony by introducing other witnesses to contradict him.
    6. SAME — Conclusiveness of Testimony. When a witness is cross-examined on a matter collateral to the issue, his answer is conclusive, and cannot be subsequently contradicted by way of impeachment by the party putting the question.

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

    Oscar J. Payne was convicted of assault with intent to kill, and appeals.
    Reversed.

      W. I. Cruce, A. C. Cruce, and /. C. Thompson, for plaintiff in error.

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

The information -in this case, after alleging time and place, charges:

“They, the said Oscar J. Payne, Edgar M. Payne and Floyd M. Tindle, did then and there unlawfully, feloniously, intentionally and wrongfully shoot one Will Wyent with a certain firearm, to wit, a pistol, with the unlawful and felonious intent then 'and there thereby to kill and murder him, the said Will Wyent, contrary,” etc.

Upon a separate trial plaintiff in error was found guilty of assault with intent to kill, and his punishment assessed at imprisonment in the penitentiary for a period of five years. »

The evidence shows that all the parties resided in the Deese community, northwest of Ardmore, and on the night of the date alleged in the information attended a religious meeting held under an arbor, near the store there. It would seem that there was an agreement or understanding between the Chaney brothers and others to have John Chaney take Alonzo Payne’s girl away from him and escort her home, and these parties were all waiting and watching to see what would happen.

Will Wyent testified: That, on his way to attend the services, he met Oscar and Edgar Payne and Lona Sims and walked on with them; that he sat in a hack near the arbor with Ovey Alexander, Vick Culpepper, and Avery Senter, and saw John Chaney come into the arbor and sit down by Alonzo Payne and . Miss ATcie Austin; that when church was dismissed Edgar Payne come up to John Chaney and made a motion as if to strike him, .and he thought Edgar and Oscar Payne were both going to jump on John Chaney, and said, “if you both are going to jump on him, I will pull one of you off”; and Edgar Payne said, “If you will come out of the arbor, I will settle it with you.” Edgar Payne walked out, followed by Jack and Jim Chaney and Tom and Horatio Jackson. That he with one or two others went with them, and the defendant followed. That they went about twenty steps. When the defendant reached them, Edgar Payne said: “Shoot him, Oscar! Shoot the damn son of a b — h; he has got a knife.” And the defendant shot him in the arm and body. That he had been whittling and had a knife in his hand, but had closed it.

John Chaney testified: That he sat by Vide Austin, and when the services ended Alonzo Payne asked her if she was ready to go home, and witness said, “I don’t know.” That Edgar Payne stepped up and said, “Damn you, I am going to whip you”; and Will Wyent walked up and said, “If two of you get on him, I will take one of you off”; and the defendant walked up, and Tom Jackson took hold of his shoulder and said, “Don’t have any trouble here”; and' Edgar Payne, speaking to witness and Will Wyent, said, “Come out of here”; and he turned around to get his hat and the others walked out, and two of his brothers, Jack and Jim Chaney, went along. That he did not see the shooting. On cross-examination he said he asked Miss Austin to let him go home with her, and she said Alonzo Payne had been going with her and he would go back with her.

Cassie Fisher, the next witness for the state, testified that she saw John Chaney come in and sit down by Miss Austin; that Will Wyent was sitting on the edge of the bench at the edge of the arbor whittling, and she saw Oscar Payne shoot at Will Wyent.

Jack Chaney testified: “I saw John Chaney walk up just as church was breaking up and sit down by the side of them. When John Chaney got up and started off, Edgar Payne asked him what he was looking so straight at him about, and about that time Oscar grabbed him by the neck and shook him.” Then Tom Jackson said, “Let’s don’t have any trouble here tonight”; and Edgar Payne told them to come out; and Will Wyent said, “If two of you jump on him, I will pull one of you off”; and then they started and went about twenty steps from the arbor; and he followed and saw the defendant shoot Will Wyent.

Vera Wyent testified that she saw Edgar Payne draw his hand back as though he was going to hit John Chaney, and say, “You thought you were going home with her”; and Chaney said, “She would not let him”; and Edgar said, “You would not have gone if she had said you could.” He then invited him away from the arbor to settle it.

I-Ioratio Jackson and Jim Chaney testified to substantially the same state of facts.

B. F. Wyent, J. A. Sims, G. N. Gordon, Mrs. G. N. Gordon, and Avery Senter testified that after the shooting they noticed a closed penknife in the hand of Will Wyent.

In behalf of the defendant, John Payne testified that he was the father of Oscar Payne; that after the services were over he noticed a group east of the arbor having a racket, and as he walked by he said to them, “This is no place to have a racket.” Just then he heard his son Edgar say twice as he stepped back, “Will Wyent, put up that knife”; and then his son Oscar said, “Will Wyent, put up that knife”; and the shooting occurred almost instantly.

The defendant as a witness in his own behalf testified: That he walked from the schoolhouse to the arbor that night with Will Wyent. That they were friends. That after the preaching was over he heard some angry voices and saw Edgar Payne and two or three of the Chaney boys and some of the Jackson boys talking, and walked up to where they were, and Will Wyent, who had been sitting there whittling, said something, and they all went out. That he followed the crowd and heard his brother say twice, “Will Wyent, put that knife down,” and then say: “Oscar, look out! Will Wyent has got a knife.” That as that was said Wyent came towards him with an open knife in hand, and when Wyent came within three feet of him he shot Wyent in the arm. That he shot in self-defense. That he carried the pistol because he had been held up and waylaid two weeks before this difficulty.

The record is voluminous, but the foregoing statement of facts is sufficient for the purpose of this opinion.

The first and second assignments will be considered together. They are, in effect, as follows: First, error of the court in overruling the defendant’s motion for a continuance. Second, error of the court in ordering a severance upon its own motion, over the-objection of the defendant.

His affidavit for continuance was filed September 12th, and contained all the formal allegations required by law, and among others the following statement:

“Because A. C. Cruce is engaged in the trial of a case in the United States court, as an attorney representing the state. That this defendant employed A. C. Cruce individually, and not the firm of Cruce & Cruce. He has paid him a part of his fee, and this defendant has been relying upon A. C. Cruce as being his leading attorney in this case. That Mr. J. C. Thompson is only associate counsel in this case, and this defendant is relying upon A. C. Cruce to defend him. That he has a right to his presence, and can procure it by the next term of court. That three of his witnesses, to wit, G. L. Bennett, Omar Bennett, and John Wyatt, are absent without his procurement or consent, and that he cannot safely gO' to trial without their presence. That he expects to prove by Omar Bennett that she saw Will Wyent just after the shooting, and that the said Will Wyent was lying on the ground with his knife open in his hand. That he expects to prove by G. L. Bennett that one I. N. Chaney, a witness for the prosecution, was not on the ground or at the place of the difficulty, and did not and could not see anything, or know anything about it. That he expected to prove by the said Wyatt that the said witness Chaney has made a statement different to what he swore to in the examining trial, and different from what this defendant expects the testimony of the said Chaney to be. That he had a subpoena issued and served on the said Wyatt. That the said Wyatt was here yesterday as a witness for the defendant, but was taken sick and had to leave for home, and is unable to be here now on account of his sickness. That he has had a subpoena issued for the other witnesses, G. L. Bennett and Omar Bennett, and placed in the hands of the sheriff of Carter county. That the last time he heard of said witnesses before the issuing of said subpoena they were residents of Carter county, but he has since learned that just before the subpoena was issued, or at least before the officer could get to serve it, they had left Carter county, and moved to Hastings, Okla. That he believes he can procure the attendance of all of said witnesses by the next term of said court, and can also procure the attendance of his attorney.”

On the following day Codefendants Edgar Payne and Floyd M. Tindle were arraigned; asked and were given the statutory time to plead. Thereupon the court overruled the defendant’s motion for continuance, allowed an exception, and stated, “If there is no severance asked for, the case will be put off until tomorrow morning.” Counsel for the defendant then stated: “We do not ask for any severance in this casé; however, we might ask for a severance in the morning.” The Court: “If you: are going to do that, gentlemen, we will proceed with the trial; against Oscar Payne now.” To this action of the court the defendant took an exception.

We think the court did not err in refusing to continue the case until the next term on account of the absence of defendant’s leading counsel. The defendant had the benefit of the services of two thoroughly competent and experienced lawyers, W. I. Cruce and J. C. Thompson, and the motion on account of the absence of his leading counsel was not to postpone the trial to some day of the term, but to continue the case until the next term. To reverse the case on the grounds here set up with reference to the absence of counsel would be to place it within the-power of counsel to control the running of the courts and the disposition of cases. We are inclined to think, however, that on account of the peculiar circumstances of this case, the court should have granted the continuance on account of the absence of the witnesses named in his affidavit. The diligence used was sufficient and the facts proposed to be proved were material. In our opinion the court exceeded its discretionary power m compelling ' the 'defendant to go to trial at that time.

We are also of opinion that the trial court in ordering a severance exceeded its discretionary power. At common law the prosecution might demand separate trials of those jointly indicted, and under the statute any defendant in a felony case may demand that a separate trial be awarded him; and it was held by this court in Bates v. State, 8 Okla. Cr. 436, 128 Pac. 163, that under the statute (section 5878, Rev. Laws 1910) providing that, “'when two or more defendants are jointly prosecuted, for a felony,' any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or, jointly, in the discretion of the court” — where the state asks it, a separate trial may be granted, in the discretion of the court. As to whether or not the state shall ask for a severance is a matter entirely within the discretion of the county attorney; he' has complete control in conducting public prosecutions, subject, only to the supervision of the court upon the trial. The record here shows that the trial court ordered the severance ■ without the state asking for it.

Numerous errors in the rulings of the court in the admission and rejection of testimony are alleged; the principal questions raised thereby being as to the admission of evidence of statements of his codefendants made in the absence of the defendant, and evidence of conversations had by the defendant with third persons prior to- the difficulty, in no way connected therewith. Over the objection of the defendant, the court permitted Jesse Sloan tO' testify that he had a conversation with Edgar Payne and Floyd Tindle; that Tindle asked him if he felt like he could stand up under about 500 that night; that John Chaney is going to try to take Alonzo Payne’s girl away from him, and we are going to see that he don’t do it; that this was about an hour and a half before the shooting; that he did not see the defendant until after the shooting. Clearly this testimony was incompetent. The defendant was not present, and no connection was shown, or evidence introduced, to show that the defendant knew anything about such a statement or that he had any reason to know that his codefendants intended to assault John Chaney if he attempted to take Alonzo Payne’s girl away from him. The record shows other instances where the court admitted testimony of the declarations of his codefendants, made in the absence of the defendant, that we think were inadmissible and prejudicial to this defendant.

The record shows that defendant was asked on cross-exam-' ination if, on the evening that he had a difficulty with one Alexander at the schoolhouse about fifteen days before this shooting, he did not ask Jesse Sloan to lend him a six-shooter on that Occasion, and if he did not say “If a lot of those boys up there don’t walk straight, I am going to kill some of the sons of b — s.” He was also asked, referring to a conversation had with Miss Cassie Fisher:

“Q. About fifteen days before the difficulty at Deese, did you see her in the field near there and make this remark to her in substance or effect: ‘That you were not afraid to kill anybody, because you could take a little money and come down here before this court and get out of it’ ” ?

Also the following question:

“Q. About fifteen days before you had the difficulty at Deese, at their home, did you say in the presence of Mi. Hammett and his wife that you could kill any man and with a couple of hundred dollars beat it in this court, in substance or effect?”

These questions were asked, and numerous others of a similar nature, and over the defendant’s objection permitted to be answered. , He denied having made any such statements, and afterwards each of the parties referred 'to were called to the stand and over the defendant’s objections permitted to be asked if the defendant so stated, and all answered in the affirmative. All this testimony was irrelevant on the question of the guilt or innocence of the defendant of the particular offense charged, as no connection whatever is shown between the declarations of the defendant as testified to by these witnesses and the offense charged. It is elementary that a witness cannot be impeached upon collateral matters, and it is error to permit the defendant as a witness in his own behalf to be cross-examined as to any distinct collateral fact not brought out in the examination in chief, with the view of impeaching his testimony by introducing other witnesses to contradict him. Whether the matter inquired of on cross-examination of the defendant and proved by the state in attempting to impeach him was collateral to the issue or not must be determined by this inquiry: Would the prosecuting attorney, have been permitted to introduce it in evidence as part of the state’s case? If he would not, it was collateral. If it was collateral, it was not competent to contradict it. Welch v. State, 104 Ind. 347, 3 N. E. 850; State v. Townsend, 66 Iowa, 741, 24 N. W. 535; Moore v. People, 108 Ill. 484.

In Wharton on Evidence, par. 559, the rule is stated thus:

“In order to avoid an interminable multiplication of issues, it is a settled rule of practice that, when a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question.”

In our opinion the testimony of the impeaching witness should have been excluded for the reason it related to collateral matters.

We do not deem it necessary to discuss the remaining assignments of error. A careful examination of the whole case leads to the conclusion that the defendant has not had that fair and impartial trial to which he is entitled.

For the reasons herein stated, the judgment of conviction is reversed and the cause remanded.

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


text:
    W. A. WOODY v. STATE.
    No. A-1830.
    Opinion Filed November 22, 1913.
    (136 Pac. 430.)
    1. APPEAL — Presentation Below — Argument of Counsel — Instructions. (a) Before this court will review errors in the instructions of the trial court or objections to remarks made by the county attorney in his argument to the jury, unless such errors are fundamental, it must appear from the record that proper objections and exceptions were reserved to them during the trial.
    (b) It is the duty of counsel for a defendant to call the attention of the trial court to what they consider to be errors committed during the tria! and give the court an opportunity to correct the same at the time that they occur. Counsel for a defendant cannot remain silent and thereby acquiesce in the com- . mission of errors and afterwards be heard to complain thereat, unless such errors are fundamental.
    2. JUDGMENT — Acquittal of Codefendant — Ees Judicata. Where a man and a woman are jointly prosecuted for adultery, one of the defendants may be acquitted and the other may be lawfully convicted.
    3. APPEAL — Harmless Error — Evidence. Where the legal evidence in a case conclusively shows that a defendant is guilty, and where the jury could not rationally arrive at any other conclusion, ordinarily errors committed by the trial court in the introduction or rejection of evidence will become immaterial and will not constitute grounds for reversal.
    4. ADULTERY — Evidence to Sustain Conviction — Sufficiency. For a statement of evidence which conclusively establishes the guilt of the defendant of the crime of adultery, see opinion.
    5. TRIAL — Venue—Sufficiency of Evidence. For evidence which fully sustains the allegation of venue in a case of adultery, see opinion.

      6. APPEAL — Abstract Questions. Where the record clearly shows that a defendant is guilty as charged,’ and where the defendant has not been deprived of some substantial right, to his injury,, this court will not discuss and decide matters of law merely for the purpose of settling abstract Questions.
    7. SAME — Grounds for Reversal. The effect of a conviction upon the family of a defendant cannot be ground for a reversal. Men with families should think of such things before they commit crimes.
    8. JUDGMENT — “Verdict of Not Guilty” — Res Judicata. A “verdict of not guilty” is simply a verdict of not proven in the particular case tried and is riot a verdict of innocence, and hence is. not conclusive against the state in favor of any other person than the defendant who was actually acquitted.
    9. ADULTERY — Evidence — Admissibility. In a prosecution for adultery, evidence of a trip made to Kansas by defendant and the prosecuting witness’ wife was properly admitted where such trip was a part of the general plan of the parties to have sexual intercourse and tended to explain the purpose of their being together in Oklahoma under suspicious circumstances.

      Appeal from District Court, Major County; James B. Cullison, ’ Judge.

    W. A. Woody was convicted of adultery, and he appeals-
    Affirmed.

      John V. Roberts and George W. Connell, for appellant.
    C. /. Davenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

First. In their brief counsel for appellant complain at a number of the instructions given by the court and also complain of remarks alleged to have been made by the county attorney in his closing argument to the jury. Upon an examination of the record, we fail to find that any exceptions were reserved at the trial to the instructions of the court. We also fail to find that counsel for appellant during the closing argument of the county attorney, in any manner, objected to the remarks complained of in the brief and alleged to have been made by the county attorney. We find no fundamental errors in the instructions of the court or in the remarks of the county at-; torney; and, in the absence of proper objections and exceptions, we cannot consider the matters presented. See Hayes v. State, 4 Okla. Cr. 377, 111 Pac. 1020; Johnson v. State, 5 Okla. Cr. 13, 113 Pac. 552; Ford v. State, 5 Okla. Cr. 240, 114 Pac. 273; Crump v. State, 7 Okla. Cr. 535, 124 Pac. 632; Bethel v. State, 8 Okla. Cr. 61, 126 Pac. 698; Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685.

Counsel should have. promptly brought the matters complained of to the attention of the court at the time of their occurrence and thereby have given the court an opportunity to correct any errors, which may have been made, before they could have possibly harmed appellant. Counsel, being silent, thereby acquiesced in the commission of the errors complained of, even if it is admitted that they were errors. Unless errors committed during the trial are fundamental, counsel will not be heard to complain of that which, with reasonable diligence on their part, they could have prevented or properly incorporated in the record. Convictions in criminal cases will not be reversed upon afterthoughts unless for fundamental errors. It would be unfair to the trial courts' and ruinous to the administration of justice to reverse convictions upon alleged errors which were not properly presented to the court below.

Second. Appellant and Anna Boyd were jointly charged by information with the commission of the crime of adultery. Anna Boyd was first tried and acquitted, and the contention is now made that this acquittal operated to discharge appellant as a matter of law. In their brief counsel say:

“We insist that where two parties are jointly charged with the commission of an act of adultery, the one with the other, it is impossible for one to be innocent and the other guilty, and for that reason, where the one is first tried separately from the other and found not guilty, it is the duty of the court to discharge the other. This may differ from the ordinary rule, but there is a reason for this being an exception. It is as impossible for the one to be guilty and the other innocent as it is for A. to be guilty of murdering B. and B. still living.”

No authorities were cited by counsel for appellant in support of this proposition. It is true that the Supreme Court of North Carolina did so hold in the case of State v. Mainor & Wilkes, 28 N. C. 340, and also in the case of State v. Parham, 50 N. C. 416. We think that these decisions are not supported by the reason of the law, and they were in effect repudiated by the same court in the later case of State v. Cutshall, 109 N. C. 764, 14 S. E. 107, 26 Am. St. Rep. 599.

A verdict of not guilty is not a verdict of innocence. It is simply a verdict of not proven in the particular case tried, and it is not conclusive against the state in favor of any other person than the defendant who was actually acquitted. The state might not be able to make proof of the offense in the trial of one party for many causes, yet might be able to make proof on the trial of the other. Because there may have been a miscarriage of justice as to one joint offender is no reason why there should also be a miscarriage of justice as to the other joint offender. Again, it is true that to constitute adultery there must be a joint physical act, but it is not necessary that there should be a joint criminal intent. The bodies must concur in the act, but the minds may not; one may be guilty and the other innocent. A few illustrations will demonstrate this conclusively. Namely, if A., being a married man, should have sexual intercourse with B., a single woman, who was so drunk or demented as to be unable to give her consent, such woman could not be convicted, but A. may be prosecuted and convicted either for adultery or rape. Or if A., being a married man, should marry B., a single woman, who had no knowledge of A.’s previous marriage, B. would not be guilty of any offense, but A. might be prosecuted and convicted either for bigamy or adultery. The following cases support the conclusion at which we have arrived: State v. Ellis, 74 Mo. 385, 41 Am. Rep. 321; State v. Caldwell, 8 Baxt. (Tenn.) 576; Alonzo v. State, 15 Tex. App. 378, 49 Am. Rep. 207; Watson v. State, 13 Tex. App. 76; State v. Sanders, 30 Iowa, 582; State v. Donovan, 61 Iowa, 278, 16 N. W. 130; Commonwealth v. Bakeman, 131 Mass. 577, 41 Am. Rep. 248; State v. Eggleston, 45 Ore. 346, 77 Pac. 738; State v. Carrol 30 S. C. 85, 8 S. E. 433, 14 Am. St. Rep. 883; Solomon v. State, 39 Tex. Cr. R. 140, 45 S. W. 706.

Mr. Wharton says: “One defendant may be acquitted without involving the acquittal of the other.”

Mr. Bishop says:

“As every offense to be punishable must be voluntary, so in particular must be adultery. But alike in adultery, and it is believed in fornication and incest, where the crime consists of one’s unlawful carnal knowledge of another, it is immaterial whether the others participated under circumstances to incur guilt or not, just as sodomy may be committed with a responsible human being, or an irresponsible one, or a beast. Therefore the same act of penetrating a woman, who, for example, is too drunk to give consent, may be prosecuted either as a rape, or as adultery, at the election of the prosecuting power. There are cases which deny this and hold that adultery, fornication, and incest can be committed only with consenting persons, and what is rape cannot be one of the others. But they are believed to proceed partly, and perhaps entirely, on special terms of statutes. Certainly in principle they can have no other just foundation.” (Bish. Stat. Crimes, sec. 660.)

Third. Objections were made to the action of the trial court in the introduction and rejection of evidence, but, in the light of the testimony in this case, we do not believe that, an intelligent and honest jury could be impaneled who, with a due regard for their oaths and the testimony, could legitimately come to any other conclusion than that the appellant was guilty. _ This being the case, errors committed by the trial court, which could not have altered the verdict, became immaterial, and it would be a waste of time for us to discuss them. A conviction will not be reversed except for errors which affected the substantial rights of the defendant. See Ostendorf v. State, 8 Okla. Cr. 360, 128 Pac. 143.

Fourth. What are'the facts in this case? ’ In the case of Ex parte Burris, ante, 133 Pac. 1139, this court said:

“In determining the sufficiency of testimony in any case, the nature of the subject-matter under inquiry must be considered. It is but seldom, indeed, thatp direct and positive evidence of adultery can be produced, for persons who have illicit sexual intercourse with each other ordinarily do not commit adulterous acts in the presence of witnesses. Therefore in such cases we cannot reasonably expect to have other than circumstantial evidence as to the commission of adultery.”

A more complete cable of circumstances could not be shown, short of proving by eyewitnesses the physical act of intercourse, than is presented in this case. The prosecuting witness was Walter M. Boyd. He was a man 33 years old; was a clerk in a hardware store in Fairview. His wife, to whom he had been married several years, was 27 years of age. They had born to them one child, a girl three years old at the time of this trial. The defendant was a married man who came to Fairview in May, 1911, and was engaged in the general merchandise business. The defendant’s wife spent only a portion of the time in Fairview with her husband. Defendant occupied a room over his store during his wife’s' absence. Boyd’s house was within a few blocks of the defendant’s store; the latter adjoining the Citizens’ State Bank. Many merchants and officers of the bank testified that defendant often. came to the bank corner, waved toward Mrs. Boyd’s house, and in a few minutes Mrs. Boyd would appear. It was proved by witness that Mrs. Boyd often went up the front stairs leading to the floor on which defendant had his room and about the same time defendant went up the back stairs. It was proved that Mrs. Boyd and defendant were seen together after dark in front of defendant’s store; at one time defendant was locking or unlocking the door. It was proved that defendant and Mrs. Boyd went driving together in a top buggy with the curtains drawn on warm days. It was proved that a friend of defendant advised defendant that his conduct would likely get him into trouble, to which defendant replied, “They can’t prove anything.” It was proved that defendant was seen at Mrs. Boyd’s house, in the absence of Mr. Boyd, on several occasions ; that he took a veil and hair braid to Mrs. Boyd. It was proved that on one occasion when defendant went to Mrs. Boyd’s, Mr. Bo)M’s suspicions'were aroused. Fie got a bucket and went to his home ostensibly to get a bucket of water. As he went in the front door defendant ran out the back door. On one occasion-in the evening defendant was walking in front of his store. A man came up to him and sought to talk to defendant about some business.. Defendant said to him, “Come Monday, I haven’t time this evening.” In a few minutes Mrs. Boyd appeared and met defendant. It was proved that the defendant visited Mrs. Boyd four or five times in Mr. Boyd’s absence. On one occasion, when Mrs. Boyd’s sister (Mrs. Clough) was at Mrs. Boyd’s, defendant told Mrs. Clough he did not want her “butting in.” This was in answer to Mrs. Clough’s request that defendant stay away from Mrs. Boyd’s. About 8 o’clock one evening defendant and Mrs. Boyd were together by the Citizens’ State Bank corner, standing close together. Mrs. Boyd said to defendant, “I will go if you think best, but I would rather not.”

The date of the offense alleged in the information was September 23, 1911. The state proved that on that day Mrs. Clough, who was Anna Boyd’s sister, and Anna Boyd were going to Carmen. They went down in town, spent some time in defendant’s store buying various articles. They left defendant’s store and went to the Bates’ store. After being at the latter place for a while, Mrs. Boyd told her sister, Mrs. Clough, that she wanted to go back to the defendant’s store to purchase other articles. She went there, taking with her the little baby girl, three years old. Mrs. Clough waited at the Bates’ store for her sister. The latter not returning, Mrs. Clough went to defendant’s store in search Of Mrs. Boyd. She did not find either. At the time Mrs. Clough and Mrs. Boyd were in the defendant’s store before going to the Bates’ store defendant was there. Upon returning to defendant’s store and not finding either Mrs. Boyd or the defendant, she went upstairs looking for her sister. Defendant’s room on the second floor adjoined the rooms of a Mrs. Myers, who lived up there. Mrs. Clough went to Mrs. Myers, saw Mrs. Boyd’s baby girl there, and inquired for her sister. What Mrs. Myers said is not in the record, but Mrs. Myers tapped upon- the partition wall between her room and the defendant’s room, and in a few minutes after this occurred Mrs. Boyd came into the room where she had left her baby girl. This occurred on September 23d. It was proved that Mrs. Clough and Mrs. Boyd went away that day on the train to Carmen. Mrs. Boyd got off there. Mrs. Clough went on to Winfield, Kan. The defendant the next day went to Carmen. On the train going there, he told a man who was riding with him that he was to meet a friend there. When the train got to Carmen, defendant got off, went into the station, and joined Mrs. Anna Boyd, who was at the station. They got on the train together and went north. Defendant and Mrs. Boyd did go to Kansas, for witnesses saw them together on the streets of Wichita on the, 25th and 26th of September, 1911. They remained in Kansas several days. They were seen at Anthony, Kan. About the 28th or 29th of September, 1911, they got on the train together at Anthony and came south into Oklahoma. Mrs. Boyd got off the train at Carmen. Defendant did not get off the train.

The information in this case was filed March 29, 1912. On the 15th day of March the defendant, while at Oklahoma City, called Mrs. Boyd by telephone. The telephone operator at Fair-view knew the voice of both defendant and Mrs. Boyd. In that conversation defendant asked Mrs. Boyd if she had received a registered letter which he had sent her. She said: “No. I have not, but I think that I will today.” Fie also wanted to know how everything was, to which she replied, “Everything seems to be at a standstill.” On the 16th, the day after the first conversation, defendant called Mrs. Boyd by telephone from Oklahoma City and wanted to know if she had received the registered letter. She replied she had not. Defendant told her to come to Oklahoma City. She replied, “I am afraid to, because I am being watched here.” Defendant then told her to go north and then come south. She then said, “I will meet you there at the depot at Oklahoma City.” It was proved that she did go to Geary. She got off there, got a ticket to El Reno, and went there. The witness who testified to these facts was going to Ft. Worth. He got off at El Reno. The train he got off of went to Oklahoma City. Mrs. Boyd did not get off.

It was proved that defendant kept a keg of cider in his room, and there were empty whisky bottles. Mrs. Boyd often went upstairs and went back towards defendant’s room. It was proved that the day before defendant’s preliminary hearing the defendant and Mrs. Boyd met at the Citizens’ Bank corner. This was before Mrs. Boyd was arrested.

There was in this case no semblance of a defense made. The material facts showing familiarities and illicit conduct were not in the least denied. We have asserted that certain facts were proved. We do this because the defendant did not controvert them nor did he endeavor to do so. The witnesses were responsible and reputable men engaged in business at Fairview.

It is inconceivable thát a man would be guilty of such conduct and yet hope a jury would be led to conclude that his constant familiarities with Anna Boyd were from a proper and good motive. Men of common sense were on the jury. For defendant to say that this line of conduct was not the gradual approximation to the ultimate end in view is to assume that the jurors who tried him were unable to look to facts and circumstances and reasonably conclude that his various acts were those of a destroyer of homes and the betrayer of his own wife and the degradation and moral pollution of the wife of Walter Boyd. Why would a man engaged in such a large and thriving business take such familiarities with the wife of his friend, unless he did so for the gratification of his lust? Why should he go to Boyd’s home in his absence and, when Boyd approached, run out the back door, if his conduct was that of an innocent man? Why would he plan trips to Oklahoma City and to Kansas? Was it because of his pleasures in the association with Anna Boyd? No man of enough sense to be on a jury would believe that defendant was a victim of Anna Boyd and that she was exercising a hypnotic influence over him in order to secure from him such trivial gifts as veils and hair braids. Would an innocent man every day leave his business during business hours, go to the Citizens’ Bank corner, and by signal secure the presence of Anna Boyd? Is it a coincidence that when Anna Boyd went up the front stairs toward, his room he also went-up the back stairs? Would this happen dozens of times without some prearrangement? Why would he say to Anna Boyd’s sister to quit “butting in,” unless he were engaged in the violation of the sanctity of the home of Walter Boyd? Where was Woody during the time Mrs. Boyd was in his room on the 23d day of September ? It. is true no witness swore that he was in the room. But he had been in his store a short while before. Anna Boyd went upstairs to the room adjoining the room of defendant. She left her baby girl with Mrs. Myers. Upon the arrival of Mrs. Boyd’s sister and an inquiry as to her whereabouts, Mrs. Myers tapped on the partition wall between defendant’s room and Mrs. Myers’ room. Anna Boyd appeared. Where had she been? No sensible juror would believe she was not in the defendant’s room at that very time with the defendant. And it is urged that the corpus delicti was not proved. When have men become so insane that, if they are going to engage in such conduct, they commit such crimes in the open or where they are likely to be detected ?

In prosecutions for adultery, evidence that the parties have been riding together frequently, that defendant paid frequent visits to the home of the woman when her husband was away, that the adulterous inclination existed, and that an .opportunity for illicit intercourse occurred are facts which may leád the guarded discretion of a reasonable and just man to the conclusion of guilt. Greenleaf, Ev. (15th Ed.) vol. 1, par. 40; People v. Gridler et al. (Mich.) 31 N. W. 624; State v. Briggs, 68 Iowa, 416, 27 N. W. 358; State v. More, 115 Iowa, 178, 88 N. W. 323; State v. Leek, 152 Iowa, 12, 130 N. W. 1063; Thayer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110.

In the last case cited the court says:

“The evidence by which the act of adultery is proved is seldom direct. ■ The natural secrecy of the act makes it ordinarily impossible to prove it, except by circumstantial evidence. The circumstances must be such, indeed, as ‘to lead the guarded discretion of a reasonable and just man to the conclusion of guilt.’ But, when an adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportuni-. ty, with comparatively slight circumstances showing guilt, will be sufficient to justify the inference that criminal intercourse has actually taken place. The intent and disposition of the parties towards each other must give character to their relations and can only be ascertained, as all moral qualities are, from the acts and declarations of the parties. It is true that the fact to be proved is the existence of a criminal disposition at the time of the act charged; but the indications by which it is proved, may extend, and ordinarily do extend, over a period of time both anterior and subsequent to it. The rules which govern human conduct and which are known to common observation and experience are to be applied in these cases, as in all other investigations of fact.”

This court in Nettie V. Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359, said:

“We are not willing to establish the doctrine in Oklahoma that there can be no conviction for murder in any case unless the body of the deceased is recognized and identified by direct and positive evidence. Such a rule would make murder safe and would place a premium upon the most vile and brutal kind of assassination. All that the murderer would have to do to escape punishment would be to so mutilate and disfigure the body of his victim, which could be easily done, as to make identification and recognition impossible. Whatever the law in other states may be/this court will never consent to the establishment of a doctrine in Oklahoma which would result in such monstrous consequences. The only just and logical position consistent with the safety of society and the sanctity of human life which courts can assume is that the corpus delicti may be proven by circumstantial evidence.”

In Ex parte Harkins, 7 Okla. Cr. 464-, 483, 124 Pac. 931, 939, this court said:

“This is a case depending entirely upon circumstantial evidence. While, to a limited extent, a false consistency of circumstances may be constructed, yet experience teaches that this is almost impossible where there are a considerable number of circumstances involved. A single circumstance, standing alone, might amount to but little and be entirely consistent with innocence, yet, when this circumstance is considered in connection' with other circumstances, they are to be taken and combined together and may result in an irresistible conclusion of the guilt of the accused.”

And, in connection with this phase of the case, it ought to be borne in mind that the defendant could easily, if it were true, have proved that no crime was committed. It is, of course, true that the burden is upon the state, but as said by Chief Justice Shaw in Commonwealth v. Webster, 5 Cush. (Mass.) 316, 52 Am. Dec. 727:

“When pretty stringent proof of circumstances is produced, tending to support the charge, and it is apparent that the accused is so situated that he could offer evidence of all the facts and circumtances as they existed and show, if such was the truth, that the suspicious circumstances can be accounted for consistently with his innocence, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would tend to sustain the charge.”

From the evidence in this record the defendant is a guilty man. He has wrecked two homes and has brought shame and disgrace upon Anna Boyd’s only child. Such an offender ought not to receive leniency at the hands of any jury or court.

Fifth. In their brief counsel for appellant say:

“There is much doubt as to the sufficiency of the proof as to the venue of the alleged crime, and, if so, the error is fatal. Brunson v. State, 4 Okla. Cr. 467 [111 Pac. 988].”

There is nothing in the record in this case or the authority cited supporting this statement. It was proved beyond question that Walter M. Boyd, with whose wife appellant has been convicted of adultery, resided in the town of Fairview in Major county. The jury were justified by the evidence in believing that appellant committed adultery, not only in the home of said Walter M. Boyd, but also in a room over the store of appellant, both of which places were in Major county, Okla.; but, even if there was any doubt upon the subject of the proof of venue, this could not avail appellant unless there was an absolute want of proof on this subject. In the very case cited by appellant this question is treated decisively in the following language:

“Only those allegations in an indictment which involve the guilt of a defendant are to be proved beyond a reasonable doubt. The venue of an offense does not come within this class, but there must be some proof of venue. See Fuller v. Territory, 2 Okla. Cr. 86, 99 Pac. 1098.”

The evidence of the trip of appellant and the wife of the prosecuting witness to the state of Kansas, and what happened there between them, was competent and admissible in evidence because it was. only a part of the general plan or conspiracy of said parties to have sexual intercourse with each other. It' tended to explain the purpose of appellant and said Anna Boyd in being together under suspicious circumstances in Major county, Okla.

Sixth. We do not desire to be understood as indorsing every ruling made by the court in the trial of this cause. From an experience of 40 years in the practice and on the bench, the writer doubts if such .a thing as an absolutely flawless trial, from a technical standpoint, was ever had, where the defendant in a criminal case was represented by able counsel. Where it is clearly proved that a defendant is guilty as charged, a conviction should not be reversed unless it affirmatively appears from the record that the defendant was deprived of some substantial right, to his injury, upon the trial. To require perfection in all of the rulings of the trial court would simply be to render it impossible to enforce the law. The supreme question on an appeal is as to whether or not the material,rights of the'appellant were respected in the trial and as to whether or not the appellant is guilty as ■charged, and if this be clearly established, as is done in othis case, immaterial errors, which, in the light of the entire record, could not have contributed to his conviction, should not be ground for reversal. The record fails to show that appellant was deprived of his substantial rights. There is but one construction, in the light of human experience and human nature, that can be placed upon the undisputed legal evidence in this record, and that is that appellant is guilty as charged. It would therefore be a useless expenditure of labor and consumption of time to consider the matters presented merely for the purpose of settling abstract questions of law.

Seventh. In their brief counsel for appellant say:

. “The conviction of Mr. Woody may mean the ruination of two families.”

Appellant should have thought of these things when he was trying to seduce the wife of his neighbor. It is this, and not his conviction, that has ruined two- families. The most sacred place this side of heaven is the home. There is nothing that is more ennobling to mankind than pure and virtuous homes. There is nothing more degrading to society than the pollution of the home. In such cases society inexorably punishes the woman. Not so with the man. Unless her father, brother, or husband personally inflict summary vengeance upon him, nothing but the strong arm of the law can make him atone for the crime which he has committed. It is probable that considerations of this sort induced the jury to find the woman in this case not guilty. They doubtless realized that she was already more severely punished by society than she could possibly be by the law, and therefore followed the divine example in a similar case and said to her, “Go thou and sin no more.” But what possible punishment could be inflicted upon the appellant, if not convicted by the jury? He would be absolutely at liberty to hunt for other victims to gratify his beastly lusts. While we do not indorse the acquittal of the woman, there was an element of justice in it; but, even if this be not true, appellant should not be freed because there was a miscarriage of justice in the case of the woman. There is no doubt in the world about his guilt. Society must have protection against such characters. The very life of society is involved in this question; and, if the law does not punish such conduct, who can blame the father, husband, or brother for taking the law into his own.hands and defending the sanctity of his home with a shotgun. The only way to stop murder in such cases is for the law to firmly punish the offending party. The conviction of appellant meets our entire approval. We feel that justice has overtaken and marked its own. No country can rise superior to the purity of its homes; and, where any man for the purpose of gratifying his animal passions lays the unhallowed hands of lust upon the altar of marital purity, he thereby becomes a traitor to society and an enemy to the human race. This court has time and time again called attention to the fact that illicit love is the most prolific source of crime among men. Nearly every week the people are shocked by the publication of accounts of ruined homes and the commission of the crime of assassination caused by illicit love. This court is not going to condone such conduct. Leniency to these parties is a crime against society.

The greatest error in this record committed by the trial judge was that he allowed the kindness of his heart to cause him to fix the punishment of appellant at one year’s imprisonment in the penitentiary and $500 fine, when in justice, appellant should have been sent to the penitentiary for five years, which is the limit of the law. This is the most flagrant case of its kind that has ever come before us.

Judgment of lower court is in all things affirmed.

ARMSTRONG, P. J., and DOYLE, J., concur.