author: BAKER, Judge.

text:
    Dan Price et al. v. United States.
    No. 594,
    Ind. T.
    Opinion Filed October 16, 1908.
    (97 Pac. 1056.)
    1. EVIDENCE — Threats—Purpose of Reception — Instructions. It is error fo>1 *a court to charge the jury in a murder case that proof of threats on the part of the deceased are admissible for the purpose of showing whether or not the deceased was the aggressor or the defendant was more likely to be the aggressor, and that evidence of threats is permitted for that purpose, and that alone.
    2. TRIAL — Murder—Manslaughter—Instructions. It is error for the court to charge the jury in a murder case, “You may find the defendant guilty of manslaughter, in which case the court assesses the punishment; the court having it within his power to sentence the accused to confinement in the penitentiary for any 'length of time not exceeding ten years."
    3. WITNESSES — Impeachment—Cross-Examination. For the purpose of impairing the credibility of a witneos, he may be asked, on cross-examination, if he has been convicted of -a felony, or any crime involving a want of moral character; but it is improper to ask the witness if he has been indicted, arrested, or imprisoned, before the conviction of said witness, for any offense whatever.
    4. WITNESSES — Failure to Obey Order of Exclusion. A witness who violates the rule of the court, separating the witnesses and excluding them from the courtroom during the trial, by remaining in the courtroom during the most of the time of the trial, is not thereby rendered incompetent as a witness. Such violation can only affect hi’s‘ credibility as a witness, or subject him to punishment for contempt of court.
    (Syllabus by the Court.)

      Appeal from United States Court for the Northern District of thé Indian Territory; Joseph A. Gill, Judge.

    Dan and Ed Price were, on the 20th day of January, A. D. 1903, in the United States Court, for the Northern District of the Indian Territory, indicted for the crime of murder, and jointly tried in said court, and by a jury, on the 5th day of October, A. D. 1904, found guilty of the crime of manslaughter, and on the 22d day of October, A. D. 1905, by said court sentenced to imprisonment in the United States penitentiary at Fort Leavenworth, Kan., for the period of three years, and that each pay a fine of $100 and costs.

    Reversed.

      William P. Thompson and Preston S. Davis, for appellants
    On the question of improper charge relative to threats by deceased: Monroe v. State, 5 Ga. 85; Brown v. State, 55 Ark. 593; State v. Dodson, 4 Or. 65; Garner v. State, 28 Fla. 113; State v. Alexander, 66 Mo. 148; Sparks v. Com., 89 Ky. 644; Rice on Evidence, vol. 3 (criminal) 1893. secs. 362 to 370; Powell v. State,, 53 Ala. 1; State v. Evans, 33 W. Va. 417; Wood v. State., 92 Ind. 269; White v. State, 30 Tex. App. 652; Palmore v. State, 29 Ark. 262. On the question of improper charge as to court’s power to assess punishment: Parmentr v. U. S., 98 S. W. 340 (U. S. Ct. Ap. for I. T.) ; Stancliffe v. U. S., 5 Ind. Ter. Rep. 495; Taylor v. U. S., 98 S. W. Rep. 123 (U. S. Ct. Ap. I. T.) ; Mansfield’s Digest, sec. 2283.

      W. C. Reeves, Assistant Attorney General, for appellee.
   BAKER, Judge.

An appeal was duly prosecuted in the United States Court of Appeals for the Indian Territory, and this case was pending in that court when the state of Oklahoma was admitted into the Union. Under the provisions of the enabling act and the Constitution of the state of Oklahoma, this case was duly transferred to the Supreme Court of Oklahoma. Upon the creation of this court the Supreme Court duly transferred the case to this court.

Before deciding this case the court desires to call, .the attention of counsel in this case to the fact that in the brief of appellants many references are made to the record without giving the court the benefit of the page of the record referred to. This necessarily entailed a great deal of additional work, which could easily have been avoided had counsel exercised more care in the preparation of their brief. We sincerely hope that counsel, in cases in this court, will aid us in the examination of records in the cases 'before it by stating in each instance the page of the record to which they desire to call the court’s attention.

In this case the Attorney General filed the following confession of error: “Comes now the Attorney General of the state of Oklahoma, and states to the court that in his opinion the trial court in the above-entitled cause committed reversible error in giving the instructions complained of in assignments of error numbered 42 and 43”- — which charges are as follows:

“Gentlemen, proof of threats on the part of the deceased are admissible to you for the purpose of showing whether or not the deceased was the aggressor or the defendants were more likely to be the aggressors. The evidence is permitted for that purpose, and that alone.” “Third, you may find the defendants, or either or both of them, guilty of manslaughter, in which case the court assesses the punishment, which would be not to exceed 10 years.”

The Attorney General was right in confessing error in connection with said assignments, for the reason that the court below did err in this charge, referred to in said assignments numbered 42 and 43, and that, by reason of said confessed error, this case must be remanded for new trial; but, notwithstanding said confessed error, there are a number of other meritorious assignments of error that, in the opinion of this court, should be passed upon at this time, believing that the ends of justice will best' be subserved thereby.

The first assignment of error herein relates to the charge of the court, and is disposed of by the confession of error.

The court finds error in the second assignment. The verdict is contrary to law.

There is no error in the third assignment, for there is evidence to sustain the verdict.

This court is of the opinion that the court below erred 'in not sustaining the challenge of appellants to the entire panel of the petit jury; but, inasmuch as by the terms of the enabling act passed by Congress, putting into force the jury system of the territory of Oklahoma over the entire state, this question cannot come up in future trials in this state, and for that reason no further attention to this assignment of error is deemed necessary. This applies also to assignments of error numbered 7 and 8.

In the ninth assignment of error appellants complain of the rulings of the court below, wherein the court admitted certain testimony offered by the government, over the objection of appellants and refusing to allow appellants to introduce certain testimony offered by them, and to which rulings of the court appellants duly excepted. All of these exceptions are directed either to the direct testimony or the cross-examination of the following named Witnesses: J. E. Patterson, Mrs. Sophia Patterson, John Partain, Sam Price, W. R. Thompson, Robert Williams, F. M. Davis, F. Downs, Mrs. F. A. Downs, J. A. Patterson, Roe Cunningham, Della Vanbibber, Ed. Price, J. M. Crump, and James Walker. After carefully reading the testimony of all the witnesses above named, this court fails to find prejudicial error in the rulings of the trial court respecting the same.

Objection and exception having been made by the appellants to the testimony of Dr. W. A. Day, as shown by page 231 of the printed record, and feeling that this case will perhaps be tried again in the court below, and that this testimony may have an important bearing in such trial, we, at this time, give our views regarding admissibility of such testimony. Dr. Day is asked this question: “Did he [referring to the deceased] make the statement to you, or in your presence, concerning the facts of the killing, how it' occurred?” To this question appellants made the following objection:

“The appellants object to the question, for the reason the deceased would not be a competent witness under oath to appear and testify before a court of justice; that any statement he might have made, whether under oath or otherwise, would not be admissible, for the further reason that under our law a man having been convicted of the crime of larceny, is not a competent witness before a court of justice.”

And while this question was not answered by the witness or passed upon by the trial court, this court assumes, from the testimony of the witness Day contained in the record, that it was-for whose murder the appellants were tried. It is clear from the record that the objection was made on-the ground of the incompetency of the testimony, by reason of the conviction of Qualls on a charge of larceny. At the time of the trial of this case in the court below sections 2859 and 2902 of Mansfield’s Digest of the laws of the state of Arkansas, were in force in the Indian Territory. The first, relating to incompetency of witnesses, reads as follows: “The following persons shall be incompetent to testify: Persons convicted of a capital offense, or perjury, subornation of perjury, burglary, robbery, larceny, receiving stolen goods, forgery or counterfeiting, except by consent of parties”— the second, relating to the impeachment of witnesses, reading as follows: “A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing he has made statements different from his present testimony, or by evidence that his general reputation for truth and immorality renders him unworthy of belief, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or record of a judgment that he has been convicted of a felony.” In view of the statutes just quoted, if the objection to the testimony of Dr. Day was based upon the first statute— that is to say, that Qualls was incompetent by reason of his conviction for larceny (and from the statement of counsel in objecting to the question above referred to, that was the ground) — the record should show (in the absence of the consent of the parties to such testimony) a judgment of conviction or an exemplified copy thereof, if obtainable. In the absence of such proof of conviction the testimony of Tom Qualls would be competent, and his dying declaration (if otherwise admissible) would likewise be competent, and it would be the duty of the jury to consider such conviction in connection with his testimony (or his dying declaration) in determining the weight, if any, to be given to his testimony, notwithstanding his conviction. This rule of law is sustained in the case of Bise v. United States, 144 Fed. 374, 74 C. C. A. 1, an Indian Territory case decided by Judge Vandeventer, of the Eighth United States Circuit Court of Appeals.

It will be observed by reading the case just cited that the defendant on the trial objected to the testimony of a witness, for the reason that the witness had been convicted of a felony. The trial court inquired whether the objection was for the purpose of impeaching or disqualification. Upon receiving an answer that it was for the purpose of disqualification, the court held: “In the absence of a controlling statute on the subject, the incompetency of the witness by reason of his prior conviction of a felony cannot be shown upon his examination, but only by the production of the record, or an exemplified copy of it” — the court in said case citing 1 Greenleaf on Evidence (14th Ed.) §§375-457, 2 Wigmore on Evidence, § 1270, and many other authorities; and cites 50 Cent. Dig. §§ 1161, 1162, for cases in point. The case of Vance v. State, 70 Ark. 277, 68 S. W. 37, is particularly instructive on this point, because both of the statutes above quoted are referred to in said case, and shows their distinction, and clearly defines the meaning and use of each, citing Southern Ins. Co. v. White, 58 Ark. 277, 24 S. W. 425; Scott v. State, 49 Ark. 156, 4 S. W. 750; Holder v. State, 58 Ark. 473, 25 S. W. 279; Carr v. State, 43 Ark. 99, and Anderson v. State, 34 Ark. 257. This question was also fully discussed and decided by this court in the case of Thomas Slater v United States, ante, p — . and will be followed by this court hereafter.

This brings us to the testimony of J. E. Gox, page 243 of the printed record. The record1 shows that the witness Cox was called by appellants and sworn as a witness. The prosecution objected to his testifying, for the reason that he had been in the court-room throughout the entire trial of this case, notwithstanding the court, at the commencement of the trial, enforced the rule excluding the witness from the courtroom during the trial. The court below erred in sustaining the objection to the the testimony of Cox. The fact that he was in the courtroom during the trial, not having been subpoenaed as a witness, and not knowing that he was going to be called as a witness, did not render him incompetent as a witness. If Cox had been subpoenaed as a witness in this case before the trial, or knew, at the commencement of the trial, that he was to be called as a witness, and, in violation of the rule of exclusion, remained in the courtroom during the trial, in the opinion of the court he would not have been disqualified as a witness. His remaining in the courtroom in violation of said rule might, however, be used in discrediting him as a witness, and subject him to a reprimand by the court and punishment for contempt, but it would not render him incompetent as a witness. The jury had a right to hear this evidence and pass upon its weight and credibility.

Coming now to the consideration of the testimony of David-Price, father of appellants', shown on page 235 of the printed record, where said witness was asked by appellants: “Q. After the arrest and trial and conviction of Tom Qualls, were 'there any statements or threats against you or your boys communicated to you as having been made by Tom Qualls? A. Yes, sir.” Mr.. Turner, for the prosecution, said: “If the court please, this witness answered the question about the threats before I had an opportunity to interpose my objection. I desire the court to instruct the jury that they are not to consider that answer.” The court:

“Gentlemen of the jury, in reference to the threats, there have been no threats shown in this case, and before you can show them to have been communicated, they must be shown to have been made, and there are no threats shown to have been made in this case in any way, shape, or form, and this man’s testimony that they were communicated is not evidence at all, and should n'ot be considered by you for any purpose.”

To this ruling of the court appellant duly excepted. Counsel for appellants should have placed in the record the words, or substance of the words, which constituted threats which they offered to prove. But, as this case will be remanded for a new trial, and as this question will doubtless come up again upon such trial, we deem it best to give our views with reference to the matter of threats. Taking the ruling of the court on this question in consideration with the charge to the jury in this case upon the '¿reject óf threats, we ajDprehend that the court below held that threats, made on the part of the deceased, Tom Qualls, were admissible for but one purpose alone. Quoting from the court’s charge to the jury in this case: “Proof of threats on the part of the deceased are admissible to you for the purpose of showing ■to you whether or not the deceased was the aggressor or the defendants were more likely to be the aggressor. The evidence is permitted for that purpose, and that alone.” Threats made by the deceased against the accused are admissible, upon the trial of the accused for the killing of the deceased: To show that the deceased manifested an angry and revengeful spirit towards the prisoner, and a determination to do violence to his person; to shed light upon the mental attitude of the prisoner towards the deceased when the .homicide occurred; to show a mitigation of the offense charged; to show the condition of the mind of the deceased, and the condition of mind of the defendant at the time of the homicide; to show the purpose and motives of the deceased in making the attack; to show whether or not the killing was done in self-defense; to show reasonableness of the fears of the defendant at the time of .the homicide that he was in danger of losing his life, or of receiving great bodily harm, at the hands of the deceased; to show who was the aggressor; and, as part of thé res gestae, where they tend to excuse or palliate the conduct of the accused; and to establish the state of feeling entertained by the deceased towards the accused. Uncommunicated threats are evidence of the mental attitude toward the prisoner. Communicated threats shed light upon the mental attitude of the prisoner toward the deceased when the homicide occurred. Both are clearly admissible. Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Harris v. Same, 34 Ark. 469; Brown v. Same, 55 Ark. 593, 18 S. W. 1051; State v Evans, 33 W. Va. 417, 10 S. E. 792; Wood v. State, 92 Ind. 269; White v. Same, 30 Tex. App. 652, 18 S. W. 462; Howell v. Same, 5 Ga. 48; Howard v. Same, 23 Tex. App. 265, 5 S. W. 231; Alexander v. Same, 25 Tex. App. 260, 7 S. W. 867, 8 Am. St. Rep. 438; Garner v. Same, 28 Fla. 113, 9 South. 835, 29 Am. St. Rep. 232; Sparks v. Commonwealth, 89 Ky. 644, 20 S. W. 167; Hart v. Same, 85 Ky. 77, 2 S. W. 673; 7 Am. St. Rep. 576; Stokes v. People, 53 N. Y. 174, 13 Am. Rep. 492; State v. Sloan, 47 Mo. 604; 3 Rice on Evidence (Criminal) Ed. 1893, §§ 362-370; Logan v. State, 17 Tex. App. 50. The court erred in taking this testimony from the jury, and not allowing the witness to testify to such threats.

For the various errors pointed out this case is reversed and remanded.

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


source: Caselaw Access Project

author: DOYLE, Judge,

license: Public Domain

text:
      Ex parte E. S. McClellan.
    No. A. 18.
    Opinion Filed October 24, 1908.
    (97 Pac. 1019.)
    1. BAIL — Habeas Corpus — Presumption of Guilt. For the purpose of an application to reduce bail after information filed, the court must assume that defendant is guilty of the offenses charged.
    2. SAME — Reduction of Bail. The Criminal Court of Appeals will not «rant a reduction of bail on habeas corpus, unless it clearly appears that the amount fixed by the trial court is excessive, and clearly disproportionate to the offense involved.
    (Syllabus by the Court.)
    In the matter of the application of E. S. McClellan for writ of habeas corpus.

    Writ denied.
    This is a proceeding in this court for a writ of habeas corpus. The petition was filed, and a writ of habeas corpus was properly issued on said petition the 6th day of October, 1908, and made returnable on the 13th day of the same month, service of said writ being acknowledged and accepted by respondent R. M. Connell, sheriff of Choctaw county, Okla. The petition alleges that said petitioner is unlawfully imprisoned at Hugo, Choctaw county, by R M. Connell, sheriff of said county; that petitioner has been charged with illegally selling whiskey; that his bail is fixed at the excessive and unreasonable amount of $1,000 each in four cases; that he has applied to the Hon. W. T. Glenn, county judge of said county, for writ of habeas corpus that said bail be reduced; and that said application was by said judge dented ; that he is a poor man, and unable to make bond in the excessive amount fixed by the county court, and that by reason thereof he is denied his constitutional rights.
    It appears from the return that there is an agreed statement of facts, as follows:
    Agreed Statement of Facts.
    “It is hereby agreed that the personal attendance- of the petitioner herein, E. S. McClellan, before the Criminal Court of Appeals on the hearing on petition for writ of habeas corpus, is waived. The. personal attendance and appearance of the sheriff of Choctaw county, Okla., R. M. Connell, is also waived. It is agreed that the petitioner herein is held by R. M. Connell, sheriff of Choctaw county, Okla., by virtue of commitments issued to him out of the county court of said county, which commitments are regular on their face, commanding that said sheriff hold the said petitioner in default of bail in the following cases:
    “No. 94. Keeping bawdy house, bond $1,000.
    “No. 182. Unlawfully having in possession intoxicating liquor, bond $500.
    “No. 183. Selling intoxicating liquor, bond $500.
    “No. 186. Selling intoxicating liquor, bond $500.
    ‘No. 206. Selling intoxicating liquor, bond $500.
    “No. 264 Assault and battery, bond $50..
    “No. 278. Resisting arrest, bond $1,000.
    “No. 290. Carrying a pistol, bond $250.
    “Witness our hands this 10th day of October, 1908.
    “R. M. Connell, Sheriff Choctaw County.'
    “J. M. Willis, Co. Atty., Choctaw County.
    “F. M. Brook, Attorney for Petitioner.”

      F. M. Brook, for petitioner.

      Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for respondent.
   DOYLE, Judge,

(after stating the facts as above). The petitioner, E. S. McClellan, asks the court to admit him to bail upon four informations now pending against him in the county court of Choctaw county, wherein he is charged with illegally selling whiskey, on the claim that the bail as fixed by said county court was excessive, and was in contravention of his rights under the Bill of Rights of the state of Oklahoma. The return and agreed statement of facts, which is made a part thereof, show that the petitioner is held on eight commitments, isued on informations filed in said county court, charging various and divers offenses. It further shows that the amount of bail now fixed by said court, where the offense charged is selling intoxicating liquor, is fixed in the amount of $500 in each case. It is evident that the bail so fixed is not excessive, but is very reasonable.

The Bill of Rights in this state provides :

“Sec. 8. All persons shall be bailable by sufficient sureties, except for capital offense, where the proof of guilt is evident or the presumption thereof is great.
“Sec. 9. Excessive bail shall not be required.”

Bail is not to be deemed excessive simply because the particular person charged cannot give the bail required, but bail should never be exacted for the purpose of punishing a person charged with crime, for no person is punishable for an offense, except upon a plea of guilty, or upon a conviction by a jury of his peers. Bail is exacted for the purpose of securing the attendance of the defendant at court at all times when his presence may be lawfully required, and his rendering himself in execution in any judgment that may be pronounced against him. Upon the application to admit to bail after information is filed the court must assume that the defendant is guilty of the offense with which he is charged. In an application to this court upon habeas corpus for a reduction of bail, upon the ground'that the amount fixed by the trial court is excessive, it is not sufficient that this court might originally have deemed a lesser amount sufficient. In our opinion it must clearly appear that the trial court has abused its discretion to an extent that denies the defendant his constitutional rights before this court will reduce the amount of bail as fixed by the trial court. It is the uniform rule that appellate courts will not interfere with the action of trial courts unless “the bail demanded be per se unreasonably great, and. clearly disproportionate to the offense involved.” Ex parte Duncan, 54 Cal. 75.

In the foregoing case it was distinctly laid down that it must be assumed that the defendant was guilty of each of the 10 distinct offenses charged against him. Ex parte Duncan, 53 Cal. 410. And upon a second application, after two trials had been had without a conviction, it was held that this presumption still prevailed, as was said in Ex parte Duncan, supra:

“We are not to assume in this case the functions of the court committing the prisoner, or substitute our own for its judgment in fixing the amount of bail. Before we are authorized to interfere the bail demanded must be per se unreasonably great, and clearly disproportionate to the offense involved.”

After a careful consideration of the matters presented it is our opinion that this court is not warranted in interfering with the matter of bail as fixed by the county court of Choctaw county.

The relator is remanded to the custody of the respondent. Writ of habeas corpus is denied.

FURMAN, Presiding Judge, and BAKER, Judge, concur.


author: DOYLE, Judge

text:
      Ex parte Ed Houghton.
    No. A. 19.
    Opinion Filed October 24, 1908.
    (97 Pac. 1021.)
    1. BAIL — Amount—Purpose. In fixing the amount of bail, the sole purpose which should guide the court or judge should be to cause the appearance of the accused to answer the charge against him.
    2. SAME — Presumption of Guilt. For the purpose of an application to reduce bail, after information filed the court must assume that defendant is guilty of the offense charged.
    3. SAME — Excessive Bail — Reduction. The Criminal Court of Appeals will not grant reduction of bail on habeas corpus, unless it clearly appears that the amount fixed by the trial court is excessive and clearly disproportionate to the offense involved.
    4. SAME — Case. Where five informations were filed against petitioner, each charging him with illegal sale of intoxicating liquor, an order admitting petitioner to bail in the sum of $500 on each charge was not excessive; but an order fixing bail in the sum of $1,000 each, on three subsequent charges for the same offense, is excessive. When the trial court fixed the bail upon each of the first five charges at $500, it necessarily determined that such sum was sufficient to secure the attendance of petitioner to answer the subsequent charges.
    (Syllabus by the Court.)
    Application of Ed. Houghton for writ of habeas corpus.

    Writ denied.
    This is an original proceeding in this court for a writ of habeas corpus. The petition was filed, and the writ of habeas corpus was properly issued on said petition, on the 6th day of October, 1908, and made returnable on the 13th day of October, 1908, service of said writ being acknowledged, and accepted by the sheriff of Choctaw county; and the said sheriff made return, which is set forth in an agreed statement of facts, which is as follows:
    Agreed Statement of Facts.
    . “It is hereby agreed that the personal attendance of the petitioner herein, Ed Houghton, before the Criminal Court of Appeals on the hearing on petition for writ of habeas corpus herein, is waived. The personal attendance • and appearance of the sheriff of Choctaw county, Okla., R. M. Connell, is also waived. It is agreed that the petitioner herein is held by R. M. Connell, sheriff of Choctaw county. Okla., by virtue of commitments issued to him out of the county court of said county, which commitments are regular on their face, commanding that said sheriff' hold the said petitioner in default of bail, in the following cases:
    ‘No. 185. $ Selling whiskey, bail, 500
    “No. 189. Selling whiskey, bail, 500
    “No. 193. Selling whiskey, bail, 500
    “No. 194. Selling whiskey, bail, 500
    “No. 265. Selling whiskey, bail 500
    “No. 266. Selling whiskey, bail, 1.000
    “No. 268. Selling whiskey, bail 1.000
    “No. 275. Selling whiskey, bail, 1.000
    “No. 279. Resisting arrest, bail, 500
    “No. 289. Carrying pistol, bail, 250
    ‘Witness our hands this the 10th day of October, 1908.
    “R. M. Connell, Sheriff Choctaw County.
    “J. M. Willis, County Attorney Choctaw County.
    “Gross & Jordan, Attorneys for Petitioner.”
    Petitioner alleges that he is charged, by informations, with illegally selling whiskey, in nine different cases, and that the bond in the three last cases has 'been put at $1,000 each, and in the othir cases at $500 each; that he made application to the Hon. W. T. Glenn, county judge of Choctaw county, for a reduction on all of said bonds, and that said application was refused; that petitioner’s restraint is illegal and unauthorized, because the amount fixed as bail, in each case, is excessive; that petitioner is a poor man, and can give bail in the sum of $250 only, in each case, and p~ays this court to reduce said bail in each case to a reasonable amount.

      Gross & Jordan, for petitioner.

    On the question of excessive bail: 3 Am. & Eng. Encyc. of Law 680, and notes; United States v. Lawrence, 14 Cranch (C. C.) 518; United States v. Browner, 7 Fed. Rep. 86; West v. Colquit, 71 Ga. 559.

      Charles West, Attorney General, and W. C. Reeves, Assistant Attorney General, for respondent.
   DOYLE, Judge

(after stating the facts as above). It is coni ended by the petitioner that his constraint is illegal and unauthorized, because the bail fixed in each charge by the county court is excessive, and therefore illegal and unauthorized; so that the proceeding before us is, in effect, an application for a re,duction of the bail heretofore fixed by the county court in which the informations were filed. There are now pending, in said county court, 10 informations, and petitioner claims that, by reason of his poverty, he cannot give bail in the amount fixed by the county court.

The Bill of rights of this state provides:

“Sec. 8. All persons shall be bailable by sufficient sureties, except for capital offenses when, the proof of guilt is evident, or the presumption thereof is great.
“Sec. 9. Excessive bail shall not be required.”

When an indictment is rendered, or an information is filed, the court .must assume, for the purpose of fixing bail, that the defendant is guilty of the offense charged. Ex parte McClellan ante, p. — -, 97 Pac. 1019. Tssuming, then, that the defendant is guilty of these several offenses, we.are asked to say that the, bail, as fixed by the county court, is “excessive” within the inhibition of the Bill of Rights.

Bail is not to be deemed excessive simply because the particular person charged cannot give the bail required, but bail should never be exacted for the purpose of punishing a person charged with crime, for no person is punishable for an offense except upon a plea of guilty, or upon a conviction by a jury. Bail is exacted for the purpose of securing the attendance of the defendant at court, at all times when his presence may be lawfully required, and in rendering himself in execution of any judgment that may be pronounced upon him. In applications to this court, in habeas corpus, for reduction of bail upon the ground that the amount fixed by the trial court is excessive, this court will not interfere, unless it clearly appears that the amount fixed is excessive, and entirely disproportionate to the offense charged, and is, in effect, a denial of the petitioner’s constitutional rights. It must clearly appear that the trial court has abused its discretion before this court will reduce the amount.

In the case of Ex parte Duncan, 53 Cal. 410, the rule was stated that it must be assumed that the defendant was guilty of each of the xo distinct offenses charged against him. And in Ex parte Duncan, 54 Cal. 75, upon the second application, after two trials-had been had without a conviction, it was held that this presumption still prevailed. In the Duncan case the bail was in aggregate $112,000 upon 10 indictments, and the offense charged was embezzlement, for which the maximum penalty is 10 years upon each conviction.

In the case at bar the maximum penalty is $500 fine, and six months’ imprisonment, upon each conviction. It is argued with much earnestness, by counsel for petitioner, that the court should not exact as great an amount of bail upon each charge, where there are several informations pending — as in this case— as it would if only one or two cases were pending. We do not think that this argument has much force. The more informations pending, the stronger the probability of conviction, and, necessarily, the greater inducement to defendant to become a fugitive from justice.

It is also argued that, in the first five cases filed against the petitioner, the court fixed the amount of the bail in each case in the sum of $500, that in the next three cases filed the court fixed the amount of the bail in the sum of $1,000 in each case, and that the action of the court in so doubling the amount of the bail in the latter cases was arbitary and unreasonable. This is the only point that appeals to us. When the county court fixed the bail at $500 upon each of the first five cases filed — being cases Nos. 185, 189, 193, 194, and 265 — it necessarily determined that such sum was sufficient to secure the attendance of the defendant to answer to the offense charged in such information» We do not understand why the amount should be doubled in cases Nos. 266, 268, and 275; the offense charged being the same in all of said cases.

The petitioner shows in his application that he is a poor man, and this is a circumstance that should receive some consideration. But the fact that defendant is unable to give such bail as the court believes sufficient to insure his appearance would not justify this court in reducing the bail. We think that, to avoid a possible injustice, the bail should be fixed in cases Nos. 266, 268, and 275 in the same amount, to wit, $500,'as in the other cases. It was argued that, owing to the crowded condition of the docket, some time would elapse before a trial could be had upon these cases; but it must be remembered that under the law and the Constitution of the state defendant is entitled to a speedy trial; and any considerable bail required under these circumstances might be, per se, excessive, and contrary to the spirit of our laws, and especially the Bill of Rights and the Constitution of this state. We are of the opinion that defendant should be admitted to bail in the cases designated Nos. 266, 268, and 275, in the sum- of $500. The amount of bail that will still be required of petitioner under this order, which we make in this proceeding, will still be large in the aggregate, amounting to $4,750, — said bail to be approved as by law provided.

The relator is remanded to the custody of the sheriff of Choctaw county. The writ of habeas corpus denied generally, allowed in part.

FURMAN, Presiding Judge, and BAKER, Judge, concur.


author: DOYLE, Judge Per Curiam.

text:
    Campbell, George v. United States.
    No. 661,
    Ind. T.
    Opinion Filed October 24, 1908.
    (91 Pac. 1052.)
    1. LARCENY — Ownership—Evidence. In cases of larceny it is essential for the prosecution to prove that the property was feloniously taken from the person named in the indictment as the owner, but this does not require that in every case direct proof of ownership shall be given.
    2. EVIDENCE — Corpus Delicti. It is not essential that the corpus delicti should be established by evidence independent of that which tends to connect the accused with its perpetration. The same evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence.
    3. LARCENY — Nonconsent—Evidence. The want of consent of the owner to the taking of his property alleged to have been stolen is an essential ingredient of the crime of larceny. The fact of nonconsent to the taking may be proven by facts and circumstances which sufficiently show that the property was feloniously taken, and the fact that the owner caused search to be made for the stolen property is a cogent circumstance to show want of consent to the taking.
    4. INSTRUCTIONS — Repetition. Where -a similar instruction has been given a requested instruction need not be given.
    5. EVIDENCE — 'Hearsay—Noncitizenship in Indian Tribe — Declarations. Reputation or hearsay is admissible in all matters of pedigree, and so the declarations of the defendant that he is a white man, and his general reputation for 25 years that he was a white man, is sufficient when uncontradicted to prove noncitizenship in any Indian tribe or nation.
    6. APPEAL — Review—Failure to Preserve Record. Where the record shows no objection was made and no exceptions taken, the error will not be considered by the court except in the interest of justice.
    7. ON MOTION FOR REHEARING — Appeal and Error — Harmless Error— Substantial Justice. When a defendant is clearly proven to be guilty, this court will not reverse a conviction upon any technicality or •exception which does not affect the substantial rights of the defendant.
    (Syllabus by the Court.)

      Error from the United States Court for the Central District of the Indian Territory, at Durant; Thomas C. Humphrey, Judge.

    Campbell George was convicted of larceny, and brings error.
    Affirmed.
    Appealed to the United States Circuit Court.

      Campbell George was indicted in the United States Court in the Indian Territory for the Central District of said territory, sitting at Atoka, which indictment was- returned by the grand jury and filed in open court on the ioth day of October, 1903, wherein said defendant was charged with having on the 29th day of April, 1903, within that jurisdiction, committed the offense of larceny of a horse, the property of John Adkins.
    The defendant entered a plea of not guilty, and on October 10, 1904, upon trial in said court at Atoka, he was found guilty as charged in said indictment. Whereupon he filed his motion for a new trial, which motion was by the court on November 1, 1904, sustained, and a new trial granted. The defendant having filed a motion for a change of venue the court ordered on January 7, 1905, that the venue be changed to the Durant division of said court, and directed the clerk of said court to forward there a duly certified copy of the indictment, together with the original papers and certified copies of the record entries in said case. At the June, 1905, term of said court at Durant, in said district, a second trial was had, and on June 9, 1905, the jury in said case returned a verdict finding the defendant guilty as charged. On June 13, 1905, the court overruled defendant’s motion foi a new trial, and sentenced defendant to imprisonment in the United States penitentiary at Ft. Leavenworth for a period of one year and one day.
    A writ of error was allowed to the United States Court of Appeals for the Indian Territory, at South McAlester, and this case was pending there on the passing of that court, with the organization of the state of Oklahoma, and was duly removed to the Supreme Court of Oklahoma by virtue of the provisions of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Constitution of Oklahoma, and is now before this court by virtue of section 170, art. 7, Const. Olcla., and chapter 28 of the Sessions Laws of the First Session of the Legislative Assembly of the state of Oklamoma, entitled “An act creating a Criminal Court of Appeals, and defining- the jurisdiction of said court,” approved May 18, 1908 (Laws 1908, p. 291, c. 28).

      John Adkins, the owner' of the. horse charged to have been stolen, was not present' at the trial to testify as to the identity and ownership of the horse or his want of consent to the taking of the same by the defendant.
    J. H. Riddle was the first witness called on behalf of the government. He testified that he lived near Globe, about 16 miles northwest of Coalgate and about 8 miles east from Pine and that John Adkins was at his place on Wednesday, the third day after his horse was stolen, inquiring for the horse, and, at his request, witness went with him, hunting for the horse . They found in the woods where a horse had been roached. The mane that had been cut off .was black. They then went west to- the “Pot” country, to the home of one Walter Vail. When they arrived there, Vail was not at home, and Adkins arranged with witness to go to the George place, in the Comanche country. Adkins then returned home. Witness proceeded west, and met Dera Duncan, who informed him that he had seen defendant with such horse; and, when witness reached Bob George’s place, he found the horse there. Bob George is a brother of the defendant, and his place is about 130 miles from where the horse was taken. This was about two weeks after the horse was taken. Witness took the horse and brought him back, and delivered him to Adkins, who was a railroad laborer, living in a tent near Coalgate.. The horse had a black mane, and had been roached, and was branded “A. D.” Witness further testified that Adkins was a white man, and his camp was in the Choctaw Nation.
    S. T. Stevens was the second witness for the government. He testified that he lived at Pine, was acquainted with defendant, Campbell George, and with Walter Vail, and that they were in his store on Sunday, the 29th of April, 1903, — the night of that day the horse was taken, — and that Pine is about 15 miles north of Coalgate.
    Mrs. Fanny Pope was the third witness for the government. She testified that in April, 1903, she was living at Adelia post-office, about five miles southwest of Pine, and that she knew Campbell George and Walter Vail, and that they passed her house on Sunday, and that she heard that Adkins lost a horse that night.
    J. R. Hutchins was the fourth witness for the government. He testified that he knew the defendant, Campbell George, and in the spring of 1903 he met him and another man about three miles east of Mill Creek in the Chickasaw Nation, and that Mill Creek is about 15 miles west of Coalgate. This was on a Monday morning, about 9 or 10 o’clock. Dera Duncan was riding in the buggy with witness. Defendant and his fellow traveler were going west and were riding very fast. Defendant, Campbell George, was riding what witness described as a bay, chunky built, roached mane pony, and the other man was riding a bay mare. Witness was acquainted with J. H. Riddle, and met him a few days later, looking for Adkins’ horse.
    Dera Duncan was the fifth witness for the government. He testified that he was living at Mill Creek in the spring of 1903, and met defendant and another man in the road near Mill Creek, and now recognizes defendant as one of the men he met. Defendant was riding a bay pony that had a little white on his nose, and white specks on his hip, and mane roac'hed, and also branded. The man with defendant was riding a bay mare. Witness saw the same horse about 10 or 12 days later in a livery stable at Mill Creek, where he pointed it out as the horse defendant was riding on that Monday morning when witness, in buggy with the witness Hutchins, met the defendant. The defendant and the man with him were going west, and were riding at an unusually fast trot.
    J. J. Ward was the sixth witness for the government. He testified that in the spring of 1903, he lived west of Coalgate, and knew a man that was working in a tie camp named Adkins, and knew that he lost a horse about the same time witness lost a bay mare, and from information given by J. R. Riddle witness went to the Bob George place, in the Comanche country, and there found his bay mare, and that at that time Adkins’ camp was about two miles from where witness lived. Witness does not know where Adkins is now.

      J. H. Riddle, recalled on behalf of the government, testified that he has known defendant’s family about 25 years, and that they are not Indians, and never claimed to be, and are noncitizens.
    S. D. Stevens, recalled on behalf of the government, testfied that he has known Walter George, father of defendant, and his family for over four years; that they are renters in his neighborhood; that he never heard them claim to be citizens; that they are regarded as noncitizens; that they seem to be white people.
    R. L. Williams testified on behalf of the government that he was a resident of Durant, lawyer by profession, and had seen defendant and his father several times, and had known of them for several years, and that he knew, by general reputation, that they were noncitizens, and knew, by reputation, that the defendant’s mother was a noncitizen.
    There were no witnesses sworn or testimony offered on behalf of the defendant. •
    J. G. Ralls, for appellant.
    On the question of- proof of ownership of stolen property ■ and nonconsent for taking: Oxier et al. v. United States, 1 Ind. Ter. 85, 38 S. W. 331; Carnada v. State, 29 Tex. App. 537, 16 S. W. 341;'Garcia v. State, 26 Tex. 209, 82 Am. Dec 605; State v. Morey, 2 Wis. 494, 60 Am. Dec. 439. On the question of proof of citizenship by reputation: Lucas■ v. United States, 163 U. S. 611.

      T. B. Latham and W. C. Reeves, Assistant Attorney General, for appellee.
    On the question "of proof of ownership of stolen property: 1 Whar. Cr. Law 933; Rapalje on Larceny and Kindred Offenses, § 145; 1 Bishop Cr. Prac., § 707; 1 McClain on Criminal Law, § 601 (612) ; State v. Stanley, 48 Iowa 221; Barnes v. People, 18 111. 52; Lawrence v. State, 4 Yerg. 145. Proof of nonconsent of owner to taking: Rapalje on Larceny and Kindred offenses, 135, 158; Wilson v. State, 12 Tex. App. 481; State v.

      Osborne, 28 Iowa. 9. Proof of citizenship by hearsay: Comstock v. State, 14 Neb. 205; Reed v. State, 16 Ark. 499; Kelley’s Heirs v. Mc.Guire, 15 Ark. 555.
   DOYLE, Judge

(after stating the facts as above). Twenty two assignments of error are alleged' in the petition, and are argued in the brief.

The principal question presented is set forth in the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, fifteenth, and sixteenth assignments of-error. These all go to the competency and sufficiency of the evidence, to show ownership in John Adkins, and nonconsent of said owner to the taking, as alleged, and to show venue, also the conclusion that the verdict is not supported by sufficient evidence. In this case the 'able counsel for defendant, mindful of the fact that larceny is the most technical in its distinctions of all common-law felonies, interposed continuous objections to the testimony offered, and said assignments of error involve, first, the objections so made and exceptions taken; second, the refusal to give instructions requested, predicated upon the proposition that all of said testimony was hearsay, and therefore incompetent. In support of his contention counsel for Appellant cites the cases of Oxier et al. v. United States, 1 Ind. Ter. 85, 38 S. W. 331; Cannada v. State, 29 Tex. App. 537, 16 S. W. 341. We do not believe that the rule enunciated in the foregoing cases applies to this case at bar. To support a conviction there must be evidence that the property in question was actually stolen. In what manner may this proof be made ? Must it always be direct and positive? Is it absolutely essential in all cases that the proof of the corpus delicti should be established independent of the other elements of the offense? In many, and perhaps most, cases to support a conviction, direct proof that the property was feloniously taken from the person named in the indictment as owner is necessary. Yet it is not essential in all cases that there should be any direct evidence upon this point. The application of the rule must always depend upon the facts of the case. Appellate courts should carefully consider and guard against so construing the law that a proper rule of evidence would be preverted into a means of escape from the merited punishment of an offender. Circumstantial evidence may be resorted to for the purpose of proving the corpus delicti in the same way and to the same extent that it may be for the purpose of connecting the accused with the commission of the offense.Mr. Bishop, in discussing the subject, says:

. “If we look at the matter as one of legal principle, we can hardly fail to be convinced that while the corpus delicti is a part of the case which should always receive careful attention, and no man should be convicted until it is in some way made clear that a crime has been committed, yet there can be no one kind of evidence to be always demanded in proof of the facts any more than of any other.” (1 Bishop on Criminal Procedure, § 1071).

Mr. McClain says:

“Thé corpus delicti need not be shown by direct evidence, that is, there need not necessarily be proof of loss of property by theft distinct from the fact showing that property found in the defendant’s possession was wrongfully taken from the owner thereof. Proof of the act is not necessary where the circumstances can only be explained by a felonious act.” (i-McClain on Criminal Law, § 612).

Neither is it essential that the corpus delicti should be established by evidence independent of that which tends to connect the accused with its perpetration. The same ’ evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence.

“Absolute positive evidence is not necessary to establish the corpus delicti of a crime, but proof thereof may be made by circumstantial evidence; and, if there is a reasonable inference deducible from the evidence of the existence of the corpus delicti, it is the duty of the court to submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury.” (Martin v. State, 125 Ala. 64, 23 South. 92 — -following Granison v. State, 117 Ala. 22, 23 South. 146; Roberts v. State, 61 Ala. 401.)

“The same general evidence of property is admissible in criminal cases as in civil cases. Possession with general acts of ownership over the horse are sufficient to warrant a verdict where there is no evidence offered to rebut or contradict the right of property.” (Barnes v. People, 18 Ill. 52 65 Am. Dec. 699).

It never was the rule of the common law that nonconsent must be shown, and that the owner of the stolen property must be produced as a witness to prove such nonconsent, and consent is a matter simply of defense. The present laws of our state provide a penalty for stealing domestic animals, but do not define the offense, but simply provide that, if any person shall steal the animals mentioned, he shall be guilty of a felony. Therefore the common-law rule now applies to our state, but here in this case nonconsent is averred in the indictment and must be proved. We believe the evidence offered was sufficient. Mr. McClain in discussing the question says:

“Where the question of want of consent of the owner becomes material, it is not necessary to prove such want of consent by the evidence of the owner himself. It may be shown by others having knowledge of the facts.” (1 McClain on Criminal Law, P- 558).

In People v. Jacks, 76 Mich. 218, 42 N. W. 1134, Sherwood, C. J.. in speaking for the court, says:

“We think the fact of nonconsent to the taking may, however, be proved by any other person having knowledge of the facts as well as by the owner or the person having control of the property at the time, or by facts and circumstances which sufficiently satisfy the jury that the property was feloniously taken.”

In Kemp v. State, 89 Ala. 52, 7 South. 413, the court says.

“There was evidence tending to connect the defendant with the commission of the offense charged. His presence sufficiently near the scene of the crime to have been the author of it, and the evidence that he was provided with the means with which the act was done, appears in evidence. It further appears that he hastily left the immediate vicinity. This was certainly proper to go to the jury as a basis for an inference of guilt. * * * The fact that the owner caused search to be made for the stolen property is a cogent circumstance to show want of his consent to the taking.”

Rapalje on Larceny and Kindred Offenses, § 135; Rains v. State, 7 Tex. App. 588; State v. Osborne, 28 Iowa, 9; People v. Dean, 58 Hun. 610, 12 N. Y. Supp. 749; Spruill v. State, 10 Tex App. 695.

It is also insisted that the evidence is insufficient to show venue. We think the fact that the larceny was committed within the jurisdiction of the Central District of the Indian Territory was sufficiently proved, and no error was committed by the trial court in so ruling.

We have set out the evidence somewhat in detail, for the purpose of showing that it presented a proper case for the determination of the jury under the authorities above quoted. The circumstances shown; standing as they do wholly uncontradicted and unexplained, lead to but one natural conclusion, namely, that the larceny charged was committed, and that the defendant, Campbell George, committed it. On the Sunday the horse disappeared he and Walter Vail were seen by various witnesses near the camp of John Adkins. They left there that day or night, and on the next day were seen near Mill Creek, defendant with the Adkins horse, and Walter Vail with the witness’ (Ward’s) horse. They were riding rapidly westward. The horse defendant was riding had been roached. It is shown that John Adkins immediately instituted a search for his horse, and with witness Riddle found, near his home, where the horse had been roached. He then, with Riddle, traced and followed his horse to Walter Vail’s in the “Pott” country. They found Walter Vail gone from his home. Riddle then, on Adkins’ request, proceeds to the Comanche country, and finds at the place of the defendant’s brother, Bob George, Adkins’ horse and Ward’s horse, which had been stolen about the same time. Riddle takes possession of Adkins’ horse, brings him back, and delivers him to Adkins. The horse is identified by two witnesses as the one defendant had possession of. The effect to be given to the foregoing facts is strongly reenforced by the failure to explain defendant’s possession of the horse, or to offer the testimony of his brother, Bob George, or Walter Vail. After a careful examination of the record we find there is no such absence of evidence of guilt as to warrant the interference of this court, and we have no hesitation in saying that the facts and circumstances thus shown, when all taken together, and in the absence of any explanation, are sufficient to produce in the minds of reasonable men an irrestible conviction of the defendant’s guilt.

The next errors assigned, being the twelfth, thirteenth, and fourteenth, go to the question of the sufficiency of the instructions on circumstantial evidence, and 'the refusal of the court to give the instructions requested by defendant. One of the instructions so requested is as follows:

“The court instructs the jury that the facts relied upon to show the defendant’s guilt must not only be inconsistent with his innocence, and, if the facts are susceptible of two interpretations, one of innocence and one of guilt, the interpretation of innocence must be accepted on the defendant’s behalf.”

This was refused by the court, and the jury was instructed as follows:

“To work conviction, each of the necessary allegations to establish the guilt of the accused must be proven by competent evidence beyond a reasonable doubt, and the facts and circumstances proven must be not only inconsistent with the innocence of the accused, but inconsistent with any other conclusion but that of guilt.”

This • instruction is not as complete as it should be, but in our opinion it is as clear and complete as the instruction requested, and under the rule that, where a similar instruction has been given, a requested instruction need not be given, in our opinion no error was committed.

The seventeenth assignment of error is based upon the fact that, after resting the case, defendant declined to offer any testimony. The United States attorney immediately requested that the case be reopened for the purpose of introducing further evidence as to the citizenship of the defendant. The court granted this permission over the objection of defendant. This request was addressed to the sound discretion of the trial court,- and, unless it appears that such discretion was abused to the prejudice of the substantial rights of the defendant, this court cannot consider the same. In our opinion there was no error in the ruling .of the trial court.

The eighteenth, nineteenth, twentieth, and twenty-first assignments of error are predicated upon the proposition that there was none other than opinion and hearsay 'evidence offered to sustain the allegation of the indictment that the defendant was not then and there a member of any Indian tribe or nation, and there was no competent evidence in proof of said allegation.

“To establish pedigree, family hearsay is essential, since, if what has been handed down in families cannot be in this way proved, pedigree could not in most cases be proved at all.” (Wharton’s Crim. Ev. § 233. See, also, 234).

In Comstock v. State, 14 Neb. 205, 15 N. W. 355, Lake, C. J., says:

“The next objection is to the ruling of the court on the admission of evidence. The prosecuting witness was asked what relation she bore to the prisoner, and answered that she was his daughter. It is claimed that this was incompetent testimony, for the reason that the fact of her parentage was one of which necessarily she could know nothing except as hearsay. We do not regard this objection- as sound. It is certainly competent for one who from his .earliest recollection has been a member of one’s family, given his name, and reared in the belief, and in all ways given to understand that he is a son in the household, to testify of his parentage. His testimony may not be satisfactory or conclusive of the fact, but it is at least admissible for what it is worth in the minds of the jury, and clearly sufficient to make a prima facie case, thus throwing the burden of overcoming it upon him who controverts it.” •

To the same' effect is the doctrine in the case of Reed v. State, this being a case where Wyandotte Indians were passing through Desha county, Ark., and camped for a few weeks in a white settlement, and while there one of their number was killed by defendant, Reed. Trial and conviction was had and an appeal vtaken to the Supreme Court of Arkansas, one of the grounds being that, as deceased was alleged to be a Wyandotte Indian, proof of the same was essential, and could not be made by hearsay evidence. Chief Justice English in delivering the opinion of the court, among other things, said:

“The court below was right in deciding that it was com-, petent to prove by common reputation that the deceased was a. Wyandotte Indian. The people of this country being generally Anglo-Saxon, a person coming into any community of a different race bears upon him such peculiar marks of his nationality as to enable the community very soon to form an opinion in reference to it sufficiently certain for all the purposes of legal identity. It stands upon the same footing as with the proof of pedigree. The witness Sexton stated that he heard from those with the Indian that was killed that he was a Wyandotte Indian, and to this evidence the defendant objected, and excepted to its admission by the court. This statement, if taken by itself, is not satisfactory, but, when taken in connection with the testimony of the other witnesses who testified on the trial, it was doubtless competent evidence. * * * These remarks are made in reference to the competency of the testimony. The jury were the judges of its sufficiency upon this point as upon others.”

We think the testimony offered on behalf of the government was competent, and at least clearly sufficient to make a prima facie case. In our opinion the trial court committed no error in ruling that said testimony was competent.

It is claimed in conclusion, by the twenty-second assignment of error, that the court errer in delivering to the jury the certified copy of the indictment containing a copy of the former verdict printed upon it, the name of Campbell George, and the name of the foreman having been added to the printed form. The record shows that no objection was made on the part of the defendant to this certified copy, and counsel for defendant offers no argument in support of this last assignment. It is a rule of this court that assignments of error based upon rulings where the record shows that no objection was made, and where no exception was taken, will not be considered by this court, except in the interest of justice.

We believe the defendant had a fair and impartial trial. Under the well-settled rule, where there is sufficient evidence in the record upon which the verdict may be fairly based, as in this case, this court will not reverse thé judgment on the ground of the insufficiency of the evidence. We find no prejudicial error in the record, and for the reasons given in this opinion the judgment of the United States Court of the Central District of Indian Territory must be affirmed.

Denied February 20, 1909.

Judgment affirmed.

FURMAN, Presiding Judge, and BAKER, Judge, concur.

On Motion for Rehearing.

Per Curiam.

Through respect for the able counsel who represents the defendant, we have carefully gone over the entire record in this case, in connection with the motion for a rehearing, and the authorities cited. The result of our deliberations has strengthened our confidence in the views expressed and the conclusion reached in the original opinion. It would be a waste of time to repeat what was said there.

We desire to reaffirm the announcement, heretofore made, that when a defendant is clearly guilty this court will not reverse a conviction upon a technicality or exception which does not affect the substantial rights of the defendant. This is the settled policy of this court.

We have no sort of doubt of the guilt of the defendant, and while there may have been some irregularities in his trial, yet we believe that he has been fairly tried and properly convicted. We cannot understand how an honest man could act as the testimony in this case shows that- defendant has acted. His conduct is absolutely inconsistent with his innocence, and adds increased force- to the testimony of the prosecution, and makes practically certain that which otherwise might have been open to dispute. He had once before been convicted. He therefore knew the convincing character of the evidence against him. If his connection with the horse was honest, he could have explained it by producing Bob George and Walter Vail as witnesses in his behalf. But in the face of the former conviction, and with a full knowledge of the testimony against him, which, if untrue, could have been contradicted or explained by Walter Vail and Bob George, the defendant remained as dumb as an oyster, and refused to place these witnesses on the stand or to account for their absence, but depends alone upon the ability of his counsel to make a purely technical defense. It is unconceivable to us how an innocent man could be induced to adopt such a course. If upon any question in the case the testimony for the prosecution was uncertain, this uncertainty was cured by the conduct of the defendant. An honest man, when charged with theft, and proven to have been in possession of recently stolen property, will take some steps to show the good faith of such possession and to vindicate his character. It is true that the law does not require him to do so, but if it is shown that witnesses are accessible to him by whom he can prove his good faith, if he did act in good faith, and he refuses to produce those witnesses, he cannot complain if this failure is considered as a circumstance against him. Such conduct is a just basis for the conclusion that if those witnesses were produced their testimony would not contradict, but would confirm, the testimony against the defendant.

By failing to offer any evidence when it was in his power to do so, if he was innocent, the defendant cannot be heard to complain if the jury placed the strongest construction possible against him upon the evidence offered by the prosecution, and this court approves the verdict at which they arrived. It is our purpose to sustain the action of trial courts and the verdicts of juries in their efforts to enforce the law, punish criminals, and thereby protect honest and lawabiding people in the peaceable enjoyment of their property and lives, and, when a defendant is proven to be guilty, he need not look to this court for relief upon any technicality which does not affect his substantial rights.

Motion for rehearing denied.