author: DONEE, Judge.

text:
      Ex parte B. M. Cranford.
    No. A-424.
    Opinion Filed November 22, 1909.
    (105 Pac. 367.)
    1. HABEAS CORPUS — Grounds for Relief. Section 4867, Wilson’s Rev. & Ann. St. 1903. provides: “No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: * * * (2) Upon any process issued on any final judgment of a -court of competent jurisdiction.” Held, upon 'application for writ of habeas corpus showing commitment on judgment of conviction for the crime of adultery, that the writ be •denied and rule to show cause refused.
    2. ARREST — Bench Warrant — Bill of 'Rights. The declaration of section SO of the Bill of Bights that “no warrant shall issue-but upon probable cause, supported by oath or affirmation, describing as particularly as may be the place to be searched, and the person or thing to be seized,” has no application to a bench warrant issued upon an information filed in the district court pursuant to the finding of an examining magistrate, wherein the party charged by complaint filed has been bound' over on the finding of p.robable cause to await the action of the district court.
    3. ADUILTERY — Persons Entitled to Prosecute. Under section 2264, Wilson’s Rev. & Ann. St. 1903, defining adultery, and requiring that “prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by tlhe husband or wife, of the other party to the crime: Provided, that any person may m.ake' complaint when persons are living together in open and notorious adultery.” held that, in a prosecution -commenced and carried on -by the wife of defendant, the fact that defendant’s wife obtained a divorce before his trial did not deprive the district court of jurisdiction to try the cause. ,
    4. HABEAS CORPUS — Remedy by Writ of Error or Appeal. Ap-. pellate courts uniformly hold that the writ of habeas corpus id not to take the place of a writ of error or of an appeal. '
    (Syllabus by the Court.)
    Original application bj' B. M. Cranford for writ of habeas . corpus.

    Writ denied.
    B. M. Cranford, petitioner, was convicted in the district court of Pontotoc county of the crime of adultery, and was thereupon sentenced to imprisonment in the state prison for a term of five years.

      Crawford & Bolen, for petitioner.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   DONEE, Judge.

On November 12, 1909, there was filed in this court a petition duly verified, praying that a writ of habeas corpus issue to T. J. Smith, sheriff of Pontotoc county, ancl that, upon a hearing thereon, petitioner be discharged.

The petition, in substance, avers that on the 12th day of June, 1909, Mary E. Cranford, then the wife of petitioner, made complaint on oath before II. J. Brown, a justice of the peace' of Pontotoc count}', wherein petitioner was charged with the crime of adultery; that on the 15th day of Jirne, 1909, upon a preliminary examination had before said justice of the peace, petitioner was held for trial in the district court of said county,¡ and on the 24th day of June, 1909, Robert Wimbish, county attorney for said county, filed in the said district court an information charging petitioner with the crime of adultery, which information, omitting the title is as follows:

“Comes now Robt. Wimbish, the duly qualified and acting county attorney in and for Pontotoc county, state of Oklahoma, and gives the district court of the Seventh judicial district of said county and state of Oklahoma to know and be informed that the above-named defendant, B. M. Cranford, late of Pontotoc county, did in the year of our Lord one thousand nine hundred and nine commit the crime of adultery in the manner and form as follows: That is to say, the -said defendant did in said county and state at the date above named unlawfully, wilfully, and feloniously live in open and notorious adultery with one Maggie Jones, a female person, the said B. M. Cranford being then and there- a male person and being then and there lawfully married to another female person, to wit, Mary E. Cranford; and the said B. M. Cranford, a male person, did then and there unlawfully, wilfully, and felon-iously and voluntarily have sexual intercourse with one Mhggie Jones, a female person, the said B. M.'Cranford being then and there lawfully married to another female person, to wit, Mary E. Cranford, contrary to the form of the statute in such cases ma&e and provided, and against the peace and dignity of the state of Oklahoma. Robt. Wimbish, County Attv. State of Oklahoma, Pontotoc County. I, Robt. Wimbish, being duly sworn on oath do state that the facts set out in the foregoing information are true based on lawful information and belief. Robt. Wimbish. Srrbscribed and sworn to by Robt. Wimbish this the 24th day of June, 1909. W. T. Cox, Clerk Dist. Court, Pontotoc Co., Okla.”

' Petitioner further avers that he was again arrested upon a bench warrant issued upon said information; that on the 13th day of October, 1909, he was tried and found guilty as charged; that on the 9th day of November, 1909, the said court rendered judgment on said verdict, and, in accordance therewith,' sentenced him to imprisonment in the penitentiary for a term of five years; that he is now1, held in the common jail of Pontotoc county in the custody of said sheriff. Petitioner avers that said judgment is illegal and void, and his restraint thereunder is illegal and unauthorized, for the following reasons, to wit:

“First, because the information is not verified as is required by law, the same being verified by the county attorney, ‘based on lawful information and belief/ the sworn affidavit of the said Mary E. Cranford not being attached to the information and made a part thereof, and no allegation in said information as to what the lawful information ivas and no allegation that it was based on said affidavit of Mary E. Cranford, and was not positively sworn to, as required by lawr, announced by this court in the Salter Case, 2 Okla. Cr. 464, 102 Pac. 719, and that said court had no jurisdiction of the case, and that said judgment is absolutely void; second, for the reason that Mary E. Cranford, who had been the wife of your petitioner at the time of the alleged crimes, filed a suit in the district court of Pontotoc county, Okla., and on the 29th day of June, 1909, and long before this case ivas tried, obtained a divorce from this petitioner, and that no notice of appeal was given within 10 days, and that no appeal has been taken, and that at the time of the trial, verdict, and judgment she was not the wife of this petitioner, and that no prosecution could be ‘carried on’ by her, but said suit was abated; wherefore your petitioner asks that a writ of habeas corpus issue, and that upon, hearing he be discharged.”

To this application, the Attorney General filed a demurrer as follows:

“Comes now on this 15th day of November, 1909, the Attorney General, and for and upon behalf of the state of ObjLa-homa demurs .to the petition in the above-entitled matter for the reason that same does not state facts sufficient to entitle the petitioner to a discharge, in that it is immaterial that the complaining witness, Mary E. Cranford, had procured' a divorce from the petitioner after the commission of the alleged offense, and after jurisdiction had attached over the person of the petitioner and the subject-matter of the action before the trial was had thereon, as the divorce granted for the adultery charge could not abate the offense, nor divest the court of jurisdiction of the subject-maTter thereof. Second. That the irregularities complained of as to the verification of the information could not be attacked collaterally on habeas corpus, but could only be attacked by appeal after objection made in due time and exceptions saved to the action of the trial'court thereon.”

We are of opinion that the demurrer should be sustained. It appears by the averments of the petition that the issuance of the writ, or a rule on said sheriff to show cause why the writ of habeas corpus should not be issued for petitioner’s release, would result in a return that said sheriff holds the prisoner by virtue of the sentence of the district court of Pontotoc county. The facts before the court are precisely the same as if the writ of habeas cor pm had been served or a rule to show cause had been made. The court can determine the rights of the petitioner to be released, upon the pleadings as correctly and with more convenience, in the administration of justice, than if the writ, or a rule to show cause, had issued. Upon principles which may be considered to be well settled in this court, it can.have no right to issue this writ of habeas corpm as a means of reviewing the judgment of the district court upon the ground of error in its proceedings.; but if it shall appear that the district court had no jurisdiction to render the judgment which it gave, and undér which the petitioner is held a prisoner, it is not only within the powers of this court, but it is its duty to allow the writ of habeas corpus and discharge the petitioner. Ex parte Charles Johnson, 1 Okla. Cr. 414, 98 Pac. 461; Ex parte Gudenoge, 2 Okla. Cr. 110, 100 Pac. 39 ; Ex parte Mingle, 2 Okla. Cr. 708, 104 Pac. 68; Ex parte Justus, ante, p. 111, 104 Pac. 933.

If the district court had' jurisdiction of the person and the offense-for which the petitioner was tried, and has not exceeded its powers in the sentence which it pronounced, this court can inquire no further Whether the information sets forth in comprehensive terms the offense, which the statute describes and forbids, and for which it prescribes a punishment, is in every case a question of law, which must necessarily be decided by the trial court, and is therefore clearly within its jurisdiction. Its decision oh the conformity of the information to the requirements of the statute may be erroneous, but, if it is so, it is an error of law of the trial court' acting within its jurisdiction, which could be corrected on an appeal, but which cannot be looked into on a writ of habeas corpus limited to an inquiry into the existence of the-jurisdiction of the trial court. . ;

The jurisdiction of the district court is denied in this case upon two grounds :■ First, for the reason that the information is verified only on information and belief, and the case of Salter v. State, 2 Okla. Cr. 464, 102 Pac. 719, is referred to. The principle enunciated in that case has no application to the case at bar. In that case this court said:

“But we limit the decision to informations charging misdemeanors. Informations in felony cases are to be tested, as near as may be, by the statutes regulating indictments, and we do not wish to indicate in advance what we should hold in a case where the information charges a felony”

The. Constitution of Oklahoma authorizes the prosecution of felonies by informations, but with the following restrictions: Section 17, Bill of Bights, declares:

“No person shall bé prosecuted for a felony by information without having had a preliminary examination before an examim ing magistrate, or having waived such preliminary examination.”

In this case it appears that upon a written complaint properly verified-by the wife of the petitioner, wherein he was charged with the crime of adultery, he was arrested, and upon a preliminary examination the magistrate found that there was sufficient cause to believe him guilty as charged, and bound him over to answer the same before the district court. This was sufficient finding of probable cause upon which to base the bench warrant, and was,not in violation of section 30 of the Bill of Bights.

The fact that the information was not positively sworn to could not affect the jurisdiction of the district court; and the fact that the information does not recite that said prosecution was “in the name and by the authority of the' state of Oklahoma” (section 19, art. 7, Const.) is not a fatal defect. Arie v. State, 1 Okla. Cr. 666, 100 Pac. 23, 33. In Caples v. State, ante, p. 72, 104 Pac. 493, Furman, Presiding Judge, said:

“It is not necessary that an information should contain the words ‘in the name and by the authority of the state of Oklahoma,’ It is sufficient if it appears from the record of a case that the prosecution was carried on in the name and by the authority of the state But this court suggests that, as a matter of good pleading, it would be well for informations to begin with these words.”

It only remains to consider whether the fact that the prosecuting witness, Mary E. Cranford,- having obtained a divorce from petitioner before his trial, deprived the district court of the power of proceeding to try the petitioner and sentence him. "We have no difficulty in holding that the divorce secured by the prosecuting witness in no way affected the jurisdiction of the district court. Section 2264, Wilson’s Rev. & Ann. St. 1903, prescribes:

“Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex ; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be or by the husband or wife of the other party to the crime; Provided, that any person may make complaint when persons are living together in open and notorious adultery.”

In the case of In re Smith, 2 Okla. 153, 37 Pac. 1099 (decided at the June term, 1904), it was held :

“That a prosecution for adultery cannot be commenced ‘ and carried on by a woman after she has obtained a decree of divorcement from the party charged to have committed the crime.”

This ease is not in point for the reason that the prosecution in the Smith Case was under a law which was amended in 1897 by the enactment of the present statute, which differs from the original statute in the supplemental proviso.- And in this information the charge is that the adulterj1- was open and notorious.

For the reasons stated, the writ of habeas corpus is denied, and a rule to show cause is refused.

FURMAN, PRESIDING Judge, and OWEN, Judge, concur.


source: Caselaw Access Project

author: DOYLE, Judge

license: Public Domain

text:
      Ex parte Bert Fowler.
    No. A-213.
    Opinion Filed November 22, 1909.
    (105 Pac. 180.)
    1. ' HABEAS CORPUS — Scope of Writ — .Contempt—Review. The Criminal Court of Appeals will interfere on habeas corpus in contempt proceedings only when it clearly appears that the action of the lower court punishing for a contempt was without authority of law and absolutely void, because such court had no jurisdiction of the subject-matter or the party, or was wholly without power to issue the order of commitment.
    2. HABEAS CORPUS — Jurisdiction—Contempt for Violation of Injunction. If the court has authority to grant the temporary injunction, no matter what irregularities may attend the granting thereof, or however erroneously the court may ha/ve acted in granting it, so long as the injunction .exists, it must he obeyed, and a commitment for contempt for a violation thereof will not he reviewed on habeas corpus.
    3. COURTS — Criminal Court of Appeals. — Jurisdiction—Habeas Corpus — Contempt. The Criminal Court of Appeals, having no authority to review on error or appeal, the judgments of the district and county courts of the state in civil actions, will not review on habeas corpus the legality of the detention of a party . to a civil action, who has been committed for a contempt oí court, arising in said cause, where the petitioner avers he was denied the right of appeal., as such matters are properly within the jurisdiction of the Supreme Court in the exercise of its appellate jurisdiction in civil cases and its general superintending control over all inferior courts.
    (Syllabus by the Court.)
    Application by Bert Fowler for a writ of habeas corpus to review his commitment for contempt in violating an injunction restraining petitioner and another from maintaining a liquor nuisance.
    Writ denied.

      This is an application to this court for a writ of habeas corpus to relieve the petitioner, Bert Fowler, from the custody of Hiram Stephens, sheriff of Bogers county.
    The amended petition sets out with particularity the proceedings in the district court of Bogers county and has annexed to it as an exhibit the pleadings and proceedings in an action commenced on the relation of William H. Hall, as county attorney of Bogers county, before the district court of said county in the name of the state of Oklahoma, wherein Bert Fowler and John Sharp are defendants.
    The petition in said action alleges, in substance, that a liquor nuisance was being maintained by said defendants, in a brick building in the town of C'helsea, Bogers county. In the prayer of said petition, among other things, the following relief is prayed for; That in the meantime the said defendants may be enjoined until the further order of the court of keeping open, or permitting to be open, the said building in the town of Chelsea, and from selling, bartering, or giving away, and from keeping for sale, barter, or gift, or use in or about said premises any beer, ale, wines, or other intoxicating liquors.
    Pursuant to said prayer, and on the application made by the said county attorney, to the Honorable T. L. Brown, judge of said district court, at chambers, an order was made and entered in said cause on the 15th day of May, 1909, whereby it was ordered, adjudged, and decreed “that said defendants, and each of them, their servants or agents, be, arid they are. hereby, restrained and enjoined from keeping or permitting to be open the rooms on the first floor of the building in the town of Chelsea, and from selling, bartering, or giving away, and from keeping for sale, barter, or gift, or delivery in and about said premises any beer, ale, wine, or any spirituous, vinous, fermented, or other intoxicating liquors, and that the sheriff shut up said building and abate said nuisance until judgment in this suit, or until the further order of the court.”
    The defendants entered á general appearance- in said cause by filing therein their motion to dissolve said temporary injunction, which said motion was heard by the judge of said court, at chambers, and thereupon said order was modified by an order, the material portion of which is as follows:
    “It is therefore ordered, adjudged, and decreed by the court that said defendants, and each of them, .their servants, agents, and employees, be, and they are, hereby enjoined and restrained from keeping or permitting to bo kept on the first floor of the building located on Lots 5 and'6 in Block 40, in the town of Chelsea, Bogers county, Oklav and from selling, bartering, giving away, and from keeping for sale, barter, or delivery in any manner in and about said premises any beer, ale, wine, spirituous, vinous, fermented, or other intoxicating liquors, and from permitting such liquors to be sold, bartered, or given away, or kept for sale, barter, or gift, or delivery in any manner in and about said premises, and that said defendants are hereby restrained and enjoined from allowing any kinds or character of intoxicating liquors whatsoever to be kept, stored, sold, bartered, or given away about the said premises, and they are therefore restrained and enjoined from permitting crowds of persons to assemble in and about said premises, or to become boisterous, or to use loud talk in or about said premises, and are restrained and enjoined from committing any act that is offensive, indecent, or improper in and about said premises, or permitting any other person to commit any of said offenses, or permitting any person to drink any intoxicating liquors about said premises, and the sheriff of this county is hereby ordered to see that this order is carried out, until further ordered by this court.”
    On the 7th day of June, 1909, the county attorney filed in said cause an information to which said information was attached the affidavit of one M. Y. McClain, charging that on or about the 26th day of May, 1909, the said defendants violated said temporary injunction, and thereupon a notice and citation was issued by the Honorable T. L. Brown, judge of said district court, directed to said defendants, and commanding them to appear at the courtroom of the district court- on the 8th day of June and make answer to the charge of violating said temporary injunction. The defendant, Bert Fowler, petitioner herein, entered a plea of not guilty to the charge of violating said temporary injunction and demanding a trial by jury. That on the 9th day of June, 1909, said trial was had, and the jury returned a verdict, finding him guilty of violating said injunction. Whereupon said defendant-filed a motion for a new trial, which was overruled by the court. Thereupon the court pronounced judgment and sentence fining said defendant $50 and ordering, hint committed to the county jail of Rogers county for a period of 10 days and ordered that commitment issue. Whereupon said defendant gave notice of an appeal, and asked the court to fix the amount of his bail bond pending his appeal. Petitioner avers that said judge of said district court refused tc fix the amount of a bail bond, or supersedeas, pending an appeal, and instructed said sheriff to accept no bond and held that this was a cause from which no appeal would lie.
    The respondent herein, Hiram Stephens, sheriff, makes return that he holds petitioner by virtue of said commitment, which is as follows:
    “State of Oklahoma, Rogers County — ss.: In the District Court of Said County. The State of Oklahoma to the Sheriff of Said County, Greeting: Whereas, on the 9th day of June, 1909, Bert Fowler was brought before me upon a charge of contempt of court; and, whereas, on the 9th day of June, 1909, after an impartial trial upon said charge, the said Bert Fowler was found guilty as charged, and, as punishment therefor, it is ordered by me that he pay to the state of Oklahoma a fine of fifty dollars ($50),'that he be confined in the jail of the county of Rogers for a term.of ten days (10): You are therefore commanded to receive the said Bert Fowler into your custody and to confine him in the- jail of the county of Rogers for ten days. You will make due return of this writ with your doings indorsed thereon. Witness my hand and official seal this 10th day of June, A. D. 1909. T. L. Brown, Judge District Court. Officer’s Return. Received this writ on the 10th day of June, 1909, and executed the same by committing to jail Bert Fowler. Fees. For commitment to jail, 25 ct. Hiram Stephens, Sheriff.”
    On June 11, 1909, petitioner filed his original petition- for a writ of habeas corpus in this court, praying that bail be allowed superseding said judgment, until the cause could be reviewed.by 'this court.

      Eight, Ezzard '& Holtzendorjf, for petitioner.

      William Hall, Co. Atty, and Fred S. Caldwell, Counsel to the Governor, for respondent.
   DOYLE, Judge

(after stating the facts as above). The original case before the district court of Rogers county was an equitable action, and therefore a civil proceeding. The orders made in said 'cause, and the trial had for a violation thereof, were proceedings aneilláry to said action. It will be conceded that the Criminal Court of Appeals has no appellate jurisdiction to review the proceedings had in said cause before the district court. The authority to review the proceedings had in said cause is vested in the Supreme Court, as the appellate court in civil actions; this jurisdiction being exclusive.

While counsel for petitioner and respondent had presented the propositions involved to the court in elaborate and able briefs, yet we believe that this is a cause not properly before this court; this court being without authority to review on appeal the judgments of the district courts in cases within their civil jurisdiction. Upon principles which may be considered to be well settled in this court, it can have no right to issue ’writs of habeas corpus in criminal cases, ás a means of reviewing the judgments of district or county courts, simply upon the ground of error in their proceedings. While it is equally well settled that, when a person is held under the sentence of any court of this state in regard to a matter wholly beyond or without the jurisdiction of that court, it is not only within the authority of this court, but it is its duty, to inquire into the cause of commitment when the matter is properly brought to its attention, and if found to be, as charged, a matter of which such court had no jurisdiction, to discharge the prisoner from confinement. In the case at bar, however, it is apparent that the commitment issued upon a judgment of a court which had jurisdiction of the subject-matter and the person of the defendant, and, while the action' of said court may possibly have been irregular and erroneous in denying the right of an appeal from said judg-' ment and in refusing to allow bail, it was not without authority of law. The question is: Did said district court have the power to render this particular judgment, or to issue the commitment thereon ?

While this court, under our Constitution and laws, has authority to issue writs of habeas corpus for contempt proceedings before inferior courts in cases of this kind, it will exercise this function with the greatest care, and will 'only interfere where it clearly appears that the action of the lower court in a contempt case was without authority of law and absolutely void. This court will not permit the writ of habeas corpus to be used to interfere with the power and authority of the courts to properly administer the law. The consideration of the question in the ease at bar woulcl necessarily involve a construction of the laws relating to proceedings in error and the rules of practice of the Supreme Court in civil eases, also, the constitutional, statutory and inherent power of the Supreme Court to issue such writs as may be necessary to exercise its jurisdiction, and to prescribe rules for invoking its superintending authority over inferior courts. We have no doubt that upon proper application made to the Supreme Court, regardless as to whether the trial judge refused to allow an appeal or ñx bail for supersedeas pending appeal, the question would be determined by the Supreme Court. There is no occasion and we have no desire to intrude our views upon matters wholly within the authority of the Supreme Court.

Obviously the district court in fixing the penalty treated the matter as a criminal contempt, and petitioner, at the time of filing this application, considered the cause pending before said court as being in the nature of a criminal action. As to the distinction between the civil and criminal contempts, the views of this court are expressed in the case of Ex parte Gudenoge, 2 Okla. Cr. 110, 100 Pac. 39.

For the reasons stated, the'writ of habeas corpus, is discharged.

It is therefore ordered by the court that the writ be denied, and the petitioner be remanded.

FUKMAN, PRESIDING Judge, and OWEN, Judge, concur.


author: PEE CTJBIAM.

text:
      Ex parte S. M. Dodson et al.

    No. A-214.
    Opinion Filed November 22, 1909.
    (105 Pac. 182.)
    Original application by S.’ M. Dodson and Newt Scudder for a writ of habeas corpus.

    Writ denied, and petitioners remanded to custody.
    This is an application to this court for writs of habeas corpus to relieve the petitioners, S. M. Dodson and Newt Scudder, from the custody of Hiram Stephens, sheriff of Bogers county. The amended petition sets out with particularity the proceedings in the district court of Bogers county, and has annexed to it as an exhibit pleadings and proceedings in an action commenced on the relation of William H. Hall, as county attorney, of Bogers county, before the district court of said county in the name of the state of Oklahoma, wherein S. M. Dodson and Newt Scudder are defendants.
    ■ The petition in said action alleges, in substance, that a liquor nuisance was being maintained by said defendants in a two-story brick building, the first floor of which is used and occupied by said defendants, engaged in business under the firm, name and style of .the “Chelsea Drug Company.” Among other things, the following relief is therein prayed for:
    “Third. * * * That in the meantime the said defendants may be enjoined, until the further order of the court, from keeping open, or permitting to be open, the said building located on said lot 19 in block 40 in the town of Chelsea, in Bogers-county, Oída., and from selling, bartering, or giving away, and from keeping for sale, barter, or gift, or use in or about said premises, any beer, ale wine, or other .intoxicating liquors, and from permitting such liquors to be sold, bartered, or given away, or to be kept foi sale, barter, or use, in or about said premises.”
    Pursuant to said prayer, and on the application made by the said county attorney to the Hon. T. L. Brown, judge of the said district court, at chambers, an order was made and entered in said cause on the loth clay of May, 1909, whereby the following order was made on the loth day of May, 1909:
    “It is therefore" ordered, adjudged, and decreed by the court that said defendants, and each of them, their servants or agents, be and they are hereby restrained and enjoined from keeping or permitting to be open the first floor of the building located on lot 19, block 40, in the town of Chelsea, Bogers county, state of Oklahoma, and from selling, bartering, or giving away, and from keeping for sale, barter, gift, or delivering in and about said premises any beer, wine, ale, spirituous, vinous, fermented, and other intoxicating liquors, and from permitting such liquors to be sold, bartered or given away,, or kept for sale, barter, gift, or delivery in and about said premises, and that the sheriff shut up said building and aba+e said nuisance until further judgment in this suit, or until further order of the court.”
    The defendants entered a general appearance in said cause by filing therein their motion to dissolve the order of injunction heretofore granted, and thereupon the judge of said court at chambers made an order modifying the former order, the material portion of which does not differ from that part of the order heretofore quoted.
    On the 7th day of June, 1909, the county attorney filed in said cause an information, to which said information was attached the affidavit of one M. V. McClain, charging that on or about the 22d day of May, 1909, the said defendants violated said temporary injunction, and thereupon a notice and citation was issued by the Hon. T. L. Brown, judge of the said district court, directed to said defendants, commanding them to appear at the courtroom of the district court on the 8th day of June, and make answer to said charges of violating said temporary injunction. Thereafter, on the 8th day of June, 1909, the said defendants filed in the office of the clerk of the district court their demurrer to the information, which demurrer was overruled, and exception allowed. Whereupon said defendants entered a plea of “not guilty,” and the cause was called for trial on the issues raised for the contempt of court in violating the order of the court. A jury of 12 was called and sworn to try the cause, and upon the trial so had the jury returned a verdict finding the defendants guilty of violating the order of the court as charged. Whereupon'defendants filed motions for a new trial, which motions were overruled by the court, to which ruling the defendants excepted. Thereupon the court pronounced judgment and sentence, fining each of the defendants $50, and ordering them committed to the jail of Rogers county for a period of 10 days, and that commitment forthwith issue. Whereupon defendants prayed an appeal and asked the court to fix ihe amount of their bail bonds pending an -appeal. Petitioners aver that said judge of the said district court refused to fix the amount of their bail bonds or supersedeas pending their appeal, and instructed the said sheriff to accept no bond; the court holding that this .was a judgment from which no appeal would lie.
    The respondent, Hiram Stephens, sheriff, makes return that he holds petitioners by virtue of commitments which read as follows:
    “State of Oklahoma, Rogers County — ss.: In the District Court of Said County. The State of Oklahoma to the Sheriff of said County. Greeting: Whereas, on the 9th day of June, 1909, Newt Scudder was brought before me upon a charge of contempt of court; and, whereas, on the 9th day of June, 1909,. after an impartial trial upon said charge, the said Newt Scudder was found guilty as charged, and, as punishment therefor it was ordered by me that he pay to the state of Oklahoma a fine of $50.00, that he be confined in the jail of the county of Rogers for a term of ten days: You are therefore commanded to receive the said Newt Scud-der into your custody and to confine him in the jail of the county of Rogers for ten days. You will make due return of this writ with your doings indorsed thereon. Witness my hand and official seal, this 10th day of June, A. D. 1909. T. L. Brown, Judge of District Court. Officer’s Return. Received this writ on the 10th day of June, 1909, and executed the same by committing to jail Newt Scudder. Fees: For committing to jail, $25ct. Hiram Stephens, Sheriff.”
    “State of Oklahoma, Rogers County — ss.: In the District Court of Said County. The State of Oklahoma to the Sheriff of said County, Greeting: Whereas on the 9th day of June, 1909, S. M. Dodson was brought before me upon a charge of contempt of court ;and, whereas, on the 9th day of June, 1909, after an impartial trial upon said charge, the said S. M. Dodson was found guilty as charged, and, as punishment therefor it was ordered by me that he pay to the state of Oklahoma a fine of $50.00, that he be confined in the jail of the county of Eogers for a term of ten days: You are therefore commanded to receive the said S. M. Dodson into your custody and to confine him in the jail of the county of Eogers for ten days. You will make, due return of this writ with yrour doings indorsed thereon. Witness my hand and official seal this 10th day of June, A. D. 1909. T. L. Brown, Judge of District Court. Officer’s Beturn. Eeeeived this writ on the 10th, day of June, 1909, and executed the same'by committing to jail S. M. Dodson. Fees: For committing to jail, $25 ct. Hiram Stephens, Sheriff.”

      Eight, Ezzard & HoMzendorff, for petitioner.

      William, Hall, Co. Attv., and Fred 8. Caldwell, Counsel to the Governor, for respondent.
   PEE CTJBIAM.

The facts and issues in this case are the same as in the case of Ex parte Bert Fowler, ante, p. 196, 105 Pac. 180, and present the same questions.

For the reasons given in the opinion in that case, the writ of habeas corpus is denied, and petitioners remanded to the custody of the sheriff of Eogers county.


author: PER CURIAM.

text:
      Ex parte S. B. Caveness.
    No. 169.
    Opinion Filed November 22, 1909.
    (105 Pac. 184.)
    1. HABEAS CORPUS — Reduction of Bail. This court will not grant reduction of bail on habeas corpus, unless it clearly appears that the amount fixed by the trial court is excessive.
    2. HABEAS CORPUS — Return—Judgment. Section 4867, Wilson’s Rev. & Ann. St. 1903, provides: “No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when tne term of commitment has not expired, in either of the cases following: * * * (2) Upon any process issued on any final judgment of a court of competent jurisdiction.” And a judgment 'by a court of competent jurisdiction, valid on its face, is an unanswerable return to a writ of habeas corpus issued for the relief of a prisoner imprisoned by virtue of such judgment.
    (Syllabus by the Court.)
    Application by S. B. Caveness for writ of habeas corpus to obtain reduction of bail.
    Writ discharged.

      ■W. S. Pendleton, for petitioner.

      Charles L.' Moore K Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner alleges that he is unlawfully imprisoned at Tecumseh, in Pottawatomie county; that petitioner has been tried and convicted of the crime of violating the prohibition law in six cases; that his bail is fixed at the excessive and unreasonable amount of $250 in each ease, making the total bail in the sum of $1,500. It is further averred that petitioner’s imprisonment is illegal in this: That the verdict and judgment in each of said cases is illegal and unauthorized by law, because the sales which it is claimed were made by petitioner of intoxicating liquors, and upon which he was convicted in each case, were made at the special instance and request and solicitation of a special detective, who was then and there the agent of the state, being then and there a deputy sheriff of said county, and acting in his pretended purchase of said liquors under the express instructions of the sheriff and county attorney of said county.

We are of opinion, first, that petitioner has no cause for complaint, because the bail as fixed is very reasonable; second, that the question of insufficiency of the evidence'to sustain the verdict and judgment is hot a question to be reviewed in a habeas corpus proceeding. The statute provides (section 4867, Wilson’s Rev. & Ann. St. 1903) :

“That a prisoner shall not be discharged under a writ of habeas corpus, where it appears that he is held in custody by virtue of a commitment issued upon the final judgment of a court of competent jurisdiction.”

Appellate courts uniformly hold that the writ of habeas cor pus is not to take the place of a writ of error or the appeal. In re McNaught, 1 Okla. Cr. 528, 99 Pac. 24.

The writ of habeas corpus is therefore discharged.


author: PEE CTJEIAM.

text:
    Willie Adams v. State.
    No. 278.
    Opinion Filed November 22, 1909.
    (105 Pac. 1118.)

      Appeal from District Court, Latimer County; Malcolm R. Rosser, Judge.

    Willie Adams was convicted of larceny, and sentenced to two years’ imprisonment in state prison. His petition in error and case-made was filed in the Supreme Court on August 7, 1908, and was by the Supreme Court transferred to this court as provided by law.
    Dismissed.

      Charles L. Moore, Asst. Atty. Gen., for the State.
   PEE CTJEIAM.

Motion having been filed in the above-entitled cause to dismiss the appeal, on the grounds that notices to the county attorney of said county and the clerk of the district court that the defendant appeals from the judgment rendered, have never been ¿sferved as required by section 5610, Wilson’s Rev. & Ann. St. 1903, and notice of said motion to dismiss having been served as required by rule 6 of the rules of this court (1 Okla. Cr. xi, 101 Pac. viii), and no appearance having been made to resist said motion, the court, finds there is nothing in the record showing proof of service of notices that appellant appeals from the judgment as required by law. Upon the record before us, there is nothing which confers jurisdiction upon this court to review the errors set forth in the petition in error. There is no case in this court. For the reason stated, the purported appeal is dismissed, at the cost of plaintiff in error.


author: OWEN, Judge, FURMAN, PRESIDING Judge,

text:
    George Elmo Vance v. Territory.
    No. 114.
    Opinion Filed November 27, 1909.
    (105 Pac. 303.)
    1. CONTINUANCE — Discretion of Court — Appeal—Review. The granting' or refusal of a continuance in a criminal case is largely a matter of discretion of the trial court, and this courc will not reverse a trial court on a decision of a matter which rests in the sound discretion of the court, unless it is shown that there has been an abuse of discretion.
    2. CONTINUANCE — Motion—Requisites. A motion for continue anee must allege the residence of the witness, if the residence is known to the party, and the probability of procuring his testimony within a reasonable time.
    3. TRIAL — Indorsing Names of Witnesses on Indictment. Under section 5352, Wilson’s Rév. & Ann. St. 1903, the .court may permit the names of additional witnesses for the prosecution to be indorsed on the indictment after the jury is impaneled.
    (Syllabus by the Court.)

      Error from District Court, Canadian Countyj John II. Burford, Judge.

    George Elmo Vance was convicted of murder, and brings error.
    Affirmed.
    The plaintiff in error (hereinafter referred to as the “defendant”) was indicted in Roger Mills county, territory of Oklahoma, at the April term, 1906, charged with the murder of Walter Sheehan. At the September term, 1906, a change of venue was granted to Canadian count}', Oída. T. At the November term, 1906,' of the Canadian county district court, the case was continued on application of the defendant. At the March term, 1907, the defendant was tried and convicted and sentenced to confinement in the territorial prison at hard labor for life. The facts as disclosed by the record are, substantially, as follows: The defendant was a barkeeper in the Williams saloon in the-town of Sayre. The deceased, Walter Sheehan, and Henry Mattox became engaged in a quarrel. The defendant forbade them to fight in the saloon and stated that if there were any fighting to be done he would do it himself. Mattox left the saloon, but in a short time returned and renewed the controversy with the deceased. They became engaged in a fight, and, while thus engaged, the defendant, using a shotgun, killed the deceased, firing three other shots at a brother of deceased, who was in the room. The defendant claims that, at the time he fired the fatal shot, the deceased was pointing a pistol at him. The case was appealed, and by proper order transferred to this court.

      John B. Harrison, D. B. Weliy, and 8. B. Garrett, for plaintiff in error.

      Chas. West, Atty. Gen., and B. G. Spilman, Ásst. Atty. Gen., for the Territorjr.
   OWEN, Judge,

(after stating the facts as above). There are 45 assignments of error in this case. The first assignment is expressly waived in the brief filed by counsel for the defendant. The second and third are to the court’s overruling a motion for continuance. The fourth, fifth, and sixth are to the action of the court in overruling motions for new trial and in arrest of judgment, and are not insisted on in the brief filed. The seventh to the twenty-fifth, inclusive, are to the instructions given by the court. The twenty-sixth to the thirtieth, inclusive, are to the refusal of the court to give instructions requested by the defendant. The thirty-first is to the action of the court in allowing counsel for the territory to indorse additional names on the indictment after the jury had been impaneled. The thirty-second to the forty-fifth, inclusive, are to the action of the court in ruling on the admissibility of evidence.

We 'have carefully considered each of these assignments, but do not deem it necessary to copy them all in this opinion. In the brief filed by counsel for the defendant appears this statement:

“It is true that many of the errors of which we complain, taken singly, or standing alone, are seemingly harmless, perhaps are harmless; but we contend there are but few, if any, assignments to which we call the court’s attention, but what in a measure, though in some instances perhaps very slightly, affect the substantial rights of the accused, and but for which the case would not have been brought here/’

We agree with counsel in that statement. We have not ónlv considered the assignments separately, but have considered them together, and are driven to the .conclusion that the defendant in this ease had a fair trial and was not denied any substantia] right. We shall first consider the assignments which go to the action of the court in overruling motion for continuance.

The motion in this case was made on account of the absence of witnesses and the inability of the defendant’s leading counsel to attend the trial. The granting or refusal of a continuance in a criminal case is largely a matter of discretion of the trial court, and this court will not reverse the trial court on a -decision of a matter which rests in the sound discretion of the court, unless it is shown that there has been an abuse of discretion. It appears from the record in this case that the defendant asked for a continuance to secure the testimony of Tom Hughes, William Hardesty, Horace Gaither, William Caruth, Ed. Farris, and Frank Autrey. Before passing on the motion, the trial court heard the testimony of the deputy’ sheriff of Roger. Mills county and the city marshal of the town of Sayre, where the crime was alleged to have been eommittel. Their testimony was to the effect that William Hardesty and Frank Autrey were unknown. Neither of the witnesses had ever heard of any. one by that name, after making a diligent search for them. The witness Ed. Farris had removed to the state of Texas more than a year previous to the date on which the motion was filed. The witness Tom Hughes was known by the officers as an “all-around rounder,” and “was at home wherever his hat is.” The court ordered an attachment for the witnesses Caruth, Gaither, and Hughes. Caruth and Gaither were brought in and their testimony heard. It appears from the motion for continuance that the testimony Of Hughes, though material to the defendant’s defense, was cumulative. The motion for continuance states substantially that Hughes was an eyewitness, as was Gaither. Hnless it was made to appear to the trial court that the testimony of Hughes could, in all probability, be secured within a reasonable time, and that without his testimony the defendant would be materially injured or deprived of a substantial right, there could be no error in refusing continuance. There is no statement in the motion, neither was there any testimony offered by defendant, to convince the court there was a probability of securing the testimony of this witness. One of the provisions of the statute with reference to motions for continuance is that the affidavit must give the residence of the witness, if his residence is known, and the probability of procuring his testimony within a reasonable time.

As to that portion of the motion for continuance which refers to the absence of the principal counsel for defendant, we are of the opinion that the court did not abuse its discretion in refusing the continuance. It appears from the record that this case was continued at' the November term, 1906, on account of the absence of John B. Harrison and J. J. Carney,' attorneys for the defendant at that time, and, as that motion alleges, who had been elected members of the constitutional convention. Mr. Harrison resides in the county where the murder was alleged to have been committed. Mr. Carney resided in the county in which the case had been moved on change of venue. At that time D. B. Welty and S. B. Garrett were also attorneys in the case. When the case came on for trial at the March term, 1907, .the motion under consideration was filed, in which the defendant alleges that Mr. Harrison had prepared himself to conduct the trial of the case, and that he had suddenly become ill and was unable to attend the trial. Mr. Carney, one of the attorneys, on account of whose absence the ease had been continued at the November term, was present. He was a resident of the county in which the case was to be tried, and the court was personally acquainted with the other two attorneys in the case. If Mr. Harrison had been sole counsel in the ease, or if he had been the resident counsel of the county in which the case was to be tried, and had been employed •to assist in selecting the jury on account of his acquaintance with the citizens of the county, another condition would be presented, and we can easily understand how the defendant, in that instance, would be deprived of a substantial right; but no such condition exists here. His three associate counsel' had 'been in the case from the beginning. Mr. Carney was a resident of the county in which the case was to be tried, had recently been elected a member of the constitutional convention from that county, and was presúm-ably acquainted with the citizens of the county from whom the jury was to be selected. The case of Leslie v. Com. (Ky.) 42 S. W. 1095, and the case of Cornelius v. Com. (Ky.) reported in 64 S. W. 412, cited by counsel for defendant in their brief and relied on as authority for their contention, are not in conflict with our holding here. In the case of Leslie v. Com.'the Court of Appeals of Kentucky held it was reversible error to permit the commonwealth, against objection, to ask the defendant if he had not been arrested for carrying concealed weapons, and if he had not been arrested for discharging firearms, and, in concluding the opinion reversing the case,' uses this language:

“Moreover, the unexpected absence of the appellant’s local counsel on the morning of the trial, without any notice to him, would appear to afford ample reason why a continuance should have been granted. For the reasons given, the judgment is reversed.”

The local counsel for the defendant in. this case was not absent. He was present, and, as the records shows, conducted the defense in the most able manner possible. In the case of Cornelius v. Com. (Ky.) 64 S. W. 412, the court said:

“It further appears that this local attorney, who was absent, was the only one of the three employed who had seen and talked with appellant’s witnesses, and he alone knew the facts that could be proven in the defense. It further appears that neither of the two present was acquainted with the citizens of Lee county, from whom a jury must be selected to try the case.”

No such condition appears in the case at bar. If Mr. Carney had been absent, instead of Mr. Harrison, there would have been greater reason for continuing the case. It seems to us that it was a safe conclusion for the trial court that these three attorneys, who had been in this case from the very inception, knew something at least of what the witnesses would testify. The defendant was pleading self-defense. It was not a defense that would require any considerable research, such as might hare been if the plea had been insanity. Mr. Harrison was in the town where the case was to be tried, and was in easy access of the other attorneys, where they might have ascertained from him the general outline of the ease, if they had not already been familiar with it.

The rule is so well settled that the granting or refusal of a continuance, particularly for causes not enumerated in the statute, is a matter largely within the sound discretion of the trial court, and nothing but the abusé of this discretion will warrant the appellate court in interfering with the judgment, that we deem it unnecessary to quote the authorities here.

The case.of State of Kansas v. Grant Sullivan, 43 Kan. 563, 23 Pac. 645, was one where the defendant had three lawyers. An application was made by the defendant for a continuance on the ground that the counsel who appeared for him at the preliminary examination was unable to be present at the trial, and that he had not had an > opportunity to communicate to the other counsel facts material to his defense. The application was not made for the term, but simply to enable the defendant to properly prepare for his defense.' There was no showing made as to when the counsel, who. had appeared for him at the preliminary examination, would be able to be present in court. The affidavit stated that the counsel was confined to his bed with a broken leg. The syllabus of the ease is as follows:

“Where a motion is made for a continuance in a criminal case on account of the absence of one of the defendant’s counsel, and it appears that he is represented by two attorneys at the time, it is not material error for the court to overrule the motion.”

The application filed by the defendant in this case shows that Mr. Harrison was sick, and there was no showing as to when he would probably be able to appear in the case. The same rule announced by the Kansas court was announced in the case of Garrison v. Territory of Oklahoma, 13 Okla. 690, 76 Pac. 182, and State v. Parker, 106 Mo. 217, 17 S. W. 180, citing a great number of authorities.

The objections were taken to each of the instructions given by the court, and we have carefully considered each instruction in the light of the criticism made by counsel in their brief. After a careful consideration of the instructions, we are of the opinion that they clearly stated the law. Counsel complain more particularly of instructions Nos. 4, 8, and 16, which are as follows:

“No. 4. A design to effect death sufficient to constitute murder is inferred from the fact of killing, unless the circumstances raise a reasonable doubt- whether such design existed, and such design may be formed instantly before committing the act by which it is carried into execution. Homicide committed with the design to effect death is not the less murder because the perpetrator may have been in a state of anger or excitement at the time.”
“No. 8. If the defendant was in charge and had control of the saloon in which the deceased lost his life, and during the time he had such eontrol the deceased and any other person or persons became engaged in an altercation, disturbance, or fight, the defendant had the right to demand peace in his place of business, and to use any lawful means to quiet such disturbance and to prevent the fight; but, in exercising his lawful right, he was not authorized to resort to the use of a deadly weapon to enforce his authority. If he was unable to preserve the peace in his place of business without resorting to the use of deadly weapons, then it was his dutjf to call upon the officers of the law to protect his rights and to take the combatants into custody. Or, when two or more persons are engaged in a fist fight, or combat, no third person has, the right to kill one of such combatants to save the other from punishment or even death. A man is permitted, under proper condition, to take human life in.his own necessary self-defense, or in the defense of a member of his family, his parent, or servant; but he is not allowed such right in defense of a stranger, or one not related to him. One may also take the life of another in attempt to prevent a forcible invasion of his dwelling house; but, if he is keeping a business place where the public have the right to go to patronize his business, he has no right to take human life in such a place except to preserve his own life, or to prevent a felony being committed against his property in said place of business.”
“No. 16. By reasonable donbt is meant an actual, substantial doubt, arising out of a fair, impartial, and deliberate considera- ■ tion of all the evidence in the case. It does not mean a doubt based upon idle conjecture, mere supposition, or unwarranted speculation. Evidence is deemed sufficient to exclude all reasonable doubt when it is of such a satisfying character as to convince the minds of ordinarily prudent and cautious persons with such degree of certainty that they would feel free to act upon the same without hesitation in their own most important personal affairs. If after a full, fair, and impartial consideration of all the evidence in the cause, you can say and feel that you are satisfied to a moral certainty of the truth of the charge, and have an abiding conviction of the guilt of the accused, you are then in that state of mind which the law recognizes as convinced beyond a reasonable doubt, and should not hesitate to return a verdict of guilty.”

Instruction No. 4 was based on section 2168, Wilson’s Rev. & Ann. St. 1903, which is as follows:

“(2168) § 249. A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed.”

Instruction No. 8 was based on section 2189, which is as follows:

“(2189) § 270. Homicide is also justifiable when committed by any person in either of the following cases: First, when resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is. Or, second, when committed in the lawful defense of such person, or of his or' her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished. Or, third, when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace.”

Counsel insist that instruction 16 doés not meet the requirements or contain the essentials laid down by Chief Justice Williams of our Supreme Court in the case of Abbott v. Territory, 1 Okla. Cr. 1, 94 Pac. 179. We think it does. The definition approved by Justice Williams is:

“That state of the case which, after the entire comparison an"d consideration of.all the evidence, leaves the minds of the jury in that condition that they cannot say they have an abiding conviction, to a moral certainty, of the charge.”

It is also contended by counsel that there was error in the record on account of the failure of the court to tell the jury that the defense must be viewed from the defendant’s standpoint, and that the jury was not instructed as to the law of self-defense. Instructions 9 and 10, in our opinion, meet the objection of counsel. They are as follows:

“No. 9. Where one is in a place he has a right to be, and is not the aggressor, and does not by his own wrongful conduct bring on the conflict which endangers his safety, and he is violently assaulted by another, or is, from the conduct and hostile actions of his antagonist, induced to believe that he is in imminent danger of losing his life or of receiving some great personal injury, he may lawfully resort to such force or violence as to him under all the circumstances seems reasonably necessary to protect himself from death or receiving some great bodily harm, even to the taking of the life of his assailant, if he in good faith from reasonable appearances believes such action necessary for his own safety; but one who by his own wrongful conduct brings on a fight, or who commences the combat, is not allowed this privilege of self-defense.
“No. 10. If at the time the defendant fired the fatal shot he had reasonable grounds to apprehend a design on the part of the deceased to take his life, or to do him some great personal injury, and that he was in imminent danger of such design being accomplished, and he fired such shot while laboring under such apprehensions, believing it necessary for his preservation or safety, then the firing of such shot, under such circumstances, was justifiable on the grounds of self-defense, and your verdict should be not guilty.”

Counsel urge that the court erred in refusing to give the instructions requested by the defendant. Instruction No. 1, as requested by the defendant, was offered on the theory that the defendant had a right to kill Sheehan in order to stop the fight between Mattox and the deceased. This instruction was not proper. He had no such right under the law. It was not supported by any evidence in the record. The defendant’s testimony is to the effect that he shot in his necessary self-defense., and that the reason he fired the fatal shot was that the deceased, Sheehan, was pointing a pistol at him and had used threatening language, and that he believed the deceased, Sheehan, intended to shoot him. Instruction No. 2, requested, was as to the defendant’s right to keep a gun in the saloon where the killing took place. The court properly held that it was immaterial as for what purpose he kept the gun there. If his testimony were true, he had a right to use the gun, regardless of the purpose for which it was kept, and the jury were the judges as to whether the testimony was true. Instruction No. 3, requested by the defendant, was on the same theory as-instruction No. 1; that is, that the defendant had a right to keep the peace in his place of business and was authorized to take life if necessary to prevent a fight between Mattox and Sheehan. His right to keep the peace would not go to the extent of taking life; but the instruction was objectionable for the reason that his defense was not that he shot to keep the peace, but that he shot Sheehan to prevent his shooting defendant. Instruction No. 4, requested by defendant, was to the effect that the jury should not consider whether the defendant was justified in shooting at Luther Sheehan, a brother of deceased. The shooting at Luther Sheehan was part of the res gestae, and the jury had a right to consider that, together with the other circumstances in the case. Instruction 5, as requested by the defendant, was on the law of self-defense, and we think was properly refused for the reason that instructions 9 and 30 properly advised the jury as to defendant’s right of self-defense.

Assignment 31 is that the court erred in allowing counsel for the territory of Oklahoma to indorse additional names on the indictment after said counsel had announced ready for trial, and after the jury had been impaneled. Section 5352, Wilson’s Rev. & Ann. St. 1903, is as follows:

“(5352) § 216. When an indictment is found, the names of the witnesses examined before the grand jury must be indorsed thereon before the same is presented to the court, but a failure to so indorse the said names shall not be sufficient reason for setting aside the indictment if the county attorney or prosecuting officer will within a reasonable time, to be fixed by the court, indorse the names of the witnesses for the prosecution on the indictment. The court or judge may, at any time, direct the names of additional witnesses for the .prosecution to be indorsed on the indictment, and shall order that such names be furnished to the defendant or his counsel.”

The record shows defendant’s eounsed had been served with a list of the names indorsed. It was not error for the court to permit this indorsement.

In disposing of the assignments which go to the action of the court in ruling on the admissibility of testimony, we deem it unnecessary to say more than, after a careful consideration, we are of opinion that no such error was committed as would entitle the defendant to a new trial. No evidence was admitted which would deprive him of any substantial right, and nothing was refused that could have possibly changed the result of the trial. Under the sentence of the lower court, the defendant was confined, in the Kansas penitentiary at Lansing, Kan. The judgment will be modified, and the defendant confined in the state' penitentiary at McAlester.

The judgment, -as modified, as affirmed.

DOYLE, Judge, concurs.

FURMAN, PRESIDING Judge,

(concurring). We do not desire to be understood as holding that instructions Nos. 9 and 10 are applicable to all cases, or that they would be approved under a different statement of facts. These instructions depend for their correctness upon the facts of the particular case in which they are given. A defendant may be the aggressor in a difficulty, or he may by his own wrongful act bring on a conflict, without entirely losing his right of self-defense. This would depend upon the character of the wrongful acts, and the intention with which’they were done, which 'constituted such aggression or which brought on such conflict. If these things were done with a felonious iutention, they would entirely destroy the right of self-defense; but, if they were done without a felonious intention, what is known as the impeifect right of self-defense might still exist.

Chief Justice Fuller of the Supreme Court of the United States, in Wallace v. United States. 162 U. S. 466, 16 Sup. Ct. 859, 40 L. Ed. 1039, correctly states the law governing this question as follows:

“When a difficulty is intentionally brought on for the purpose of killing the deceased, the fact of imminent danger to the accused constitutes no defense; but when the accused embarks in a quarrel with no felonious intent or malice or premeditated purpose of doing bodily harm or killing, and under a reasonable belief of imminent danger he inflicts a fatal wound, it is not murder.”

Wharton, Hom., § 197; 2 Bishop, Crim. Law, §§ 712, 715 ; State v. Partlow, 90 Mo. 608, 4 S. W. 14, 59 Am. Rep. 31; Adams v. People, 47 Ill. 376; State v. Hays, 23 Mo. 287; State v. McDonnell, 32 Vt. 491; Reed v. State, 11 Tex. App. 509, 40 Am. Rep. 795.

From a full examination of the authorities, and upon reason, I think that it is clear that if a defendant is the aggressor in a difficulty, or if, by his own wrongful conduct, he brings about a conflict and then slays his adversary, the intention with which these things are done is material and vital to determine the degree of his guilt in the event his right of self-defense has been abridged. See: Bishop on Crim. Law, §§ 365, 367; Yoes v. State, 9 Ark. 43; Hicks v. United States, 150 U. S. 449, 14 Sup. Ct. 144; 37 L. Ed. 1137; Bennington v. Commonwealth (Ky.) 17 S. W. 272; Thompson v. United States, 155 U. S. 270, 15 Sup. Ct. 73, 39 L. Ed. 146; White v. State, 23 Tex. App. 164, 3 S. W. 710; Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 688, 60 Am. St. Rep. 17; Massie v. Commonwealth (Ky.) 29 S. W. 871.

In the light of the testimony in this case, the failure of the trial court to instruct the jury upon this view of the law is not material, because, just after the difficulty began, the defendant had said: “If there is any fighting to be done, I will do it myself. I am the fastest fighting son of a bitch in this house.” This was testified to by several witnesses, and the defendant, when on the stand as a witness in his own behalf, did not deny it. So it is an admitted fact. The record shows that soon after this the defendant sent for a shotgun and ordered the shells loaded with large shot, and that he had this gun by his side behind the bar of the saloon, so there could be no question of Ms. deadly - intention. Therefore the instruction as given is applicable to the facts and free from serious objection. It would have been better if the court had given the instruction requested bjr counsel for the defendant, to the effect that the jury should view the facts and circumstances in evidence from the defendant’s standpoint, and cases might arise in which it would be reversible error to refuse an instruction in this languege; but the instruction given means the same thing, and the facts are so clear and convincing of defendant’s guilt that we cannot see how the defendant was injured by the instructions as given.

With this explanation,' I concur in the opinion that there is no reversible error in this case, and that the judgment of the lower court should be affirmed. .


author: DOYLE, Judge,

text:
      Ex parte George L. Ellis.
    No. A-434.
    Opinion Filed November 27, 1909.
    (103 Pac. 184.)
    1. CONSTITUTIONAL LAW — Right to Justice. Under the declaration of article 2, sec. 6, Bill of Rights, that ‘(Right and Justice shall be administered without sale, denial, delay, or prejudice,” as well as by the unwritten dictates of natural justice, the courts of this state are commanded to administer justice without prejudice.
    2. CONSTITUTIONAL LAW — Right to Justice — Prejudice of Judge. Section 8, art. 1, c. 27, p. 285, Sess. Laws 1908, provides among other grounds that “no judge of the county court shall sit in any cause or proceeding pending, after any party thereto has filed an affidavit in writing, corroborated by two credible' persons residing in the county, stating that affiant has good reasons to believe and does believe that the judge is so prejudiced against him that he can not have a fair and impartial trial if such, judge continues to preside in such cause.” Held* that this provision, does not abridge the constitutional guaranty.
    3. PERJURY — Change of Judge — Affidavit of Prejudice. Perjury or subornation of perjury cannot ibe assigned upon an affidavit of prejudice, made to secure a change of judge on the ground of prejudice.
    4. JUDGES — Affidavit of Prejudice. Public confidence in our judicial system and courts of justice demands that causes be tried by unprejudiced and. unbiased judges, and a denial of a change of judge, applied for on the ground of prejudice, will be presumed to' be a denial of justice. j
    (Syllabus by the Court.)
    Application of George L. Ellis for a writ of habeas carpus.

    Writ allowed.
    This is an application to this court, filed November 16, 1909, for a writ of habeas corpus, to relieve the petitioner*, George L. Ellis, from the custody of T. M. Latham, sheriff of Texas county. The petition sets out with particularity proceedings in the county court of Texas county wherein petitioner was committed to the county jail to await the action of the district court of Texas county on a charge of perjury, and also in the case of the State v. G. L. Ellis and Henry McCann, before W. H. Castleberry, a justice of the peace in and for Hooker township, Texas county, and further avers in substance: That in an action pending before the county court of Texas county, sitting at Hooker, entitled, “J. H. Morris, Plaintiff, v. E. H. Mathews, Defendant,” said defendant made application on November 10, 1909, for change of judge, by filing affidavits as prescribed by section 8, art. 1, *c. 27, p. 285, Sess. Laws 1908, wherein it is provided that:
    “No judge of the county court shall sit in any cause or proceeding' pending, after a party thereto has filed an affidavit in writing, corroborated by two credible person residing in the county, stating that affiant has good reason to believe, and does believe, that the judge is so prejudiced against him that he cannot have a fair and impartial trial, if such judge continues to preside in such ease.” '

      That said petitioner, together with Henry McCann, were the corroborating affiants. That on the said 10th day of November B. L. Davis, county judge, filed a complaint before W. H. Castle-berry, a justice of the peace in and for Hooker township, Texas county, wherein he charged petitioner with the crime of perjury in making said corroborating affidavit of prejudice for change of judge. That petitioner was immediately arrested and taken before said justice of the peace. That there were present W. G. Hughes, county attorney, E. L. Davis, county judge, and Miss Flora Thompson, clerk of the county court of Texas county. That William M. Clark as counsel for petitioner filed an affidavit for change of venue on his behalf, whereupon W. G. Hughes, county attorney, dismissed said case. Immediately after the dismissal, of said case, petitioner was rearrested by the sheriff of Texas county by virtue of a purported warrant issued by E. L. Davis, county judge, which warrant is as follows:
    “State of Oklahoma, Texas County. In County Court. The State of Oklahoma, to the Sheriff of Said County: Whereas it appears probable in said court, that G. L. Ellis and Henry Mc-Cann have committed perjury in a proceeding pending in said court, you are therefore commanded to arrest said G. L. Ellis and Henry McCann and have them before the said court at ten o’clock a. m. Nov. 11, 1909, at the county court room at Hooker, Oklahoma, to be dealt with' according to law, and have you then and there this writ. Witness my hand and the seal of said court at Hooker, Okla., this Nov. 1Ó, 1909. E. L. Davis, Judge of the County Court. [Seal.]”
    That at the time said warrant was served petitioner had not made oath or given evidence in any cause pending in the county court of Texas county other than said corroborating affidavit, and that no complaint has ever been filed in said county court charging petitioner with any offense against the laws of Oklahoma, and that on the 11th day of November, 1909, the said E. L. Davis, county judge in open court, did order that petitioner be held to the district court of Texas county to answer to the charge of having on the 9th day of November committed the crime of perjury in Texas county in making the aforesaid corroborating affidavit of prejudice for change of judge, which commitment is as follows':
    “State of Oklahoma, Texas County. In County Court. The State of Oklahoma to the Sheriff of Said County: Whereas it appears to the satisfaction of the court that in a judicial proceeding pending in said court G. L. Ellis and Henry McCann have testified, and in so testifying have committed perjury, and the said G. L. Ellis and Henry McCann having by order of said court been required to give bond for their appearance in the district court of said county at its next term to be held at Guymon, and the amount of said bond fixed in the sum of $7o0.00 each and the said parties having failed to make such bonds: Now, therefore, you are commanded to take said G. L. Ellis and Henry McCann into your custody until -such bond is given. When the said parties shall enter into recognizance with two sufficient sureties each for their appearance as aforesaid you will approve the same and discharge each of them, but, in the default of said bonds, you will, confine the said G. L. Ellis and Henry McCann in the county jail of Texas county until such bonds shall be executed and approved. You will return this writ to the said district court. Witness my hand and the seal of said court at Hooker, Oklahoma, this Nov. 11, 1909. E. L. Davis) Judge of the County Court. [Seal.]”
    There was also filed a stipulation waving the appearance and return of respondent, and consenting that the court pass upon the legality of the restraint on the facts set out in the petition, and on behalf of respondent admitting as true all the allegations, matters, and things set up in the petition of the said George L. Ellis, signed by, “L. M. Latham, Sheriff of Texas County, Oklahoma. Wallace G. Hughes, County Attorney for Texas County, Okla.”
    Upon filing this application respondent was directed to release petitioner upon his own recognizance pending the decision of the court.

      John L. Gleason and William M. Clark, for petitioner.

      Charles Ij. Moore, Asst. Atty. Gen., and Wallace' C. Hughes, County Atty., for respondent.
   DOYLE, Judge,

(after stating the facts as above). The petitioner complains upon the facts stated that he is restrained of his liberty “without due process of law.” It. is apparent that the county court in issuing said warrant and commitment proceeded under section 2083, Wilson’s Rev. & Ann. St. 1903, which provides :

“Whenever it appears probable in any court of record that any person who has testified in any action or proceeding in such court has committed perjury, such court must immediately commit such person by an order or process for that purpose to prison or take a recognizance with sureties for his appearance and answering to an indictment for perjury.”

The first question is: Has a court of record of this state under this provision authority to summarily commit a witness to be held to answer for perjury. We are of opinion that this provision of the laws of Oklahoma Territory, if not repugnant to the Constitution and in conflict with that part of section 17, art. 2, Bill of Bights, which provides, “No person shall be prosecuted for a felony without having had a preliminary examination before an examining magistrate, or having waived such preliminary ex-mination,” can only be effective while a grand jury is in session in the county. To be effective in the case at bar would make the court the judge of his own case and would violate the maxim, "Nemo debet esse judex in propria sua causa” — “No man can be a judge in his own case.” The maxim is as old as the law itself. “While prosecutions for felonies may be by indictment or information, as they are concurrent remedies,” said this court in Re McNaught, 1 Okla. Cr. 528, 99 Pac. 241, “we are fully satisfied that the framers of our Constitution intended to abolish the grand jury system, except that it might be invoked for these special purposes, such as the investigation of public- officers, the failure of public prosecutors to do their duty, and those peculiar conditions of public disorder which sometimes arise and make prosecutions- by information impracticable.” For this reason, upon the fact's stated, the county court was without authority to issue the commitment.

It only remains to consider whether- perjury can be assigned apon an affidavit “that affiant hás good reason to believe and does believe that a judge is prejudiced.” In general, any material statement made under oath in any proceeding, or- in relation to any matter in which path is authorized, or required by law, may be the subject of perjury, or subornation of perjury, but the statement must be a statement of fact. 'Perjury cannot ordinarily be assigned upon a statement of a matter of opinion merely, or calling for the exercise of judgment. It is an entirely different proposition to say that perjury may be assigned upon an affidavit for a change of venue or judge, and that the court may summarily commit an affiant to be held to answer for perjury because it appears to the court that the affidavit for a change is false and untrue. In such a ease we must examine the Constitution itself, and see whether this process be in conflict with any of its provisions.

The Constitution provides (section 6, art. 2, Bill of Rights) :

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice.”

The framers of our Constitution guarded with special care our judiciary and tried to place it above suspicion of unfairness, passion, or prejudice, so that public confidence in our courts would not’ be shaken, and provided that right and justice should be administered without prejudice. By virtue of this constitutional provision, who can doubt or question the absolute and unqualified right of the citizen when called to answer in a court of justice to demand that his trial shall be before an impartial judge and by impartial jurors? Any other doctrine would place the rights of the citizen which were intended to be protected by this constitutional provision at the mercy or control of the court or judge thereof. If, however, it be held that perjury can be assigned upon an affidavit for a change of judge, and that the affiant may be held to answer to a charge of perjury by reason thereof, the right to a fair and impartial trial, which the Constitution guarantees to' every citizen, in reality no longer exists.

In the case of Day v. Day, 12 Idaho, 556, 86 Pac. 531, a similar constitutional provision was construed. The appellant made application for a change of venue upon the ground that she could not have a fair and impartial trial before the presiding judge by reason of his prejudice in the matter. The application was denied. In reviewing this action of the trial court, Justice Sullivan, in part, says:

“It is contended by counsel for appellant that under the provisions of section 18, art. 1, of the Constitution of Idaho ‘the people have prohibited a court from trying a case in which he is prejudiced by or for either party.’ Said section is as follows: ‘Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay or prejudice.’ They also cite paragraph 40 of the Magna Charta, which reads: ‘To none will we sell; to none will we deny or delay right or justice.’ They contend through that constitutional provision that the people have declared that justice shall be administered, not only without sale, without denial, and without delay, but also without prejudice, and contend that the legislative power to pass laws regulating the change of venue is limited by constitutional provisions respecting the subject. It is contended that said section of the Constitution is self-acting, self-executing, and requires no legislative provision for its enforcement, and cannot be abridged or modified by any legislative or judicial act. There is no question but what said provision is self-operating, and it is regarded as settled in this country that all negative or prohibitive clauses in a constitution are self-executing. The Legis-ture, neither by neglect to act nor by legislation, can nullify a mandatory provision of the Constitution, * * * for it cannot be maintained that a judge who is biased or prejudiced in a case on trial before him can administer justice without prejudice. Disregarding said provision of the Constitution, the ordinary principles of right and justice prohibit or disqualify a judge from trying a case in which he is prejudiced for or against either of the parties to the suit. This provision of the Constitution cannot be brushed aside by saying that it is a mere maxim of the law and means nothing; for the principle therein expressed is one of the foundation stones of our judicial system and jurisprudence, and could not be removed without shattering the entire system.”

After reviewing the authorities pro and con, the learned justice concludes as follows:

“In the light of fhe„ judicial history of California and Montana In holding that the bias and prejudice of a judge was no ground for a change of venue, it is now recognized by those states that it ought to have been a ground, that it is a matter conducive to a just and proper administration of justice. The Constitution of Montana (section 6, art. 3) is as follows: ‘The courts of justice shall be open to every person, and a speedy remedy afforded for any injury of person, property, or character, and that right and justice shall be administered without sale, denial, ox delay/ The main difference between that section and section 18, art. 1, of the Constitution of Idaho, is that in the latter we find the word ‘prejudice’ after the word ‘delay,’ and provides that justice shall be administered without sale, denial, delay, or prejudice; that being a clear distinction and difference between the two Constitutions. It is a primary idea in the administration of justice that a judge must not decide judicial matters from bias, prejudice, and partiality, and our Constitution clearly prohibits a judge who has bias or prejudice in a ease from trying it. The aim and object of the framers of the Constitution was to preserve judicial tribunals from discredit, and the Supreme Court of Montana, referring to this matter in Stockwell v. Township Board of White Lake, 22 Mich. 341, said: ‘The court ought not to be astute to discover refined and subtle distinctions to save a case from the operation of the maxim, when the principle it embodies bespeaks the propriety of its application. The immediate rights of the litigants are not the only objects of the rule. A sound public policy which is interested in preserving every tribunal appointed by law from discredit imperiously demands its observance/ Can it be contended in the face of the command of said provision of our Constitution that the Legislature could legally declare that the bias and prejudice of a judge should be no cause for a change of venue? I think not. And if, in the face of that provision, the Legislature neglects to specify in a statute that the prejudice of the judge is a ground for a change of the place of trial, then the very object and purpose of that provision of the Constitution may be nullified and set at naught. Regardless of the statutory provision, where such a state of facts appear, as in the case at bar, and a change of place of trial is demanded because of the prejudice of a judge, a change of venue, or at least a change of judges, should be granted to preserve from discredit the judiciary of the state. No technical refinement or argument can convince the people that a prejudiced judge can fairly try a case between his friend and his foe. Such a thing might occur, but the general public would not look upon such a trial as an administration of justice without prejudice. The statute provides the manner of procedure by which a change of venue may be had, and the procedure there provided is a proper procedure in a case where the application is made on the ground of the prejudice of the judge.”

The Idaho Supreme Court in this case in substance held that, under this constitutional provision, a denial of a change of venue applied for on'the ground of prejudice will be presumed to be in effect a denial of justice. Thp decision is logically and learnedly reasoned to this inevitable conclusion, and the doctrine declared meets with our unqualified approval.

From this proposition flows the corollary that this constitutional guaranty cannot be destroyed, denied, abridged, or impaired by legislative enactments, prescribing the procedure or providing that perjury may be assigned upon affidavits for a change of venue or judge. To what purpose would be the right if the party asserting it, or his corroborating witnesses, thereby subject themselves to a criminal prosecution? The provision of the statute for change of judge in county courts is in harmony with the constitutional provision. It is not an essential requirement that the judge should be as a matter of fact prejudiced. It only requires that the affidavit of the party and two corroborating witnesses set forth that he has good reason to believe, and does believe, that the judge is so prejudiced against him that he cannot have a fair and impartial trial if such judge continues to preside in such cause. It does not provide for further affidavit or other evidence to be heard. When these affidavits are presented to the court they stand uncontradicted, and the only means by which the court can dispute the alleged prejudice would be to use his personal knowledge. In the language of Justice Brewer: “All experience teaches that usually he who is prejudiced against another is unconscious of it, or unwilling to admit it.” This statute is clearly not restrictive of, and does not impair, the constitutional guaranty.

We are of opinion that petitioner is deprived of his liberty without “due process of law,” as no complaint properly verified was filed and no evidence adduced showing probable cause. The county court had no jurisdiction to issue the warrant or commitment, and the proceeding had before said county court was in violation of petitioner’s constitutional rights, as set forth in article 2, §§ 6, 7, 17, of the Bill of Bights. The length to which this opinion has been drawn can only be excused by a consideration of the importance of the principles involved and the necessity there seems to be for a clear understanding of the constitutional guaranty “that right and justice shall be administered without prejudice.”

For the reasons stated, the writ is allowed, and the petitioner is discharged.

FUBMAN, Presiding Judge, and OWEN, Judge, concur.


author: PEE C'HBIAM.

text:
      Ex parte Henry McCann.
    No. A-435.
    Opinion Filed November 27, 1909.
    (105 Pac. 188.)
    Application of Henry McCann for writ of habeas corpus. Writ granted, and petitioner discharged.
    Affirmed.

      John L. Gleason and William M. Clark, for petitioner.

      Charles L. Moore, Asst. Atty. Gen., and Wallace G. Hughes, County Atty., for respondent.
   PEE C'HBIAM.

The questions of law and fact in this case are identical with the questions involved in the case of Ex parte Ellis (being case No. A-434, decided by this court on this November 27, 1909), ante, p. 220, 105 Pac. 184, and on the strength ot that decision and stipulation of counsel the writ of habeas corpus is allowed, and the petitioner discharged.