source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    STATE v. T. L. BROWN, Judge.

    No. A-1789.
    Opinion Filed September 3, 1912.
    (126 Pac. 245.)
    1. JUDGES — Constitutional Law — Prejudice — Disqualification, .(a) A defendant in a criminal case has no right to insist that he be tried before a judge prejudiced in his favor, or before any particular judge; and no rights of a defendant are invalidated by the substitution of a judge impartial as between himself and the state.
    (b) The Legislature has the power to mark out the means, manner, and time for the determination of the question as to whether a judge is disqualified, in any given case on account of prejudice.
    (c) The fact that the prejudice of a trial judge is not mentioned in the statutes as a ground for disqualification is immaterial. Such disqualification rests upon constitutional grounds, and cannot be excluded by the provisions of the statute. The statute merely provides the means by which the disqualification of a judge upon any ground may be secured.
    (d) The statute gives all parties to a suit equal right to object to such action being tried before a' prejudiced judge, and in criminal cases this right extends to the state as well as to the defendant.
    2. MANDAMUS — Appeal by State — Disqualification of Judge, (a) Section 6947, Comp. Laws 1909, in express terms gives the state the right to reserve any question arising in a criminal cause; and when said cause is determined the state can bring such question up on appeal to this court for review.
    (b) The Criminal Court of Appeals has the power, and it is its duty to consider a petition for a writ of mandamus upon motion of the state to disqualify a judge from trying a criminal case.
    3. PRISONS — Disqualification of Judge — Prejudice—Liberties, (a) For facts that would not authorize this court to issue a writ of mandamus upon motion of the state disqualifying a judge from trying a criminal case, see opinion.

      (b) A judge should never be a partisan. He should treat both sides with equal fairness and impartiality. Whenever a judge becomes a partisan, his usefulness on the bench is at an end.
    (c) The law provides county jails as the places of confinement of prisoners before trial, and sheriffs have no right to keep them anywhere else, or to allow them to be at liberty, except on order of a court of competent jurisdiction. Sheriffs have no right to have pets or favorites, or extend any liberties or privileges to one prisoner which the law does not extend to all prisoners. It is the duty of trial judges and county attorneys in this state to see that the law in this respect is obeyed.
    (Syllabus by the Court.)
    Mandamus by the State against T. L. Brown.
    Writ denied.
    A petition for a writ of mandamus was filed in this court by the county attorney of Nowata county, which, in substance and effect, alleges that an action is now pending in the district court of Nowata county, wherein the State of Oklahoma is plaintiff and H. O. Jeffries is defendant, in which said Jeffries, is charged with the crime of murder, and that the respondent, Hon. T. L. Brown, is the duly elected, qualified, and acting judge of said district court. The petition further alleges in general terms that the state cannot have a fair and impartial trial of said case before said judge, because of the bias and prejudice of said judge against the plaintiff and in favor of the defendant therein, and also because of the hostility of said judge toward the county attorney of said county; and said petition prays that this court issue a writ of mandamus requiring said judge to certify his disqualification to preside at the trial of said cause. The petition further alleges that on the 28th day of June, 1912, the county attorney of said county filed in said cause a written application setting forth that said judge was disqualified to sit in said cause and requesting him to so certify, and that said judge had declined and refused to so certify his disqualification to preside at the trial of said cause.
    The special grounds relied upon to sustain the charge of prejudice are stated as follows:
    “(1) That the said T. h- Brown, judge of the district court in and for Nowata county has shown himself biased against the state and in favor of the defendant in this, to wit: (a) That on the 23rd day of April, 1912, on the day that the said H. O. Jef-fries was arrested, the said T. L. Brown, judge of the district court aforesaid, did advise and. inform the sheriff of Nowata county to the effect that said H. O. Jeffries, although he was charged with the murder of one Irene Goheen, could be allowed to run at large on the streets of Nowata and other places, if the said H. O. Jeffries would pay for some one to guard him while he was at large, (b) That said Jeffries was, on the advice of the said T. L. Brown, judge of the district court aforesaid, allowed to run at large, and did spend the day on the streets and in the stores and offices of the town, and the nights at his home on South Hickory street in the city of Nowata.
    “(2) That the said T. L. Brown, judge of the district court, shows his bias and prejudice in behalf of said defendant, in words and acts as follows: (a) That on the- day of June, 1912, and immediately preceding the hearing on the petition for writ of habeas corpus, in which the said H. O. Jeffries was seeking to obtain bail, that the said T. L. Brown, judge of the district court aforesaid, did at various and sundry times have private and secret consultations relative to and pertaining to the merits of the case of State of Oklahoma v. H. O. Jeffries; one of said consultations being had and held in the private office of Judge Bert Van Leuven, attorney for defendant, and Detective H. F. Tillotson, private detective and adviser of the defendant, being present. That in this conversation aforesaid, occurring in the office of the said Judge Bert Van Leuven on Cherokee street, and next door east of the Denton building, the said Judge T. L. Brown, judge of the district court aforesaid, did, with the attorney and the detective aforesaid, discuss the merits of the case of the State of Oklahoma v. H. O. Jeffries and the ad-i visability of releasing the said H. O. Jeffries on bond.
    “(3-) That the said T. L. Brown did further show his bias and prejudice in favor of the defendant, and did, on or about the 13th day of June, 1912, proceed to the county jail, where the said H. O. Jeffries, defendant in the above-entitled cause, was incarcerated, and did there in said jail hold an extended and secret consultation with the defendant, in which the guilt or innocence of the said defendant was discussed, the probability of the Criminal Court of Appeals refusing to give the defendant bond, the intention of the said T. L. Brown, judge of the district court, in case that the said defendant did not get bond at the hands of the said Criminal Court of Appeals of the state of Olcla^ homa, that the said T. L. Brown would see that the said H. O. Jeffries, defendant aforesaid, should have a square deal, and that he the said T. L. Brown, judge of the district court aforesaid, would see that the said H. O. Jeffries would be released on bond.
    “(4) That the sai.d T. L. Brown is also biased and prejudiced in behalf of the defendant, because of his extreme dislike and hatred of and towards the elected arid acting county attorney of Nowata county.
    “(5) That the district judge, T. L. Brown, has shown his' prejudice and extreme hatred towards W. V. Thraves, county attorney of Nowata county, in this,, to wit: That on the 15th'day of June, 1912, the said T. L. Brown, judge of the district court aforesaid, did write a letter to the Attorney General of the state of Oklahoma, at Oklahoma City, Oklahoma, stating to the effect that the said W. V. Thraves, county attorney as aforesaid, was not properly conducting and prosecuting the case of State of Oklahoma v. H. O. Jeffries, and that he desired the Attorney General to appoint an assistant to come to the county of Nowata, and, in conjunction with the county attorney’s office, that he, the said appointee of the said Attorney General aforesaid, should undertake to find and prosecute the real murderer of Irene Go-heen, deceased. That the said application is uncalled for, unnecessary, and absolutely useless, being prompted by prejudice, bias, ■and malice as aforesaid on the part of the district judge aforesaid.
    “(6) That the said district judge, T. L. Brown, is disqualified, for the reason that he has at various times expressed his opinion as to the guilt or innocence of the defendant. That it is true that the said T. L,. Brown, district judge as aforesaid, has expressed the above opinion that the said H. O. Jeffries was guilty of the murder, and at other times that the said H. O. Jef-fries should be released and would be released on bond pending his trial in the district court. That subsequent to the denial by said judge'of your petitioner’s application as aforesaid, your petitioner learned of the following statements made by said judge, disclosing his bias and prejudice against the plaintiff and in favor of the defendant in said cause, to wit: That said judge, discussing said cause, stated that he would try said case. ‘So help me God,’ the state couldn’t take him off the bench, and that the defense didn’t want to, and that he would not hang Jefferies, no matter what the verdict of the jury was, unless he knew positively of his own knowledge that said Jefferies was guilty.”
    To this petition respondent answers as follows:
    “Your respondent denies that an impartial trial cannot be had in said action, and denies that he has any bias in favor of .the defendant or prejudice against the state, and denies any hostility towards W. V. Thraves, the county attorney, and denies that he has ever exhibited in acts or words, or in either manner, any prejudice, bias, or hostility towards him. Your respondent admits that on the 28th day of June, 1912, there was filed in said court an application to disqualify said judge, and admits that your respondent denied the motion. ’ Said denial being based on the following: (1) Because the state is nqt authorized under the law to file an application to disqualify a judge. (2) Because there was no sufficient showing upon the part of the state. (3) Because your respondent had not at that time, or any other time, any bias in favor of the defendant or prejudice against the state, and because your respondent was not disqualified upon any ground to conduct said trial fairly and impartially. (5) Your respondent denies that at the time of the arrest of the said H. O-Jeffries he advised and informed the sheriff of Nowata county to the effect that said H. O. Jeffries could be allowed to run at large, and denies that he had any conversation whatever with the sheriff with regard to said matter; but your respondent avers that he was in Nowata on the day that H. O. Jeffries was arrested, and that he was informed by the county attorney, W. V. Thraves, that the said H. O. Jeffries was running at large in the custody of a guard, and the said W. V. Thraves at that time insisted and demanded that your respondent take some action toward placing the said H. O. Jeffries in jail, and that your respondent, in pursuance of said request and remonstrance on the part of W. V. Thraves, did go to the justice of the peace before whom the warrant was issued, and instructed him that he must follow the statute relative to the custody of prisoners charged with -offenses of like character with which the defendant was charged.
    “(3) Your respondent denies that he ever had any private consultation with the defendant, H. O. Jeffries, and denies that he ever, either privately, secretly, or publicly, had any conversation relative to and pertaining to the merits of the case wherein he was defendant, and denies that he ever had any conversation of any character with the defendant in the presence- of Bert Van Leuven and H. F. Tillotson. Your respondent admits that he did have a conversation with H. O. Jeffries while he was incarcerated in jail, but denies that the same was extended, or in secret, and denies that the guilt or innocence of said defendant was discussed, or the probability of the Criminal Court of Appeals refusing to give defendant bond, and denies that he ever, by act or word, in any manner, indicated that he would do anything in behalf of the defendant.

      “(4) Your respondent admits that he said that he would give H. O. Jeffries a square deal, or words to that effect, and respondent further admits that he has made the same statement with regard to any criminal cases pending before him, and that by said expression he meant, only that right and justice should be done.
    “(5) Your respondent further avers that the conversation with H. O. Jeffries aforesaid was had at the request of the said H. O. Jeffries; that the said H. O. Jeffries requested tliat your respondent visit him in the jail, without any mention or suggestion of his case. Your respondent believes, and therefore states the fact to be, that the jailer of Nowata county, Oklahoma, was the party who informed your respondent that H. O. Jeffries desired to see him.
    “(6) Your respondent denies extreme dislike and hatred of and toward W. V. Thraves, and alleges that at all times in all trials before your respondent the said W. V. Thraves has received at the hands of your respondent justice and courtesy.
    “(7) Your respondent admits that he did write a letter to the Attorney General of the state of Oklahoma with regard to the Goheen murder, a carbon copy of said letter being hereto attached, marked ‘Exhibit A,’ and made a part of this instrument.
    “(8) Your respondent denies that he has ever at any time held any bias in favor of the defendant, or prejudice against the state, and has not at this time any such bias or prejudice, and your respondent knows of no reason why he is disqualified in said action in any manner.”

      W. V. Thraves, Co. Atty., W. A. Sipe, and A. Buchanan, for the State.

      J. F. Lawrence, for respondent.
   FURMAN, P. J.

(after stating the facts as above). First. Can the state in a criminal case disqualify a trial judge upon the ground that he is so biased in favor of the defendant that the state cannot secure a fair and impartial trial of said cause before said judge? It is contended by the state and conceded by the respondent that a defendant in a criminal action has no right to insist that he be tried before a judge prejudiced in his favor, or before any particular judge, and that no rights of a defendant are invalidated by the substitution of a judge impartial as between him and the state. We think this states a sound principle of law, which is in harmony with the Constitution and statutes of this state. Our Constitution is as follows :

“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.” (Williams’ Ann. Const, sec. 14, p. 10.)

There can be no question but that the Legislature has the power to mark out the means, manner, and time as to the determination whether prejudice exists in any given case. See footnotes to Williams’ Ann. Const, sec. 14, p. 10.

Our statute with reference to the disqualification of trial judges is as follows:

“No judge of any court of record shall sit in any cause or proceeding in which he may be interested, or in the result of which he may.be interested or related to any'party to said cause within the fourth degree of consanguinity or affinity, or which he has béen of counsel for either side, or in which is called in question the validity of any judgment or proceeding in which he was counsel or interested, or the validity of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties tó said action entered of record: Provided, that the disqualifications herein imposed shall not exclude the disqualifications at common law.” (Section 2012, Comp. Laws 1909.)

“In any cause, civil or criminal, pending in any court of record, in this state, if the presiding judge for any legal cause, shall be incompetent or disqualified to try, hear, or render judgment in such cause, the parties or their attorneys of record, if it be a civil cause, or the prosecuting officer and the defendant or defendants or their attorneys of record, if it be a criminal cause, may agree upon some member of the bar of the district who is not disqualified, if it be in the district court, or of the county, if it be in the county or superior court, and if in any other court of record within its jurisdiction, to act as a special judge to hear and decide and render judgment in the same manner and to the same effect as such disqualified judge could have rendered but for his disqualification.” (Section 2013, Comp. Laws 1909.)

The fact that the prejudice of a trial judge is not mentioned in either of these sections as a ground for disqualification is immaterial, because it is embodied in the Constitution itself. We are required to construe our statutes liberally and in' connection with the Constitution. See authorities cited in Williams’ Ann. Const, sec. 14, p. 10. As is well said in the brief of counsel for petitioner:

“This provision of the Constitution was held by this court in Ex parte Hudson, 3 Okla. Cr. 393, 106 Pac. 540, 107 Pac. 735, to guarantee to a defendant in a criminal action a trial before an unprejudiced judge, and to be self-executing, so that he could not be deprived of such right by neglect of the Legislature to provide a remedy for its enforcement. So, in the case cited, it was held that, bias and prejudice of the judge against the defendant having been shown, mandamus would lie from this court to such judge commanding him to certify to his disqualification. There is nothing in the language or spirit of this constitutional guaranty limiting it to either party to an action, or excluding the state from the same right to a trial before an unprejudiced judge which it accords the defendant in a criminal action. It is a guaranty of the administration to the people of justice without prejudice, not only in those actions in which they seek to enforce their' private rights and individual rights, but also in those brought by them for the enforcement of their associate and collective rights as a body politic. The latter are just as important to them as the former, and so intimately correlated with them that the violation of the' public right usually involves the violation of a private right, which can be adequately protected only by due enforcement of a public right. For example, the commission of a murder, which is the crime involved in this case, is the violation óf a public right — that is, of the peace and dignity of the state— and at the same time a violation of the most sacred private right, namely, the right of a personal security. This private right could not be adequately protected by a private action against the murderer, which would only result in a money judgment, and therefore have but- little deterrent effect on persons murderously inclined. The effective preventative cause, and safeguard of personal security, is simply the severer penalty inflicted in a public action by the state; and such prevention is the prime purpose of criminal punishment. This is illustrated in Rhode Island, where the Legislature, after abolishing capital punishment, found it necessary to restore it, owing to the marked increase in murders. As the private right of personal security can therefore be protected only by actions to vindicate the public right, it is of as much importance to the people as that justice should be administered without prejudice to them in their purely private individual actions. Both are included in the constitutional guaranty. So, in an action by the people to enforce their collective rights as a state, in a prosecution for murder, they have the same right as the defendant to a trial before an unprejudiced judge, which, under the self-executing provision of the constitutional guaranty, the courts are bound to enforce.”

We are of the opinion that the state has just as much right to have its cases tried before an unprejudiced judge as a defendant has, and that the state can object to the trial of any of its cases before a disqualified judge.

Second. The next question is as to whether or not this court has the authority, upon a petition of the state, to issue a writ of mandamus disqualifying a judge from trying a criminal case. Section 187 of Williams’ Ann. Const, is as follows:

“The appellate jurisdiction of the Supreme Court shall be coextensive with the state, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law.”

Exclusive jurisdiction cannot be divided, but must be confined solely and entirely to the court upon which it is conferred. Exclusive appellate jurisdiction of criminal cases means that this court alone has the power to review and correct any and all errors committed in criminal cases by the trial court. If any other court shares such power with this court, our jurisdiction would not be exclusive, and it would necessarily result in conflicts and confusion, and would thereby destroy the unified and harmonious enforcement of criminal law in Oklahoma. It requires no argument to show that this view is just and correct. It is sustained by the Supreme Court of the state in the case of State ex rel. Ikard v. Russell, 33 Okla. 141, 124 Pac. 1092, and the same doctrine was reaffirmed in the case of Ex parte Anderson, 33 Okla. 216, 124 Pac. 980. See, also, Ex parte Riggert, 33 Okla. 303, 125 Pac. 485.

Our statute on this subject is as follows:

“The Criminal Court of Appeals shall have exclusive appellate jurisdiction in all criminal cases appealed from county and district courts in this state, and such other courts as may be established by law. The appellate and original jurisdiction .of the Criminal Court of Appeals shall be invoked in the manner prescribed by law.” (Section 1916, Comp. Laws 1909.)

“Said court and judges thereof shall have the power to issue writs of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to exercise its jurisdiction, and may prescribe and promulgate such rules for the government of said court as it may deem necessary. (Section 1918, Comp. Laws 1909.)

“Said court shall have power, upon affidavit or otherwise, to ascertain such matters of facts as may be necessary to the exercise of its jurisdiction.” (Section 1919, Comp. Laws 1909.)

Section 3016, Comp. Laws 1909, is as follows:

“Any party to any cause pending'in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request him to so certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.”

Section 6947, Comp. Laws 1909, is as follows :

“Appeals to the Supreme Court (Criminal Court of Appeals) may be taken by the state in the following cases and no other: 1. Upon, judgment for the defendant on quashing or setting aside an indictment or information. 3. Upon an order of the court arresting the judgment. 3. Upon a question reserved by the state.”

The right of the state to take an appeal in a criminal case has been twice sustained by this court. See State v. Clifton, 2 Okla. Cr. 189, 100 Pac. 1124, and State v. Pollock, 5 Okla. Cr. 26, 113 Pac. 207. It is therefore not necessary to discuss this question again. The statute in express terms gives the state the right to reserve any question arising in a criminal case, and when said cause is determined the state can bring such question up by appeal to this court for review. If a motion to disqualify a judge is made by the state and denied by the trial judge, and the defendant should .be tried and acquitted, and if the state has reserved such question for appeal, it could be brought up and passed upon by this court, and the questions of law therein involved could be settled. The fact that the defendant may have been acquitted and could not be tried again for the same offense would not interfere with the right of the state to appeal and have the question so reserved settled. Any other construction would render the third paragraph of section 6947 meaningless and nugatory. We therefore hold that this court has the power and that it is its duty to consider a petition for a writ of mandamus upon motion of the state to disqualify a judge from trying a criminal case.

Third. When this case was tried, a great deal of evidence, was received, without objection from either party,, which, under the rules of law, was not admissible. Without deciding as to whether or not prejudice against an attorney would legally disqualify a judge from trying a case in which such attorney was' employed, we do not think that such a showing has been made as to authorize us to disqualify respondent upon this ground. The strongest evidence on this question is a newspaper publication, which Contains some indiscreet remarks alleged to have been made by counsel for defendant Jeffries with reference to the feeling of respondent toward the county attorney. This attorney was a witness upon this hearing, and did not deny the publication attributed to him. We do not think respondent is in any manner responsible for this publication, or for these remarks, and we trust that experience will teach the attorney who is reported to have used this language the impropriety of trying his cases, in newspapers. Such publications invariably do more harm than good to the person in whose interests they are made. In this case they have subjected the judge to criticism and have not at all benefited the defendant Jeffries, because they were calculated to and did create the impression that Jeffries and his said attorney were largely depending upon the hostility of the trial judge toward the county attorney. This was unjust to and injured a number of persons, one of whom was the defendant Jeffries himself. Lawyers should exercise some discretion about what they say, and especially about what they put in print. We think that respondent acted indiscreetly in visiting defendant Jeffries in the county jail, yet we also think that this arose from goodness of heart upon his part rather than from any desire to favor the defendant Jeffries.

There is one circumstance which to our minds entirely negatives and overthrows the idea that respondent was colluding with counsel for defendant Jeffries to favor him in the trial of his casé. Respondent had the power to admit Jeffries to bail, yet when a petition for habeas corpus was presented to him, and after he had considered the same, he suggested to counsel for Jeffries that the petition be withdrawn and presented to this court for action. If there was any collusion on the part of respondent and Jeffries and his attorney, as the publication made by the attorney of Jeffries would indicate, and if respondent desired to favor Jeffries, there was nothing to have kept him from admitting Jeffries to bail. It is much more difficult for lawyers to understand judges than it is for judges to understand lawyers, because all judges have acted in both capacities. No man can be a good trial lawyer unless he becomes so imbued with the justice of his case as to make him a partisan. We see this illustrated in the person of the county attorney of Nowata county. We commend the ability, zeal, and courage with which he prosecutes violators of law in his county, and under the testimony in this case we can well see how he may have misconstrued and misunderstood the conduct of the trial judge. A judge should never be a partisan. He should endeavor to treat both sides with equal fairness and impartiality. Whenever a judge becomes a partisan, his usefulness on the bench is at an end.

From a careful consideration of the entire record in this case, we have reached the conclusion that the county attorney and the respondent have both acted in good faith, and that each one has been animated alone by a conscientious desire to do his duty, and that the trouble existing between them grows out of their different temperaments and viewpoints. The evidence shows that the defendant Jeffries has been granted a great many privileges by the sheriff of Nowata county, not authorized by law or by order of respondent. We take advantage of this occasion to say to the ■ sheriffs of Oklahoma that the law has provided county jails as the places of confinement for prisoners committed to their custody, and that they have no right to keep them anywhere else, or allow them to be at liberty, except on special order of a court of competent jurisdiction.. Any sheriff who does not obey the law in this respect should be removed from office, and should also be visited with severe penalties. The man who is not willing to obey the law should not hold the office of sheriff, or any other public office. He has no right to have pets or favorites, or extend any liberties or privileges to one prisoner which the law does not extend to all prisoners; and we suggest to the various trial judges and county attorneys of Oklahoma that they admonish their several sheriffs as to this matter, and, if they-find any carelessness of this sort, that they take such action as will secure respect for and obedience to law, for in this manner only can the interests of society be protected.

Considering the evidence in this case as a whole, we do not think that we would be justified in holding that respondent was disqualified to sit in the trial of this case. The writ of mandamus is therefore denied.

ARMSTRONG and DOYLE, JJ., concur.


text:
    TOM WYNNE et al. v. STATE.
    No. A-1252.
    Opinion Filed September 5, 1912.
    (126 Pac. 266.)
    1. APPEAL — Petition in Error — Filing. A petition in error must be : filed with the transcript oí the record or case-made in order to • . , perfect an appeal; and if a case-made or transcript of the reeord is filed without a petition in error, such filing will be a nullity, - and such pretended appeal will be dismissed.
    2. SA.MÉ — Costs—Deposit or Security. It is the duty of parties desiring to take an appeal, to comply with the law with reference to making a deposit or giving a bond to secure the costs, and the clerk is not required to file any appeal until this is done, unless the appellant makes a legal showing that he is unable to comply with the law.
    (Syllabus by the Court.)

      Appeal from Choctaw'County Court; W. ■ T. Glénn, Judge.

      Tom Wynne and Tom Chambers were convicted of malicious mischief, and each fined $25, and they appeal.
    Dismissed.

      R. L. Evans, for appellants.

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

The Attorney General has filed the following motion to dismiss this appeal:

“Because the record shows that this is an attempted appeal from a judgment of conviction of a misdemeanor rendered in the county court of Choctaw county, Oklahoma, on the 9th day of May, 1911, and the petition in error and case-made were not filed in this court until July 11, 1911, more than 60 days after the rendition of such judgment; no order having been made extending the time within which to file petitions in error and case-made in this court beyond the time allowed by law.”

Counsel for appellants filed the following reply to the motion of the Attorney General to dismiss the appeal:

“That this case was appealed to this court from the county court of Choctaw county, Oklahoma, by transcript, and that the transcript, without the petition in error, was received by Hois. W. H. L. Campbell, clerk of this court, on or about the 6th day of July, 1911, within the time allowed by law in which to perfect this appeal; that the clerk of this court declined to file the transcript as of the date he received same, because the petition in error did not accompany the transcript, and because a cost deposit did not accompany said transcript, or a cost bond; and these defendants show to the court that a deposit was made as required by the clerk of this court, and also a bond for the costs of this case, on or about the 10th day of July, 1911.”

The time allowed by the statute to perfect an appeal was not extended by the trial court, and expired on the 8th day of July, 1911. The right to appeal in a criminal case must be exercised as prescribed in section 6951, Comp. Daws 1909, which, among other things, contains the following:

“The plaintiff in error shall file with his petition in error a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original case-made, as hereinafter provided, or a copy thereof. The pR R error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified i anscript of the record of said court.”

A petition in error is necessary in order to bring a case up on appeal, and no. transcript of the record or case-made can be legally filed, unless accompanied by a petition in error. According to appellants’ own showing the petition in error in this case did not reach the hands of the clerk until two days after the time for filing the same had expired. The clerk of the court has no right to file a transcript of the record or case-made, unless accompanied by a petition in error. A case-made or transcript of the record, filed without a petition in error, is a nullity. It is also the duty of parties taking an appeal to comply with the law with reference to a deposit or a bond for security of costs, and unless this is done, or a showing is made that appellant is unable to comply with the law, the clerk should not file a transcript of the record or case-made, unless he desires to do so at his own cost. We therefore' have no discretion, but must sustain the motion to dismiss the appeal.

The appeal is therefore dismissed.

ARMSTRONG and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    A. H. SHEPPARD v. STATE.
    No. A-1237.
    Opinion Filed September 5, 1912.
    (126 Pac. 267.)
    COMMERCE — Intoxicating Liquor — Transportation—Termination. An interstate shipment of liquor does not cease to be interstate commerce until it reaches the home or place of business of the consignee, and hence a person carrying the liquor from a railroad station to the home of the consignee, was not subject to prosecution for illegally conveying liquor within the state.
    (Syllabus by the Court.)

      Appeal from Washita County Court; L. R. Shean, Judge.

    A. H. Sheppard was convicted of illegally conveying intoxicating liquor, and he appeals.
    Reversed and remanded.

      Jones & Bashore, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted for illegally conveying intoxicating liquor. The evidence shows that the liquor in question was an interstate shipment from Kansas City, and was being conveyed from the depot at Bessie to the home of the consignee by appellant and one A. P. Gifford.

Under the repeated decisions of the Supreme Court of - the United States, such shipments of liquor are not subject to the laws of the state until they reach the home or the place of business of the consignee, and a person cannot be convicted for conveying such shipments of liquor from the depot to the home or place of business of the consignee. For a full discussion of this, question, see Gastineau v. State, 7 Okla. Cr. 512, 124 Pac. 464.

The judgment of the lower court is therefore reversed, and the cause remanded.


author: DOYLE, J.

text:
    WILLIAM DEW v. STATE.
    No. A-1300.
    Opinion Filed September 14, 1912.
    (126 Pac. 592.)
    1. TRIAL — Assessment of Punishment. • Sections 2028, 2029, and 2030 ’(Comp. Laws 1909) of the Criminal Code delimitate the respective'provinces of the court and jury as to the assessment, of'pun-, ishment in criminal cases.
    2. SAME — Rights of Jury — Instructions. To the constitutional right of a speedy and public trial by an impartial jury of the county in which the crime shall have been committed the statute gives the supplemental right to have the jury assess the punishment, where the defendant demands it. Held, that it was the imperative duty of the court, made so by the statute, to so instruct the jury upon the request of the defendant, and it was reversible error to refuse .to do so.
    (Syllabus by the Court.)

      Appeal from District Court, Cherokee County; John H. Pitchford, Judge.

      William Dew was convicted of a felonious assault, and appeals.
    Reversed.

      M. C. Reville, for plaintiff in error.

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

The plaintiff in error, hereinafter referred to as the defendant, was convicted of felonious assault, and sentenced to three years’ imprisonment in the penitentiary. The judgment and sentence was entered on the 18th day of February, 1911. From an order overruling a motion for a new trial, and the judgment, the defendant appealed, by filing in this court on August 7, 1911,-a petition in error, with case-made.

There are numerous errors alleged in the petition; but the only one necessary to notice is the assignment that the court erred in refusing the request of the defendant to- allow the jury to assess and declare the punishment in their verdict, should they find the defendant guilty of the offense charged, or of an offense necessarily included in that charged against him.

Section 2028 (Comp. Laws 1909) of the Penal Code provides :

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided.”

Section 2029 provides:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

Section 2030 provides:

“If the jury assess a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense of which they convict the defendant, the court shall disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case.”

Under the first section, in all cases of a verdict of conviction, the jury has the right to assess and declare the punishment in their verdict, and upon the request of the defendant the jury-must assess and declare the punishment, unless they fail to agree on the punishment to be inflicted; and if they find the defendant guilty, and fail to agree on the punishment, or to declare it in their verdict, or assess a punishment greater than the highest limit declared by law for the offense of which they convict, then, and then only, can the court assess and declare the punishment as provided by section 2029 and section 2030.

These sections delimitate the respective provinces of the court and jury as to assessment of punishment in criminal cases. To the constitutional right of a speedy and public trial by an impartial jury of the county in which the crime shall have been committed the statute gives the supplemental right to have the jury assess the punishment, where the defendant demands it. A refusal to instruct the jury of this right, when requested by the defendant, is prejudicial error, as being a denial of a substantial right given to him under the statute. It was the imperative duty of the court, made so by the statute, to so instruct the jury upon the request of the defendant, and it was reversible error to refuse to do so. The defendant also asked instructions defining included offenses, and they were refused. We think, under the evidence in the case, these instructions should have been given.

Reversed and remanded.

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


text:
    JOE PITTMAN v. STATE.
    No. A-1225.
    Opinion Filed September 14, 1912.
    (126 Pac. 696.)
    1. INDICTMENT AND INFORMATION — Conviction of Offense Included in Charge — Rape and Assault to Rape. The offense of as.-sault with intent to commit a rape is included in an indictment for statutory rape.
    2. RAPE — Evidence—Sufficiency. In a prosecution for rape of a child 12 years of age, evidence examined, and held sufficient to support a conviction for assault with intent to commit rape.
    3. EVIDENCE — Flight of Accused. In a prosecution for rape, .the fact that the defendant fled from his home is admissible as tending to establish guilt.
    (Syllabus by the Court.)

      Appeal from District Court, Bryan County; Summers Hardy, Judge.

    Joe Pittman was convicted of an assault with intent to commit rape, and appeals.
    Affirmed.
    /. Q. A. Harrod, for plaintiff in error.

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

The plaintiff in error, hereinafter referred to as the defendant, was indicted in the district court of Bryan county on December 17, 1910. The indictment charged that on May 16, 1910, “One Joe Pittman, late of Bryan county, did unlawfully and feloniously in and upon one Eula Yancey, a female under the age of 14 years, make an assault, and with her, the said Eula Yancey, he, the said Joe Pittman, then and there did have sexual intercourse, she the said Eula Yancey not being the wife of him the said Joe Pittman, contrary to,” etc. On his trial the defendant was found guilty of assault with intent to commit rape, and his punishment assessed at three years in the penitentiary. February 4, 1911, the court overruled a motion for a new trial and entered judgment in accordance with the verdict. The defendant appealed, by filing in this court June 29, 1911, a petition in error, with case-made attached.

It is contended that under this indictment he should have been convicted of rape in the first degree or acquitted, and that for this reason his conviction of assault to commit rape is not sustained by the evidence. Testimony tending to prove the defendant’s guilt of -rape as charged necessarily included that of assault with intent to commit rape. Section 6875 (Comp. Taws’ 1909), Procedure Criminal, provides:

“The jury may find the defendant guilty of any offense, the' commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.”

In the case of Lee v. State, 7 Okla. Cr. 141, 122 Pac. 1111, it is said:

“The prosecutrix, being under the age of consent, was. conclusively incapable of legally consenting to an assault with intent to have carnal knowledge of her. Every attempt to commit a felony against the person involves an assault; and if the acts of the defendant, done in furtherance of a purpose to have carnal knowledge of the prosecutrix, constituted an assault to commit rape, if done without her consent, then no act of hers could waive such assault. That there may be an assault with intent to rape upon a consenting female, where she is under the age of consent, on the ground that in law she cannot consent to such an assault, is held in the following cases: People v. Johnson, 131 Cal. 511, 63 Pac. 842; Gibbs v. People, 36 Colo. 452, 85 Pac. 425; Territory v. Keyes, 5 Dak. 244, 38 N. W. 440; Schang v. State, 43 Fla. 561, 31 South. 346; Hanes v. State, 155 Ind. 112, 57 N. E. 704; State v. Johnson, 133 Iowa, 38, 110 N. W. 170; Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747; People v. Chamblin, 149 Mich. 653, 113 N. W. 27; State v. Wray, 109 Mo. 594, 19 S. W. 86; Liebscher v. State, 69 Neb. 395, 95 N. W. 870, 5 Ann. Cas. 351; State v. Jackson, 65 N. J. Law, 105, 46 Atl. 764; Singer v. People, 75 N. Y. 608; State v. Dancy, 83 N. C. 608; State v. Sargent, 32 Ore. 110, 49 Pac. 889; Croomes v. State, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882; State v. Clark, 77 Vt. 10, 58 Atl. 796; Glover v. Commonwealth, 86 Va. 382, 10 S. E. 420; State v. Hunter, 18 Wash. 670, 52 Pac. 247; Loose v. State, 120 Wis. 115, 97 N. W. 526; Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217; Cyc. vol. 33, p. 1434, footnote 51. See, also, volume 2, Am. Ency. E. (2d Ed.) p. 987, and page 361, vol. 1, of Supp., and cases cited in the footnotes.”

“Where the proof is not conclusive as to the consummation of penetration, and 'the proof is evident as to assault with intent to commit rape, it is the duty of the trial court to instruct the jury of their right to convict of the lower offense.” (Vickers v. U. S., 1 Okla. Cr. 452, 98 Pac. 467.)

It is also insisted that the evidence was insufficient to justify the verdict of the jury. Without a recital of the evidence in detail, it is sufficient to say that there is testimony of the victim of the assault as-to all the facts necessary to make out the crime, and this witness, 13 years of age, is corroborated by the testimony of a physician, who testified that he made an examination a week or ten days after the crime is said to have been committed, and found her slightly bruised, and the private parts swollen to some extent, although the hymen was not ruptured. There was also evidence of flight, and that, while the defendant was preparing to flee to- avoid arrest, he made admissions to several persons tending to show his guilt of the crime charged. This, in our opinion, is sufficient to sustain the verdict.

It is well settled by this court that it will not undertake to pass upon the weight of the evidence, and unless there was no substantial evidence to justify the verdict, or it was the result of passion, prejudice, or partiality on the part of the jurors, it will not interfere.

We discover no error in the record proper. The judgment is therefore affirmed.

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


author: ARMSTRONG, J.

text:
    JOHN BETHEL v. STATE.
    No. A-1246.
    Opinion Filed September 14, 1912.
    (126 Pac. 698.)
    1. APPEAL — Continuance—Discretion of Court, (a) A motion for continuance upon the ground of absent witnesses is addressed to the sound discretion of the court, and unless an abuse of this discretion appears a judgment of conviction will not be reversed on appeal.
    (b) A motion for continuance that does not show due diligence upon the part of the person interposing it to have the absent witnesses present should be overruled.
    (e) When a motion for continuance is interposed upon the ground of the absence of material witnesses, and although on its face such motion may contain good grounds for continuance, if upon the trial the record discloses the fact that the testimony of the witnesses asked for would be cumulative, this court, as a general rule, will not interfere with the order of the trial court overruling such motion.
    2. PROSECUTING- ATTORNEYS — Special Attorney — Qualification, (a) When a special prosecuting attorney is appointed by the court, he should qualify as provided by law.
    (b) When a special prosecuting attorney is appointed by the trial court, and no objection is made and no question raised as to his qualifications and his authority to appear until after the cause is tried, in the absence of any prejudicial conduct, such objection comes too late.
    3. INDICTMENT AND INFORMATION — Filing—Failure to Place Filing Mark Thereon, (a) The failure of the clerk to place the filing mark upon the information when the same is filed, although conduct deserving severe criticism, is not such as to vitiate the information.
    (b) When a ease is called for trial, and continued for the term by agreement of the state and defense, a plea of not guilty entered, the case called for trial, and the trial concluded before any objection is made to irregularities in the information, an' objection that the' information did not bear the filing mark comes too late to avail, and a motion to set such information aside is properly overruled.
    4. APPEAL — Harmless Error. Where, upon a careful examination of the entire record, no prejudicial error is disclosed, and the judgment of conviction is sustained by the proof, this court will not seek technical grounds for reversal, which in no way deprived the accused of a fair and impartial trial, and will only' reverse when we can reasonably say that an injustice probably resulted from the proceedings.
    (Syllabus by the Court.)

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

    John Bethel was convicted of assault with intent to' kill, and appeals.
    Affirmed.

      Davis & Davis, for plaintiff in error.

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

The plaintiff in error, John- Bethel, was convicted in the district court of Seminole county at the January, 1911, term, on a charge of assault with intent to kill one Frank Barker, and his punishment fixed at imprisonment in the state penitentiary for a term of two years. It appears that the difficulty out of which this charge arose occurred at the home of Justice of the Peace Ashbrook, in Seminole county, where the Bethels and Barkers were engaged in a civil lawsuit. The trouble came up between a brother of the accused and a brother-of the prosecuting witness. The accused and prosecuting witness started toward the trouble, and became engaged in a difficulty of their own; the state contended that the accused assaulted Barker with his fist and then with a knife, pursuing him several times around the house, and inflicting a severe wound in the side, which it required a dozen stitches to close. The accused contended that the prosecuting witness, who weighed about 115' pounds, assaulted him with a knife, cut a hole in his clothes, and stabbed his brother. The testimony is to- some extent conflicting, but the verdict of the jury is amply sustained.

It is urged by counsel for the accused that the judgment should be reversed upon the ground that the court improperly overruled q. motion for continuance. Wé have carefully gone over the record and the motion, and find no reason to criticise the ruling of the court. The motion for continuance was properly overruled. At most the testimony sought would have been cumulative, and proper diligence was not shown to have the witnesses on hand.

It is next urged that the'judgment should be reversed because Geo. C. Crump, Esq., was permitted to appear on behalf of the state and prosecute this cause in the trial court .without having first qualified as- special county attorney. Counsel rely upon the holding of this court in Dodd v. State, 5 Okla. Cr. 513, 115 Pac. 632. The Dodd case is not in point. In that case the special county attorney was not appointed by any court having jurisdiction, and his authority was questioned at all stages of the proceedings, and nothing waived. In the case at bar there was no question raised about the qualification of Mr. Crump, and no objection made to his appearing and prosecuting the action, and none that he was not properly sworn or qualified before the trial began or during its progress.. Counsel in their motion for a new trial allege that he was appointed by the court. In their brief, however, they contend that he was not appointed by the court. There is nothing in this assignment to justify this court in interfering with the judgment.

It is next urged that the judgment should be reversed because the information upon which the prosecution was based did not bear the filing mark of the clerk. This contention is without merit. The filing mark has nothing to do with the validity of the information. There is no contention that the information was not in fact filed. The record is not offered to show that it was never filed. It is the duty of the clerk to mark the papers filed, enter them of record, and properly preserve them; but his failure to attach the filing mark does not vitiate the- information. This case was called for trial and continued by agreement of counsel at a prior term of court, the accused entered his plea of not guilty to the charge, the jury was impaneled, and the evidence taken before it was discovered that the filing mark was not on the papers. The court was then asked to set aside the information and discharge the accused, which motion was overruled, and properly so.

We have read the entire record, and find no errors sufficient to justify a reversal of the judgment. It is therefore affirmed.

FURMAN, P. J., ánd DOYEE, J., concur.


text:
    WALLACE PORTER v. STATE.
    No. A-1365.
    Opinion Filed September 14, 1912.
    (126 Pac. 699.)
    1. EVIDENCE — Character of Accused. Where the character or reputation of the accused is not an element of the crime charged, the prosecution cannot put it in issue by offering evidence of his bad character, unless the defendant first offers evidence of his good character. The prosecution may then rebut it by evidence of bad character.
    2. APPEAL — Prejudice from Error. Unfairness in the prosecution of a criminal case will vitiate a verdict of guilty, unless it clearly appears from the record that the defendant could not have suffered injury thereby.
    3., WITNESSES — Impeachment—Charge of Criminal Offense. It is improper to ask a witness if he has ever been indicted, arrested, or imprisoned, before conviction, for any offense whatever. Where such question is asked, it should be promptly excluded, with a rebuke to the lawyer asking the same; and if the question is repeated it should be treated as a contempt of court and punished as such.
    (Syllabus by the Court.)

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

    Wallace Porter was convicted of manslaughter in the first degree, and sentenced to seven years’ imprisonment in the state penitentiary, and appeals.
    Reversed and remanded.

      John H. Harper and Stuart, Cruce & Gilbert, for appellant.

      Chas. West, Atty. Gen., for the State.
   FURMAN, P. J.

Three questions are presented in the brief of counsel for appellant:

First. Counsel, in their brief, say:

“The record does not show testimony sufficient to establish the venue of the -offense. The only testimony in the record is that the body of the deceased was found near the old Clay house; some witnesses say about 2 miles, and some about miles, from Grady.”

Counsel certainly did not carefully read the record in this case. It is true that Dr. Davis did testify for the state that the body of the deceased was found about two and one-half miles southwest of the town of Grady; but the last question asked him on direct examination was, “Where was this?” He answered: “In Jefferson county, State of Oklahoma.” Mr. W. J. Stowe, a witness for the state, testified that the fatal shooting took place at the old Clay house in Jefferson county, Okla. So the first contention of appellant is not supported by the record.

Second. Counsel for appellant, in their brief, say:

“The defendant did not put his reputation in issue. The witness Steadham, over the defendant’s objection, was permitted to testify as to the defendant’s reputation. It is true he first testified that such reputation was good; but, after constant questioning at the hands of the prosecutor, he finally stated that what he meant by stating that the defendant’s reputation was good was that it was sometimes good and sometimes bad.”

When Zack Steadham was on the stand as a witness, he testified as follows:

“Q. How long have you known Wallace Porter? A. Two or three years. Q. What is his general reputation down there as being a dangerous and disorderly citizen? Mr. Plarper: Objected to as incompetent, irrelevant, and immaterial. (Overruled. Defendant excepts.) A. I think he is considered all right. Q. Absolutely all right? A. Yes, sir. Q. Much better than Miller’s? A. Yes, sir. Q. Did you ever hear of Wallace Porter getting into any trouble? A. No, sir. Q. You don’t know of him being under bond at this time for shooting old man Stowe? A. No, sir. Q. You don’t know anything about him being arrested by John Wright for stealing a horse? (Objected to. Sustained.) Q. You say Wallace Porter’s general reputation in the neighborhood where he lives as being a peaceable, law-abiding citizen is good? Mr. Harper: Objected to. (Overruled. Defendant excepts.) A. It is fairly good. Q. What do you mean by fairly good ? Does it mean that it is an average; or does he sometimes do something that is wrong, and sometimes do something that is right? A. Yes, sir; that’s what I mean.” “That’s all. Witness is excused.”

In the case of People v. Shea, 147 N. Y. 78, 41 N. E. 505, Mr. Justice Peckham said:

“In order to prove a man’s guilt, it is not permitted to show his former character, or to prove his guilt of other crimes, merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question. Where the character or reputation of the accused is not an element of the crime charged, the prosecution cannot put it in issue by offering evidence thereof. Nor can it do so in the first instance by cross-examining the defendant’s witnesses as to his character or reputation. But where the defendant offers any such evidence the prosecution may rebut it by like evidence.” — Volume 3, En-cyclopaedia of Evidence, p. 12.

If the law were to permit the introduction of evidence as to the commission of crimes by a defendant other than the one for which he is upon trial, or were to permit the state to offer testimony of his general bad character as original evidence against him, it would result in a confusion of issues before-the jury; and if the principle involved were recognized it would be hard to set a limit to the extent to which the issues in-a case might be multiplied. As we understand the law, there is but one rightful issue in the trial of a criminal case, and that is, Did the defendant commit the specific crime with which he is charged? The state is limited in its evidence in chief to this issue. No testimony is admissible against the accused, unless it is connected with or throws some light upon this specific issue. No one will contend that the bad character of a defendant is original evidence against him when he is upon ti;ial for any violation of the penal laws. We think that the rule is universal that the state cannot prove the bad character of the accused until he has put his good character in issue. The case of State v. Hull, 18 R. I. 207, 26 Atl. 191, 20 L. R. A. 609, presents an able discussion of this question, and the notes to this case contain an unanswerable array of au--thoxúties in support of the proposition stated. This question is so well founded in reason and supported by authorities that further discussion is unnecessary. If the appellant had put his character for peace in issue, a different question would be presented, because the state would have had the right to rebut any testimony offered by appellant. The appellant offered no evidence as'to his general reputation for peace. It is true, that on cross-examination appellant did admit that he was. then under bond on account of some trouble with the Stowes. This evidence itself was incompetent and highly prejudicial.

It is improper to ask a witness if he has ever been indicted, arrested, or imprisoned, before conviction, for any offense whatever. See Slater v. U. S., 1 Okla. Cr. 275, 98 Pac. 110. The fact that incompetent evidence had been admitted, although without objection, cannot justify the admission of other incompetent evidence. By taking the witness stand in this case, the credibility of appellant and his reputation for truth and veracity as a witness were in issue; but to this extent only could his character be attacked. The fact that appellant placed in issue the general reputation of the dececased as to his being a dangerous man did not place the character of appellant for peace in issue. The questions asked the witness Steadham, with reference to the character of appellant, were all highly improper. The insinuation which they conveyed was that appellant was an all-around bad man and a horse thief. It presented a style of prosecution of which this court does not approve. No man should be clothed with sanctity or visited with 'condemnation simply because he is accused of crime. Pie is entitled to fair treatment on his trial, 'and the presumption of innocence is his legal right.until he has been convicted by the jury. It would be a reproach to our courts to allow a defendant to be convicted by unfair means.. A verdict should be based upon evidence, and not upon suspicions and prejudice.

In the case of Hicks v. U. S., 2 Okla. Cr. 626, 103 Pac. 873, this court said:

“Unfairness, whether intentional or not, taints everything it touches, and will vitiate a verdict, unless it clearly appears from the record that there was no rational conclusion at which the jury could have arrived favorable to the defendant;, and it must be absolutely clear upon this question to wipe this taint out. Such is not the condition of the record in this case.”

When the first question objected to was asked, it should have been promptly excluded and rebuked, and when repeated it should have been treated as a contempt of court and punished as such. We cannot treat this matter as harmless error, because we know from personal experience that if suspicion is permitted by law to enter the jury box it is far more damaging to a party upon trial than legal evidence would be. Legal evidence may be rebutted or explained; but no lawyer ever lived, who1 can defend against suspicion and prejudice. Every man indicted for crime has a right to a fair trial. This right is denied when counsel for the state are permitted to throw suspicions as firebrands into the jury box against the defendant. When these suspicions are of a character to excite prejudice against a defendant, they cannot be said to- be harmless. We cannot understand why prosecuting attorneys will insist on heedlessly and needlessly injecting errors of this kind into a trial. The only way we can put an end to this evil is to set aside verdicts where such practices-are resorted to under circumstances calculated to injure a defendant. If this kind of practice is tolerated, the doctrine of harmless error would become a rank injustice.

Third. Counsel complain of error on the part of the trial court in not sustaining their motion for a new trial upon the ground of newly discovered evidence. As we feel compelled to grant appellant a new trial on account of the errors already pointed out, it is not necessary to discuss this question.

Reversed and remanded.

ARMSTRONG and DOYLE, JJ., concur.


text:
    JOHN SCHRIBER v. STATE.
    No. A-1376.
    Opinion Filed September 14, 1912.
    (126 Pac. 582.)
    APPEAL — Review—Absence of Briefs. When an appeal is taken to this court, and no briefs are filed on behalf of appellant, the judgment will be affirmed, in the absence of fundamental errors.
    (Syllabus by the Court.)

      Appeal from Superior Court, Garfield County; Dan Huett, Judge.

    John Schriber was convicted of assault, and appeals.
    Affirmed.

      W. 0. Cromwell and Harry 0. Glosser, for appellant.

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

Appellant was convicted in the superior court of Garfield county for an assault to do bodily harm, and his punishment was assessed at seven months’ confinement in the county jail.

The appeal in this case was perfected in this court on September 9, 1911. No brief has been filed in behalf of appellant, nor has any appearance been made in this court by any counsel representing him. We therefore have a right to assume that this appeal was taken for delay only. We have examined the record, and fail to find any errors therein. The testimony of appellant’s guilt is overwhelming.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    BOB SELF v. STATE.
    No. A-1390.
    Opinion Filed September 14, 1912.
    (126 Pac. 582.)
    APPEAL — Failure to File Record. If an appeal in a felony case is not perfected by filing the record in this court within six months after the date of judgment against the appellant, this court will not acquire jurisdiction of said appeal, and it will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, Hughes County; John Caruthers, Judge.

    Bob Self was convicted of grand larceny, and appeals.
    Dismissed.

      Walker & Fancher and B. J. Hicks, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and H. A. King, for the State.
   FURMAN, P. J.

Judgment was rendered against appellant on the 9th day of March, 1911, but the record was not filed in this court until the 21st day of September, 1911, which was more than six months after date of rendition of judgment. Under these conditions, this court does not acquire jurisdiction of the appeal. Nothing is left for us to do, except dismiss the appeal. For a full discussion of this question, see Farmer v. State, 5 Okla, Cr. 151, 114 Pac. 753.

The appeal is therefore dismissed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    FRED FRANKS v. STATE.
    No. A-1176.
    Opinion Filed September 14, 1912.
    (126 Pac. 582.)
    1. CONTINUANCE — Motion for Continuance. When a motion for continuance is filed by an accused setting up sufficient grounds to justify a postponement, it is an abuse of discretion for a trial court to overrule the same, in the absence of any showing that the motion is without merit or made in bad faith.
    2. HOMICIDE — Instructions—Self-Defense. An instruction which requires the accused in a criminal ease to measure the force necessary to be used in order to protect himself from the assault of another person by using just such force as may be necessary in order to save himself from receiving great bodily injury, and no more, is erroneous because it places too great a burden upon the accused, and requires him to measure the force necessary with entirely too much exactness. No one is capable in the heat of conflict of measuring the exact force that is necessary to avert danger. If a person in repelling an attack exercises reasonable judgment and in good faith uses only such force as is apparently necessary to avert such danger, he has done all the law requires.
    (Syllabus by the Court.)

      Appeal from District Court, Tulsa County; T. L. Brown, Assigned Judge.

    Fred Franks was convicted of assault with intent to kill, and appeáls.
    Reversed.

      Davidson & Williams, for plaintiff in error.

      Charles West, Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Fred Franks, was convicted in the district court of Tulsa county at the December, 1910, term on a charge of assault with intent to kill.

When the case was called for trial, the accused filed the following motion for continuance:

“Fred Franks, being first duly sworn, on his oath says: That he is the defendant in the above-entitled cause. That in said cause he is charged with the crime of assault with intent to kill one Geo. Eoff, and that one of the defenses therein will be self-defense, and the material issue therein will be whether or not the defendant was assailed or assaulted by the said Geo. Eoff at the time and immediately before the shooting, as charged in the information. That the defendant cannot safely proceed to the trial of the cause at this time on account of the absence of a material witness in his behalf, to wit, one Louisa Franks. That said witness would testify, if present, as follows, which is true: T was present at the time of the assault alleged in the information in this case, being within less than 50 feet of the defendant and Geo. Eoff. That it was still daylight, and I was in a position to see and hear all that occurred, and did see and hear all that did occur at that time. That, when I first saw the defendant, he was returning from the well with a bucket of water. ' That as he approached the portion of the double house in which Eoff at the time lived, and, just as he passed the northeast corner of the porch in front of Eoff’s house, I saw Mr. Eoff rush out of his house in a half-shaved condition, with a lather on his face, and intercepted the defendant near the center of the porch. And at that time Mr. Eoff said to the defendant, as he approached him, “You God damned son of a bitch, didn’t I tell you not to come over -here for any more water?” to which the defendant answered: “I have a right to get water at this well. There is no other place for me to get it, and my landlord instructed me to use the well, and I am going to do it.” Whereupon Mr. Eoff stepped off the back porch, and struck the defendant about the shoulder and neck with his fist. As Mr. Eoff approached the defendant, he had both hands in his pants pocket, and his left hand was still in his pocket as he struck the defendant with his right hand. That the blow caused the defendant to stagger back, and as Mr. Eoff followed him up the shot was fired. That on the evening prior to this trouble I heard Mr. Eoff say to the defendant: “If you ever come over here for any more water, you will either go over my dead body, or I will go over )murs.” And to this the defendant replied, “Í don’t want to have any trouble with you, but, both of us being tenants of the same house, I am as much entitled to the water as you are,” to which Mr. Eoff replied, “You heard what I said.” ’ That the said witness Louisa Franks resides in Tulsa, Okla., but that she is sick and confined to her bed, and is unable to either attend court or give her deposition. That by reason of her sickness she is nervous and hysterical and mentally incompetent to testify at this time; but affiant is informed and believes that she will be able to be present and testify at the next term of this court. That no subpoena has been issued for said witness for the reason that said witness has been absent at Kansas City, Mo., until last Monday, when the defendant had her brought here for the purpose of testifying in this case, and since her arrival no subpoena would have been available. The affiant further says that the facts as above set forth to which the witness would testify are true, and tha.t he cannot prove the same facts by any other witness whose evidence can be procured at this time. The affiant further says that this application for a continuance is not made for the mere purpose of delay, but that justice may be done. And further affiant saith not. [Signed] Fred Franks.”

The motion was overruled, and exceptions duly saved.

This appeal is by transcript, and there is nothing included therein which indicates that the state made any showing to the end that this motion was not in good faith or without merit. In fact, upon its face the motion appears to be sufficient in every respect.

In the absence of any adverse showing, we think the court should have granted the continuance, at least to postpone the trial until a later day in the term in order that the accused might have the benefit of the testimony of the sick witness.

Complaint is made against the instructions of the court. We do not find it necessary to discuss the instructions in detail, but the following instruction is worthy of attention:

“No. 7. The court instructs the jury that if you believe from the evidence in this case that the witness Eoff was the aggressor and struck the defendant, Franks, that the defendant, Franks, had a right to use just such force as was necessary in order to save himself from receiving great bodily injury and no more, and unless you believe that the defendant, acting as a reasonably prudent person, used more force than was necessary as a reasonably prudent person to protect himself from receiving great bodily injury or losing his life, you should acquit the defendant.”

This instruction requires the accused to measure the force necessary to be used in order to protect himself from the assault of the prosecuting witness with entirely too much exactness. In the language of the instruction it required him to use just such force as zms necessary in order to save himself from receiving great bodily injury, and no more.

The Kentucky Court of Appeals in the case of Carroll v. Commonwealth, 83 S. W. 552, 26 Ky. Law Rep. 1083; Id., 92 S. W. 308, 29 Ky. Law Rep. 33, discussing an almost identical instruction, says:

“Among other instructions the court told the jury that, if Begley ‘was then and there about to inflict upon Powell Carroll death or great bodily harm, he (appellant) had the right to use such 'force at his command as was necessary, and no more, to avert the real or apparent danger to Powell Carroll, even to the extent of taking the life of said Begley/ This instruction required the appellant to measure the force necessary to be used to protect Powell Carroll with as much exactness as an apothecary would drugs on his scales. If, in the opinion of the jury, the accused used more force than was necessary to protect Powell Carroll from death or great bodily harm at the hands of Begley, he could not be acquitted, although he may have, in the exercise of reasonable judgment, concluded that there was an apparent necessity for using just the amount of force employed by him. If the facts justified the appellant in striking Begley in defense of his nephew, he had the right to use such force as was apparently necessary to have averted the impending peril to him. No one is capable, under such circumstances, of measuring the exact force that is necessary to avert such a danger. If he exercises a reasonable judgment, and uses only such force as is apparently necessary to avert such danger, he has done all the law demands of him. We are of the opinion that the instruction was erroneous in not containing the idea herein expressed.”

The instruction in this case places a burden entirely too onerous upon the accused. As said by the Kentucky court, no one is capable under such circumstances (heat of conflict) of measuring'the exact force that is necessary to avert such a danger. If he exercises reasonable judgment, and uses only such force as is apparently necessary to avert such danger, he has done all that the law requires.

For the errors indicated, the judgment is reversed, and the cause remanded, with directions to grant- a new trial.

FURMAN, P. J., and DOYLE, J., concur.


text:
      Ex parte JAMES M. ELGAN.
    No. A-1642.
    Opinion Filed September 14, 1912.
    (126 Pac. 584.)
    JUDGES — Special Judges — Jurisdiction—Waiver of Objections. Where a special judge is elected or agreed upon to sit in a particular case, which is not finally determined at the term at which he is elected or agreed upon, and he presides at a subsequent term or terms, at which his authority is recognized by the parties, they thereby waive any objection that he was not re-elected or re-agreed upon at such subsequent term or terms.
    (Syllabus by the Court.)
    Petition of James M. Elgan for a writ of habeas corpus.

    Writ denied.

      William Bdens, for petitioner.

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

This is an application for writ of habeas corpus by petitioner, James M. Elgan, for discharge from imprisonment by R. W. Dick, warden of the state penitentiary at McAlester. The petitioner alleges that his restraint is illegal, because he is confined by a commitment from the district court-of Texas county, pursuant to a judgment of conviction for a felony, rendered in said court by one W. C. Crow,, sitting as special judge; that the Honorable R. H. Loofbourrow, regular district judge, was disqualified to sit in this case, because he was prosecuting attorney in the case prior to his election as judge; and that at the March, 1908, term of said district court the county attorney and the defendant, through his attorneys, Wiley & Whittaker, agreed that the Honorable W. C. Crow should preside as special judge in this case. It is'further alleged that said case was continued from the March, 1908, to the September, 1908, term of said district court, and that the said W. C. Crow continued at said term to sit as special judge in the case, and without further agreement, election, etc., tried the case and rendered judgment therein; that the trial before the Honorable W. C. Crow as special judge at thfe September, 1908, term of said court was without authority of law and void, and that therefore petitioner is entitled to be discharged. In support of his application, petitioner presents a transcript of the record in the case in which the judgment was entered, and asks this court to review it to determine the merits of his application.

The record discloses that at the September, 1908, term of the district court of Texas county, on the 14th day of said month, the case was called, with Hon. W. C. Crow, special judge, presiding, and that the cause was set for trial by agreement of counsel on the 17th day of said month. The record nowhere discloses any objection to special Judge Crow presiding at the trial, and does not indicate whether he was selected anew at the September term or not. There is nothing in the record which even indicates that the authority or regularity of the acts of the special judge was ever questioned until now. The transcript before us simply says: “Hon. W. C. Crow, who is duly and regularly sworn to act as special judge in said cause, presiding.” The trial proceeded for several days, judgment having been rendered against the petitioner on the 30th day of September, 1908. Counsel for petitioner urge that the court was without jurisdiction in this case and without authority to pronounce the judgment, and rely on Dodd et al. v. State, 5 Okla. Cr. 513, 115 Pac. 632.

As said by Furman, P. J., in Ellington v. State, 7 Okla. Cr. 252, 123 Pac. 186:

“The record does not bring this case within the rule announced in the case of Dodd v. State, 5 Okla. Cr. 513, 115 Pac. 632. In that case the defendant challenged the right of the special judge to preside when the order was made changing the venue of the case from Beaver county to Texas county, and there was nothing in the record which could be construed as an agreement on the part of the defendant that said special judge should preside or make any order in the case after the ex-., piration of the term at which he was agreed upon. In the case at bar, the record shows that the special judge presided at this trial, not only without objection on the part of the appellant, but with his knowledge and consent, because it affirmatively appears in the record that both the defendant and his attorneys were in-court, and without protest or objection announced ready for trial before said special judge. This could not be construed other than an agreement upon the part of appellant that said special judge should preside at the trial. In the Dodd case every question was contested, objections were made, and proper exceptions were reserved during every stage of the trial. In the case at bar the appellant, with full knowledge of the facts in the case, not only announced' ready for triah but did not attempt to raise the question now presented until the case reached this court. The Constitution and statutes do not prescribe any method by which an agreement for a special judge shall be made. The record conclusively shows that by his conduct appellant did agree that Hon. C. H. Elting should act as special judge in the trial of his case. This court has repeatedly held that there are certain jurisdictional matters that may be and are waived by the defendant failing to object at the proper time. See Muldrow v. State, 4 Okla. Cr. 325, 111 Pac. 656; In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 805. It is too late to attempt to raise this question on appeal, when no objection or exception was taken to the special judge’s jurisdiction at the first opportunity. The record in this case discloses that the special judge took the proper oath of office long prior to the trial, and that thereafter no objection whatever was made to his jurisdiction. In Schlungger v. State, 113 Ind. 295, 15 N. E. 269, the Supreme Court of Indiana, speaking on the question of waiver of authority said, 'Where the record does not disclose any want of authority on the part of the trial judge pro tempore, who assumes to act under color of authority and a party goes to trial before him without objection, he cannot, after conviction, question such authority.’ See, also, Kentucky Cent. R. Co. v. Kenney, 82 Ky. 154. In Davis v. Bingham (Tex.) 46 S. W. 840, it was held that ‘a party who tries a case before a judge without objection is estopped to assert that he was not agreed on by the parties for the trial.’ See, also, State v. Sachs, 3 Wash. 691, 29 Pac. 446; Mattingly v. Paul, 88 Ind. 95; State v. Murdock, 86 Ind. 124. In Small v. Reeves (Ky.) 37 S. W. 682, it was held: ‘Where a special judge is elected to sit in a particular cause, which is not finally determined at the term at which he is elected, and he presides at subsequent terms, at which his authority is recognized by the parties, they thereby waive any objection that he was not re-elected at the subsequent term or terms.’ ”

Instead of coming within the rule in the Dodd case, supra, the case at bar comes clearly within the rule in Ellington v. State, supra, and under the doctrine of the latter case the petitioner is not entitled to the relief prayed for herein.

The writ is denied.

TURMAN, P. J., and DOYRE, J., concur.