author: ARMSTRONG, P. J.

text:
    H. T. ALLEN v. STATE.
    No. A-1631.
    Opinion Filed February 2, 1914.
    (138 Pac. 178.)
    1. PHYSICIANS AND SURGEONS — Practicing Without Authority-Criminal Offense. It is a penal offense under the laws of Oklahoma for any person to practice medicine or surgery in this state without having at the time a valid unrevoked certificate.
    2. SAME — Ground for Reversal — Refusal of Instruction — Practicing Without Authority — Burden of Proof, (a) An information charging a person with the violation of that provision of the Code which penalizes persons for prescribing or administering any drug or medicine now or hereafter included in materia medica in all diseases, injuries, or deformities of human beings, must be substantiated by proof of the fact that some such drug or medicine was so prescribed or administered.
    (b) It is reversible error for a trial eourt to refuse to submit by proper instructions the necessary ingredients of any offense to the jury.

      Appeal from County Court, Carter County; M. P. Winfrey, Judge.

    H. T. Allen was convicted of violating the medical practices act, and appeals.
    Reversed.

      Champion & Champion and Stuart, Cruce & Gilbert, for plaintiff in error.

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

The plaintiff in error, PI. T. Allen, was convicted at the January, 1912, term of the county court . of Carter county on a charge of violating the medical practices act, in that he had been guilty of practicing medicine without a license, and his punishment fixed at a fine of $100 and costs.

This prosecution was begun prior to the adoption of Rev. Laws 1910, and is based upon section 4256, Comp. Laws 1909, which is as follows:

“Any person practicing medicine and surgery in this state, without having at the time a valid unrevoked certificate as provided in this act, shall be deemed guilty of a misdemeanor and shall be fined not less than one hundred ($100.00) dollars nor more than five hundred ($500.00) dollars, or by imprisonment for a term of not less than sixty days nor more than one hundred and eighty days or both such fine and imprisonment, and each day’s practice shall constitute a separate offense. All fines under the provisions of this section'shall be paid into the road and bridge fund of the county wherein the conviction is secured.”

Section 4259 of the same statutes provides:

“The following persons shall be deemed as practicing medicine and surgery within the meaning of this act: First. Those who prescribe or administer any drug or medicine now or hereafter included in materia medica in the treatment of disease, injury, or deformity of human beings.”

A careful reading of the record discloses the fact that plaintiff in error had been administering certain medicines, but no witness named any drug or medicines prescribed or administered by him, nor is there any proof in the record disclosing that any drug or medicine was administered which is included in materia medica, as required. When the cause was submitted to the jury, the court was asked to give the following instruction:

“You are instructed, gentlemen of the jury, that the state has failed to introduce evidence sufficient to establish the guilt of the defendant as charged in the information, and I hereby advise you to return a verdict of not guilty.”.

This instruction was refused by the court and exceptions duly saved. The failure to give this instruction and the failure to grant a new trial are assigned as errors in this court. The instruction should have been given without doubt. The Attorney General has filed a confession in error in which he concedes that the court committed reversible error in refusing to give this particular instruction. There are other errors complained of; but, in view of the fact that in our judgment this is fatal to the conviction, the judgment will be reversed on this ground alone. Judgment reversed, with directions for a new trial.

DOYLE and FURMAN, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    LEWIS STEALER v. STATE.
    No. A-1889.
    Opinion Filed February 7, 1914.
    (138 Pac. 395.)
    1. EVIDENCE — Testimony Taken on Preliminary Hearing. The constitutional provision that “In all criminal prosecutions the accused shall have the right to be confronted with the witnesses against him” (Bill of Rights, sec. 20) is not infringed by permitting the testimony given on the preliminry examination of the defendant by a witness who has since died to be read against him upon the trial of the case.
    2. SAME — Testimony Taken at Preliminary Hearing. Where a witness for the state on the preliminary examination has since died, a transcribed copy of the stenographic notes of his testimony given on the preliminary examination, supported by the stenographer's testimony, is admissible in evidence against the defendant upon any subsequent trial of the case.
    3. SAME — Testimony Taken on Preliminary Hearing — Hearsay. The rule that hearsay evidence is incompetent does not apply to testimony given on the preliminary examination of the defendant by a witness since deceased.
    4. HOMICIDE — Manslaughter—Sufficiency of Evidence. In a prosecution for murder, evidence examined and held sufficient to sustain a verdict of guilty of manslaughter in the first degree.

      Appeal from District Court, Mayes County; Preston S. Davis, Judge. ■

    Lewis Stealer was convicted of manslaughter in the first degree, and brings error.
    Affirmed.
    /. H. Langley; for plaintiff in error.

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

This appeal is prosecuted from a judgment and sentence entered on the 19th day of July, 1912, in accordance with the verdict of the jury finding the defendant, Lewis Stealer, guilty of manslaughter in the first degree, and assessing his punishment at imprisonment in the penitentiary for the term of four years.

The evidence on the part of the state shows that the defendant, a Cherokee Indian, together with eight or nine other Cherokees, gathered at the home of Dick Smith, the deceased, on November 2, 1910, and remained there several hours, drinking whisky, during which time the defendant and .the deceased had what several witnesses described as “a little tussel, tolerably rough though,” and they were separated by others present. There was a jug sitting on the porch; the defendant grabbed this jug and threw it, hitting the deceased on the head, fracturing his skull, and inflicting a wound about two inches long and an inch wide. The deceased fell unconscious, and on the ninth day thereafter he died. The' defendant, as a witness in his own behalf, testified that he only remembers that he went to the home of the deceased and became drunk, and woke up about sundown by the side of the road about a quarter of a mile from Dick Smith’s home; that he had no recollection of having any trouble with Dick Smith, the deceased.

Numerous errors are assigned in the admission and exclusion of testimony, but the only one worthy of notice is the principal contention that the court erred in admitting in evidence a transcript of the testimony of one Dave Blackbird, who was sworn and testified as a witness for the state, and who was cross-examined by' the defendant’s counsel on the preliminary examination. As a predicate for the introduction of this testimony, the death of the witness Dave Blackbird was proved, and Harve Langley was called as a witness to identify the transcript. He testified that he had been a stenographer for four years, and was requested by the county attorney to take the testimony of Dave Blackbird, together with that of other witnesses on the preliminary examination. That he took said testimony in shorthand, and transcribed the same within two weeks or a month, and delivered it to the county attorney; that this was a true and correct transcript of the testimony from his shorthand notes, and the certificate of verification thereon was made by him, and there had been no changes in it since he delivered it to the county attorney.

Over the defendant’s objection and exception, the transcript was admitted and read to the jury as the testimony of Dave Blackbird.

Our Constitution guarantees that:

“In all criminal prosecutions the accused shall have the right to be confronted with the witnesses against him.” (Bill of Rights, sec. 20.)

This right has always been deemed one of the most sacred and valuable safeguards of the citizen. It protects the accused against the peril of conviction by means of ex parte testimony or affidavits given in his absence,- or when he had not the right of cross-examination, with the exception that in homicide cases dying declarations made by the victim are held admissible as evidence, because they were admissible at common law, and as a matter of compelling necessity to prevent a failure of justice. Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532.

Constitutional provisions substantially similar are found in the sixth amendment of the United States Constitution, and in the constitutions of nearly all of the states. In construing these provisions, the courts have held with substantial uniformity that the testimony of a deceased witness given upon a former trial of the case or on the preliminary examination is admissible.

In Mattox v. United States, 156 U. S. 237, 15 Sup. Ct. 337, 39 L. Ed. 409, it was said:

“The primary object of the constitutional provision in question was to- prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and jitdge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot-free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law, in its wisdom, declares that the rights of the public should not be wholly sacrificed in order that incidental benefit may be preserved to the accused. We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject. — such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a bill of rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried further than is necessary to the just protection of the accused, and farther than the safety of the public will warrant. For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination; nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility. They are admitted not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice. As was said by the Chief Justice when this case was here upon the first writ of error (146 U. S. 140, 152 [13 Sup. Ct. 50] 36 L. Ed. 917, 921), the sense of impending death is presumed to remove all temptation of falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath. If such declarations are admitted, because made by a person then dead, under circumstances which would give his statements the same weight under oath, there is equal if not greater reason for admitting testimony of his statements which were made under oath. The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law says, he shall, under no circumstances, be deprived of, and many of the very cases which hold testimony such as this ho be admissible also hold that not the substance of his testimony only, but the very words of the witness, shall be proven. We do not wish to be understood as expressing an opinion upon this point, but all the authorities hold that a copy of the stenographic report of his entire former testimony, supported by the oath of the stenographer that it is a correct transcript of the notes and of the testimony of the deceased witness, such as was produced in this case, is competent evidence of what he said.”

The phrase “be confronted with the witnesses against him,” had a well defined and fixed judicial meaning long before the adoption of our state Constitution. The presumption therefore prevails that the framers of our Constitution used said language in its legal sense. It is well settled that, where terms or phrases have a technical or fixed judicial meaning, the framers of the organic law, when using said terms or phrases, used them according to their legal significance, as distinguished from any construction that might otherwise be placed upon the language.

In Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808, it is held that:

“Where the testimony of a witness on an examining trial is taken down and signed by him, or is taken in shorthand and transcribed without signing, and is filed with the clerk of the district court by the examining magistrate, such written statements, upon the proof of the death of such witness, may be used as a deposition, without further identification or verification.”

And it is further held that:

“Where a witness has testified at an examining trial and has been cross-examined by the opposing party, and his testimony is taken down by a stenographer, but the provisions of section 6623, Comp. Laws 1909, have not been complied with, a purported copy of said testimony is not admissible in evidence, unless the stenographer who took down the testimony of said witness testifies that such purported copy of the evidence is a true and correct copy of the notes of the testimony of such witness.”

See, also, Henry v. State, ante, 136 Pac. 982; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Hawkins v. United States, 3 Okla. Cr. 651, 108 Pac. 565.

Upon the record; the case against the defendant stands un-contradicted, and, - after a careful examination, we have been unable to find any reversible error in the record. The'judgment of conviction must therefore be affirmed.

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


author: DOYLE, J. ARMSTRONG, P. J.

text:
      Ex parte P. M. SULLIVAN.
    No. A-2182.
    Opinion Filed February 19, 1914.
    (138 Pac. 815.)
    1. CONTEMPT — Constitutional Law — Due Process. Under that clause of section 25 of the Bill of Bights, providing, "In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given,” an opportunity to be heard before a penalty or punishment is imposed for contempt is an indispensable essential to the administration of due process of law as contemplated by the constitutional inhibition that "No person shall be deprived of life, liberty, or property, without due process of law.” Section 7, Bill of Bights.
    2. HABEAS CORPUS — Right to Remedy — Abrogation. Section 10 of the Bill of Bights provides: "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.” The writ of habeas corpus is an ancient prerogative writ. It is a writ of right, granted to inquire into all eases of illegal imprisonment. The writ cannot be abrogated, or its efficiency impaired by legislative action. And under the constitutional guaranty the cases within the relief afforded by the writ at com-' mon law cannot be placed beyond its reach and remedial action by statute.
    3. SAME — Scope of Inquiry — Jurisdiction. The provisions of the habeas corpus act (section 4893, Rev. Laws 1910), which 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: * * * Second. Upon any process issued on any final judgment of a court of competent jurisdiction; or third. For any contempt of any court, officer or body having authority to commit * * *” — only apply when the court has jurisdiction to render the particular judgment. A court of competent jurisdiction is one having power and authority of law at the time of aeting to do the particular act. Jurisdiction of the person of the prisoner, and of the subject matter, is not alone conclusive, but the jurisdiction of the court to render the particular judgment is a proper subject of inquiry. If there was no legal power to render the judgment, or issue the process, there was no court of competent jurisdiction,' and consequently no judgment or process. All is coram non judice, and void.
    4. SAME — Grounds—Unlawful Imprisonment. When a person”"is’ helcP in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty upon habeas corpus, to inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.
    5. CONSTITUTIONAL LAW — ‘ ‘Due Process of Law’ ‘ ‘Law of the Land.” The phrase “due process of law” as used in Const. Bill of Bights, sec. 7, providing that “no person shall be deprived of life, liberty, or property without duo process of law, ’ ’ is synonymous with the phrase “law of the land” as found in Magna Charta (citing Words and Phrases, vol. 3, p. 2232. See, also, volume 5, p. 4025; vol. 8, pp. 7701, 7702.)
    Application for writ of habeas corpus by P, M. Sullivan.
    Petitioner discharged.

      P. M. Sullivan, in pro. per.

      C. J. Davenport, Asst. Atty. Gen., for respondent.
   DOYLE, J.

Upon petition to this court for a writ of habeas corpus, filed for the purpose of setting at liberty P. M. Sullivan, a writ was granted, returnable before this court. February 3, 1914.

It is averred in the petition that petitioner “is now and has been since January 28, 1914, illegally, unlawfully, and unconstitutionally restrained of his liberty and confined in the county jail of Oklahoma county by M. C. Binion, the sheriff of said county.”

The petition sets out with particularity proceedings in the Supreme Court of Oklahoma in case No. 5304, entitled Robert H. Hirsch and Thomas E. Kirby, Plaintiffs, v. P. M. Sullivan et al., Defendants, 40 Okla. 220, 139 Pac. 313. It is also averred that petitioner—

“Is so confined upon an order of commitment for an alleged direct contempt of court, made by a special Supreme Court of said state on the 28th day of January, 1914, wherein affiant is charged with contempt of said court, by filing in the clerk’s office an exhibit marked ‘Z’ in support of a motion made by him to modify the original judgment of this special court made on December 30, 1913. That on said 28th inst. said motion to modify, with a motion to tax costs made by the same party, were both called for hearing by Judge Loofbourrow acting as Chief Judge of said special court, and thereupon affiant came and said that the motion to tax costs was filed first, and he supposed that would be first heard, without any answer or reply to that, Judge Loofbourrow asked affiant if he had filed Exhibit Z with the clerk of said court, and affiant replied he had filed an exhibit so marked, and the judge proceeded and said, in substance, that said exhibit was slanderous and scurrilous matter, and affiant was guilty of a direct contempt of court by filing said exhibit, and that it was ordered by the court that affiant be committed to the custody of the sheriff of this county and confined in the county jail for a period of six months for such contempt. That affiant requested to be heard before committed, to which the court made no reply, but again ordered the sheriff to take him, affiant, into custody, which he did, and has been in custody ever since upon said proceedings as above. That affiant was not charged with contempt of court in any manner except as stated, and he was not given or afforded any opportunity to be heard at any time or manner before he was charged, committed, or punished as aforesaid, which conviction and punishment is illegal and unlawful and in direct violation of article 2, sec. 25, of the Constitution of this state, which says: Tn no case shall a penalty or punishment be imposed for contempt until an opportunity to be heard is given.’ But on the other hand, affiant was deprived of said constitutional right to be heard before punishment is inflicted.”

It is further averred:

“That he never in person offered in open court, in support of his said .motion, that said written argument; and he further says that he never offered any arguments, written or oral, in support of said motion, and was not given any chance or opportunity to present or argue said motion, and that after affiant was adjudged guilty of contempt of court, as aforesaid, Judge Loof-bourrow said the motion to modify judgment was overruled, and that was all there was done or said about said motion, in any manner in said court, and that said motion was overruled without presentation or argument, or looking at it or reading it in court, and affiant never saw said motion or exhibit after they were filed as aforesaid; and if they were ever offered or considered on said motion, affiant does not know it. Affiant further says that there are many facts alleged in said exhibits, and he claims his right.to a jury trial before he is convicted and punished for contempt of court therefor; that the truth is always a defense in all actions and proceedings, and arbitrarily convicting, and adjudging him guilty of contempt of court without first hearing him is not due process of law, and denies to him the right of self-defense, which is unlawful, unconstitutional, and inhumane; that there is no probable cause for affiant’s confinement for contempt of court, and he desires to use evidence on the hearing herein.”

The petition was verified by affidavit.

Attached to respondent’s return to the writ is a certified copy of the commitment on which petitioner is held, which, omitting the scandalous and scurrilous recitals of Exhibit Z, reads as follows:

“Commitment.

“The State of Oklahoma to the Sheriff of the County of Oklahoma — Greeting:

“Whereas P. M. Sullivan, was on the 28th day of January, A. D. 1914, present in person before the Supreme Court of the state of Oklahoma and in the presence of R. H. Eoofbourrow. acting Chief Justice, and one of the regular Justices of the Supreme Court, and George S. Ramsey, H. E. Eogg, and J. G. Ralls, Special Justices, said court being then in session for the purpose of hearing a motion filed by said P. M. Sullivan in cause No. 5304 in said court, and on the 26th day of January, 1914, said Sullivan having filed a certain instrument as follows in said cause: Tn the Supreme Court of Oklahoma. Robert H. Hirsch and Thomas E. Kirby, Plaintiffs, v. P. M. Sullivan et al., Defendants. Case Number 5304. Exhibit of Defendant Sullivan, Marked Ex. Z. In support of motion to modify judgment.’ Said Exhibit Z contained numerous statements that are directly contemptuous of this court, scurrilous, false, and inserted for the purpose of reflecting, not only on the members of this court, but on the court as such, and that among other contemptuous allegations appear in said Exhibit Z the following. * * * And said Sullivan being asked in open court by the presiding Justice if he had filed with the clerk of this court Exhibit Z replied that he had, and, further stated in open court that the statements contained in said Exhibit Z were true. And the said act having been committed in the presence of said court, the said court did thereupon find and adjudge that he, the said P. M. Sullivan, was and is guilty of direct contempt of said court, and did therefore order that he be punished for said contempt by imprisonment in the county jail of Oklahoma county, state of Oklahoma, for a period of six months and directed the marshal of said court to deliver said Sullivan to the sheriff of Oklahoma county, state of Oklahoma, and said sheriff commit said P. M. Sullivan to the county jail of Oklahoma county, Okla., for a period of six months. You are therefore commanded to receive the said P. M. Sullivan, and him safely keep in the common jail of said county for the term of six months from the time he is delivered to you, unless he shall be sooner discharged according to law.

“Witness my hand and the seal of the Supreme Court of the State of Oklahoma this 2Sth day of January, A. D. 1914. W. H. E. Campbell, Clerk of the Supreme Court of the State of Oklahoma, by Reuel Haskell, Jr., Assistant. [Seal.]”

Upon the hearing the petitioner, sworn as a witness in his own behalf, testified, in substance, that he appeared in person as a party in case No. 5304, and Presiding Judge Eoofbourrow asked him if he filed Exhibit Z in said cause, and he answered that he did, and the presiding judge said that said exhibit was scandalous and slanderous, and was a direct contempt of court, and ordered that petitioner be taken in custody by the marshal, and by him delivered to Sheriff Binion to be confined in the county jail for a period of six months; that petitioner demanded a right to be Heard before he was convicted, to which the court made no reply; that the presiding judge ordered his' commitment without consulting his Associate Justices; that Sheriff Binion immediately took him into his custody, and he has since so remained.

On petitioner’s request, Mr. Reuel Haskell, assistant clerk of the Supreme Court, was sworn, and testified that he was present when petitioner was ordered committed. His testimony corroborates that of petitioner.

On petitioner’s request, the respondent, M. C. Binion, sheriff, was sworn, and testified that the marshal of the Supreme Court sent for him on the 38th day of January, and he was present in court when the order adjudging petitioner guilty of contempt and committing him to custody of respondent was made. His testimony corroborates that of petitioner.

Annexed to the petition is the affidavit of Floyd Wheeler, counsel for one of the parties in said case No. 5304, wherein affiant states that:

“When the motion to tax the costs against the defendant, P. M. Sullivan, was called the presiding judge asked Sullivan if he had filed an exhibit marked ‘Z’ with the clerk. Sullivan replied that he Had. Thereupon the presiding judge stated that it was the judgment of the court that said exhibit was scandalous and slanderous, and was a direct contempt of court, and it was ordered that Sullivan be taken in custody by the marshal, and by him delivered to the sheriff, and be confined in the county jail for a period of six months. Then Sullivan said that he wanted to be heard before he was convicted, to which the court made no reply. The sheriff then took Sullivan in custody. The court proceeded and overruled the motion to modify the judgment, taxed the costs against the defendant, Sullivan, and then took a recess.”

' In the proceedings referred to petitioner was appearing in his own proper person, in his own behalf, and so appearing in this case, he has filed a brief, in which he contends that his commitment and imprisonment is illegal, invalid, and void, for want of due process of law, as secured to' him by the Constitution of this state (section 35, art. 3) and the Constitution of the United States, as shown by the undisputed evidence in this, to wit: That he was deprived of an opportunity to be heard before commitment and imprisonment, which right to be heard before being condemned is the law of the land, and he demanded such right to be heard and was denied it by the court. That he was not cited or notified that he was charged with contempt of court until he was adjudged guilty and sentenced to six months’ imprisonment in the county jail therefor by Presiding Judge Loof-bourrow, which deprived defendant of the right to be heard before being condemned, and constitutes an entire lack of due process of law under the state and the United States Constitutions, and the judicial procedure of all civilized countries: that from the evidence and the facts surrounding the case, as they appeared upon the hearing, the conclusion is that the defendant was tried and condemned and adjudged guilty before the court convened and sentenced him, by the court sending for the sheriff to come into court and take him to jail, and by the presiding judge asking him a single question only, “if he filed Exhibit Z,” and then, without notifying him that he was charged with being guilty of contempt of court, sentenced him to six months’ imprisonment, and in then ordering him into the custody of the sheriff without any conference or consultation with the other judges of the court.

The petition is based upon the clause of section 25 of the Bill of Rights, which is in these words: “In no- case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given”- — -and section 7 of the Bill of Rights, which reads: “No person shall be deprived of life, liberty, or property, without due process of law.”

The principle that no- person shall be deprived of life, liberty or property, except by due process of law, is older than written constitutions. The phrase “due process of law,” as used in the Bill of Rights, is synonymous with the phrase “law of the land,” as found in Magna Charta. A definition of the meaning of the words “law of the land” and “due process of law” which has received the sanction of the courts (see Words and Phrases, vol. 3, 2232) is Mr. Webster’s familiar definition:

“By the ‘law of the land’ is clearly intended the general law, which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. It means that every citizen shall hold his life, liberty, and property under the protection of the general rules which govern society.”

Says Judge Cooley:

“Due process of law, in each particular case, means an exertion of the power of government as the settled maxims of the law permit and sanction, and under such safeguards for the protection of individual rights as these maxims prescribe for the class of cases to which the one in question belongs.”

The right to punish for contempt is inherent in every constitutional court having common-law powers. Without entering into a discussion of the reasons underlying the right, we will only say that its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and decrees of the courts, and consequently to the due administration of justice; and in a-measure upon its proper and prudent exercise ■ depend the respect and dignity and efficiency of courts of justice. Contempts of court are punished as offenses against the administration of justice, and not as personal affronts to those who exercise judicial functions, and a person imprisoned as punishment for criminal contempt, properly so called, is imprisoned in execution under a sentence for crime. Under the principles and rules of the common law, the, right to- punish for contempt in a summary manner is recognized, and the power to punish, by fine or imprisonment, at the discretion of the court, contempts against the dignity and authority of the court, committed in the presence of the court, instanter, without notice or hearing, is- unquestioned. In such cases the court acts upon view; there is no presentation, no plea, nor issue upon ■which there can be a trial. Ex parte Savin, 131 U. S. 267, 9 Sup. Ct. 699, 33 L. Ed. 150; Ex parte Clark, 208 Mo. 121, 106 S. W. 990, 15 L. R. A. (N. S.) 389.

And it is held that such proceeding recognized as due process of law under the common law must be considered as “Due process of law” within the'meaning of the constitutional provision. However, none of the states in which those decisions were made seem to have in their Constitutions a provision limiting the power of the courts to inflict summary punishment for contempt, and under this constitutional guaranty it is the unquestionable right of a contemner to have an opportunity to be heard before, punishment is imposed. We have been unable to find that this significant provision appears in any other state Constitution.

Another rule of common law upon which there is some conflict of authority is that the Legislature has no power, in the absence of - constitutional provisions, to abridge, impair, limit, of regulate the inherent power of the courts to punish for contempt, and this was the rule adhered to by the Supreme Court of Oklahoma Territory. See Burke v. Territory, 2 Okla. 499, 37 Pac. 829, and Smith v. Speed, 11 Okla. 95, 66 Pac. 511, 55 L. R. A. 402. In all free governments absolute power rests somewhere. In this state it is neither lodged with the Legislative, nor the executive, nor the judicial branch of government, nor with all combined, but sovereignty rests with the people, and in their sovereign capacity they have placed certain constitutional limitations upon the power of the courts in proceedings for contempt.

Section 25 of the Bill of Rights provides:

■ “The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt: Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint made or rendered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”

Upon the facts stated in the commitment, petitioner was clearly guilty of criminal contempt. It goes without saying that when an attorney or party files a paper, reflecting upon the integrity, fairness, and impartiality of the court, except where the statutes make it grounds for disqualifying the judge, or obtaining a new trial on account of alleged prejudice or bias, or for the purpose of change of venue, he thereby makes himself guilty of a criminal contempt. However, under that clause of section 25 of the Bill of Rights, already quoted, before a person can be punished for a contempt of any kind, he must be given an opportunity to be heard; and any judgment of conviction rendered without a hearing, or without an opportunity to be heard, is void, and such a deprivation of his constitutional right to be heard is a denial of due process of law.

In the case of Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L,. Ed. 215, the court had stricken out the answer of a party because of his contempt of an order requiring him to pay money into court, and rendered judgment against him pro con-fesso; it was held that the act was beyond the power of the court, for the reason that it deprived the party of the right to be heard in his defense, and that the judgment so entered against him was void, even as against collateral attack. Among other things, it is said:

“Can it be doubted that due process of law signifies a right to be heard in one’s defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which, if done under express legislative sanction, would be violative of the Constitution? If such power obtains, then the judicial power of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it. If such authority exists, then, in consequence of their establishment to compel obedience to law and to enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent.”

And, as showing that it is not sufficient that the court shall go through the mere form of citing a party to appear upon the pretense of giving him a hearing while in fact denying him the right in its substance, it is there said:

“Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may he, by the law of its organization, over the subject-matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has anything to say, why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, ‘Appear and you shall he heard/ and, when he has appeared, saying, “Your appearance shall not be recognized, and you shall not be heard.’ ”

And, quoting from Galpin v. Page, 85 U. S. (18 Wall.) 350, 21 L. Ed. 959, it is said:

“It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered.”

In the very recent case of Ex parte Nelson, decided by .the Supreme Court of Missouri, 251 Mo. 63, 157 S. W. 794, where the petitioner was cited to appear and show cause why he should not be adjudged guilty of contempt of court for publishing a contemptuous article of and concerning the circuit court of Jackson county and one of the judges thereof, the petitioner appeared before said court and filed his answer, and by counsel demanded the right “to introduce testimony, which right was denied by the court, and he was adjudged guilty of contempt. It was held that the article was contemptuous of the court and the judge presiding therein^ and further held that petitioner’s conviction for contempt of court without a hearing was a denial of due process of law. The opinion by Mr. Justice Woodson is clear and logical, and shows great research. Quoting therefrom, in part he said:

“Was the petitioner given a hearing within the meaning of the state and federal Constitutions- before he was condemned, or was he in fact tried the night before, with a contingent right on his part to have the findings and judgment'modified or set aside in case he should convince the court that the findings and judgment were upon the facts improper, which, as we have previously shown by a quotation, from said written opinion of the court, the court was satisfied the. petitioner would not be able to' make? This conduct of the court was a plain violation of the following fundamental rule of right, viz.: ‘He that an-swereth a matter before he heareth it, it is folly and shame unto him.’ Proverbs, 18, 13. ‘That no person shall be deprived of life, liberty, or property without due process of law.’ Section 30 of article 2 of the Constitution of Missouri 1875. ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.’ Section 1 of amendment 14 of the Constitution of the United States. These constitutional provisions are but different modes of expressing the fundamental right of a man to a fair and impartial trial, be he innocent or guilty. This right was announced by Solomon centuries before the Christian era. All of those wise provisions of fundamental law are grounded upon right, and right is not grounded upon them. They are but the human guaranties that the God-given right, to all mankind, to life, liberty, and property, shall not be taken from him without due process of law. This is the best form of government given to man upon earth; but, thank God, we are promised a better one in the world to come, where every one, great and small, shall be judged out of the book of life, ‘according to their works.’ Revelations, 20, 12. Returning to earth: The authorities are uniform in holding that these constitutional provisions are applicable to every form of procedure where the life, liberty, or property of a person is sought to be taken from him, whether it be by the trial or appellate court, sitting alone or aided by a jury, upon information, indictment,, or citation or appeal, charging him with a misdemeanor, felony, contempt of court, inferior or superior, or with any other violation of the law, where a judgment or conviction is asked taking from him his life, liberty; or property. ' Seemingly the friends and counsel of the court do not seriously insist that the petitioner was actually tried and heard in his own defense before he was condemned and deprived of his liberty within the meaning of said constitutional provisions, but insist that, notwithstanding that fact, he was not deprived thereby of any of his legal rights, because, as they contend, the record shows he was unquestionably guilty of contempt, and if he had been given a timely hearing, the result would have been the same. That may be true, yet counsel overlook the larger fact, namely, that even the most guilty are entitled to a fair and impartial trial before they can be legally pronounced guilty. A person may be guilty of the most atrocious crime, which may be known to hundreds, and he may have proclaimed his guilt from the housetops, nevertheless he must be accorded the same fair and impartial trial, according to the forms of law, that., would be accorded to a king, prince, or potentate.”

Professor McGehee, in his work on Due Process of Law, says at page 73 :

“Justice requires that a hearing and an opportunity to present defenses must precede condemnation. Around this ideal of justice has grown up the constitutional conception of ‘the law of the land,’ or due process of law, but the ideal was not confined to one system of jurisprudence, and was common to thoughtful men everywhere.”

It is submitted by the Assistant Attorney General appearing for respondent that where the imprisonment is under the judgment of a court of competent jurisdiction, such judgment cannot be attacked collaterally, or the proceedings inquired into in habeas corpus proceedings; that this court is precluded from inquiring into the facts alleged in the petition by the provisions of section 4893, Rev. Laws 1910, which read:-

“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: * * * Second: Upon any process issued on any final judgment of a court of competent jurisdiction; or third: For any contempt of any court, officer or body having authority to commit. * * * ”

Section 10 of the Bill of Rights provides:

“The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.”

It is well settled, by numerous decisions of this and other courts, that the writ of habeas corpus is a writ of right, and cannot be abrogated or its efficiency impaired by legislative action, and under the constitutional guaranty, the cases within the relief afforded by the writ at common law cannot be placed beyond its reach and remedial action by statute. A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act, and jurisdiction of the person and of the subject-matter is not alone conclusive, but the jurisdiction of the court to render the particular judgment or issue the process is a proper subject of inquiry; and the proceedings of the committing court will be examined so far as necessary to determine the question of jurisdiction. If there was no legal power to render the judgment, or issue the process, there was no court of competent jurisdiction, and consequently no judgment or process. All is coram non judice, and void. See Ex parte Patswald, 5 Okla. 789, 50 Pac. 139, Ex parte Justus, 3 Okla. Cr. 111, 104 Pac. 933, 25 L. R. A. (N. S.) 483, and Ex parte Mingle, 2 Okla. Cr. 708, 104 Pac. 68.

This court will take judicial notice that P. M. Sullivan, the petitioner, was by the Supreme Court of this state constituted of Special Justices, appointed by the Governor (the elected Justices of the Supreme Court having disqualified), disbarred from the practice of law (see Williams v. Sullivan, 35 Okla. 745, 131 Pac. 703), and that the elected Justices of the Supreme Court disqualified in the case wherein this contempt proceeding arose, and that said court was constituted of Special Justices, sitting with Justice Loofbourrow, appointed for the determination of that cause alone, and that said Special Justices had ceased to act as such before the petition herein was filed, and that the elected Justices of the Supreme Court have disqualified in all cases wherein P. M. Sullivan, petitioner, is a party.

When a person is held under a commitment for contempt of court, such person may, by habeas corpus, secure a determination as to the jurisdiction of the court in ordering the commitment. It matters not what the general powers and jurisdiction of the court may be, if it acts without authority in the particular case, its judgment and order is a mere nullity. And if it be adjudged that the committing court had no jurisdiction, and that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody, in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law. That this court has no authority to review the judgments of the Supreme Court of this state is beyond question; but it is equally well settled that when a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority oí this court, but it is its duty, upon habeas corpus to inquire into the illegality of commitment when the matter is properly brought before it by petition, and, if found to be as averred, that such imprisonment is illegal, because the committing court had no jurisdiction, then to discharge the prisoner.

The privilege of habeas corpus cannot be denied as a matter of comity between co-ordinate courts. It is not the province of this court in this case to inquire' into any other than the single question, Was the petitioner adjudged guilty of, and committed for contempt, without an opportunity to .be heard ? Otherwise stated, Was the petitioner deprived of his liberty without due process of law? The uncontradicted evidence of respondent and the clerk of the court, and that of petitioner, is that he demanded of and was denied an opportunity to be heard by the court, and it will be observed, from the recitals in the order of commitment, that it does not recite that an opportunity to be heard was given before petitioner was adjudged guilty and committed for contempt; and the fact that no opportunity to be heard was given will be inferred in the absence of a recital to that effect.

That clause of section 25 of the Bill of. Rights in question does not prescribe any form nor require any characterization of the act charged as a contempt in order to confer jurisdiction, but it does require that an opportunity to be heard be given before a penalty or punishment is imposed for contempt. In the absence of some requirement of the statute prescribing the manner or mode of hearing, in order to confer jurisdiction on the court to punish for contempts, committed in the presence of the court, we think that it would be sufficient if the contemner be arraigned and asked whether he has any legal cause to show why he should not be adjudged guilty of contempt of court.

It is our opinion that an opportunity to be heard before penalty or punishment is imposed for contempt is an indispensable essential to the administration of due process of law as contemplated by the constitutional inhibition. In this case the court gave petitioner no opportunity to be heard. It logically follows as a plain legal deduction that petitioner is imprisoned without due process of law. Entertaining these views, we are of the opinion that the petitioner is entitled to his discharge; and it is so ordered.

FURMAN, J., absent and not participating.

ARMSTRONG, P. J.

(concurring). It is with great reluctance, and after much research and careful pondering, that I am forced to concur in the doctrine announced by my Associate, Judge Doyle, in the foregoing opinion, to the effect that no court in Oklahoma has the power to punish summarily for direct contempt until a hearing has first been allowed the offending party. The provision of the Constitution upon which the relief sought in this case must rest, and upon it alone in my judgment, is as follows:

“The Regislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt: Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court,'or judge sitting as such, any order of injunction, or restraint, made or rendered by any court or judge of the state shall, before penalty or punishment is imposed, lie entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”

The first clause of this provision clothes the Legislature with power to enact laws defining, regulating the procedure, and limiting the punishment in all classes of contempt. The second clause, together with section 2279, Rev. Laws 1910, prohibits any court from imposing punishment upon any offender for any indirect contempt until he has had a jury trial, if he so demands. The last clause specifically prohibits any court from imposing punishment of any character upon any contemptuous offender, either direct or indirect, until he has been given an opportunity to be heard. The wisdom of this provision, or any clause thereof, is not for this court to determine. It is a matter of common knowledge that many of the most able lawyers of Oklahoma and strong men from other walks of life composed the convention which wrote this provision into our Constitution, and it was ratified by an overwhelming vote' of the sovereign citizenship. The language is too plain to admit of judicial construction or interpretation that would allow any other conclusion than that expressed in the opinion. There has been no enactment by the Legislature since statehood defining contempts, providing procedure, or limiting punishments. The codifiers of the Revised Laws eliminated all such provisions from former enactments in- the Revision which was ratified by the Legislature. There can be no doubt but that the legislative assembly has the power under this section of the Constitution to enact a law prescribing a nominal fine for all classes of contempt, the most flagrant, as well as the most indirect, should it so desire, and by such enactment the court would be bound. Were it not for this provision, however, there is ample authority for the position that the power of the courts to inflict punishment summarily in cases of direct and flagrant contempt could not be restricted by unreasonable limitations. That our judiciary is elected by" popular vote and for short terms probably accounts for the fact that no action has been taken by the Legislature in this connection, together with the general confidence the people as a whole have in the courts. I know of no other identical constitutional provision, and considerable research has failed to disclose any of similar import.

In my judgment the relief prayed for and granted by the opinion in this case must stand wholly on the provision of the Constitution, supra, and upon no other legal grounds, organic or otherwise. That the contempt in this case was most flagrant, and merits severe punishment, cannot be doubted by any law-abiding citizen. The only question before us is: Was the punishment imposed in the manner provided by law? I am impelled to say that in my judgment it was not.

It appears that in the absence of legislation no punishment of any character can be imposed for contempt of any class until a hearing has been allowed. Just what this hearing should be is rather indefinite. I am of opinion, however, that arraignment before the bar of the court- and the offering by the court of an opportunity to the offender to give legal cause, if any, why judgment should not be summarily pronounced, and the hearing by the court of such reasons as may be legally offered, if any, would warrant summary judgment, either for or against the offender as in the judgment of the court is just and proper. In view of the fact that the punishment in the case at bar was inflicted by a court of co-ordinate jurisdiction, it is the opinion of the writer that the petitioner should be required to raise these questions in that court by proper proceeding, and secure a determination of them there. The fact that this remedy was open, however, would probably not be sufficient warrant for this court declining, on habeas corpus, to give its judgment on the question raised.

For these reasons I concur in the conclusion reached by my Associate, Judge Doyle, that the petitioner is entitled to be released from imprisonment under the commitment in question, but in my opinion he should be held to Appear before the Supreme Court to await such further action as that body may deem proper.


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    GEORGE COOK v. STATE.
    No. A-1946.
    Opinion Filed February 24, 1914.
    (138 Pac. 823.)
    EVIDENCE — Conduct as to Witness. The wife of the prosecuting witness refused to appear upon a subpoena, and was brought into court upon an order of attachment. She did not testify that she was present when the alleged sale of whisky was made, but testified that the defendant sent a party to her, and that the defendant told her, if she would stay hid and not appear against him, he would give her some money, and that he gave her money,, but that it was before this case was started. Held, incompetent and prejudicial, in that no connection with the case on trial was shown.

      Brror from County Court, Kay County; Claude Duval, Judge.

    George Cook was convicted of a violation of the prohibition law, and brings error.
    Reversed.

      Louthan & Burns, for plaintiff in error.

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

The plaintiff in error was indicted in the district court of Kay county on September 28, 1911, charged with having unlawfully sold whisky to one G. W. Stansberry. . The indictment was duly transferred to the county court. On the 19th day of November, 1912, a trial was had before a jury, which returned a verdict of guilty, and fixed the punishment by fine alone. Thereupon' the court, with proper instructions as to the law prescribing the punishment, directed the jury to reconsider their verdict. The jury returned another informal verdict, and the court again directed them to reconsider it, and the jury returned a verdict of guilty, leaving the punishment to be fixed by the court. Motion for new trial was duly filed and overruled. On the 25th day of November the court pronounced judgment, and sentenced the defendant to be confined in the county jail for 60 days and pay a fine of $150. To reverse the judgment an appeal-was perfected.

Several assignments of error are to the effect that the evidence is insufficient to support the verdict.

G. W. Stansberry testified that on the 3d day of September he was conducting the American House in Ponca City, and on that day he bought two half pints of whisky from the defendant in the kitchen of the American House, paying him a dollar therefor. On cross-examination he stated that he was convicted of the unlawful possession of whisky in the American House; that he moved out of the American House some time in September. Proper predicate was laid for introducing .statements made by the prosecuting witness that the defendant had been instrumental in putting him out of the American House, -“and that he was going to get even with him when the grand jury set.”

Cora Clemens testified that she was the daughter of G. W. Stansberry, and that the defendant, on September 3d, brought two half pints of whisky into the kitchen at the American House and sold them to her father. On cross-examination she said that she remembered the date because it was the day that her father went to Newkirk to make bond in his bootlegging case. She exhibited a great degree of prejudice against the defendant. Thereupon, the county attorney announcing that an attachment had issued for the wife of the complaining witness, upon his request the court took a recess for twenty minutes, and a further recess until 1:30 p. m., at which time, said attachment not having been returned, the court ordered the trial to proceed, and stated that: “In the event that the witness appears, the county attorney will be permitted to reopen the case for the purpose of offering the testimony of the absent witness.”

The defendant as a witness in his own behalf denied that on September 3d, or at any other time, he sold G. W. Stansberry any whisky. On cross-examination he was asked several improper questions, objections to which were sustained by the court.

Levi Temple testified that he had a conversation with the prosecuting witness in Ponca City about the 1st of September, and he asked him if he had ever bought any whisky of the defendant, and he told him he had not, and Stansberry then said Cook had something to do with making him get out of the American House, and he would get even with him when the grand jury set.

D. Lumley testified that he was present and heard G. W. Stansberry say to Levi Temple that he thought Cook had some-ing to do with trying to get him out of the American I-Iouse, and he would get even with Cook when the grand jury set, and that Cook would not make anything by it if he did have him put out.

John Plight testified that he was deputy sheriff, and raided the American Plouse about September 1st, and found intoxicating liquors there in the possession of the prosecuting witness.

Thereupon, over the objection of the defendant, the court permitted the county attorney to reopen the case, for the purpose of offering the testimony of Mrs. G. W. Stansberry. She stated that the defendant sent a party to her. Objection being sustained, she further stated:

“Well, if you want me to tell, of course he came to me and had a few words with me, and got me not to appear against him.” (The defendant moves to strike out the answer of the witness.)

“The Court: Tell what the words were. A. He came to me and we had some talk, and told me if I would stay hid and not appear against him he would give me some money, which he did. I got a certain party to stay there.”

She further stated that she did not remember what time it was; that she never paid any attention to it, and could not say, except “that it was before this case was started.”

The defendant recalled, testified that the only conversation be ever had with Mrs. Stansberry was at a time she stopped him on the street, and said, “Mr. Cook, my old man forced me to come up before the grand jury, and I am hard up for money, and if you will come across I will lay down,” and that he said to her, “I never had been held up without a gun, and I don’t propose to be held up now,” and that he did not pay her anything.

The competent testimony tending to prove the defendant guilty of the offense charged is very unsatisfactory, as the witnesses for the state were apparently actuated by prejudice and desire for revenge, yet we are constrained to hold that it was of such a character as to raise a question of fact, and that the verdict of guilty ought not to be set aside because contrary to or against the weight of the evidence; but, while we cannot say that the evidence is not sufficient to sustain a conviction, it is by no means certain that the jury, in reaching that conclusion, may not have been improperly influenced to the prejudice of the defendant by incompetent and improper evidence admitted against him. The improbable fact, testified to by the prosecuting witness, and corroborated by his daughter, that the defendant carried a pint of whisky into the bootlegging joint of the prosecuting witness, and there sold it to him, was sought to be bolstered up with the testimony of the wife of the prosecuting witness. She did not testify that she was present when the alleged transaction took place, but stated that the defendant sent a party to her, and that the defendant “got me not to appear against him,” and that she “got a certain party to stay there,” and that the defendant told her if she would stay hid and not appear against him, he would give her some money, and that he gave her money, but that “it was before this case was started.” We think that this testimony was incompetent and prejudicial because the language and conduct imputed to the defendant cannot be assumed to be in connection with the case on trial. It must clearly so appear to be competent. And, considering that this witness refused to appear upon a subpoena and was brought into court upon an order of attachment, and that her testimony is strongly tainted with the presumption that it was prompted by revenge, the logical inference is that it was a part of the plan of the Stansberrys to prejudice the defendant.

There was a direct conflict in evidence, and no incompetent and improper evidence should have been permitted to be placed in the balance against the defendant.

We consider it unnecessary to pass upon the other errors assigned. Suffice it to say that it is our opinion that the defendant did not have that fair and impartial trial to which he was entitled. The judgment is therefore reversed.

ARMSTRONG, P. J., concurs; FURMAN, J., absent and not participating.


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    GEO. BALDWIN v. TOWN OF ARNETT.
    No. A-1718.
    Opinion Filed February 27, 1914.
    (138 Pac. 822.)
    1. MUNICIPAL CORPORATIONS — Violation of Ordinance — Prosecution — Abatement. When a prosecution is begun in a municipal court for the violation of any ordinance of the municipality, and the town council repeals or amends such ordinance so as to affect vitally the penalty imposed or offense designated, such prosecution abates with the change unless there be a saving clause in the substitute act.
    2. SAME. The constitutional and statutory provisions reserving to the state the right to continue prosecutions under such conditions do not apply to municipalities.

      Appeal from County Court„ Bilis County; A. L. Squire, Judge.

      George Baldwin was convicted of violating an ordinance of the Town of Arnett and appeals.
    Reversed and remanded.

      C. B. Leedy; for plaintiff in error.

      W. H. Springfield, for defendant in error.
   ARMSTRONG, P. J.

This is an appeal from a judgment rendered in the county court of Ellis county on the 20th day of January, 1912, against the plaintiff in error upon a conviction based on a complaint charging a violation of an ordinance of the town of Arnett. There are a number of questions briefed and argued by counsel, only one of which we shall take occasion to discuss.

It appears that the complaint in this case was made on the 21st day of June, 1910, and was based upon an ordinance designated on the face of the complaint as No. 13, which ordinance undertook to designate and define certain acts as nuisances, and attached a punishment of 30 days’ imprisonment and a fine- of $25. Subsequent to the filing of said complaint, and prior to the trial of this case, the town council passed an ordinance purporting to amend ordinance No. 13, but which in fact is a substitute for it.

At the close of the testimony in this cause counsel for the accused offered the following instruction:

“The court instructs the jury that in this case the ordinance No. 13, under which defendant is being prosecuted, was amended by ordinance No. 25, passed and approved on the 28th day of June, 1911, and that such amendment to said ordinance supersedes ordinance No. 13, and that the defendant cannot be successfully prosecuted and convicted at this time, and you are hereby instructed to return a verdict of not guilty in this case.”

The ordinance No. 13 prohibited absolutely the keeping of swine within the limits of the town of Arnett. Ordinance No. 25 regulated the keeping of such animals, and prescribed certain conditions under which they might be kept. The latter ordinance, at the time of its passage, did not retain a saving clause of any kind or character. It is therefore contended by counsel for plaintiff in error that this cause abated on the passage of the latter ordinance, and the town’s right to prosecute for any alleged violation thereof ceased.

The court refused to give the instruction or any instruction involving the same principle. We are of opinion that the instruction should have been given. The town of Arnett had no right to maintain this prosecution after the ordinance under which it was instituted had been repealed, in the absence of a saving clause authorizing the continuing of prosecutions already instituted, or the prosecution of infractions committed. The Constitution and statutes reserve this right to the state, but not to municipalities.

The judgment is reversed, and the cause remanded, with directions to dismiss.

DOYLE, J., concurs. FURMAN, J., absent and not participating.


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    BOB TERRELL v. STATE.
    No. A-1698.
    Opinion Filed February 28, 1914.
    (138 Pac. 1039.)
    HOMICIDE — Manslaughter—Sufficiency of Evidence. In a prosecution for murder, the evidence examined, and held sufficient to support the verdict of manslaughter in the second degree, and that no prejudicial error was committed upon the trial.

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

    Bob Terrell was convicted of manslaughter in the second degree, and brings error.
    Affirmed.

      H. H. Brown, Wm. Pfeiffer, and Cruce & Potter, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

Plaintiff in error was tried on a charge of murder and was found guilty of manslaughter in the second degree, and his punishment was assessed at imprisonment in the penitentiary for the term of four years. From the judgment of conviction he appeals.

The facts of the case are few and simple. Practically none of the testimony on the part of the state was denied by the defendant. The deceased, Joe F. Robison, and the defendant Bob Terrell, were both residents of Ardmore. The deceased, at the time of his death, was 53 years of age, the father of two grown children. He had lived in Ardmore for 23 years. The defendant was a younger man, and at the time had been a resident of Ardmore for about five years. At the time in question the defendant was engaged in conducting a rooming house, and had a woman, one Nora Wilson, in charge of the same. Monte Wilson, her brother about ten or twelve years of age, was then staying at the rooming house, and it was over him that the trouble occurred which eventually resulted in the death of Robison. On the night in question a show was presented at the Robison opera house, of which the deceased was the proprietor and manager. Monte Wilson attended the show, and he afterwards reported to his sister Nora Wilson that during the performance Joe Robi-son, the deceased, had slapped him, and put him out of the opera bouse. The sister reported this occurrence to the defendant, Terrell, and it then appears that Terrell left the rooming house and went out upon the Main street of Ardmore. This was about 11 o’clock that night. After the show, as was his habit, Robison went to the postoffice, which was located three blocks east of the opera house. Whether Terrell knew of this habit of Robison does not appear from the record, but it does appear that the place that he met Robison was on Main street at a point between the post office and the opera house. Just prior to their meeting Robison had stepped into Hotchkiss’ jewelry store, and was holding a conversation with Mr. Hotchkiss, when Terrell approached him and told him that he would like to talk to him. They stepped out of the store and stood on the sidewalk; Robison facing south with his back towards the store and leaning against an iron post at the entrance. It was here that the difficulty took place. There were no living eyewitnesses to the entire transaction except the defendant.

The, following witnesses saw and heard parts of it: J. B. Blazier, O. W. Jones, Frank Taylor, Albert Roberts, Edgar Son, Will Farthing, Mrs. Marie Malis,' and C. W. Hotchkiss. Their testimony in a measure differs in minor details from that of the defendant; but, as the assault is admitted by him, a statement of their testimony is unnecessary.

The defendant as a witness in his own behalf testified: That on the night in question he gave the boy Monte Wilson 50 cents to go to the show. That after the show was over he saw the boy “and he was kind of snubbing,” and he told him the big fat man that sells tickets had slapped him. That he was on his way to a restaurant to get a cup of coffee. His testimony is then, in part, as follows:

“Q. Did you see Mr. Robison any more that night? A. Yes, sir. Q. Where did you see him? A. Just as I walked down the street, he walked out of Mr. Hotchkiss’ jewelery store. He and Mr. Hotchkiss walked out of the store, and Hotch turned back, and I says, ‘Uncle Joe, I would like to speak to you if you are through with Hotchkiss,’ and he said, ‘All right.’ I said, ‘You slapped a little boy up at the opera house tonight?’ and he said, ‘Yes.’ I says I would like to know what he was doing. Fie said he was cutting up. I says that is not q very good cause to slap a child. Fie says, T got fretted and I slapped him.’ I says: ‘If he goes up there any more, Mr. Robison, you have him arrested; don’t slap him. And if I feel like it, I will take him out of jail.’ He says, T have been running that opera house six or seven years, and you are the first man that ever told me how to run it.’ I says, T ain’t telling you how to run it,’ and he says he was fretted, and I says, ‘I am fretted too,’ and I struck him with my left hand. Q. Did you have anything in your hand? A. No, sir. Q. Do you know what was the result of that lick? A. Fie sat down — just sunk down — more than he was knocked down, and he kind of pitched over forward, and I raised him by the shoulders, and he was so heavy I couldn’t raise him up, and Mr. Hotchkiss took hold of him and helped me.”

On cross-examination he stated that before he met tbe boy he had been told by Nora Wilson, who had returned from the show to the rooming house, that Robison had slapped Her brother, and that he then went down on the street and there met the boy. He further stated that the deceased had made no effort to strike him; that he had previously been twice convicted of violations of the prohibitory liquor law.

The undisputed facts show that the defendant was seeking to bring on a difficulty, and his assault upon the deceased was without provocation and was unjustifiable and inexcusable.

Robison lived for five days. Immediately after the assault he was unconscious for five or six minutes. After that he said he was all right and walked home by himself. The next morning he appeared dazed, and a local physician was called and attended him. That afternoon he had recovered sufficiently to walk down town, and he continued to be about until the fifth day, when he was taken with severe pains in the chest, back, and left side. A physician was again called and administered to him, but a short time after the doctor left he died. A post mortem examination was held, conducted by Dr. Booth, assisted by Drs. Hardy and Bogie. These doctors testified that the injury .received from the blow, or the fall attendant upon the blow, caused blood clots to form in the heart from which he died. The contrary view was taken by Drs. Moore, Son, and Hargraves, although neither of them could give any reason for the formation of the blood clots in the heart in this instance, except to say that there were other general causes for the formation of such clots. This was the only question in the case. Did the defendant’s blow cause or hasten the death of Joe F. Robison? If the injuries sustained at the time of the .infliction of the blow were the primary cause of death, or contributed to hasten death, then the defendant under his own statement is guilty of the crime of manslaughter in the first degree.

The conviction being for manslaughter in the second degree only, the errors assigned, even though they were well founded, would not be prejudicial to the defendant. The brief filed in his behalf is without citation of a single authority to support the contention therein made. We have carefully examined the whole record and fail to find any fundamental error. Nothing occurred during the trial to the prejudice of' the substantial rights of the defendant. Under his own testimony he committed an unprovoked and unwarrantable assault and battery upon the deceased, and the jury found, upon the only controverted issue of fact, that the deceased died as a result of the injuries sustained from the effects of such assault and battery.

Perceiving no prejudicial error in the record, and the evidence being amply sufficient to support the verdict, the judgment of conviction is affirmed.

DOYLE and FURMAN, JJ., concur.


text:
    NELSON CARNEY v. STATE.
    No. A-1947.
    Opinion Filed February 28, 1914.
    (138 Pac. 1042.)
    1. APPEAL — -Verdict—Evidence. Where the jury finds a verdict of guilty, which is approved by the trial court, and there is evidence in the reeord to sustain the verdict, it will not be set aside, in the absence of prejudicial error.
    2. LARCENY — Sufficiency of Evidence. In a prosecution for the larceny of a domestic animal, the evidence examined and held sufficient to sustain the verdict, and that no reversible error was committed upon the trial.

      Appeal from District Court, Latimer County; W. H. Brown, Judge.

    Nelson Carney was convicted of the larceny of a domestic animal, and appeals.
    Affirmed.

      G. B. Mitchell and C. A. Phillips, for plaintiff in error.

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

The plaintiff in error was tried and convicted upon an information which charged the larceny of one bay mare, and, in accordance with the verdict of the jury, he was sentenced to be imprisoned in the penitentiary for a period of five years-From the judgment of conviction, he appealed by filing in this court on March 22, 1913, a petition in érror with case-made.

The Attorney General has filed a motion to strike from the record the case-made herein for the reason: That, when the second order extending the time to make and serve a case-made was made, the court or judge thereof was without jurisdiction to make said order, in that the time originally granted by the order of the court had expired. The certificate of the trial judge recites: “This is to certify that the foregoing above case-made and the amendments thereto have been duly served in due time,” etc. Thus it appears that the orders extending the time for making and serving case-made were in addition to the statutory time of fifteen days, as provided by section 5242, Rev. Laws 1910. See Monaghan v. State, ante, 134 Pac. 77, 46 L. R. A. (N. S.) 1149. The motion to strike is therefore overruled.

No brief has been filed and no appearance made in this court on behalf of plaintiff in error. For this reason, we do not consider it the duty of this court to make a careful examination of the transcript to determine whether or not the trial court erred in its rulings on the admission or rejection of testimony. No exception was taken fa> the sufficiency of the information, and the court submitted the case to the jury by a perfectly fair charge, to which no exception was taken.

The proof on the part of the state tended to show that the defendant took the horse in question from the range and placed his brand upon it and later traded the horse to another party. As a witness in his own behalf, his explanation was that he took possession of the property believing that it was the property of another person who had traded it to him.

The guilt or innocence of the defendant was therefore peculiarly within the province of the jury, and, when the jury finds a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be set ’ aside, in the absence of prejudicial error. Upon the whole case, we are of opinion that the defendant had a fair trial.

The judgment of conviction is therefore affirmed.

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


author: DOYLE) J.

text:
    GEO. FLOWERS v. STATE.
    No. A-1819.
    Opinion Filed February 28, 1914.
    (138 Pac. 1041.)
    1. INDICTMENT AND INFORMATION — Eight to Amend — Extent of Amendment. An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea by leave of court, where the same can be done without material prejudice to the right of the defendant.
    2. SAME — Right to Amend — Extent of Amendment. By leave of court, an information may be amended as to matters of form, after the jury has been.impaneled, when the same can be done without prejudice to the substantial rights o'f the defendant.
    3. EVIDENCE — Other Offenses — Rape. The general rule that proof of other offenses is inadmissible, unless a part of the res gestae, does not apply to offenses involving sexual intercourse; and evidence of other acts is admissible to show the relation and familiarity of the parties and as tending to corroborate the testimony of the prosecutrix as to the particular act relied upon for conviction.
    4. SAME — Other Offenses. In a prosecution for statutory rape, evidence is admissible of sexual acts between the prosecutrix and the defendant prior to and subsequent to the one charged and relied upon for a conviction, as indicating continuousness of the illicit relation.
    5. RAPE — Sufficiency of Evidence. . In a prosecution for statutory rape, the evidence is held to support the verdict and that no reversible error was committed on the trial.

      Appeal from District Court, Garvin County; R. McMillan, Judge.

    George Flowers was convicted of rape in the second degree, and he appeals.
    Affirmed.

      Carr & Pield, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE) J.

The plaintiff in error was tried and convicted upon an information charging him with having carnal knowledge of an unmarried female, named Mildred Brady, who was then and there under the age of sixteen years. His punishment was assessed by the jury at imprisonment in the penitentiary for a term of eight years. On January 22,1912, the court pronounced judgment and sentenced the defendant in accordance with the verdict of the jury.

Briefly stated, the facts and circumstances surrounding this case, as disclosed by the evidence, are as follows: The defendant is the stepfather of the prosecutrix, who testified in substance that when she was about thirteen years old her stepfather had intercourse with her the first time, and that between the 18th day of August, 1908, and the 12th day of July, 1909, her sixteenth birthday, the defendant had sexual intercourse with her eight or nine times, and that in the year 1911 he had sexual intercourse with her twice, and as a result she became pregnant, and she so advised him, and he told her he would try to do something. He afterwards gave her some medicine for the purpose of causing an abortion. That her child was born on the 12th of October. That the defendant was the father of her child. That shortly after she told him about her condition he had a local physician to examine her, and she stated to the physician, in the presence of the defendant, that he was the father of her child.

The defendant, as a witness in his own behalf, denied having had improper relations of any kind with his stepdaughter.

Only two errors are assigned and relied upon for a reversal of'the judgment. The first is, in effect, that the court erred in permitting the state to amend the information after the case had been called for trial and the jury had been called into the box but not sworn or examined.

The original information filed August 16, 1911, charged statutory rape on a female under the age of sixteen years, and the date alleged was “on or about the 12th day of June, 1908.” The amended information upon which the defendant was tided alleged the date to be “on or about the 18th day of August, 1908.”

Section 5695 (Rev. Laws 1910), Procedure Criminal, provides :

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

Time is not the essence of the crime charged. The state could have alleged any date prior to the filing of the original complaint within the statute of limitations, and could have proven a different date within the statute. It is obvious that the amendment here permitted by the court was not one in matter of substance and could not have been prejudicial to the substantial rights of the defendant. He filed no affidavit with the court showing surprise or asking for a continuance. Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087; Chappelear v. State, ante, 136 Pac. 978.

The remaining assignment of error complains of the rulings of the court in admitting evidence of o.ther acts of sexual intercourse between the defendant and the prosecutrix, both before and after the alleged act relied upon for a conviction.

As the question presented was fully discussed, authorities reviewed, and decided by this court adversely to the contention of the defendant in Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731, we deem it unnecessary to again discuss the question further than to quote what is there said:

“On reason and by the great weight of authority, we think the correct rule is that, in a prosecution for ‘statutory’ rape, evidence of other acts of sexual intercourse between the same parties is admissible, including evidence of acts committed subsequent to the particular act relied upon for conviction, even though it proves other and distinctive offenses, as relevant to show the true relation of the parties to each other, and to characterize and explain the act for which the defendant is on trial. It is the general desire to satisfy lust that is involved in this class of cases, and this character of evidence tends to show lustful desire and disposition by showing continuousness of the illicit relation. However, the limits of time over which evidence of this kind may range is largely within the legal discretion of the trial court.”

We have carefully examined the whole record and have reached the conclusion that the defendant had a fair trial. The testimony is such that it unquestionably supports the verdict, and in our opinion the defendant was properly convicted.

It is therefore ordered that the judgment of conviction be, and the same is hereby, in all things affirmed.

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


text:
    SAMPSON DICK v. STATE.
    No. A-1742.
    Opinion Filed March 14, 1914.
    (139 Pac. 322.)
    1. INDICTMENT AND INFORMATION — Accusation—Essentials— Felonious Nature of Act. It is not necessary, in an indictment or information, to repeat, in connection with each act necessary to constitute the crime of murder, that the defendant did it "feloniously.” It is sufficient where the word becomes a component part of the subsequent allegations. All that is necessary under our system of criminal pleading is that the statement be made in ordinary and concise language, embodying all the material ingredients of the offense.

      2. HOMICIDE — Dying Declaration — Oral Evidence. Where a person, mortally wounded and without hope of recovery, under the solemn conviction of impending death, makes several complete statements at different times of material facts concerning the cause and circumstances of the homicide, one of which statements was reduced to writing, the prosecution is not confined to the written statement, but may offer oral evidence of the statements made at other times, whether the several statements were similar or not. Should any of such separate statements be inconsistent or contradictory, it is open to the defense to show the fact.
    3. CONTINUANCE — Absent Witnesses — Preparation. A continuance sought in a murder case was properly denied, where accused was not brought to trial until January 11th following his arrest on October 27th and the motion for continuance did not give the names of the absent witnesses, and there was no showing that any effort had been made to prepare for trial, even though it appeared that accused had been confined in jail since his arrest.

      Appeal from District Court, Atoka County; Robert M. Rainey, Judge.

      Sampson Dick was convicted of murder, and appeals.
    Affirmed.

      J. G. Ralls, for plaintiff in error.

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

This appeal is prosecuted from a judgment and sentence entered on the 19th day of January, 1912, in accordance with the verdict of the jury, finding the defendant, Sampson Dick, guilty of murder and assessing his punishment at imprisonment in the penitentiary for life, at hard labor.

The evidence shows that the shooting occurred at the home' of Howard Oscar, in Atoka county, about seven miles southeast of Wapanucka, on the 26th day of October, 1911, between the hours of 11 and 12 at night. Andy Williams, the deceased, died five days later. The immediate circumstances of the homicide, as disclosed by the record, are as follows: A supper was given there, and the defendant and the deceased and several others had gathered to participate in the festivities of the occasion. The defendant and the deceased had some words in the front room of the house. The defendant threatened to assault the deceased, and asked him to come out of the house with him. Howard Oscar interfered, and ordered the defendant out of the house because of the profane language he was using. The defendant went out, and as he went out he pulled a pistol from his clothes. This pistol he had borrowed that evening, when on his way there, from one Dave McCoy. As the defendant went out, William Keel followed right behind him and asked him for the pistol. It appears that the pistol belonged to R. E. Wade, at whose house both Keel and McCoy were then living. The defendant refused to turn over the pistol, but immediately turned and shot back through the open door at Andy Williams, who was standing in front of the fireplace. The bullet striking him in the right side, hitting the seventh rib, and being deflected downward, it passed through a lobe of the liver and lodged near the pelvis. The fact that the defendant fired the shot is testified to by William Keel, who says he was standing on the outside within a few feet of him at the time. Keel is corroborated by several witnesses who were in the front room when the defendant went out, and who saw him draw the gun and saw the flash of the gun immediately after he went out. The state’s witnesses are also corroborated by the defendant’s witness, Willie Carr, who testified that the defendant was the man that shot Andy Williams. Carr was the only witness besides the defendant who testified in his behalf. The 'defendant, as a witness in his own behalf, denied that he fired the shot; testifying that he was around the corner of the house, and could not see who did the shooting. The issue in the case was therefore well defined; under the testimony of all the witnesses except the defendant, he was guilty of a willful, deliberate, and premeditated murder. If the defendant was to be believed, he was innocent.

The petition alleges numerous assignments of error. Nearly all of them have been commented upon in the lengthy brief filed by counsel for plaintiff in error, but no authority is cited in support of the numerous contentions therein-made. We have concluded, for reasons to be stated; that none of the assignments of error necessitate a reversal of the judgment.

First, it is contended that the trial court erred in overruling the motion to strike the case from the trial docket and continue the same until the next term of court. We think this contention is without merit. The record discloses that this crime was committed on the 26th day of October, 1911, and that the defendant was arrested on the following day. On January 3, 1912, the county attorney filed an information in the district court, and on that date the defendant was arraigned and given 24 hours to plead. On January 5th, and before plea, the county attorney filed an amended information, and the defendant was arraigned and given 24 hours to plead. On January 6th, and before plea, the county attorney filed another amended information, and no further proceedings appear to have been taken until January 8th, when the defendant filed a motion to set aside the last information, which said motion was on the same day overruled. Thereupon the defendant filed a demurrer to said information, which demurrer was on the same day overruled. Thereupon, on the.same day, the defendant filed this motion to strike and continue the case. This motion was overruled and exception allowed. Thereafter, to wit, on January 11th, the case was called for trial in its regular order upon the assignment, and the state and the defendant both announced ready for trial. So that it clearly appears from the record that whatever objections the defendant may have had for entering upon the trial on January 8th were either removed or abandoned by him on January 11th, and he voluntarily entered upon his trial without any objection at that time. The defendant had from October 27, 1911, up until the 11th day of January, 1912, to prepare for trial, and he was accorded a preliminary examination in the meantime. It is not a sufficient excuse for nonpreparation to say that he was confined in jail, because in capital cases no bail is allowed where the proof is evident and the presumption great. The grounds set up in the motion are wholly insufficient to authorize a continuance. The names of the absent witnesses are not given, and there is no showing that the defendant or his counsel had made any effort since his arrest, and up until the time of the trial, to prepare for it. An application for continuance is addressed to the sound discretion of the trial court, and the record before us does not indicate an abuse of discretion in overruling the motion.

Second. It is argued by counsel for plaintiff in error that the court erred in overruling the demurrer to the information, and the motion in arrest of judgment, because the information is not sufficient to charge the crime of murder. The charging part of the information is as follows:

“That the said Sampson Dick did then and there commit the crime of murder, by then and there unlawfully, willfully, and feloniously, maliciously, and without authority of law, and with the premeditated design then and there to effect the death of one Andy Williams, then and there being, then and there did shoot and discharge leaden bullets into the body of him, the said Andy Williams, from a certain pistol which he, the said Sampson Dick, then and there had and held in his hand, then and thereby inflicting upon the body of him, the said Andy Williams, a mortal wound of which said mortal wound, he, the said Andy Williams, then and there did languish and die.”

While the information is rather inartistically drawn, we think it contains a sufficient charge of murder. The information, after stating venue and time, charges that the defendant then and there shot the deceased without authority of law, with the felonious intent and with the premeditated design then and there to effect his death, and that the death of the deceased was thereby produced. It is not necessary, in an information, to repeat, in connection with each act necessary to constitute the crime of murder, that the defendant did it “feloniously.” It is sufficient where the word “feloniously” becomes a component part of the subsequent allegations. All that is necessary under our system of criminal pleading is a statement of the acts constituting the offense in ordinary and concise language, embodying all the material ingredients of the offense. Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003. The information being sufficient to charge the crime of murder, the demurrer and motion in arrest of judgment were properly overruled.

Several errors are assigned upon rulings of the court in the admission and rejection of evidence. A careful examination of the record has led us to the conclusion that these alleged errors are technical and without substantial merit. For instance, it is contended that the court erred in admitting the testimony of the doctor in attendance as to the dying declaration of -the deceased, for the reason that upon his cross-examination the doctor admitted that the deecased had signed a written statement. The case of Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030, is decisive of the question. In the opinion in that case, it is said:

“We think the sound rule, supported by reason and authority, is that where statements of material facts concerning the cause and circumstances of the homicide are made at different times by the victim, under the solemn conviction of impending death, one of which was reduced to writing, the prosecution is not confined to the written statement, but may offer oral evidence of the statements made at other times, whether the several statements were similar or not.”

' Should any of such Separate statements be inconsistent or contradictory, it is open to the defense to show the fact.

There are numerous other assignments of error, which we do not discuss because we deem them unimportant and without substantial merit.

A careful examination of the whole case leads us to the conclusion that the only debatable question in this case for the jury to consider was whether the defendant’s punishment should be death or imprisonment for life.

Finding no reversible error in the record, the judgment of the district court of Atoka county is affirmed.

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