text:
    HUBERT SPEAR v. STATE.
    No. A-1386.
    Opinion Filed June 1, 1912.
    (123 Pac. 852.)
    1. INTOXICATING LIQUORS — Illegal Sale — Evidence. A petition for a writ of injunction against certain parties which alleges that they were the owners and keepers of certain premises where intoxicating liquors were sold is not admissible in evidence against any of the parties therein named when they are upon trial charged with the commission of such offense.
    2. TRIAL — Prejudicial Error — Cross-Examination of Witnesses. The right of cross-examining witnesses against a defendant is one of the most valuable rights given him by law, and it is reversible error per se to deprive a defendant of this right.
    (Syllabus by the Court.)

      Appeal from Jackson County Court; B. N. Woodson, Judge.

    Hubert Spear was convicted of violating the prohibitory law, and appeals.
    Reversed.

      P. K. Morrill, for appellant.

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

Upon the trial of this cause, over the objection and exception of appellant, the state was permitted to introduce in evidence a petition to the district court of the sixteenth judicial district, which is as follows:

“In the District Court of the Sixteenth Judicial District in and for Jackson County, State of Oklahoma, before Hon. J. T. Johnson, District Judge.

“State of Oklahoma, County of Jackson.

'“State of Oklahoma, on the relation of J. M. Dillard, County Attorney, Plaintiff, v. D. R. M. Jones, Hubert Spears, A.. E. Leach, and J. K. Spears, Defendants.

“Petition.

“Comes now the state of Oklahoma, hereinafter styled plaintiff, on the relation of J. M. Dillard, its county attorney, within and for Jackson county, state of Oklahoma, and complaining of D. R. M. Jones, Hubert Spears, A. E. Leach and J. K. Spears, the defendants herein named; and for causes of action against said defendants alleges and states:

“First. That said J. M. Dillard is the duly elected, qualified and acting county attorney for said county and state and is a resident of Jackson county, state of Oklahoma, and that this action is brought by, through and on the relation of said J. M. Dillard as such county attorney.

“Second. That the said defendants are and were at the times hereinafter mentioned residents of Jackson county, state of Oklahoma, and are and were at the times hereinafter mentioned owners and lessees of the following described real estate, and the buildings, structures and rooms thereon, to wit, lot No. 2 in block No. 36 in the city of Altus, in said county of Jackson, state of Oklahoma.

“Third. Plaintiff alleges that during the months of June, July, August, September, October, November, of the year 1910, and up to and including the 9th day of November, the date of the filing of this petition, said defendants, in and upon said described premises, real estate, buildings, structures and rooms, willfully and unlawfully sell, barter, give away and otherwise furnish intoxicating liquors, beer, whisky, ale and wine to numerous and divers persons, that said described premises, real estate, buildings, structures and rooms were places of public resort where said defendants willfully and unlawfully kept stored said intoxicating liquors for the willful and unlawful intent to sell, barter, give away and otherwise furnish the same, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state, and the said described premises are and constitute a public nuisance in violation of section 14 of article 3 of chapter 69 of the Session Laws of 1907-1908 of the state of Oklahoma.

“Plaintiff further alleges that said defendants, in and upon said described premises, real estate, buildings, structures and rooms, willfully and unlawfully on the dates heretofore mentioned deal, play and carry on, open and cause to be opened and conducted as owner and employee certain prohibited games of chance, to wit, poker, faro, monte, craps and other banking and percentage games and willfully and unlawfully played said games for money and allowed gaming tables, banks and other devices to be set up and used for the purpose of gambling, and that all the willful and unlawful acts complained of in this petition against said defendants are now being willfully and unlawfully continued and committed by said defendants.

“Plaintiff further alleges that there is no plain and adequate remedy at law; and, if said conditions and willful and unlawful acts are allowed to be continued, plaintiff and citizens of the neighborhood will be continually annoyed and disturbed, and public decency will be offended thereby, and will suffer irreparable injury and damage.

“Wherefore, premises considered, plaintiff prays that a temporary injunction be granted restraining the said defendants, their agents, employees and assigns from operating said premises, real estate, buildings, structures, and rooms in any manner whatsoever; that also they and every one of them be enjoined from doing and committing any and all the willful and unlawful acts herein complained of; that said premises, real estate, buildings, structures, and rooms be ordered by the court to be locked and said defendants and all of them be forbidden to in any manner operate the same or be connected with the operation of the same, and that they and all of them be prevented from staying in and upon said premises, real estate, buildings, structures and rooms, for plaintiffs herein, by and through its county attorney, believes if said defendants are allowed or permitted to remain in, around, upon or about same, they will continue to commit the willful and unlawful acts hereinbefore complained of; that upon final hearing hereof, by the district court aforesaid, the temporary injunction granted by the judge of the county court, W. T. McConnell, in the absence of the district (judge) from Jackson county, be made permanent, and that plaintiff have and recover from said defendants the costs and reasonable attorney’s fees and for such other and further relief as the .honorable court deems right and just.

“State of Oklahoma, Plaintiff,

“By J. M. Dillard, Its County Attorney.”

This petition was verified by the affidavit of J. M. Dillard. After this petition had been read to the jury, over the objection and exception of appellant, his counsel then requested the court to instruct the jury not to consider the same, which objection was overruled by the court, and the court instructed the jury as follows:

“Gentlemen of the jury, I will not instruct you to disregard the petition just read, but will instruct you not to consider anything, only the question of the occupancy of the- building at the •time in question. You will exclude all other considerations in your deliberation of the evidence in this case, and consider only that part of the petition which concerns the possession of the building described in the petition.”

The Assistant Attorney General in his oral argument admitted that this evidence was incompetent and was improperly introduced, but he earnestly contended that it was harmless error, because there wás other evidence in the record which would authorize the verdict of conviction. It was an undisputed fact that whisky had been sold at the time and in the place charged in the information. The pivotal point in the case was as to whether or not appellant was concerned in such sale. The evidence upon this point might have sustained a verdict, but at the same time it was of such uncertain character as might have warranted the jury in finding either for or against the appellant upon this issue. If the evidence which was admitted had simply been irrelevant and immaterial, we would not disturb the verdict on this account, but it was not only irrelevant and immaterial but it was exceedingly harmful to this appellant because in this petition for an injunction it is alleged in express language that appellant and other persons therein named did keep and maintain the premises mentioned therein for the purpose of selling, bartering, and giving away intoxicating liquors. If this petition had been prepared by authority of appellant, it would have been competent evidence against him, as an admission of the statements therein made, but no man is bound by the hearsay statements of others. This petition was sworn to by J. M. Dillard, the county attorney of Jackson county, and, upon objection being made, the trial court informed the jury that this petition was competent evidence con-, cerning the possession of the buildings described in the petition.

This petition constituted hearsay evidence of the wildest and most flagrant character. Its introduction as testimony is violative of that provision of our Constitution which provides that a party charged with crime shall have a right to be confronted with-the witness against him. There are some exceptions to this general rule, but the petition offered in evidence is not included in any of these exceptions. This right of confrontation is given for the purpose of affording a defendant an opportunity to cross-examine the witnesses against him and thereby sift their means of knowledge and test their credibility.

The right of cross-examination has always been considerecl, and as a matter of fact is, one of the most important rights guaranteed to a.defendant in the trial of a criminal cause. It is just as important to him as the right to introduce testimony in chief is to the state. If we were to affirm this conviction we would disregard the statutes and Constitution of the state which we are sworn to uphold and support.

Upon these conditions we cannot do otherwise than reverse the judgment rendered against appellant, and remand the cause for a new trial.

ARMSTRONG and DOYRE, JJ., concur.


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    CHARLIE THOMPSON v. STATE.
    No. A-1457.
    Opinion Filed June 1, 1912.
    (123 Pac. 857.)
    APPEAL — Notice. A notice of appeal must be served after the rendí-, tion of the judgment in a cause and before the expiration of the time allowed by law. A notice of appeal served prior to the rendition of the judgment is a nullity, and will not confer jurisdiction upon this court to consider such appeal.
    (Syllabus by the Court.)

      Appeal from Okfuskee County Court; W. A. Huser, Judge.

    Charlie Thompson was convicted of violation of the prohibitory law, and appeals.
    Dismissed.

      W. T. Banks, for appellant.

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

On the 6th day of September, 1911, in the county court of Okfuskee county, appellant was found guilty of violating the prohibitory liquor law. On the 9th day of September, appellant filed a motion for a new trial, and served notice of appeal in this case upon the count}? attorney, and also upon the clerk of the county court of Okfuskee county. On the 10th day of September, appellant’s motion for a new trial was overruled, and -judgment was rendered against him.

At the time of the service of this notice, there was nothing from which an appeal could be taken. The record fails to show that any notice of appeal was served after the rendition of the judgment and within the time prescribed by law. A notice of appeal served before the rendition of the judgment is a nullity, and cannot confer jurisdiction upon this court to consider such . appeal.

The appeal in this case is therefore dismissed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    RALPH HAWKINS v. STATE.
    No. A-1247.
    Opinion Filed June 1, 1912.
    (123 Pac. 1024.)
    1. APPEAL — Briefs of Counsel — Argument, (a) It is the duty of attorneys when they take an appeal to this court to file typewritten or printed briefs setting forth fully and clearly the grounds upon which they rely for a reversal and a citation of authorities in support of their propositions.
    (b) Where no brief is filed, this court will permit oral arguments to be made simply for the purpose of calling the attention of the court to such errors as may be patent upon the face of the record, but, where such oral arguments are made, counsel should always file with the court a synopsis of the propositions and authorities upon which they rely.
    2. CONTINUANCE — Application—Indictment—Indorsement of Witnesses — Appeal, (a) If an amended information is filed in a felony case, and counsel seek a continuance on account of surprise thereby, they must point out in their motion the specific reasons of said surprise so as to enable the court to determine as to whether or not this application is made in good faith and possesses merit or merely for the purpose of delay.
    (b) The question of indorsing additional names of witnesses on an indictment or information in felony cases is addressed to the sound discretion of the trial court, and, unless it clearly appears from the record that this discretion has been abused, the action of the trial court in permitting such names to be indorsed on the indictment or information will be sustained.
    (e) Where the evidence clearly shows that the appellant is guilty, a conviction will not be reversed upon purely technical grounds which do not involve the substantial merits of the ease.
    (Syllabus by the Court.)

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

    Ralph Hawkins was convicted of defrauding by false representations, and appeals.
    Affirmed.
    7. 77. Lookabaugh, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and A. L. Emery, Co. Atty., for the State.
   FURMAN, P. J.

First. . In this case counsel for appellant has neglected to file briefs, but has contented himself with appearing in open court and making an oral argument in behalf of his client.

Where an appeal is prosecuted to this court, it is the duty of counsel for appellant to file typewritten or printed briefs setting forth fully and clearly the grounds upon which they rely for a reversal, and citing the authorities in support of their propositions. Where no briefs are filed, this court will permit oral arguments to be made for the purpose of calling the attention of the court to such errors as may be patent upon the face of the record. It is, however, an exceedingly dangerous practice for counsel to rely upon oral arguments alone. Eight3>'-two cases were set down for oral argument at this term of the court. No sane lawyer would expect the court to remember all that was said in each oral argument made. ■ The only safe course for counsel to pursue is to file briefs, which will be taken up and considered in connection with the transcript of the record when the case is reached for decision. If counsel, however, have been unable to prepare briefs, they should always file with the court a synopsis of the propositions relied upon and a citation of authorities supporting their oral arguments. This was not done in the case at bar. It is too much for counsel for appellant to expect this court to decide cases and brief them also. We cannot act as counsel for appellant and also as judges of this court, and if, in considering a record, we should not remember all that was said by counsel for appellant in the oral argument, no one except counsel for appellant is to blame, for counsel had an opportunity to file briefs which would prevent the court from overlooking any proposition relied upon.

Second. On the 27th day of January, 1911, an information was filed in the district court of Blaine county charging appellant with fraudulently obtaining money by false pretenses. An amended information was filed on the 10th day of February. Counsel for appellant then filed the following motion for a continuance :

“In the District Court of Blaine County, Okla.

“State of Oklahoma v. Ralph Hawkins.

“Motion and Affidavit.

“Comes now said defendant Ralph Hawkins and moves the court grant him a continuance for a short period of days for the reason and upon the grounds set out in the affidavit hereto attached and made a part hereof.

“I. H. Lookabaugh,

“Atty. for Defendant.

“State of Oklahoma, Blaine County — ss.

"Ralph Hawkins being duly sworn deposes and says that he is the defendant in the above entitled action; that he cannot safely proceed to the trial of this case at this time upon the amended complaint for the reason that there are several material elements of the offense that is attempted to be charged included in the amended information that were not included in the original and which defendant requires evidence and can get same if given time to rebut or disprove which evidence was not needed or required to enable said defendant to be ready for trial on the original information and for that reason was not thought necessary to have by defendant’s counsel and for that reason not secured and defendant has not said evidence at this time but can get same within a reasonable time. And for the further reason that a large number of witnesses have just been allowed by the court to be indorsed on the information without any knowledge or notice to defendant that would enable him to ascertain what said witnesses could or would swear to and if possible to obtain the necessary evidence to disprove or rebut. That no notice was served on defendant or his counsel that such witnesses would be used or requested and therefore had no reason to make inquiries as to what their evidence would be or to enable said defendant to secure evidence to rebut, disprove or explain the same and for these reasons the defendant is not ready for trial on the amended information but can get ready within a few days if the trial is postponed by the court.

“Defendant therefore asks the court to grant him a continuance of this case for a reasonable time in Which to give defendant time to prepare for trial by ascertaining what the additional witnesses will prove and to enable him to secure such evidence as he may be able to rebut, disprove or explain same.

“That said defendant is confident he can secure such evidence within a reasonable time if given an opportunity to do so, and also secure evidence to rebut, disprove or explain the evidence of the state on the several material elements of the offense that are included in the amended information that were not included in the original complaint.

“That defendant has been greatly surprised by the filing of the amended information in toto and requires and desires time to prepare for trial.

“Ralph Hawkins.

“Subscribed and sworn to before me this 10th day of Feb. 1911.

“[Seal] E. J. Warner,

“Dist. Clerk,

“'By Mamie Woolman,

“Deputy.”

This motion for a continuance is fatally defective and altogether insufficient. It nowhere states what, if any, additional elements of the offense charged are inciuded in the amended information that were not also included in the original information, and which would require the production of additional testimony on the part of appellant. As a matter of fact, the amended information was filed on account of a demurrer presented by appellant to the original information pointing out purely technical defects therein, but the amended information does not set up any additional facts requiring the introduction of additional evidence, nor does the application give the nam.es of any additional witnesses whose presence was made necessary by the filing of the amended information, and it does not state what the testimony of such additional witnesses would be, or show how such testimony would be material to the issues in this case. The objection that a large number of witnesses had been allowed by the court to be indorsed on the amended information is without merit. It was shown that several days before the trial commenced appellant was served with a list of all of the witnesses that were used against him.

Section 6691, Comp. Laws 1909, relating to felonies, among other things in express terms declares that “the court or judge may at any time direct the names of additional witnesses for the prosecution to be indorsed on the indictment, and shall order that such names be furnished to the defendant or his counsel.” As was said by this court in the case of Ford v. State, 5 Okla. •Cr. 244, 114 Pac. 275.

“The question of indorsing the names of witnesses is addressed to the sound discretion of the trial court, and, unless it clearly appears that the discretion of the court was abused in permitting such indorsement, the action of the court has been uniformly sustained by this court.”

In this application counsel utterly fails to show any abuse •of discretion on the part of the trial court. The motion for a •continuance was therefore properly overruled. It was evidently 'filed for delay only:

Counsel reserved a number of technical objections to the admission of evidence and to other rulings of the court, but none of them are of substantial merit. This is a straight case ■of obtaining money tinder false cretenses. Appellant did not offer any testimony in his own behalf, and relied alone upon the technical ability of his attorney to secure an acquittal or reversal. Where the record shows that a defendant has been fairly •tried and is guilty, it is utterly useless for counsel to appeal to this court unless the record contains a jurisdictional defect or affirmatively shows that the appellant has been deprived of a ■substantial right to his injury. As we.have before said, this court does not split hairs for the purpose of keeping criminals ■out of the penitentiary or from the gallows, but we stand unconditionally for a strict enforcement of law in,Oklahoma; it matters not who the violators of the law or their counsel may be.

We find no error in the record. The judgment of the lower court is therefore in all things affirmed. The mandate will issue without delay.

ARMSTRONG and DOYLE, JJ., concur.


author: ARMSTRONG, J.

text:
    BOB SHAW v. STATE.
    No. A-1037.
    Opinion Filed June 6, 1912.
    (123 Pac. 1116.)
    APPEAL — Exceptions—Refusal of Continuance. When no exception is taken to the action of a trial court in overruling a motion for continuance, and no assignment of error is predicated thereon in the petition in error, this court will not consider the same, unless, an arbitrary abuse of discretion appears, which deprived an accused of a substantial right.
    (Syllabus by the Court.)

      Appeal from District Court, Coal County; A. T. West, Judge:

    Bob Shaw was convicted of a felony, and appeals.
    Affirmed.

      C. M. Threadgill and George Trice, for plaintiff in error..

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

The plaintiff in erro'r, Bob Shaw, was convicted in the district court of Coal county, at the September,. 1910, term, on a charge of larceny-of domestic animals, and his punishment fixed at imprisonment in the state penitentiary for a period of five years.

The property'stolen consisted of two mules belonging to the-Western Coal & Mining Company, at Coalgate. They were taken on the 28th of April, 1910, and later recovered at Palestine, Tex. Will Hill testified on behalf of the state, and confessed to assisting the accused, Bob Shaw, in stealing the mules in question,, and detailed the transaction completely. He was corroborated by other parties, who saw him and the accused in possession of the team, and many other facts and circumstances in evidence, which conclusively establish the guilt of the accused.

There are only two questions argued in this case. The first is that the court erred in overruling the motion for continuance. No exception was taken to the action of the court in overruling the motion for continuance; and the petition in error does not assign this as a ground for reversal. For that reason, it is not before this court for review. See Bennefield v. United States, 2 Okla. Cr. 44, 100 Pac. 34, and Rea v. State, 3 Okla. Cr. 281, 105 Pac. 386. The question of continuance is addressed to the sound discretion of the court, and is not reversible, unless a clear abuse is shown. We are of the opinion, however, that the court ■did not commit error in overruling this application. It does not' appear that attachment was asked for the absent witness; and it does not appear from the face of the motion that the evidence ■of the witness was material to the defense of the accused.

The second proposition argued is that the trial court erred in admitting certain incompetent and irrelevant testimony. We ■do not find prejudicial error of this character sufficient to justify a reversal of the judgment; and it is therefore affirmed.

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


text:
    JOE STEILS v. STATE.
    No. A-1434.
    Opinion Filed June 6, 1912.
    (124 Pac. 76.)
    APPEAL — Technical Errors. Although the court may commit some errors in the trial of a cause, yet, where the record shows the appellant has ■ not been deprived of a substantial right, and the evidence is such as to authorize a conviction, a new trial will not be granted.
    {Syllabus by the Court.) ■

      Appeal from Blaine County Court; Geo. W. Ferguson, Judge.

    Joe Steils was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Lawyers who attempt to make a purely technical defense, without regard to reason and justice, will see themselves as this court sees them by reading,the following lines:

      The Up-To-Date Defense of Cy N. Ide.
    (By J. W. Foley.)
    Remarks by Counsel.
    Now, may it please the court and you,
    Peers of the realm, who come to do
    Your highest duty in the land—
    As jurymen, you understand—
    I outline briefly for our side The case for Mr. Cy N. Ide—
    My client here — whose whole life shows Him pure as the new-falling snows;
    A victim, I may say, of chance And much confusing circumstance.
    Preliminary Objections.
    First, then, we ask the court to quash
    The whole indictment — pray read Bosh
    On Bluff and Bluster, chapter two:
    "Ink must be black and never blue;
    And if the ink used is not black
    ’Tis ground to send the whole case back!”
    The rule, pray please the court, is plain;
    But here I read the law again—
    I quote now from authority
    Of Blow and Buncombe, chapter three:
    "If any ‘t’ shall not be crossed,
    Or dot of any ‘i’ be lost,
    These grave omissions, then, shall be
    Enough to set defendant free!”
    So here we have the law; and see—
    Here is a naked, uncrossed "t”!
    Collateral Exceptions.
    So the indictment, then, is wrecked—
    Full of omission and defect.
    Judge Pinn Hedde, in his able work
    On Fifteen Thousand Ways to Jerk
    The Props from Prosecution, says:
    "A comma, standing out of place
    In the indictment, may upset
    The very best indictment yet.
    Far better Murder should go free
    Than we should have an uncrossed ‘t’!”
    Particular Error.
    So, on these vital points I might
    Insist upon my client’s right
    To be set free; but there are more
    On which we set much greater store:
    The witness Blank, when on the stand,
    Was sworn while raising his left hand;

      Ancl so his evidence, no doubt,
    The honored court will have thrown out.
    And in support of this I read
    From Shyster on the High Court’s Need
    Of. Being Even More than Loath
    To Tolerate a Left-Hand Oath!
    General Objections.
    If this were all, it were enough
    To set my client free — see Bluff
    On Half a Thousand Seasons Why
    The Law Loves a Technicality.
    But, lest your honor should refuse
    Our claims, my client now renews
    Objection to the court, its looks,
    Its jurisdiction, and its books;
    Objection to the evidence,
    Indictment — as to form and sense;
    Objection to the desks and chairs,
    The tables and state counsel’s airs—
    In fact, my client now objects
    To everything: and he expects
    To show, by Bluff, by Crook, by Bragg,
    By Shyster, Petti Eog'g and Snagg,
    By that great friend of crime, D. Lay,
    By Trick, by Subb Terr Fuge and Stay,
    That he should be set free because
    Of all these loopholes in the laws.
    Constitutional Privileges.
    My client, Cy N. Ide, now please
    The court, no technicalities
    Would urge, save that they all transgress
    The constitutional — express,
    Implied, declared, and specified—
    Prerogatives of Cy N. Ide,
    Who stands here, making naught but one
    Bequest — that Justice shall be done!
    And we are here, as man to man,
    And mean to do Her if we can!
    Express Beservations.
    Now, please the court, we do not waive
    A single right that, we can save;
    And we except — some more, some less — •
    To jurors, cleTks, and witnesses.
    And, having made our attitude
    As clear and frank as well we could,
    We come now to the minor phase
    Of testimony in the case.

      Insanity.
    First, we have shown by proof quite plain
    That Oy N. Ide is hardly sane.
    The eminent Doctor Ale Fay Nisst,
    By reflexing my client’s wrist
    And tapping on his frontal bone,
    Finds absence of the Moral Tone.
    And Doctor Fklts Spurt finds one ear
    The thousandth of an inch too near
    The cheek- — a symptom, as you sée,
    Of irresponsibility.
    So, by your oaths, you should agree
    To Cy N. Ide’s insanity,
    And so acquit him of intent
    And free him, that he may repent.
    The Alibi.
    But we have other proofs, if this
    Phase of defense may seem amiss:
    My client, Cy N. Ide, proves by
    His witnesses an a-lie-by.
    He was, upon the fatal day
    This deed was done, ten miles away;
    So, if you find him sane, you’re bound
    To free him on this other ground,
    As jurors who are sworn to do
    The will of justice, good and true,
    Whichever way you look you will
    Find Cy N. Ide impregnable
    As truth itself — no crime can lie
    With such a perfect a-lie-by.
    Evidence of Self-Defense.
    But, if again you are in doubt
    Of how this crime has come about,
    My client gives sworn evidence
    The deed was done in self-defense.
    The victim of this homicide'
    Made fierce attack on Cy N. Ide,
    As he so graphically swore,
    With sword and pistol — aye, and more!
    And, as he shot and stabbed and tried
    To end the life of Cy N. Ide,
    My client, much to his dismay,
    Was forced to shoot or run away;
    And so he shot — the deed, was done,
    Since he was lame and could not run!
    So it is plain the evidence
    Is ample proof of self-defense.
    And so you must acquit, you see,
    On one ground, two, or even three!

      No Corpus Delicti.
    But not alone on this defense — •
    This bulwark firm of evidence—
    Do we rely; for we have brought
    The eminent expert, Tellus Watt,
    And he quite sturdily agrees
    The victim died of heart disease.
    In which event the case must fall,
    Since there was no crime done at all.
    The eminent expert, Tellus Watt,
    Says, in the interval ’twixt shot
    And when the bullet struck its mark,
    Excitement quenched the vital spark
    Within the victim’s breast; and he
    Died, not of crime, but naturally.
    So, here, again, my client stands
    And asks acquittal at your hands.
    Exceptions, Bequests, Motions, Petitions
    Ad Libitum.
    Now, please the court, we ask the ease
    Dismissed — ’tis now the time and place.
    And, failing that, we move the court
    Instruct the jury to report
    A verdict of not guilty! Should
    Tie court not hold our motion good,
    We ask the jury to acquit
    On any ground it may see fit—
    Insanity, if it so please;
    Or a-lie-by or heart disease;
    Or self-defense. If homicide
    Is found, we ask it set aside,
    And, failing that, wé straightway move
    Another trial, that we may prove
    A new defense — if ’tis denied,
    We ask an appeal certified.
    And, failing that, we ask to be Petitioners for clemency.
    And, failing that, we ask but leave
    To file petitions for reprieve.
    And failing that — well, Cy N. Ide
    By then will have grown old and died!

      W. O. Woolman, for appellant.

      Charles West, Atty. Gen., and A. A. Emery, Co. Atty., for the State.
   FURMAN, P. J.

In this case counsel for appellant rely upon a purely technical defense, and manifested great zeal and ability in the presentation of the questions relied upon. It is unfortunate for counsel that the days of a purely technical defense, unless based upon a substantial right, have passed and gone, never to return in this state. But counsel did not show wherein his client had been deprived of a single substantial right in the trial of this cause, and the testimony overwhelmingly proved that the appellant was guilty.

There is another matter which courts should seriously consider. The honest, hard-working, tax-burdened people of Oklahoma annually spend more money to enforce their laws than, they do to educate their children. In our judgment, they are entitled to consideration; and it is an outrage on law and justice and a crime against society for appellate courts to turn criminals loose who have been legally proven guilty, or to send their cases back, to be retried at the expense of the people, upon legal quibbles which are without substantial justice, and which are only shadows, cobwebs and fiyspecks on the law. It is such so-called judicial decisions as these, in civil as well as in criminal cases,, that are responsible for the growing demand among the people for the recall of judges. When we have read some of these opinions ( ?), we are impressed with the thought that if the courts, do not exercise more care in the future and see that they are courts of justice, as well as courts of law, the people, who are the rightful source of all power, will take the matter into their own strong hands; and there is no telling what the result will be. If we ever have the recall of judges in Oklahoma, it will be the fault of the judges themselves.

From this viewpoint, while we admit that in some respects the rulings of the trial court were not technically correct, yet we fail to find a single instance in which appellant was deprived of a .substantial right. Upon the entire record, we have no question whatever but that the jury were entirely justified in convicting appellant. In fact, we do not see how any honest, intelligent, and impartial man could read this record without believing that appellant-was guilty as charged. The severe strictures which counsel for appellant made in his oral argument and also in his brief on Felix Epps, Joe Strong, and Mike Riley may all be true; but this does not help appellant in the least, because the record shows that, as black as these worthies may be, they were the chosen companions, associates, and tools of appellant. Therefore, in denouncing them, appellant’s counsel was in effect denouncing his own client. We have time and again stated that lawyers should defend their cases upon their actual merits; and it is high time for them to understand that we mean precisely what we say. It is a waste of time and money to interpose a technical defense to a case in which the defendant should have pleaded guilty.

We find no material error in the record. The judgment of the lower court is therefore affirmed.

DOYLE, J., concurs. ARMSTRONG, J., concurs in affirmance.


text:
    CHARLIE STANFIELD v. STATE.
    No. A-1578.
    Opinion Filed June 6, 1912.
    (123 Pac. 1033.)
    1. APPEAL — Weight of Evidence. The jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses; and, where there is any evidence in the case from which the jury could legitimately reach the conclusion that the defendant is guilty, their verdict should not be disturbed upon the ground, of the insufficiency of the evidence, unless it appears from the record that the jury were influenced by improper motives in arriving at the verdict.
    2. LARCENY — Sufficiency of Evidence. For statement of evidence which fully sustains a verdict of guilty for grand larceny, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee County;' R. P. De Graffenreid, Judge.

    Charlie Stanfield was convicted of larceny, and appeals.
    Affirmed.

      De Roos Bailey, 7. B. Wyand, and. Charles A. Moon, for appellant.

      Smith C. Matson and R. B. Gish, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

But one question is presented in the brief of counsel for appellant, and that is summed up in the closing statement of the brief as follows:

“The testimony of the defendant and of Will Lindsley explained defendant’s possession of the saddle. This testimony was reliable as far as the record shows, and should have been given full weight and credit under the instructions of the court, but the jury saw fit to arbitrarily ignore the testimony of the defendant and his witnesses and to convict him.”

In this case a number of witnesses were introduced for the state and two for appellant. It was proven on behalf of the state: That the saddle in question was stolen the last of April, 1908, from the barn of Jack Stewart, about five and one-half miles from the town of Haskell, in the county of Muskogee; that the saddle was taken one night, during which it rained; that next morning when the saddle was missed, on an examination of the premises, tracks were found leading from the premises from which the saddle was taken down to the creek nearby. These tracks were made by square-toed boots. These tracks were apparently made by a No. 7 boot. That appellant and the owner of the saddle met in the town of Plaskell the evening before the saddle was stolen. That the owner of the saddle then had the saddle with him. That appellant at this time had on a pair of square-toed boots and was riding a buckskin pony.

J. I. Brown testified for the state as follows:

“Q. What is your name? A. J. I. Brown. Q. Where do you live? A. One and three-quarter miles southwest of Mounds. Q. Known as Ira Brown? A. Yes, sir.' Q. Did you live there in 1908? A. Yes, sir. Q. Where were you the last of April or the 1st-day of May? A. I was home. Q. Who was there, Mr. Brown? A. I couldn’t tell you who was there along about that time. Along about the 1st of May there was a fellow on a buckskin pony. Q. Did he have a saddle? A. Yes, sir. Q. You may describe it. A. A new looking saddle. Had a buckskin rawbide horn. Q. A big saddle? A. Yes, sir; looked like a $45 or $50 saddle. Q. What conversation, if any, did you have with the man? A. Well, he asked my children if he could get feed for his pony, and we were drilling an oil well on my. place about 300 yards below my place, and the boys came running up there, and wanted to know if the man could feed his pony, and I walked up there and he asked me and I said he could, and he said he was sleepy and he went to sleep, and I and Mr. Stewart went over to see a strawberry patch, and, when we came back, he was gone. Q. Do you know of Albert Cox and Jack Bray being at your place? A. Two men come over there and got a gun. I didn’t see them. Q. What day was that? A. Some time a few minutes before the children came down and said the man wanted to feed his pony. I was there drilling the oil well, and the children came down and said the man wanted to feed his horse. Q. How far did you live from Haskell? A. Thirty-five miles. .Q. What time of the day was that? A. Two or 2:30. Q. Can you identify that man positively? A. Just, seen him there talking with him about five minutes, that is all. Q. Do you'see the man in the courtroom? A. That fellow there resembles the’man, but I don’t know positively it was him. Q. What man is that? A. Right at the end of the table [pointing at the defendant], but I can’t say whether it was him. Q. Do you know what direction he went? A. No, sir; he crossed the creek there.”

Lewis Harrison testified as follows for the state:

your Q. Are you the same Lewis Harrison that was on the witness stand a while ago? A. Yes, sir. Q. Where were you the last of April or the 1st of May, 1908 ? A. Going over in the timber after a load of wood, three and one-half miles from Mounds, maybe two and one-half miles. Q. Did you learn — please state to the jury whether or not you learned of Harry Rowley losing a saddle there at Haskell? A. No, sir; not that day, but I saw a saddle there and- a mule and a pony over there in the road. Q. Did you learn afterwards of Harry Rowley losing a saddle? A. No, sir; didn’t hear that name until today, heard a saddle was lost. Q. With reference to the time you heard • the saddle was lost, what day was that you saw the man. with the pony, the saddle and the mule? A. Along about the last of April or 1st of May. I don’t remember the date exactly, but that was when I saw the saddle, the man, and the mule. Q. Was it after the day you learned the saddle was taken? A. Before; I had not heard anything about the saddle being taken. Q. I wish you would describe the horse you saw. A. Buckskin pony, guess about fourteen and one-half hands or three inches high, had a new saddle on, around the saddle there was — I feel positive it had a raw hide buckskin plaited horn.' Q. What kind of a mule was that? A. Dark brown mule. I would call it a kind of a mouse color. Q. Where was it? How far from Ira Brown’s place? A. I was three-quarters of a mile west or a half mile south. Q. Did you say there was a man with this mule, saddle, and horse? A. He was lying down beside a fence. Q. Did you see him? A. No, sir; he had his hat over his face, could see part of his face, and a little of his hair. Q. What was he doing? A. Supposed to be asleep. Thought he was asleep.”

It was proven that the saddle in the possession of appellant was recovered and returned to the owner and identified as the stolen saddle. Appellant took the stand as a witness in his own behalf, and attempted to account for his possession of the stolen saddle as follows:

“Well, sir, along about that time, when I was living out there, I went up to Mounds, and was monkeying around there, went over to Keefeton. Now I was up there in that country around Mounds one morning, me and another boy had been drinking around there, and a negro came walking up to sell me a saddle, and I said I did not want to buy any, but T will trade you.’ I talked around a little bit. Finally I told him that I would agree to trade with him. I suppose, if I had not been drinking, he would not have asked me anything about it. Q. Tell what was said and done? A. He asked me $20 to boot. I offered him $5. Finally I agreed to give him $5. He said he would take $5 if I would throw in the saddle and bridle, and I agreed to do it.”

It is true appellant was corroborated by one witness in his statement as to how he got possession of the saddle, but we think that their testimony was in every way unsatisfactory and covered with suspicion, and the testimony of the state’s witnesses fully warranted the jury in rejecting it. This case is covered with the brands and fleshmarks of- grand larceny. There is nd question at all about this man’s guilt, and there is no pretense that his trial was not in every way legal. After the stolen saddle was recovered from his possession and returned to its owner, appellant was arrested, charged with the theft of the saddle. The day before his case was to come up for preliminary trial, he left the state of. Oklahoma, forfeited his bond, and went to Texas and remained there about a year. He was finally arrested in Texas, and brought back to Oklahoma. Under these circumstances, the jury wer.e fully warranted in convicting appellant. His statement that he bought the saddle from an unknown negro is exceedingly improbable, and the jury were fully warranted in rejecting it.

The judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


author: EURMAN, P. J.

text:
    BEN H. COLBERT v. STATE.
    (124 Pac. 78.)
    No. A-1118.
    Opinion Filed June 6, 1912.
    1. MALICIOUS MISCHIEF — Elements' of Offense — Statutory Provisions. Section 2692, Comp. Laws 1909, creating the offense of malicious mischief for defacing or destroying real or personal property, was intended to protect the owner of such property, and is not for the protection of the property itself.
    2. SAME — Malice. Malice toward the owner of such property is a necessary ingredient of the offense.
    3. SAME. If it be shown that a defendant has defaced or destroyed personal property not his own without malice toward the owner, but acting in good faith under a claim of right, the charge of malicious mischief cannot be sustained.
    (Syllabus by the Court.)

      Appeal from Johnston County Court; Nick Wolfe. Judge.

    Ben H. Colbert was convicted of malicious mischief, and his punishment was assessed at a fine of $50, and he appeals.
    Reversed and remanded.

      Upon the trial of this cause appellant requested the court to instruct the jury as follows:
    “(1) You are instructed that, this being an information for malicious mischief, malice is a necessary ingredient to be proved, or made to appear from the facts or circumstances proved. Without this ingredient, the crime is not complete, and the act complained of would be only a trespass, for which the party or parties injured would be compelled to resort to a civil action for redress, and not a criminal prosecution, and, unless you believe from the evidence beyond a reasonable doubt that such malice has been proved, it is your duty to acquit the defendant.
    “Refused by the court and excepted to by defendant.
    “Nicic Wole, County Judge.
    • “(2) You are instructed that the malice necessary to constitute this offense must exist against the owner or owners of the property as charged in the information. Malice against the property, if proved, will not warrant a conviction. In order to convict the defendant upon this information, the prosecution must prove, to the satisfaction of the jury beyond a reasonable doubt, that the defendant knew the property in question belonged to the parties as charged in said information, and so knowing, willfully and deliberately injured the same through malice toward the said orvners as charged in said information, and, unless this is done, it is your duty to acquit the defendant.
    “Refused and excepted to by the defendant.
    “Nicic WolE, County Judge.
    “(3) You are further instructed that if you believe from the evidence that the three telephone posts alleged in the information to have been cut down by defendant had been erected upon defendant’s land over his objection, and after he had refused his consent to their erection upon his land, and if you further believe from the evidence that defendant gave due and reasonable notice to the owners of the said telephone posts to remove the same from defendant’s land, and if you further believe from the evidence that the defendant in cutting down said poles did not do so in a wanton- spirit of destruction- of property, but did use only the force and means necessary to remove said poles from his land, then you will find that the defendant lawfully abated a nuisance menacing his property rights and interfering with his quiet and peaceable possession of the said property, and it will then be your duty to acquit the defendant.
    .“Refused and excepted to by defendant.
    “Nick Wolf, County Judge.

      “(4) The jury are instructed that the injury to the property must be of such character as to impair the utility of the property, and negligence or even injury caused in the heat-of passion, upon dispute, will not constitute the offense, but only willfulness and malice will constitute the offense, and the question of malice and willfulness is for the j.ury, which is to convict only upon a finding that the injury was done maliciously and willfully, and, unless you do so find from the testimony beyond a reasonable doubt, it is your duty to acquit the defendant.
    “Refused and excepted to by defendant.
    “Nick Wole, County Judge.
    “(5) You are further instructed that if you believe from the evidence that the defendant in cutting down the three telephone posts alleged in the information to have been cut down by defendant did cut down the said posts acting under a reasonable claim of right and the honest belief that the said posts were on his land and a menace to his quiet and peaceable possession of the same, then, whether the posts were actually on his land or not, if the defendant did have the honest belief in good faith that they were, you will find that he did the acts charged without malice toward the owners of the said telephone posts, and, since malice must be present to constitute the crime of malicious mischief, it will be your duty to acquit the defendant.
    “Refused and excepted to by defendant.
    • “Nick Wolf, County Judge.”

      Giillett & Monk, for appellant.

      E. G. Spilman, Asst. Atty. Gen., for the State.
   EURMAN, P. J.

The information in this case is based on section 2692, Comp. Laws 1909:

“Malicious Mischief. — Every person who maliciously injures, defaces or destroys any real or personal property not his own, in cases other than such as are specified in the following sections, is guilty of a misdemeanor, and in addition to the punishment prescribed therefor, he is liable in treble damages fot the injury done, to be recovered in a civil action by the owner of such property or public officer having charge thereof.”

This section was evidently intended to protect the owner of property, and was not meant to protect the property itself. Under the provisions of this statute, it matters not what the motives of the owner of property may be, he may deface or destroy it at pleasure without being liable to the pains and penalties prescribed therein. The statute also creates an increased civil liability for damages in favor of the owner of property so d.efaced or destroyed.

From this it is clear that the malice necessary to constitute this offense must be entertained against the owner of the property so defaced or destroyed, and that an act will not constitute malicious mischief where it is done in good faith and under a reasonable claim of right. See Commonwealth v. Drass, 146 Pa. 55, 23 Atl. 233. In prosecutions for malicious mischief, malice toward the owner of the property injured is the gravamen of the offense, without which it would be a mere trespass. 2 Wharton’s Criminal Law, 1070; 2 Bishop’s New Cr. Law, sec. 996; Desty’s Cr. Law, 144c. The intent with which an act is done is material, and, if it be shown that the defendant acted in good faith or under a claim of right, the charge of malicious mischief cannot be sustained, and any evidence tending to rebut the charge of malice or going to show the animus of the defendant is admissible. Woodward v. State, 33 Tex. Cr. R. 554, 28 S. W. 204. .In the case of Adams v. State, 47 Tex. Cr. R. 35, 81 S. W. 963, it -was held that digging a ditch on the land of another under the belief that it was the land of the defendant is not punishable under a statute prohibiting a willful and malicious injury or destruction of real property. In the case of State v. Quinn, 26 Mo. App. 17, it was held that, where a defendant had trimmed a hedge which he honestly'- believed to be on his own land, he could not be convicted for a willful and wanton destruction of such hedge, although the proof might show as a matter of fact the hedge was not on the land of the defendant.

It has been repeatedly decided that in cases of malicious mischief the spirit in which the act was done must be toward the owner of the property, and not against the property itself. State v. Wilcox, 3 Yerg. (Tenn.) 278, 24 Am. Dec. 569; Northcot v. State, 43 Ala. 330; Hobson v. State, 44 Ala. 380; Newton v. State, 3 Tex. App. 245; State v. Robinson, 20 N. C. 130, 32 Am. Dec. 661. It is not malicious mischief to tear down a fence which a party believes 'is a trespass on his rights. Sattler v. People, 59 Ill. 68; Palmer v. State, 45 Ind. 388; Commonwealth v. Cole, 26 Pa. 187. The case of State of North Dakota v. Minor, 17 N. D. 454, 117 N. W. 528, 19 L. R. A. (N. S.) 273, presents an instructive discussion of this question. In connection with this case there will also be found an exhaustive annotation of authorities from which it appears that the word “maliciously,” as used in statutes relating to the crime of malicious mischief, imports that the act which constitutes the offense must have resulted from actual ill will or revenge and intent to vex and annoy the owner of the property injured. We are therefore of the opinion that the court erred in refusing to give the instructions requested by counsel for appellant. We think they are all applicable to the evidence, and that they correctly state the law. If this case is tried again, we suggest to the county attorney that he file a new information in harmony with the views expressed in this opinion. The objections made to the information are well founded. The principles of law involved in this case are well settled, run all through the law, and are absolutely just. If A. takes a horse or cow or any kind of personal property, believing it to be his, he cannot be guilty of theft, although it may afterwards turn out that as a matter of fact such property belonged to another. Why is this the law? Because a fraudulent intent is absolutely necessary before the crime of theft can be committed. If A. kills another, acting in good faith upon reasonable appearances of danger to his life, although it may after-wards turn out that the danger .was not real, but was only reasonably apparent, he is not guilty of murder or of any. degree of unlawful homicide. Why? Because the intent with which life is taken is the gravamen of the offense. As the law makes malice toward the owner of the property defaced or destroyed the gravamen of the offense of malicious mischief, it must be proven to exist beyond a reasonable doubt. As we have never before had occasion to construe this statute, and as it is a matter of importance that the true meaning should be known, we have gone into the question presented as thoroughly as possible. If appellant has committed a trespass upon the property of others, the parties injured have their remedy in a civil action. Unless the state can secure additional evidence showing malice toward the owners of the property defaced, it will be useless to .retry this case. Again, if it be true that the telephone wire was hung up in such manner as to interfere with the ability of appellant to have ingress to or egress from his farm as was testified to by appellant and not denied by any witness for the state, it would constitute a nuisance, and he would have the right to cut such wire in order that he might have such ingress or egress, and such act would not be a criminal offense or even ground for a civil action. The right of a person injured by a private nuisance to summarily abate such nuisance is clearly stated in 29 Cyc. p. 1214, as follows:

“Private Nuisance. It is well established that a person who is aggrieved by a private nuisance has the right to abate the same by his own act, upon his own motion, without instituting any legal proceedings. So the person aggrieved may kill a dog which haunts his premises, and by barking and howling becomes a nuisance, cut off branches of a neighbor’s trees overhanging his land, remove a part of an adjoining owner’s wall which overhangs his premises, or cut off the eaves of a building overhanging his property.”

In the case of Pilcher v. Hart, 1 Humph. (Tenn.) 524, it was held that, although a person may have assented to the creation of a private nuisance, this would not take away his right to afterwards abate the same if he found it injurious. In Hickey v. Mich. Cent. Ry. Co., 98 Mich. 498, 55 N. W. 989, 21 L. R. A. 729, 35 Am. St. Rep. 621, the Supreme Court of Michigan held that a railway company had the right to cut off branches from trees growing on premises adjacent to its right of way where such overlapping branches were injurious to the rights of the company. In connection with this case will be found a great number of authorities supporting this doctrine. Where a tree growing on the land of A. has branches which project over the land of B., B. has the right to cut off everything which overhangs his land. Cooley on Torts, p. 672. A party aggrieved by a private nuisance may have his action for damages or he may summarily abate the nuisance. Harvey v. Dewoody, 18 Ark. 252. The Supreme Court of Iowa has decided that a person may abate a private nuisance by his own act when it appears that such nuisance is injurious to such person or his property at the time of such abatement. Moffett v. Brewer, 1 G. Greene (Iowa) 348. We might continue to cite authorities on this question indefinitely. In fact, the law upon this subject is well settled.

The judgment of the lower court is reversed, and the cause is remanded for proceedings in harmony with this opinion.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    R. D. MILTON v. STATE.
    No. A-1322.
    Opinion Filed June 6, 1912.
    (124 Pac. 81.)
    1. FORGERY — Evidence—Weight. In a prosecution for forgery in the first degree, the evidence is held to support the verdict, and that no reversible error was committed on the trial.
    2. APPEAL — Refusal of Continuance. The granting or refusal of a continuance in a criminal case is largely a matter of discretion of the trial court; and this court will not reverse the trial court on the decision of a matter which rests in the sound discretion of the trial court, unless it is shown that there has been an abuse of the discretion.
    3. OATH — Administration of Oath — Powers of Court. Every court has inherent power to do all things reasonably necessary for the administration of justice within the scope of its jurisdiction.
    4. OATH — Power to Administer — Judges. The judge of a superior court has power to administer oaths, without an express provision therefor by statute.
    (Syllabus by the Court.)

      Appeal from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge.

    R. D. Milton was convicted of forgery in the first degree, and appeals.
    Affirmed.

      Plaintiff in error, R. D. Milton (hereinafter referred to as the defendant) was jointly indicted with one Felix J. Saxon and Eugene Walker in the superior court of Pottawatomie county for the crime of forger)* in the first degree. The indictment was returned August 23, 1909, and the case was continued from time to time until February 10, 1911, when it came to trial as to the defendant Milton; a severance having been requested and granted. The trial was concluded on February 15, 1911, and resulted in a verdict of guilty; and on February 20th the trial court pronounced and entered the judgment in accordance with the verdict, sentencing the defendant, R. D. Milton, to imprisonment at hard labor in the penitentiary for a term of seven years. From the judgment, the defendant appealed by filing in this court, on August 19, 1911, a petition in error with case-made.
    A brief statement of the facts which the testimony tended to prove is as follows:
    The time covered by the proof as to the facts of the immediate offense, from the beginning to the end. was the period of August 6 and 7, 1909. The scenes of the acts that led up to the offense were in the towns of Wewolca and Seminole, in Seminole county, and the surrounding country, and the town of Earlsboro and the city of Shawnee, and surrounding neighborhood in Pottawatomie county; the offense being consummated in the city of Shawnee, in Pottawatomie county. The chief actors were the defendants, R. D. Milton, Eugene Walker, and Felix J. Saxon, an unknown negro woman, and E. D. Reasor, then county judge of Pottawatomie county; the latter taking the acknowledgment; Saxon and Reasor being “used” by Milton, and being innocent of criminal intent.
    Saxon was a young man, working at the time as stenographer to the county court of Seminole county. Milton was an older man, engaged at the time in dickering in allotments of Seminole and Creek Indians and negroes in the town of Wewoka. Dinah Walker was an old negro woman, living ten or twelve miles from the town of Seminole, and five or six miles from the town of Earlsboro, and sixteen or seventeen miles from the city of Shawnee, in Seminole county. Eugene ■ Walker was the second husband of Dinah Walker, and “had previously served a term in the peniteniary, and was serving time in the penitentiary at the time of the trial.
    On August 5, 1909, the defendant, Milton, approached young Saxon and told him that he (Saxon) had been in Wewoka for some time and had not bought any land; that he (Milton) wanted •to see him (Saxon) make some money, and would help him get a start; that Dinah Walker had a lot of deceased Indian land, and they could buy some of it cheap; that if Saxon had a little money he could get in the deal; and that Saxon should get in and’ “get his feet wet.”
    The land described in the indictment had been allotted by the United States to three deceased children of Dinah Walker; and she had inherited the allotments upon the death of her chil- ■ dren. There were three allotments of 120 acres each, or a total of 360 acres of land, lying in Seminole county.
    On August o, 1909, Saxon agreed that he would go into a deal; and it was understood between Milton and Saxon that they would go up to see Dinah Walker on the following day, August 6th. On August 6, 1909, Milton and Saxon took an early morning train at Wewoka and went to the town of Seminole, and obtained a team and drove to the home of Dinah Walker, going by the home of one Sam Norton, who lived about a mile frosn Seminole. While in Seminole, Milton was heard to make the remark, “This is a hell of a poor team to start a man out to steal a piece of land with.” They stopped at the home of Norton, and conversed with him. A part of the conversation was had in the presence of Saxon, and a part of it was not. In the part that Saxon heard, Saxon and Milton told Norton they were going out to see about buying some deceased land from Dinah Walker, and asked him if he did not want to get in on the deal. Norton agreed to pay as much as $600, Saxon and Milton to put in their time, and Norton, Saxon, and Milton to share equally in the land.
    Milton and Saxon left Norton, and drove to the home of Dinah Walker, where Milton went in and found only a sick girl, and was informed by the sick girl that her mother, Dinah Walker, was at a neighbor’s house, and that Eugene Walker was at or near Earlsboro. Milton and Saxon then drove, not to find Dinah Walker,' but to Earlsboro to look for Eugene Walker. They ate dinner in Earlsboro, and learned that Eugene Walker was at a hay press about three miles from Earlsboro, toward the home of Dinah Walker. They started for the hay press, and a mile or two out met Walker in the road, horseback, coming toward Earlsboro. Milton hailed Walker, and had Saxon get out of the buggy and go up the road out of hearing, so that he could talk to Walker in private. Walker dismounted to talk with Milton. Milton had with him a pint of whisky, in a pop bottle, that he had gotten at Seminole or Earlsboro. The negro ■drank of the whisky, and came to the point. Here Milton and Walker agreed that Milton and Saxon should drive back to Seminole; that Walker should go to Earlsboro and procure a negro woman to impersonate Dinah Walker; that they (Milton, Saxon, Walker, and the dummy woman) would meet at 8 o’clock that night in the road, near the house cf a negro by the name of Si Jones, about a mile from Dinah Walker’s home, and have the dummy impersonate Dinah Walker and execute and acknowledge a deed to the deceased allotments of Dinah Walker before Milton, who at the time was a notary public in Seminole county, Milton at the time telling Walker that Judge Capipbell, of the federal court, had just rendered a decision against the land grafters, but that it was not then yet generally known; that they would also put in the deed a misdescription, so that Dinah Walker would not lose her land, and they could get the $600 consideration from the grantee, and that he (Eugene Walker) would make $600 before midnight. There it was also agreed between Milton and Walker that, in the event Walker could not obtain a dummy in Earlsboro, he (Walker) would hire and bring along a double team, so that they could drive to Shawnee and get a woman to make the deed.
    When Saxon returned to the buggy, Milton and Walker were discussing bootleg whisky; and Saxon was informed that Eugene Walker had agreed to get his wife to sell her land, for which they were to pay him $50, and that they were to meet that night at 8 o’clock at the house of Si Jones to make the deed, when Walker would have his wife present, and they would not go to the home of the Walkers, as there was a son-in-law of Dinah Walker there who would knock the deal. Milton and Saxon drove' back to Seminole and got supper, and Walker rode to Earlsboro, to look for the dummy woman.
    Walker, after trying two women at Earlsboro, failed to find a dummy, and hired the livery team for the drive to Shawnee; and the parties, Milton, Saxon, and Walker, met again at 8 o’clock that night on the road near Si Jones’ place, and about a mile from the house of Dinah Walker. They told Saxon that Dinah Walker had gone to Shawnee to take her sick child to the hospital, and that they would have to go there to make the deal. Milton left Saxon in their buggy, and got out and got into Walker’s buggy, and they all drove to a nearby negro house, and got him to drive the buggy of Milton and Saxon back to Seminole, as Saxon had promised to have it back at the stable by midnight; and the three men- then got in Walker’s buggy and drove to Shawnee, a distance between fifteen and seventeen miles, getting to Shawnee a little after midnight. Nothing was said about the deal in the hearing of Saxon on the trip, though Walker says Saxon slept a while on the road, and he and Milton talked a little.
    On South Union avenue, in Shawnee, was a livery barn, a hamburger stand, and a negro rooming house in close prox-r imity. They drove to the livery barn and tied their team in front of it, and again Saxon is separated from the other two. Saxon crossed' the street to the hamburger joint and ordered a hamburger. He stayed there long enough to have it cooked, and ate half of it, before being joined by Milton and Walker. Meanwhile Milton and the negro, Walker, are arranging the scenes for the last act of the play. They went to the nearby negro rooming house. The house was full of negro men, sleeping on cots and over the floor, and here they found one negro woman, besides the landlady. They told the negro woman what fhey wanted, assured her it was all right, and promised her $30 to help them. At first they failed; but after a great deal of •parleying they succeeded in getting her to agree to sign the deed :as Dinah Walker. They went back to the hamburger joint, and told Saxon that Dinah Walker was there, but they would have 'to wait until she dressed. The three men finally went to the negro house and upstairs; and again the negro woman hela back, and it was some time, and with considerable difficulty, that they finally got her upstairs. In the meanwhile, Saxon was ■sleeping on the floor upstairs. The woman finally came to the Read of the stairway and touched the pen, and they delivered =to her a draft, there drawn by Milton upon Saxon, who had no money in the bank, for $600; and Saxon paid the woman $7.50 in money.
    Milton filled out the printed acknowledgment oh the back ■of the deed to sign it as notary himself, and then thought of the fact that he was not a notary in Pottawatomie county, and could not take the acknowledgment. Milton told Saxon this, and told him (Saxon) that he (Saxon) would have to get out and rustle a notary public. Saxon thought of Reasor, the county judge, a friend of his, and went to a nearby white hotel and phoned and got Reaser to come down. Bringing Reasor, the county judge, seems to have kind of worried the principal actors, and it was some time before they could be gotten together again. Here, again, Saxon was separated from the other two men; Milton handling the negroes, while Saxon got the judge. The judge came down to the white hotel, and Milton joined Saxon and the judge there, and told them lhat Dinah Walker had gone to the hospital to see her sick child, and that they would have to wait. After some time, then went back to the negro house, and again had to wait. They finally got the woman ready again, and Reasor and Saxon were taken into the negro house. The woman came- to the door of her room, with her head muffled in a shawl, stated that she was Dinah Walker, talked over the matter, and while Milton held a smoky lamp Reasor read over the deed to her and took her acknowledgment to it as Dinah Walker; she having already touched the pen to her mark and signature under the name of Dinah Walker. After the acknowledgment, one of the men was heard by the landlady of the house to tell the negro, Walker, and the woman to hurry and catch the train for Wewoka or Seminole. The transaction was concluded somewhere between 1:30 and 2 o’clock in the morning. Reasor and the two white men went back to the white hotel, and Reasor went home, taking the deed with him, for the purpose of putting his seal to the acknowledgment the next morning, which he did, and delivered the deed to Saxon the next morning; and Saxon filed it in the office of the register of deeds in Seminole county the next day, August 7th.
    The deed, as introduced at the trial, had an erasure in the description, and the erasure was written over in ink. The deed was taken to Felix J. Saxon as grantee. Norton placed $600 in the bank to meet the draft, but- ordered it paid to no one but Dinah Walker. Gene Walker forged Dinah Walker’s name to the draft, but it was turned down. A number of witnesses testified that it was not Dinah Walker (in fact of the witnesses, all said it was not she) who signed the deed; and a number-testified that she was at home with her sick child when it was made. Dinah Walker learned of the forgery on Sunday or Monday following, and Monday started trouble. Milton and Norton heard of this on Monday night, and went before day on Tuesday morning to Dinah Walker’s house, with $600 borrowed money, to try and straighten up with Dinah Walker and get her to sign a second deed, although still contending that the former deed was valid. They failed; old Dinah locked herself in her house and would not talk to them; and at the time of this trial suits were pending in which she was seeking to recover her land from Norton, to whom Saxon deeded it the day after the forgery.
    Saxon and Walker testified for the state in the trial of Milton.

      The defendant, R. D. Milton, on his own behalf as a witness, testified, in substance, as follows: That he was 38 years of age, native of Kentucky; resided at Wewoka; was a notary public; did not know Dinah Walker, and saw her for the first time August 10, 1909, at Earlsboro. Made arrangement with Felix Saxon to go to-Dinah Walker’s house on August 5, 1909, to buy a one-eighth interest in a 40-acre tract for Judge Cobb. On August 6th went to Seminole, with Felix Saxon on the train, and drove to Dinah Walker’s house with Saxon, arriving there about 11 a. m. Asked where Dinah .AYalker and her husband were, and they said Dinah Walker was at a neighbor’s house, and her husband had gone to Earlsboro. Met Walker on the road and asked him if he would help them to buy a piece of land from his wife, and he wanted to sell them her dead children’s land. Arrangements were made for Walker to assist the defendant in buying the dead children’s land from Dinah. That Walker told defendant to go back to Seminole and meet him that night. That Walker informed the defendant that night that his wife had gone to Shawnee with a sick girl, and Walker insisted that the defendant go to Shawnee with him to make the deal. That the defendant, Saxon, and Walker all agreed to go to Shawnee, which they did. Arriving there, they went to a negro rooming house and waited a considerable time for Walker’s wife, who came upstairs after a while. After having the deed read over to her, she signed it by mark. That there was at no time any conversation between the defendant and Eugene Walker as to a misdescription in the deed and getting a woman to act as Walker’s wife. The defendant denied any knowledge on his part of it not being the real Dinah Walker on the night the deed was signed'. He testified to having acted in the utmost good faith in the matter, and knew nothing of the unlawful conduct of the witness Eugene Walker. He further testified that he did not believe the woman who signed the deed was the same woman that he now knew as Dinah Walker.
    T. S. Cobb, as a witness for the defendant, testified, in substance, as follows: That he was county judge. Was in Des Moines, Iowa, at the time the deed was taken. He had insisted on the defendant, Milton, seeing Dinah Walker to secure a one-fifth interest in a certain 40 acres of land.

      L. G. Pitman, T. G. Cutlip, Crump, Skinner & Powler, and J. Ross Bailey, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (James B. Gresham and Hunter Johnson, of counsel), for the State.
   DOYLE, J.

(after stating the facts as above). Upon a careful consideration of the evidence, our conclusion is that the verdict and judgment must stand, unless the court, in the course of the trial, committed error prejudicial to the substantial rights of the defendant.

It is claimed by the learned counsel for the plaintiff in error that the court erred in refusing to grant a continuance on account of the absence of the witness H. H. Rogers and the witness Mrs. Myrtle Milton, and the consequent absence of material and necessary evidence for the defendant, and on account of the denial of a continuance upon the indorsement of the names of additional witnesses upon the indictment at the commencement of the trial..

The affidavit for continuance sets forth that if witness H. H. Rogers was present he would testify that Felix Saxon told him (Rogers) that he (Saxon) signed Dinah Walker’s name to the deed; that Milton witnessed it; that Milton was not acquainted with Dinah Walker; that after Dinah Walker said that she did not execute the deed Milton came to -him (Saxon) and wanted him to reconvey, but that he (Saxon) said that he would not reconvey until Norton paid him; that he (Saxon) had paid all the money, and that he (Milton) was out nothing; that if Myrtle Milton was present she would testify that Felix Saxon had said to her that he (Saxon), with Milton, went to Shawnee, where they met Dinah Walker; that Dinah Walker there made her mark to the deed, and that he (Saxon) guided her hand as she’did so; that'he knew it was Dinah Walker, and that Milton was not acquainted with Dinah Walker; that the deed was executed properly in the presence of Eugene Walker and R. D. Milton, and acknowledged before E. D. Reasor, county judge.

The record shows that .the defendant Milton took the stand as a witness in his own behalf and corroborated Saxon in every particular mentioned in the affidavit for a continuance; and the defendant admitted as a witness that it was not Dinah Walker who signed the deed at Shawnee. He also testified that he saw Saxon put the money in the hank to pay for the land; and that it was Norton’s money. He further testified that on Tuesday, August 6, 1909, he went with Norton, with $600 in money that they had borrowed, and tried to get another deed from Dinah Walker.

The only possible competency or materiality of the testimony of these absent witnesses would have been to impeach Saxon’s evidence; and the defendant not only did not cross-examine Saxon on these points, but in his own personal testimony corroborated Saxon.

The names of five witnesses were indorsed on the indictment when the case was called for trial, leave of court having been first obtained, as follows: Alexander Crane, Carry Cyrus, Blanche Miller, Henryetta Brooks, and J. G. Dodson. The first two, Alexander Crane and Carry Cyrus, did not testify at all. Henryetta Brooks and Blanche Miller testified that Dinah Walker did not leave home the night of August 6th, and consequently could not have been in Shawnee to sign the deed in question. As this was an admitted fact by the testimony of the defendant, he could not have been prejudiced by their testimony.

° J. G. Dodson (T. D. Dodson), the fifth witness indorsed thereon, testified that upon the afternoon of the night of the forgery he (witness, who was then sheriff of Seminole county) was at Seminole, Okla., and saw the defendant Milton and Saxon driving away from that place, and heard the defendant Milton, referring to the team'he and Saxon were driving, remark, “This is a hell of a poor team to start a man out to steal a piece of land with.” After Dodson had testified, the defendant, testifying in his own behalf, did not deny making the statement that Dodson had testified to. Dodson testified that there were fourteen or fifteen men who heard the defendant make the remark.

The record shows that the trial lasted three days after Dodson testified; and no effort is shown to have been made to secure the attendance of any of these persons from the town of Seminole, just a few miles from Shawnee, where the trial occurred. No attempt was made on the motion for a new trial to show that the testimony of Dodson could possibly have been-rebutted. We do not think that the defendant could have been prejudiced by the ruling of the court, when he did not deny this evidence when testifying in his own behalf.

It is further contended that the defendant was not in a mental condition to go to trial on account of the illness of his wife; and in support of the application for continuance evidence was introduced upon this point. The brief of the plaintiff in error, under this assignment, does not argue this question, and we suppose it is abandoned. Suffice it to say that at the time of-the trial of this case it had been pending nearly two years, and during all that time the defendant had been represented by his present large array of counsel. During that time, the case was passed over at various terms for various reasons. The case was set for trial and prepared for trial by the defendant and his attorneys, and the witnesses subpoenaed at least twice before called for trial, to wit, in June, 1910, and in January. 1911. The record discloses that the case had been set down for trial once before at the same term of court at which it was tried, and was passed by the court, without motion, on account of the illness of the wife of the defendant.

The rule is well settled that the granting or refusal of a continuance, particularly for causes not enumerated in the statute, is a matter largely within the sound discretion of the trial court; and nothing but the abuse of this discretion will warrant the appellate court in interfering with the judgment. We think the application for a continuance was properly overruled.

Several assignments of error are based upon the fact that the judge of the court administered the oath to the bailiff in charge of the jury. It is contended that:

“The court, by the judge, had no authority personally to administer the necessary oaths to the jury bailiff, but should have required the clerk to administer the oaths.”

Our statute is silent as to designating what particular officer of the court shall administer the oath to the bailiff in charge of the jury. It is fundamental that every court has inherent power to do all things which are reasonably necessary for the administration of justice within the scope of its jurisdiction. Therefore it is not necessary that there should be a statute empowering the courts to administer oaths in the trial of cases; the judgé himself may administer the oath, or he may direct the clerk or deputy clerk to administer it.

, “A court has inherent authority 'to administer an oath or affirmation; and an oath administered by an officer in open court, under the direction of the court, is administered by the court.” (29 Cyc. 1300, subpar. B.)

“The authority to administer oaths is, however, an incident to all courts. It belongs to all courts. Whenever a court is created, that power is also necessarily created as being a necessary incident to the court.” (Ferguson v. Smith, 10 Kan. 396.)

“We must know judicially that the court had authority to administer the oath, either by the judge, the clerk, or deputy.” (Keator v. People, 32 Mich. 484, 487.)

It was held in United States v. Ambrose (C. C.) 2 Fed. 556, that a judge of a district court of the United States had the power to administer oaths in matters arising in the court; and that such power is incident to his judicial office, although it appears from the opinion that such powers had not been vested by statute in such judge. Counsel’s contention is destitute of merit. All that is necessary is that the oath was administered by the judge or the clerk of the. court in the presence of the court.

To the instructions given by the court, no serious objection is made; but it is insisted by the learned counsel that these instructions did not fully define the crime of forgery. The court gave fifteen instructions; the seventh and eighth being given on the request of the defendant.

Instruction No. 1, as given, reads as follows:

“Gentlemen of the jury, the court instructs you that in this case the defendant, R. D.-Milton, is prosecuted by the state of Oklahoma upon an indictment, duly and legally filed and presented in this court, charging that he did, on the 7th day of August, 1909, and within the county of Pottawatomie, state of Oklahoma, and within the jurisdiction of this court, commit the crime of forgery in the manner and form as follows, to wit: That on said date R. D. Milton, Felix Saxon, and Euge'ne Walker then and there unlawfully, willfully, and feloniously did falsely and fraudulently make and forge a certain warranty deed, in words and figures describing certain lands, the property of Dinah Walker; that said warranty deed purports to be the act of Dinah Walker; that said warranty deed purports to convey the interest of said Dinah Walker in and to the lands therein described; that Dinah Walker did not sign said deed, and did not authorize any person to sign said deed for her; that said deed was by said persons made and forged with the unlawful, willful, and felonious intent of said persons then and there to defraud the said Dinah Walker of her interest in and to said lands described in said deed, contrary to the form of the statutes in such cases made and provided, and against the peace, and dignity of the state of Oklahoma. You are instructed that to the indictment herein the defendant has pleaded not guilty, and you are instructed that the state must prove to your satisfaction, beyond a reasonable doubt, each and every material allegation of the indictment charging the offense against the defendant on trial.”

Instruction No. 4 reads as foilows:

“You are instructed that if you find from the evidence, beyond a reasonable doubt, that the defendant, R. D. Milton, entered into an agreement with one Eugene Walker that said Walker should procure some person, not Dinah Walker, to sign and acknowledge a deed conveying the lands described in the indictment herein, and if you further find from the evidence, beyond a reasonable doubt, that, pursuant to said agreement, the said Walker, acting alone or in conjunction with the said R. D. Milton, procured and caused some person, on or about the 7th day of August, 1909, in the city of Shawnee, Pottawatomie .county, Oklahoma, at the rooming house of one Sylvia Tutley, to sign and acknowledge the deed to such lands, as alleged in the indictment, and if you further find from the evidence, beyond a reasonable doubt, that such person so signing and acknowledging such deed was not Dinah Walker, and if you further find from the evidence, beyond a reasonable doubt, that the defendant, R. D. Milton, caused or procured such person, or aided and abetted in the causing or procuring such person, to sign such deed, with the intent to defraud Dinah Walker of her land, or of her interest therein, your verdict should be that the defendant is guilty. But, unless you find from the evidence, beyond a reasonable doubt, each and every matter mentioned in .this instruction, your verdict should be that the defendant is not guilty.”

We believe the instructions given by the court fairly and correctly state the law of the case. From the whole record before us, it is apparent that justice has been done by this defendant; and the judgment of conviction ought not to be set aside, except for such plain errors in the proceedings which were or might be prejudicial to the defendant.

Finding no such prejudicial error in the record, the judgment of the superior court of Pottawatomie county is affirmed.

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


text:
    OTIS TITTLE v. STATE.
    No. A-1065.
    Opinion Filed June 8, 1912.
    (123 Pac. 1036.)
    INTOXICATING LIQUORS — Illegal Sale — Evidence. For evidence which sustains a conviction for violating the prohibitory liquor law, see opinion.
    (Syllabus by the Court.)

      Appeal from■ Craig County Court;

      S. F. Parks,- Judge.

    Otis Tittle was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      James S. Davenport, for appellant.

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

Upon the trial of this cause A. J. Snyder testified that he was a farmer; that some time in July, 1910, ¡he saw the appellant, Otis Tittle, on the streets of Vinita, Craig •county, Okla.; that he asked appellant if he could get any beer from him and appellant said, “Yes, he guessed he could”; that lie gave appellant the money and appellant went off and brought back one dozen small bottles of beer; that the witness drank two bottles of it and it tasted like beer; that witness thought it was beer; that witness did not remember if the bottles were labeled, but knew he asked for beer and appellant told him it was beer.

The state offered in evidence record No. 10 showing the payment of the tax required by the United States internal revenue issued to Otis Tittle as a retail liquor dealer at Vinita, Okla.

Appellant was a witness in hi? own behalf and he testified that he was acquainted with A. J. Snyder. Pie denied positively that he had sold any beer to said witness at the time mentioned in the testimony or at any other time. On cross-examination the witness testified that he had previously been convicted for violating the prohibitory liquor law, and also testified that at one time he pleaded guilty to violating said law; all of which was objected to by counsel for appellant. Witness admitted having an internal revenue license as a retail liquor dealer. He stated he had had such license since 1908; that he had such license for the purpose of enabling him to sell Almeda; that Almeda was a kind of beer or a substitute for beer.

We think this evidence amply sustains the verdict. All of the objections urged by appellant to the instructions, where such instructions were excepted to, and the dbjections to the admissibility of the evidence, have been decided adversely to the contention of counsel for appellant, and it would be a useless consumption of time to discuss them again. The. testimony clearly establishes appellant’s guilt.

We find no erorr in the record which would authorize us to reverse the judgment against appellant. It is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur,