author: DOYLE, J.

text:
    GEORGE MULLEN et al. v. STATE.
    No. A-5239.
    Opinion Filed Nov. 18, 1924.
    (230 Pac. 285.)
    (Syllabus.)
    1. Judgment and Sentence — Effect of Plea of Guilty. In a criminal action a defendant has the right to plead guilty, and the effect of such a plea is to authorize a judgment of conviction and imposition of punishment as prescribed by law.

      2. Arraignment and Pleas — Permission to Withdraw Plea of Guilty Discretionary with Court. The granting or denying of permission to withdraw a plea of guilty either before or after judgment, and to substitute a plea of not guilty, is a matter within the sound discretion of the trial court. In capital cases such discretion should be liberally exercised in favor of life and liberty.
    3. Same — Plea of Guilty to Be Voluntary after Defendant Advised of Rights and Consequences. A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.
    4. Trial — Right to Be Heard by Counsel not Limited to Time of Trial. The constitutional right to be heard by counsel is not limited to the right to be heard by counsel at the. time of the trial. Every person accused of felony is entitled to the benefit of counsel at every stage of the proceeding, whether imprisoned or admitted to bail.
    5. Appeal and Error — Harmless Error — Denial of Constitutional Right as a Ground for Reversal. Where it appears on appeal that a defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal, unless the record clearly shows that the right was waived, or tha’t no injury could have resulted to the accused by reason of such denial.
    6. Arraignment and Pleas — Pleas of Guilty Held not to Have Been Entered Voluntarily and Understandingly. Where two defendants accused of murder were arraigned without counsel and the court did not inform them that, in' case they were tried by a jury and found guilty of murder, the jury in its discretion would have the right to decide whether the penalty to be imposed should be death or imprisonment for life, and that by pleading guilty they waived the right to have a jury exercise its discretion as to that matter, it cannot be said that their pleas of guilty were entered voluntarily and understandingly.
    7. Appeal and Error — Abuse of Discretion in Refusal to Set Aside Judgment and Sentence of Death Pronounced on Plea of Guilty. The law favors trials on the merits, and, if the discretion of the trial court, is abused in refusing to vacate and set aside judgment and sentence of death, pronounced upon a plea of guilty, and grant a new trial, the judgment on appeal will be reversed.
    Appeal from District Court, Carter County; W. F. Freeman, Judge.

      George Mullen and Estill Perkins were convicted of murder, and they appeal.
    Reversed and remanded.
    The information in this case filed in the district court of Carter county, June 2, 1924, charges that the defendants, George Mullen and Estill Perkins, did in Carter county, on or about the 25th day of May, 1924, kill and murder one W. M. Cox, by shooting him with a shotgun.
    The record shows that these defendants were arrested Sunday evening, June 1st, about 5 o’clock; that they were taken the next morning before an examining magistrate and waived preliminary examination, but were not represented by counsel. On the same day the information was filed in the district court and the defendants arraigned. The court informed them of their right to have counsel to represent them, and that if they were not able to employ counsel the court would appoint counsel if they so desired. To which the defendant Perkins replied: “This is my first time; I don’t know.” The defendant Mullen made no answer. They were then asked by court if they wanted a lawyer to represent them in this case. Each answered, “No, sir.” The county attorney then read the information. They were then each asked by the court: “What is your plea, guilty or not guilty?” Each answered, “Guilty.” Thereupon the court made the following statement:
    “Do you know the consequences of your plea of guilty? It is provided by the laws of this state that when a man commits murder, upon his plea of guilty or when he is proven to be guilty, he may be electrocuted, or, it may be, if the court doesn’t see fit to inflict so severe a punishment, then it may be reduced to a term for life in the state penitentiary. In view of these grave consequences of your plea, do you still desire to enter your plea of guilty?’’
    “The Defendant Mullen: Yes, sir.

      “The defendant Perkins: Yes, sir.
    “By the Court: To defendant Perkins: How old are you? A. Nineteen.
    “To defendant Mullen. How old are you, Mullen? A. Nineteen.
    “By Mr. Hodge, County Attorney: I thought you said, George, last night, that you were 17? A. I state now that I reckon I am 19 years old.
    “By the Court: It is an enormous thing, boys. It comes to the court, information — you plead guilty of the charge that you went up to this old man’s store, his place of business, the room where he slept, I believe, wasn’t it, and out there in the dark, after night, hidden and protected by the darkness on the outside, called this old man up and killed him. Is that so ?
    “The Defendant Mullen (crying): I didn’t mean to kill him.
    “By the Court: But you shot him?
    “The Defendant Mullen: I shot through the door, but I didn’t go to do it. I was drinking, and I didn’t have my right mind. ’ ’
    ■ The court then directed the sheriff to take the boys back to jail and to return them into court in 48 hours, and stated:
    “I shall not pronounce judgment until I give them every possible right they have under the law.”
    On June 4th, the defendants being present, the court stated:
    “Let the record show, Mr. Reporter, that the court this morning appointed Judge R. Brett to represent these defendants in the further proceedings in this case. The defendants will stand up.
    “Mr. Mullen and Mr. Perkins, when you were in court two days ago, you expressed the desire and did enter your plea of guilty to the charge of murder, and the court at that time admonished you as to the consequences of a plea of guilty to a charge of that character, that your punishment would either have to be death or life imprisonment; but the court thought it would be well to give you plenty of time, and did give you 48 hours to consider as to whether or not you desired to plead guilty under these conditions. What is your desire now? Do you still desire to enter your plea of guilty?
    “The Defendant Mullen: Yes, sir.
    “The Defendant Perkins: Yes, sir.”
    Thereupon Judge Brett, counsel for the defendants, .made a statement asking for leniency and concluded by asking that life imprisonment be imposed as the punishment.
    Thereupon the court directed the defendants to sit down and in a general statement reviewed the case, concluding his remarks by saying:
    “Stand up, boys, Mr. Mullen and Mr. Perkins, you have heretofore entered your plea of guilty to the charge of murder, and when called upon by the court to-day, as to whether or not you still insisted on entering that plea, you answered that you did, and again to-day you have entered your plea of guilty to the charge of murder. The court, after having for 48 hours seriously and restlessly and without sleep — because I couldn’t sleep with the weight of this responsibility and this burden on me — finds that it is the judgment of this court that you be punished by death, each of you. I shall not pronounce sentence now. Mr. Sheriff, you will take them back to prison. ’ ’
    On June 7th, the defendants being present in person and by their counsel, Judge Brett, the following proceedings were had:
    “By the Court: In the discharge of official responsibilities, there comes a time when a judicial officer properly feels a very great and grave responsibility of the duties that are incumbent upon his official position. In moments of this character of seriousness, ladies and gentlemen, I cannot help to feel, and am disposed so to do, to invoke divine guidance in the discharge of a problem and duty of sneh weight and seriousness. Therefore I will ask this audience to arise, and Dr. Davidson will lead us in a word of divine pleading.”
    . After the invocation by Dr. Davidson, Guy H. Sigler and J. E. Williams, of the Ardmore Bar, asked to be entered as attorneys of record for the defendants:
    “By Mr. Sigler: If the court please, the defendants at this time wish to have their plea of guilty withdrawn and to enter their plea of not guilty.
    “By the Court: Which motion will, by the court, be overruled.
    “By Mr. Sigler: If the court please, the defendants at this time object to further procedure and sentence in this case, for the' reason that, under the rules. of this court, this ease would belong in division No. 2 of this- court, over which Judge Asa E. Walden has charge as judge, and the defendants now offer and ask that the rules of this court be marked as ‘Defendants’ Exhibit A’ and made a part of the record in this action.
    “By the Court: The request as to the marking of the rules of this court and that the same be made a part of this record will be granted. The objection as to the jurisdiction of this court to pronounce sentence in this case will be overruled.
    “By Mr. Sigler: We would like for the record to show that Judge Walden is now in Ardmore and has been in the district court since the case was filed.”
    Evidence was offered to show that the defendants were taken from the office of the committing magistrate direct to the district court; that on the same day upon arraignment they both pleaded guilty.
    Judge Walden, called as a witness, testified that no order had ever been made by him transferring this case from his division to the division presided over by Judge Freeman. The court overruled the objections to the jurisdiction of the court to render judgment upon the pleas entered,-

      “By Mr. Williams, Counsel for Defendants: If the court please, we ask leave to withdraw the plea of guilty entered by the defendants, and we would like to put the defendants and each of them on the witness stand to show that no copy of the information or a list of the witnesses had ever been furnished to the defendants, and to prove that they did not understand the nature of the charge against them.
    “By the Court: That will be denied, because this court very fully explained to them on their first appearance the nature of the charge, and again, on their second appearance, 48 hours thereafter. (Exception reserved.)
    “By the Court: Before formally pronouncing sentence upon these two young defendants, the court desires to make a few observations upon this case and the consequences of this case, and of its probable psychological effect upon the citizenship of this county, and not only this county, but in these days of radio and of the press and other means of communication it will have its effect throughout the state.”
    Here follows an extended address to the audience, at the close of which the record is as follows:
    “By the Court: Mr. Perkins, stand up. You have been legally charged by information filed in this court with the crime of murder. To that charge you have entered your plea of guilty. You and your companion in crime have detailed the story that you deliberately planned with each other to go down there and rob this old man, and for that purpose took along with you a shotgun, and when you got there conditions arose so that your companion in your presence, while you were standing guard, deliberately shot and killed him. As provided under the statutes of this state, hard as it is for me to pronounce that sentence, young man, based upon your plea of guilty and the charge of this information, it is the sentence of this court that you pay the penalty of 'death as is made and provided under the laws of this state in such cases, and that execution of sentence shall be between the hours of 6 a. m. and 2 p. m., on Friday, the 29th day of August, next; and may God have mercy upon your soul.
    “George, stand up.

      “The Defendant Mullen: I want to say to you people that if I had it to do over again nothing in this world could make me do it. It was whisky that made “me do it. I didn’t intend to kill that man. I didn’t realize I had killed a man until the next morning. I told you the story as straight as I could remember it. Judge, I ask for mercy, that is all.
    “By the Court: You have been legally charged by information filed in this court, George, with having killed old man Cox, thereby becoming subject to the charge of murder. To this charge, you have entered your plea of guilty. You stated to the officers and the court the conditions under which that murder was committed, and I would that I could say and see in your heart that you are innocent of so grave a charge; but it is my duty, and the gravest one, to pronounce sentence upon you, which I now do. It is the sentence of the court, for the crime to which you have entered your plea of guilty in this court, that you shall pay the penalty of death in the manner and form in which it is provided by the statutes of this state, and that the execution of this sentence shall be between the hours of 6 a. m. and 2 p. m., on Friday, the 29th day of August, 1924; and may God have mercy upon your young soul. ’ ’
    On June 9th, motion for new trial and rehearing was filed on the following grounds:
    “(1) That the court erred'in refusing to permit the defendants to withdraw their pleas of guilty.
    “(2) That the court erred in'overruling the objection to the jurisdiction of the court as stated in the objections offered.
    “(3) Because the court, by statements not under oath constantly made in the record, prejudiced the defendant’s case.
    “(4) Errors of law occurring at the hearing and excepted to by the defendants.”
    Which motion was by the court on the following day overruled and exception allowed.
    Sigler & Jackson and Brown, Brown & Williams, for plaintiffs in error.

      George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). The plaintiffs in error, George ’ Mullen and Estill Perkins, having been sentenced to suffer death upon the charge of murder, have appealed to this court, and seek a reversal:

First, because the court erred in refusing to permit the defendants to withdraw their pleas of guilty.

Second, because the court erred in overruling the motion of the defendants for a new trial.

It appears that the homicide was committed May 25, 1924. Plaintiffs in error, each 19 years of age, were arrested June 1st, and placed in the county jail at Ardmore. The following day they were taken before a justice of the peace, and each waived preliminary examination. They were then taken to the courtroom of the district court. In the meantime the information was filed.

Thereupon the following proceedings were had:

The Court: “Boys, you are brought into this court on a very serious charge, that of murder. Now, the court takes this occasion to admonish you of your rights in the matter. You have a right to have counsel to represent you before this court, if you want it, and if you are not able to employ counsel it is the duty of this court to appoint counsel and the state will pay for it and see that you are properly represented before this court, and the court will do it for you if you so desire. Do you want a lawyer to represent you in this case?”
The defendants each answered, “No, sir.”
The Court: “Then, Mr. Hodge, you may proceed.”

The defendants were then called upon to plead, and each entered a plea of guilty.

The court then stated. “Do you know the consequence of your plea of guilty? It is provided by the laws of this state that when a man commits murder, upon his plea of guilty or when he is proven to be guilty he may be electrocuted, or, it may be, if the court doesn’t see fit to inflict so severe a punishment, then it may be reduced to a term for life in the state penitentiary. In view of these grave consequences of your plea, do you still desire to enter your plea of guilty?” To which each defendant answered, “Yes, sir.”

The court then directed the sheriff to take the defendants back to jail and to return them into court in 48 hours. On June 4th, the defendants being present, the court appointed Judge R. Brett as counsel for the defendants. The court then asked the defendants, “Do you still desire to enter your plea of guilty?” To which each answered, “Yes, sir.”

Thereupon Judge Brett, as counsel for the defendants, made a statement asking for leniency and concluded by asking that life imprisonment be imposed as the punishment.

The court stated that he would not pronounce sentence at that time, and adjourned court until June 7th, and the defendants were taken back to jail.

On June 7th, before the judgments were pronounced, Guy H. Sigler and J. E. Williams, of the Ardmore Bar, asked to be entered as attorneys of record for the defendants, and it was so ordered.' As counsel for the defendants they then asked leave to withdraw the pleas of guilty as entered by the defendants and asked leave to call the defendants as witnesses to show that no copy of the information or a list of the witnesses had ever been served on the defendants, and to prove that they did not understand the nature of the charge against them.

The court then said: “That will be denied because this court very fully explained to them on their first appearance the nature of the charge and again on their second appearance, 48 hours thereafter."

On the same day the court found the defendants guilty of murder as charged in the information and that they should suffer death in the manner prescribed by law and pronounced judgments accordingly.

In support of the contention of counsel for the defendants that the judgment should be set aside and a new trial ordered, it is argued that under the law of this state the defendants had the absolute right at any time before judgments were formally pronounced to withdraw their pleas of guilty and to substitute therefor pleas of not guilty.

The contention of counsel is predicated upon the provision of the Code which reads:

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted. ’ ’ Section 2621, Comp. Stats. 1921.

The uniform holding of this court in construing this provision of the Code has been that the granting or denying of permission to withdraw a plea of guilty, either before or after judgment, and to substitute a plea of not guilty, is a matter within the sound discretion of the trial court, and that such discretion should be liberally exercised in favor of life and liberty.

In Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298, it is said:

“In respect to the question of discretion, courts have distinguished between the higher and lower grades of crime, and construing this section of the statute in a felony case, and especially in a capital case, if the defendant had entered a plea of guilty without the benefit of counsel, or was influenced to enter such plea, either by his counsel, or by the prosecution, or by act of the court, he should be accorded the right of trial by jury, by permitting him at any time before judgment to withdraw his plea of guilty and substitute therefor a plea of not guilty. In such cases the refusal of a trial court to permit this to be done would be considered an abuse of judicial discretion. ’ ’

In Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194, it was held:

“The law favors trials on the merits; and, if the discretion of the trial court is abused in refusing to vacate and set aside judgment and sentence of life imprisonment, pronounced upon a plea of guilty, and grant a new trial, the judgment on appeal will be reversed.”

And see State v. Johnson, 1 Okla. Cr. 154, 96 Pac. 26; Id., 21 Okla. 40, 96 Pac. 26, 22 L. R. A. (N. S.) 463; McConnell v. State, 18 Okla. Cr. 688, 197 Pac. 521; Heath v. State, 23 Okla. Cr. 382, 214 Pac. 1091.

The uniform holding of the courts is that in capital cases a plea of guilty can only be entered after the defendant has been fully advised by the court' of his rights and the • consequences of his plea, and, where it appears on appeal from a judgment of conviction that the defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal, unless the record clearly shows that the right was waived, or that no injury could have resulted to the accused by reason of such denial.

Counsel for the defendants assert that they were denied rights guaranteed by the Constitution of the state. Section 20 of the Bill óf Eights provides:

“In all criminal prosecutions. the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be' confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postof-fice addresses.”

A person prosecuted for a crime may waive the rights guaranteed to him by this provision of the Constitution, and the court is called on to decide whether under the facts shown in this cáse the defendants did or did not waive such rights.

It has been held that a constitutional right to be heard by counsel is not limited to the right to be heard by counsel at the time of the trial, but that the spirit of the provision contemplates the right of accused to consult with counsel at every stage of the proceeding.

In Polk v. State, supra, it was held:

“Under our laws every person accused of felony is entitled to aid of counsel at every stage of the proceedings, whether imprisoned or admitted to bail, and refusal of opportunity to procure such counsel amounts to a deprivation of a right essential to his safety.”

The information to which the defendants were called upon to plead charged an offense for which the punishment prescribed by statute is death or imprisonment for life at hard labor. If the defendants had been permitted to consult with counsel learned in the law, before they were arraigned, they would have been informed that they had a right to be tried by a jury of 12 men, whose duty it would be to decide the question of their guilt, and that in case they were found guilty of murder, the jury would have a right to exercise its discretion in fixing the punishment at death or at imprisonment for life. They would have been informed that they could not be required to give evidence against themselves. They would have been informed also that in case they pleaded guilty, such pleas would be a confession that they were guilty of murder, and thereupon the court would be authorized to find them guilty of murder without hearing any other evidence. They would have been further informed that the effect of such a plea would be, not only to waive their right to have the question of their guilt determined by a jury, but also to waive their right to have a jury, exercising its discretion in determining whether they would be punished by the infliction of the death penalty or by imprisonment for life, and that the court as the result of such waiver would have a right to impose either the death penalty or the penalty of imprisonment for life at hard labor as its discretion might dictate.

Where it appears that a defendant is thus fully advised as to his rights and as to the consequences of his plea, and that with such knowledge he deliberately enters a plea of guilty, the court is justified in accepting it, even in a capital case. But where the defendant charged with a capital offense appears before the court without counsel, and offers to enter a plea of' guilty, the court, before accepting such plea, should make sure that the defendant has full knowledge of his rights, and that he fully comprehends and appreciates the serious consequences of the plea he is proposing to enter.

In this case it appears that the defendants were informed by the court that they had a right to have counsel to represent them, and that if they were unable to employ counsel it would be the duty of the court to appoint counsel for them. This right they expressly waived. But the record shows that the consequences of a plea of guilty were not explained to them before their pleas were entered. It appears that after the pleas were entered, and before accepting the same, the court informed them that the law authorized the court to inflict the death penalty, or that of imprisonment for life.

The defendants were not informed that, in case they were tried by a jury and found guilty of murder, the jury in its discretion would have the right to decide whether the penalty to be imposed should be death or imprisonment for life, and that by pleading guilty they waived the right to have the jury exercise its discretion as to that matter.

On the record before us it cannot be said that the pleas of guilty were entered voluntarily) and understandingly. It follows that the court committed prejudicial error in refusing to permit counsel'for the defendants to call the defendants as witnesses before the judgments were rendered to prove that they did not understand the nature of the charge against them.

Had the defendants been represented by counsel, they would have been informed of their constitutional right against self-incrimination and each would have been advised to assert his constitutional right to refuse to answer the questions which elicited the prejudicial facts which seem to have been considered by the trial court in determining which of the penalties provided by law should be imposed. They would also have been informed of their right to have a copy of the information and to be furnished with a list of the witnesses for the state together with their post office addresses at least two days before being called upon to plead to the information. Goben v. State, 20 Okla. Cr. 820, 201 Pac. 812, and cases cited.

No act which a court can be called upon to perform is more serious and solemn than to render a capital judgment on a plea of guilty. To perform such a duty the judge is reconciled only by the consideration that it is not he who does it, but the law of which he is simply the minister, and for this reason in a capital case the accused should be accorded in full measure every right guaranteed by the Constitution and the statutes.

The law of the land guarantees to every one accused of crime, whether rich or poor, a fair and impartial trial. The rights of just and upright citizens are no more sacred in the eyes of the law than the rights of the poorest and meanest citizens of the state. The safeguards erected by the Constitution are intended to protect the rights of all citizens alike. They protect the rights of the guilty, as well as those of the innocent. This court cannot give its sanction to the conviction of any person accused of crime where the proceedings on which the judgment is based show the denial of a right to which the accused was entitled under the Constitution. Such judicial sanction in any case would impair, if not destroy, the efficacy of the constitutional safeguards to protect the rights of all citizens of the state. However guilty these defendants may be, they are entitled to a trial in accordance with the rules of law.

It appears that under the rules of said district court regulating the assignment of cases, this ease properly belonged to division No. 2; that no order had been made by Judge Walden, presiding, transferring this ease to Judge Freeman’s division, No. 1. The defendants on this ground, before the judgments were rendered, objected to the jurisdiction of Judge Freeman to proceed with the case.

We deem it sufficient to say that this objection to the jurisdiction of the court was not well taken. However, we will take could unseemly- conflicts of authority among the judges be avoided, and causes and proceedings before the court be conducted and disposed of in an orderly manner. When once adopted such rules should be held binding and be enforced, except when the court, for good cause shown, in a particular case may relax them in order that justice may be done. No sufficient reason appears in the record why the rules of said district court should have been disregarded in this case.

Under the facts shown by the record, the trial court should have granted the defendants’ motion for leave to withdraw their pleas of guilty and should have permitted them to enter pleas of not guilty. Denying such motion was a manifest abuse of judicial discretion.

The judgments of the lower court are accordingly reversed, and the case remanded, with direction to sustain the defendants’ motion for leave to withdraw their pleas of guilty.

The warden of the penitentiary will surrender the defendants, George Mullen and Estill Perkins, into the custody of the sheriff of Carter county, who will keep them in custody pending further proceedings in this case.

MATSON, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    STATE v. J. B. A. ROBERTSON.
    No. A-4797.
    Opinion Filed Nov. 21, 1924.
    (230 Pac. 932.)
    (Syllabus.)
    1. Appeal and Error — Attorney General’s Right to Dismiss State’s Appeal. The right of the Attorney General to dismiss an appeal by the state where no question is involved other than a reserved question of law, will not be denied by this court except in instances where to dismiss the appeal' some harm might accrue to the state’s interest, or where it is apparent to the court that the question reserved is of such importance as to demand a decision by the court.

      2. Same — Right of State to Appeal from Order Sustaining Demurrer to Indictment or Information — When Mere Question of Law Reserved. The state has the right to appeal from an order sustaining a demurrer to an indictment or information. Such an appeal reserves for decision only a question of law where the indictment or information is - dismissed and the defendant discharged without direction or permission by the trial court to amend the information or that the indictment be submitted to that or another grand jury.
    3. Same — No Authority in Attorney General to Dimiss Appeal Where Cause Still Pending Below as to Other of Joint Defendants. Where on an appeal by the state from an order sustaining a demurrer to an indictment, discharging a defendant, dismissing the cause, and denying to the county attorney the right to resubmit the cause to another grand jury, it appears that the cause is still pending in the lower court undetermined as to one of the defendants jointly charged, the Attorney General will not be permitted to dismiss the appeal without some expression by this court on the question of the sufficiency of the indictment to charge, generally, a crime against the laws of the state.
    4. Same — Where Defendant's Discharge Complete Bar to Subsequent Prosecution, Sufficiency of Indictment Immaterial. Whether or not the indictment stated a crime against the defendant, who was discharged, is not decided and is not of material importance to the state, as under the statutes as they now exist the state has no charge pending against him in the lower court, as his discharge, under the circumstances herein set out, constituted a complete bar to any subsequent prosecution against him for the same alleged offense.
    Appeal from District Court, Pontotoc County; Hal Johnson, Assigned Judge.
    J. B. A. Robertson and another were indicted for ,offense of receiving and accepting a certain gift and reward while acting as Governor and as Bank Commissioner, respectively. A demurrer of said Robertson to the indictment was sustained, and said defendant discharged, and the State appeals. On motion to dismiss appeal.
    Appeal dismissed.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 21st day of March, 1922, a grand jury returned into the district court of Okmulgee county, Okla., an indictment charging defendant in error and one Fred G. Dennis, while acting as Governor of the State of Oklahoma, and bank commissioner, respectively, with receiving and accepting a certain gift and reward from the managing officer of an insolvent state bank to permit the said bank to continue to do a banking business while in a state of insolvency. On the same day the defendant in error was arrested upon said charge and was released on bond.

Thereafter on the 11th day of November, 1922, there was filed in said cause in the district court of Okmulgee county a petition for a change of venue, which was granted to the defendant in error, and the cause sent for trial to Pontotoc county, Okla. The transcript of the proceedings in the said cause was filed in the district court of Pontotoc county, Okla., on the 17th day of November, 1922. Thereafter on the 27th day of November, 1922, the defendant in error, through his attorneys, interposed a demurrer to said indictment on numerous grounds which are unnecessary to incorporate herein. Thereafter on the 12th day of December, 1922, the regular district judge of the Seventh judicial district certified his disqualification to sit in the case. It appears from the record that thereafter on the 6th day of February, 1923, the acting chief justice of the Supreme Court assigned Hon. Hal Johnson, regular judge of the Tenth judicial district, to hold district court in Pontotoc county for a period of one week, beginning on Monday, February 12, 1923; that thereafter on the 12th day of February, 1923, before such assigned district judge, the defendant in error asked permission to withdraw his plea of not guilty and to refile his demurrer to the indictment, which permission was granted and the cause set for hearing on February 12, 1923; that thereafter on February 13, 1923, the court sustained the demurrer to the indictment, discharged the defendant and exonerated his bond, to which action the state excepted and gave notice in open court of its intention to appeal to the Criminal Court of Appeals and asked time in which to make and serve the case-made. Whereupon the clerk was directed by the court to note said notice of appeal on the trial docket, and the state was allowed 60 days in which to make and serve case-made, and the defendant in error 10 days thereafter to suggest amendments, and the same to be signed and settled on 5 days’ notice by either party. That on said date the court filed and recorded in said cause a journal entry of its judgment, which appears in full in the motion of the Attorney General to dismiss this appeal. Thereafter it appears from the record that there was filed in said cause written notices of appeal, which were served upon the defendant J. B. A. Robertson and upon L. E. Franklin, court clerk of Pontotoc eounty. Thereafter on the 8th day of March, 1923, a case-made was served upon one of the attorneys for the defendant in error, and it appears that thereafter on the 1st day of August, 1923, the case-made was certified to by Hon. Hal Johnson, assigned district judge, as a full, true, complete, and correct case-made, and the case-made and petition in error were filed in this court on the 9th day of August, 1923.

The Attorney General has filed a motion to dismiss the state’s appeal herein, which said motion is as follows:

“Now comes George F. Short, the duly qualified and acting Attorney General in and for the state of Oklahoma, and respectfully shows to the court that there was filed in this court on the 9th day of August, 1923, a pretended petition in error in the above styled cause which petition in error is in words and figures as follows, to wit:
“ ‘Comes now the state of Oklahoma, represented by Grant Gillispie, county attorney of Okmulgee county, plaintiff in error, and complains of J. B. A. Robertson, defendant in error, and says that at a special January, 1923, term of the district court of Pontotoc county, state of Oklahoma, and on the 13th day of February, 1923, being one of the regular days of the said special term, the defendant in error recovered a judgment by the consideration of which a judgment was rendered in favor of the defendant in error and against the plaintiff in error, sustaining a demurrer to a certain indictment then and there pending in said district court of Pontotoc county, and it was ordered that said indictment be 'dismissed and the defendant discharged from custody, and that a certain bail bond, into which the defendant in error formerly entered, be exonerated, and that his bondsmen thereon be discharged. And it was further ordered that the said indictment be not referred to the county attorney of Okmulgee county for any further action; said judgment further provided that the said defendant in error, J. B. A. Robertson, be discharged and not held to answer said indictment. Then in said cause the state of Oklahoma was plaintiff in error and the said J. B. A. Robertson was defendant in error and was in said indictment duly charged of the crime of accepting a bribe; that all of said matters and facts are more fully set out in the transcript or case-made hereto attached and marked “Exhibit A” and made a part of this petition in error, in which your petitioner states that there is error in said record and proceedings in this, to wit:
“ ‘ (1) That the court erred as a matter of law and in the abuse of his discretion by permitting the defendant in error to withdraw a plea of “not guilty” and to have filed and refiled the demurrer on which this judgment was entered, to all of which the plaintiff in error duly excepted.
“ ‘ (2) That the court erred in sustaining the demurrer to said indictment and in rendering judgment holding that said indictment did not charge the defendant in error of the commission of public offense, to all of which the plaintiff in error duly excepted.
“ ‘(3) That the court erred in dismissing the indictment heretofore referred to, to all of which the plaintiff in error duly excepted.
“ ‘ (4) That the court erred in discharging the defendant in error from the duty and obligation of his bail bond and in exonerating his bondsmen, to all of which the plaintiff in error duly excepted.
“ ‘(5) The court erred in adjudging that the facts stated in the indictment could not form the basis of a prosecution and a new indictment, to all of which the plaintiff in error duly excepted.
“ ‘ (6) That the court erred in adjudging that said indictment be not referred to the county attorney of Okmulgee county for further action, to all of which the plaintiff in error duly excepted.
“ ‘Whereupon, premises considered, the plaintiff in error prays that said judgment so rendered be reversed, set aside, and held for naught, and that a judgment be rendered in favor of the plaintiff in error, and the plaintiff in error be restored to all of the rights that he has lost by reason of the rendition of the said judgment and to all and further relief that the plaintiff in error may show itself justly entitled. State of Oklahoma by Grant Gillispie, County Attorney of Okmul-gee County. Robt. Wimbish, Attorney for Plaintiff in Error.'
“That the transcript of the record in said cause attached to said petition in error contains the following journal entry:
“ ‘Journal Entry.
“ ‘Now on this 13th day of February, 1923, the above cause comes on to be heard, said cause having been duly continued to this day from the 12th day of February, 1923, and on this date, said cause coming on to be heard on the demurrer refiled herein by defendant, the state appeared by Grant Gil-lispie, county attorney of Okmulgee county, and Robt. Wim-bish, defendant appeared in person and by his attorneys, J. D. Lydiek and others. Thereupon attorneys for defendant present said demurrer, and after full argument by attorneys for defendant and attorneys for the state, the court, being fully advised in the premises, finds that the demurrer of the defendant should be sustained, and that defendant should be discharged and that defendant’s bond should be exonerated.
“ ‘Wherefore it is considered, ordered, and adjudged by the court that the demurrer of defendant to the indictment herein presented be sustained, that said indictment be dismissed, that defendant, J. B. A. Robertson, be discharged, and that the bond and bondsmen of said defendant be exonerated, and that defendant go hence without day and without cost. The court having found that the facts stated in said indictment cannot form the basis for a new indictment, the court orders that said indictment be not referred to the county attorney of Okmulgee county for further action.
“ ‘To all of which the state of Oklahoma, by the county attorney of Okmulgee county, excepts and gives notice in open court of his’ appeal to the Criminal Court of Appeals of the state of Oklahoma, and is given 60 days to make and serve case-made, and the defendant 10 days after service of case-made within which to suggest amendments, and said case-made to be signed and settled upon 5 days’ notice in writing by either party.
“ ‘Hal Johnson, Assigned District Judge.’
“The court’s attention is respectfully called to the case of State of Oklahoma v. Vaughn, recently decided by this court and reported in 15 Okla. Cr. 187, 175 Pac. 731, in which it was held that in order to form the basis and foundation for an appeal by the state from an order dismissing an indictment or an information, the trial court must direct the county attorney to resubmit the same to a grand jury, or file a new information, and it is to be noted that in the judgment herein the court not only failed to make that order, but specifically directed the county attorney of Okmulgee county to not file a new information or indictment.
“Upon the authority above cited, we, therefore, move the court to dismiss the pretended appeal filed herein. All of which is respectfully submitted.
‘ ‘ George F. Short, Attorney General.
“N. W. Gore, Asst. Atty. Gen.”

The motion of the Attorney General to dismiss this appeal is sustained. Upon the authority of State v. Vaughn, cited in the motion of the Attorney General to dismiss the appeal, it is apparent from the citations therein contained, and from the holdings in that case, which has been followed uniformly in numerous subsequent opinions of this court, that so far as this defendant in error is concerned, this prosecution as to him is ended. The right of the Attorney General to dismiss an appeal by the state where no question is involved other than a reserved question of law will not be denied by this court except in instances where to dismiss the appeal some harm might accrue to the state’s interest, or where it is apparent to the court that the question reserved is of such importance as to demand a decision by the court. For that reason it has been deemed expedient in this instance for the court to state that the permission given the Attorney General to dismiss this appeal should not be construed to mean that the court holds that the demurrer to the indictment should have been sustained. This court expressly does not so hold. On the contrary, we deem it advisable to state that from the examination this court has made of the indictment it is of the opinion that the same generally states a crime against the law of the state.

Whether or not the indictment states a crime as against this defendant in error is not of material importance to the state, as under the statutes as they now exist the state has no charge pending against him, as the judgment rendered in this case by the trial court constituted a complete bar to any subsequent prosecution against him for the same alleged offense.

As to his codefendant, a different situation exists. The cause is still pending against the codefendant, Fred Dennis, in the lower court, and the status of the case as to him is not before this court. That the state has the right to appeal from an order sustaining a demurrer to an indictment or information has repeatedly been held by this court. State v. Carter, 2 Okla. Cr. 706, 103 Pac. 1042; State v. Zanger, 9 Okla. Cr. 123, 130 Pac. 1107; State v. Brown, 10 Okla. Cr. 52, 133 Pac. 1143; State v. Johnson, 13 Okla. Cr. 133, 161 Pac. 821. That such an appeal only reserves for decision a question of law where the indictment or information is dismissed and defendant discharged, without direction or permission by the trial court to amend the information, or that the indictment be submitted to that or another grand jury, has also been heretofore held. State v. Vaughn, supra. This court does not say, nor does it by what has here been said intend to intimate, that either this defendant in error or his co defendant is guilty of the offense charged.

It is important, however, in view of the fact that this cause is still pending and undetermined against the codefend-ant in the lower court, that that court be advised to some extent as to what this court thinks of the sufficiency of this indictment to charge, generally, an offense against the laws of the state. On the other hand, it would eminently be unfair to the codefendant for this court to, in this appeal, preclude the codefendant of a day in this court on the question of the sufficiency of this indictment.

Whether counsel representing him will attack the sufficiency of the indictment as to him in the lower court, and upon the same grounds, and for the same reasons urged by the defendant in error, is, of course, speculative. He may have other grounds and other reasons that do not now appear to this court that may be called to the attention of this court if the case as to him reaches this court on appeal, that then may convince the court that the indictment as to him is insufficient, but such will not be the holding of this court where permission is granted to the Attorney General to dismiss the appeal, and the appeal is dismissed without a full presentation of the legal questions reserved, supported by argument and the citation of authority sufficient to convince this court that the indictment as a whole is insufficient as to both defendants.

As heretofore stated, without the benefit of such a presentation of the questions involved, this court is impressed with the opinion that the indictment is sufficient, generally, to state a crime, and with such expression of opinion the court permits the Attorney General to dismiss the appeal. Such disposition of the appeal cannot work to, the substantial detriment of either the state or the codefendant, who are each entitled to a day in this court as to the sufficiency of this indictment; the appeal is dismissed on the motion of the Attorney General.

BESSEY and DOYLE, JJ., concur.


author: PEE. CURIAM.

text:
    GUY CHAPMAN v. STATE.
    No. A-4636.
    Opinion Filed Nov. 22, 1924.
    (230 Pac. 1117.)
    Appeal from County Court, Tulsa County; John P. Boyd, Judge.
    Guy Chapman was convicted óf the offense of conveying intoxicating liquor and sentenced to pay a fine of $50 and to serve 30 days in the county jail, and appeals.
    Affirmed.
    Munroe & Nicodemus, for plaintiff in error.
    The Attorney General, for the State.
   PEE. CURIAM.

This is an appeal from a judgment of conviction rendered in the county court of Tulsa county on the 17th day of February, 1923, wherein plaintiff in error, Guy Chapman, was found guilty of the offense of conveying intoxicating liquor, and his punishment fixed as above stated. The petition in error and case-made were filed in this court on April 14, 1923, and the cause was submitted on motion of the Attorney General to affirm the judgment for failure to diligently prosecute the appeal on the 8th day of October, 1924. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time the same was submitted. Rule 9 of this court provides: “When no counsel appears, and no briefs are filed the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


author: BESSEY, J.

text:
    BILL WATSON v. STATE.
    No. A-4557.
    Opinion Filed Nov. 22, 1924.
    (230 Pac. 521.)
    (Syllabus.)
    Trial — Instructions on Reasonable Doubt — Repetitions Unnecessary. It is not necessary to repeat over and over, in every instruction, that each issue must be established beyond a reasonable doubt, where from the instructions as a whole it is made clear that every issue must be so established; but the trial court should so frame his instructions that the jury will understand that the question of reasonable doubt applies to every material issue in the case.
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    Bill Watson was convicted of the illegal sale of intoxicating liquor, and he appeals.
    Reversed.
    See, also, 26 Okla. 272, 223 Pac. 405.
    King & Crawford, for plaintiff in error.

      The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiff in error, Bill Watson, here designated the defendant, was, in the county court of Ponto-toc county, convicted of the unlawful sale of one pint of whis-ky. He was sentenced to confinement in the county jail for a period of 30 days, and to pay a fine of $100.

There were but two witnesses in the case. The prosecuting witness said he purchased this whisky from the defendant in a store in Ada. The defendant took the stand and denied that he sold this or any other whisky to the prosecuting witness — a direct conflict in the evidence, involving the credibility of two witnesses, the only witnesses in the ease. No attempt was made to impeach either witness. Instructions numbered 1, 2, 3, and 5 are as follows:

“(1) You are instructed that the defendant is presumed to be innocent, until his guilt is established to your satisfaction beyond a reasonable doubt.
“(2) The burden of proof is on the state to prove every material allegation in the information, before you can convict the defendant.
“ (3) If you find the defendant did sell this whisky, at the time and place mentioned in the information, to one J. C. Keegan, then it will be your duty to find the defendant guilty; otherwise you will acquit him.”
“(5) If they prove it is corn whisky, it is intoxicating. The state does not have to prove it intoxicating. All that they have to prove is that it is corn whisky, and it is 'presumed to be intoxicating.”

Defendant excepted to all these instructions, save the first.

The question of reasonable doubt was the chief issue raised by the evidence in this ease. Under circumstances like these, every other issue must stand or fall upon the determination of whether or not there was reasonable doubt. Following the directions given in Remer v. State, 3 Okla. Cr. 706, 109 Pac. 247, we think the instructions should have further stressed the matter of reasonable doubt. The jury had a right to assume that instructions Nos. 2, 3, and 5 were each intended to be complete on the respective issues treated, and that the declaration in instruction No. 1 was indefinite, and not necessarily to be considered as a part of each of the instructions following. Where the paramount issue, and practically the only issue in the ease, is the question of reasonable doubt, the trial court should, in his instructions, make that issue very clear. In this case this was not done.

We are not unmindful of a line of decisions holding, that it is not necessary to repeat over and over, in every instruction, that each issue must be established beyond a reasonable doubt, where from the instructions, as a whole, it is made clear that every issue must be so established. Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; McCarty v. State, 21 Okla. Cr. 365, 207 Pac. 1069; Edwards v. State, 24 Okla. Cr. 169, 216 Pac. 947.

But the instructions here do not meet that requirement. Where, as in this case, there are but two witnesses, giving testimony.in direct conflict, the instructions should so clearly state this principle of law as applying to reasonable doubt as to obviate any misconception of the law by the jury. On account of the instructions as here given, there may have been a miscarriage of justice.

The judgment of the trial court is therefore reversed.

DOYLE, J., concurs.

MATSON, P. J., not participating,


text:
    LEE ORUM v. STATE.
    No. A-4633.
    Opinion Filed Nov. 22, 1924.
    (230 Pac. 295.)
    (Syllabus.)
    Appeal and Error — Failure to File Brief or Appear to Argue Case— Affirmance. In an appeal from a conviction for felony, where no brief is filed or appearance made to orally argue the case for plaintiff in error, the court will examine the entire record, including the transcript of the evidence, and if no fundamental error of law appears, and the evidence of the state reasonably tends to support the verdict and judgment, the judgment will be affirmed.
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    Lee Orum was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Smith & Smith, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

The plaintiff in error, Lee Orum, was charged by .indictment in the superior court of Okmulgee county with the crime of murder. Said crime, according to the allegations of the indictment, was committed in said county on the 24th day of December, 1921, by shooting to death one Walter Wear, with a pistol. •

On a trial to a jury in October, 1922, the plaintiff in error was convicted of the crime of manslaughter in the first degree and punishment assessed at. imprisonment in the penitentiary for a term of four years, and on the 16th day of October, 1922, the court rendered judgment in accordance with the verdict. The petition in error and case-made were filed in this court on April 10, 1923, and the cause was finally submitted on the record on October 8, 1924.

This being an appeal from a judgment of conviction for a felony, the court has carefully examined the record in connection with the errors assigned. The transcript of the evidence is voluminous, covering approximately 400 pages of typewritten matter. The plaintiff in error shot and killed the deceased, Walter Wear, at the residence of one Fannie Bohannon in the: town, of Dewar, in Okmulgee county. The killing occurred on the day before Christmas, 1921, and it appears from the record that the plaintiff in error, an officer, was somewhat under the influence of intoxicants at the time the shooting 'occurred. The plaintiff in error contended that the shooting was accidental and in self-defense; that the deceased attempted to take the plaintiff in error’s pistol from him; and in the scuffle that followed the shooting occurred. The evidence on the part of the state would support a conviction for murder, and the evidence as a whole is amply sufficient to support a manslaughter judgment. The jury assessed the minimum punishment for manslaughter in the first degree, and after having read the record we think the plaintiff in error was extremely fortunate in that the jury did not assess a more severe punishment. The trial court fully covered the law of the case in the instructions given, and while certain instructions are alleged to be erroneous, and examination of the charge as a whole convinces the court that no error occurred in the instructions sufficient to authorize a reversal of the judgment. The same may be said to be true of the other errors assigned.

An examination of the entire record convinces the court that the judgment should be affirmed, and it is so ordered.

BESSEY and DOYLE, JJ., concur.


author: BESSEY, J:

text:
    HENRY JENKINS v. STATE.
    No. A-4563.
    Opinion Filed Nov. 22, 1924.
    (230 Pac. 293.)
    (Syllabus.)
    1. Evidence — Evidence Insufficient to Sustain Conviction for Unlawful Possession. Where the only evidence connecting the accused with the illegal possession of whisky is the seizure of a trunk containing whisky at a rooming house, and the statement of the wife of the accused, in his absence, that the whisky belonged to her husband, the evidence is insufficient for two reasons.
    Under the provisions of section 2699, Comp. Stat. 1921, the wife cannot testify against her husband, and the testimony given by the officers' concerning the ownership of the whisky was hearsay.
    ' 2. Evidence — When State May Show Bad Reputation or Prior Conviction of Like Offense. Until a defendant charged with illegal possession of whisky places his reputation in issue the state will not be permitted to show that" the defendant had a bad reputation, or that he had been previously convicted of a like offense in another court.
    3. Trial — Instruction on Conclusive and Prima Facie Evidence of Guilt, Held Erroneous, as Inconsistent. The instruction quoted in the opinion, on conclusive and prima facie evidence, held erroneous.
    Appeal from Muskogee County Court; Enloe Y. Vemor, Judge.
    Henry Jenkins was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    M. D. Hartsell, for plaintiff in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J:

Harry Jenkins, plaintiff in error, for convenience here referred to as the defendant, was in the county court of Muskogee county found guilty of the illegal possession of certain spirituous liquor, with bis punishment assessed at confinement in the county jail for a period of 30 days and to pay a fine of $50. From the judgment rendered on this verdict he appeals.

The evidence shows that certain peace officers, armed with a search warrant, went to the Midway rooming house in Muskogee, where they found a trunk containing men’s and women’s wearing apparel and 10 eight-ounce bottles of whisky wrapped in a compact package, in a sack. The defendant was not present at the time of the search, and no evidence appears connecting him with the possession of the trunk or the whisky, except that the woman who was occupying the room told the officers that she was Mrs. Jenkins, and that the trunk and the women’s apparel belonged to her, and the men’s apparel and the whisky belonged to her husband, the. defendant.

At the trial the defendant objected to the introduction of this evidence so far as it related to what the woman said to the officers. The objection was by the court overruled. The ownership of' the whisky and bottles could not have been established by the testimony of the woman, because our statutes, section 2699, Comp. Stat. 1921, make her incompetent to testify against her husband. The statements which she made to the officers, relative to the ownership of the whisky, were not admissible, being both incompetent and also hearsay testimony.

Jenkins himself testified that at this time he and his wife were separated, and that at and prior to this time he was working in the oil fields at Bristow and knew nothing about this whisky.

The record shows that Anna May Jenkins instituted proceedings to recover the trunk and wearing apparel therein from the sheriff, and that upon a hearing before the court, a jury having been waived, the court made the following order:

“It is therefore considered, ordered, and adjudged by the court that the said Anna May Jenkins do have and recover from the state of Oklahoma, the trunk and wearing apparel described in said interplea, and the sheriff of Muskogee county, Okla., is hereby ordered and directed to deliver possession thereof forthwith to the said Anna May Jenkins.”

The state, over the objection of the defendant, was permitted in the introduction of its evidence in chief, to introduce a portion of a record in a criminal case in the United States court, showing that this defendant had been previously convicted in that court for selling one pint of whisky to John .Russell. This was prejudicial error. A defendant, ordinarily, cannot be convicted by evidence showing that he has been previously convicted of the commission of a like crime, and the commission of another crime cannot be shown to impeach the general reputation of a defendant charged with a specific violation of the prohibitory law, until after the defendant himself voluntarily puts his reputation in issue. Lunceford v. State, 28 Okla. Cr.120, 229 Pac. 304; Smart v. State, 27 Okla. Cr. 433, 228 Pac. 611, and cases there cited.

Instruction No. 2, given by the court, was as follows:

“In this connection you are hereby instructed that the law under which this prosecution is brought is, in part, as follows: ‘It is hereby enacted, in order to suppress the unlawful practice of selling, bartering, giving away and otherwise furnishing liquors, the sale of which is prohibited by this act, from private residences, that it shall be unlawful for any person within this state to have or keep at, in or about his place of residence, at any one time, more than one gallon of spirituous, or one gallon of vinous (the provisions of this act shall not apply to that for sacramental purposes) liquor, or any imitation thereof, or substitute therefor, nor more than one,cask of liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol measured by volume, and which is capable of be.ing used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States. ’
"Under this law the mere possession of an amount greater than that hereinbefore mentioned is in itself prima facie evidence of an intent to violate the law, and if you find beyond a reasonable doubt that the defendant did, as charged in the information, have in his possession more intoxicating liquors than is allowed by law, as hereinbefore mentioned, then and in that event you will find the defendant guilty as charged and so say by your verdict.”

By this instruction the court told the jury that the mere possession of more than one gallon of liquor was sufficient to establish the guilt of the defendant. A like declaration was made in the last paragraph of the instruction. In another sentence the court said that possession of more than one gallon was prima facie evidence of guilt. These statements are inconsistent and cannot be reconciled. We assume that the court inadvertently attempted to follow section 6985, Comp. Stat. 1921, which has been superseded by section 6999, designed to correct unconstitutional features of the former section.

For these errors the cause is reversed and remanded.

MATSON, P. J., and DOYLE, J., concur.


text:
    CLAUD BROWN v. STATE.
    No. A-4709.
    Opinion Filed Nov. 24, 1924.
    (230 Pac. 292.)
    (Syllabus.)
    Appeal and Error — Evidence Held to Sustain Conviction for Unlawful Transportation, Subsequent Offense. In a prosecution for transporting intoxicating liquor, subsequent offense to former conviction, evidence reviewed and held sufficient to support the verdict and judgment of conviction.

      Appeal from District Court, McIntosh County; Harve L. Melton, Judge.
    Claud Brown was convicted of the unlawful transportation of intoxicating liquor, subsequent to a previous conviction in county court, and he appeals.
    Affirmed.
    John W. Robertson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

This appeal is from a judgment of the district court of McIntosh county, rendered on the verdict of a jury finding the defendant, Claud Brown, guilty of transporting corn whisky in said county, subsequent to a previous conviction in the county court of said county for a similar offense, and fixing his punishment' at imprisonment in the penitentiary for a term of 2 years and a fine of $50. The petition in error and case-made were filed in this court May 29, 1923.

No brief has been filed, and there has been no appearance in appellant’s behalf on his appeal. The sole question presented by the errors assigned is the sufficiency of the evidence to support the verdict.

The record shows that the testimony of four or five witnesses for the state supports the allegations of the information and the previous conviction alleged was properly shown by the judgment record of the county court. The testimony of the defendant on his own behalf was to the effect that a negro whose name he did not know placed the whisky in the ear when he stopped where the officers overtook him. His cross-examination disclosed that he had been convicted of a felony and served a term in the Reformatory at Granite.

A careful reading of the record convinces us that the verdict is amply supported by the evidence, and that no error prejudicial to the substantial rights of the defendant was committed on the trial. The judgment is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    ALEX JOHNSON v. STATE.
    No. A-4293.
    Opinion Filed Nov. 24, 1924.
    (230 Pac. 525.)
    (Syllabus.)
    1. Evidence — Judicial Notice of Ku Klux Klan’s Unfriendly Relations Toward Negroes. The courts may take judicial notice that the Ku Klux Klan and its members in this state sustain unfriendly relations towards some of the fiscal, social, and political aspirations of certain classes of citizens, including negroes.
    2. Jury — Prospective Juror in Prosecution of Negro — Examination as to Ku Klux Klan Membership. In the examination of jurors on their voir dire, in a case where a negro is charged with the larceny of live stock in a community surcharged with racial animosity which had resulted in hostile demonstrations against the negro race, presumably fostered by the Ku Klux Klan, the prospective jurors may be asked if they are members of that order and whether they are bound by any oath, rule, or obligation of the order amounting to bias, express or implied.
    3. Same. Where an inquiry is made in good faith, predicated upon probable cause indicating that the rights of the accused may be affected, counsel for the defendant may, within reasonable bounds, limited by a fair discretion of the court, interrogate prospective jurors as to their membership in the Ku Klux Klan, in order that the accused may intelligently exercise his right to challenge jurors for cause, or peremptorily without cause, in such manner as will facilitate the selections of a jury that is in fact impartial.
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    Ales Johnson was convicted of the larceny of live stock, and he appeals.
    Reversed and remanded.
    W. E. Disney and John Wheeler, for plaintiff in error.

      The Attorney General, for the State.
   BESSEY, J.

Alex Johnson, a negro, was convicted in the district court of Muskogee county of the crime of larceny of live stock. On October 9, 1921, he was sentenced to confinement in the state penitentiary for a term of two years. In this appeal the accused claims that he was .unjustly deprived of his right to the selection of an impartial jury. The chief question for the consideration of this court is whether or not the defendant’s right to a trial before a fair and impartial jury was denied or impaired.

The defendant was a negro, and claims that certain of the jurors selected to try him were members of the Ku Klux Klan, a secret order or organization, the members of which are bound under oath to discriminate against the free and unrestricted rights of citizenship belonging to the defendant and his race. He complains that upon examination of some of the jurors who admitted membership in this order they refused to answer questions concerning the oath or obligation of the order relating to the objects and purposes of the order, thereby indicating that they considered the oath and obligation of the-order paramount to their obligations as jurors to disclose in open court what their qualifications as jurors might be in this regard. Defendant complains further that in the course of the examination of prospective jurors, when the eighth juror was about to be examined, the court arbitrarily ruled that counsel for defendant would not thereafter be permitted to inquire of any of the prospective jurors as to whether they were members of the Ku Klux Klan, thus impairing the defendant’s right to challenge for cause and to intelligently exercise his peremptory challenges.

The incidents complained of arose in this wise: The juror first examined said he was a member of the Klan, and that he was not a member of the Anti-Horse Thief Association. The juror next examined said he was not a member of the Klan. The third juror examined was a Mr. Scarborough, and we quote from that portion of the examination of this juror which relates to the question here involved.

“Q. Are you a member of the Ku Klux Klan? A. Yes, sir.
“Q. In good standing? A. Yes, sir.
“Q. Mr. Scarborough, are you permitted by the tenets of the order to answer whether or not there is an oath of the Ku Klux Klan to enforce the law? (No answer.)
“Q. You are not permitted by your oath to answer that question? (No answer.)”

Without requiring the juror to answer these questions, the challenge to his competency was by the court overruled. A portion of the examination of the fourth juror is as follows:

“Q. Are you a member of the Ku Klux Klan? A. Yes, sir.
“Q. How long have you been a member? A. Several months.
“Q. Are you a member in good standing now? A. Yes.
“Q. Does the order permit you to answer this question, Mr. Reid; did you take an oath on initiation or at any other time, in your lodge or order, to enforce the law or look after the enforcement of the law — I will ask you first if the order— if your order permits you to answer that question? A. No, I believe not.
“Q. So it does not permit you to answer the question? A. No.
‘‘By Mr. Disney: We challenge the juror for cause.
“By the Court: Overruled.
“By Mr. Disney: Exception.”

The fifth, sixth, and seventh jurors said they were not members of the Klan. Counsel inquired of the eighth juror whether he was a member of the Klan, to which question an objection was interposed by the state, followed by a lengthy colloquy between the court, the county attorney and counsel for the defendant, “on what grounds do you challenge the juror?”

“By Mr. Disney: On the ground that, as I understand it, from information both hearsay and through the press, particularly as to the condition like the one that happened up at Boynton here recently, and then of the man early in the year being whipped out at Brushy Mountain, where the press intimated that the Ku Klux Klan had something to do with it— your honor will remember that Judge Thurman, in passing on a similar question; held that that was a proper question to ask, and I can cite you the authority on it.”

After a short recess and further discussion, during which the jury were excused, the court made the following ruling:

“By the Court: After examining the law in this case, the court is of the opinion that the objection of the county attorney is good and will sustain the objection to this extent. The court is of the opinion, and now holds, that in the examination of jurors it is perfectly proper to ask if a certain juror believes in certain principles, but not ask if — it is not proper to ask the juror if he belongs to certain organizations. For instance, it would be perfectly proper to ask the juror if he believed in the principles of religion taught by Christ, or whether the juror rejected the teachings of Christ; it would be perfectly proper to ask if the juror believed in the principle of religion which required immersion in order to be saved, or whether the juror believed that immersion was not necessary, in ease that question was involved in the trial of the case, or if for any other reason counsel wanted to be advised upon that question — it would be perfectly proper to ask if the juror belonged to any organization which has for its purpose the disfranchisement of the negro, but not proper to ask if the juror belongs to any specific organization, and that will be the ruling of this court.”

To this ruling of the court the defendant excepted.

Following this nine more jurors were examined as to their qualifications. How many of these were members of the Elan does not appear, for the reason that the court would not permit inquiries in that regard. Upon this point the court said:

“Let the record show that counsel for the defendant is not permitted to ask that question, and the record may show that they want to ask each juror whether he is a member of the Ku Klux Klan. Let the record show he asks to be permitted to ask all the jurors the question as to whether they belong to a certain named organization, the Ku Klux Klan, and the request is denied and the defendant excepts.”

This is the first time this court has been called upon to determine the effect of organized racial and religious differences as they apply to the qualifications of juror's. The question is a delicate one, to be approached with extreme caution, but with a firm determination to eliminate any prejudice that might be entertained by the members of this court, and to announce the law as it is without regard to public clamor or popular approval.

The right to a fair trial by an impartial jury may be said to be the keystone of the arch supporting the superstructure of our Constitution. The right to a trial by a jury would be a mere delusion, a false pretense, where a jury is composed of partisans with fixed, preconceived notions of what should be done to an accused person on account of his race or his religious beliefs. Through all ages religious and social animosities have been more productive of discord, bloodshed, and social anarchy than any other agency. In this character of controversy, more than in any other, sound reason is often displaced by bitter intolerance. These things must have been in the minds of our patriot forefathers, when they wrote into the Constitution that religious liberty should never be abridged, that titles of nobility should never be granted, and that equality of rights and opportunity to all citizens should be held inviolate. These cardinal principles - still remain in the Constitution, as the supreme law of the land, binding alike upon all citizens, societies, officers, and courts; it applies to negroes who, like other citizens, are entitled to the equal protection of the law.

It is claimed by the state that the trial court did not abuse his discretion in limiting the examination of the jurors to the extent and in the manner shown by the record. The defendant elaims that the record does indicate to some extent that the members of the order known as the Ku KLux Klan are bound by some kind of oath or obligation and that its members are not permitted by this oath and the tenets of the order to disclose the methods, purposes, and activities of the order, which is commonly reputed to be hostile to the legal rights and privileges of negroes ; and that the court, in the examination of nine of the jurors, denied or impaired the right of the defendant to make reasonable inquiries in this regard.

The defendant urges that because of the agitation, discord, and racial discrimination and hatred, extending in some instances to physical chastisement, purporting to emanate from this organization in recent times, and because of the widespread knowledge of these conditions disseminated by the public press, from the pulpit and the rostrum, the court should take judicial notice that the purposes and activities of the organization and its members are inimical to the rights of the negro race, and therefore of this defendant.

It has been held that well-known matters affecting social, political, and religious conditions may be recognized by the courts without proof. Thus courts will take judicial notice, without proof, of the fact that there are numerous sects, maintaining different conflicting doctrines, and of the creed and general doctrine of each sect; that some of them believe in the doctrine of predestination, while others do not; that some adhere to the doctrine of eternal punishment of the wicked, while others repudiate it; that some believe in the doctrine of Apostolic succession and the authority of the priesthood, while others reject both; that the Jewish people deny the inspiration and authority of the New Testament and the divinity of Christ. 15 R. C. L. 1125-1127; 23 C. J. 160. This principle of judicial knowledge without proof may be applied to local conditions extending over a sufficient period of time as to become generally well known. 23 C. J. 122; 15 R. C. L. 1121.

It has been held that it is no ground for challenge for cause to show that á juror is a member of some order or lodge organized for the detection or suppression of crime, although such membership may be shown to enable a defendant to exercise his peremptory challenges more intelligently. 16 R. C. L. 277; annotations, 31 A. L. R. 411.

The principle of judicial notice without proof will apply to only those features and purposes of an organization that are so well and commonly known as not to require proof, but will not apply to the details and ramifications of all its operations in the concrete. All the facts that may be disputed must be established by proof. For instance, the courts will not take judicial cognizance of the imperial powers and functions of a Grand Dragon; courts do not know judicially what a Cyclops is, or does, or will do for or to a litigant. But the courts may take judicial notice of the fact that the activities and purposes of this society generally bear an unfriendly relation to the rights and privileges claimed by Catholics, Jews, and negroes. By the same rule the courts may know judicially that this order and its members have been actively implicated in widespread social, religious, and political controversies, often to such an extent as to impair the free exercise of fiscal, social, and political rights of others, amounting in some instances to business and financial boycotts.

Through the press and from the platform, as well as in private conversation, this order and its mysteries have been vigorously defended and denounced, criticized and vindicated, and in these respects it differs from the organizations involved in most of the cases so far decided. But the very fact that its agencies and activities are so generally and bitterly controverted, and that those engaged in the controversy are inclined to become bitterly partisan, should not lessen, but, on the contrary, should emphasize the reasons why membership in the organization may be made a matter of inquiry in any case where the interests of one of the parties appear to be materially affected, in order that the person interested may intelligently exercise his right to challenge a hostile juror peremptorily or for cause. And these conditions, like a two-edged sword, may cut both ways. Those who foster unreasonable animosities against the members of this society, affecting business and social relations, may for the same reasons be disqualified .as jurors in cases where the interests of members of the order are involved.

Sound reason would indicate that in a case like this, where such an inquiry is made in good faith, predicated upon probable cause, within reasonable bounds, limited by a fair discretion of the court, permission should be granted to interrogate prospective jurors concerning specific lodge affiliations that may have a tendency to impair the rights of the accused, to the end that he may be tried before a jury that is in fact impartial. Counsel should be limited and restrained from pursuing such inquiry in a captious manner; he should not be permitted to unnecessarily prolong the trial by inquiries of a frivolous nature' or concerning facts having only a remote or speculative bearing upon the qualifications of jurors. On the other hand, the court should be careful to refrain from arbitrarily depriving the accused of a fair opportunity to ascertain any bias, express or implied, that the juror may have or seem to have, in order that a challenge may be interposed for cause, or peremptorily, as the case may be.

In this case the defendant was entitled to five peremptory challenges, all of which he claimed.- Had the defendant been permitted to pursue the inquiry, as he sought to do, he might have elicited information which would have enabled him to exercise his peremptory challenges to better advantage, and might have been able to successfully challenge for cause some one or more of the nine jurors who were not permitted to state whether they sustained affiliations with the Klan.

In the early history of California, 70 years ago, in the case of People v. Reyes, 5 Cal. 347, the court held as follows:

"A juror, being challenged for bias, was examined before triers and asked the following questions: First. Are you not a member of a secret and mysterious order known as, and called, Know Nothings, which has imposed on you an oath or obligation, beside which an oath administered to you in a court of justice, if in conflict with that oath or obligation, would be by you disregarded? Second. Are you a member of any secret organization, political or otherwise, by your oaths or obligations to which any prejudice exists in your mind against Catholic foreigners? Third. Do you belong to any secret political society known as and called by the people at large' in the United States, Know Nothings ? And if so, are you bound by an oath or other obligation not to give a prisoner of foreign birth, in a court of justice, a fair and impartial trial? Held that the court erred in ruling out those questions. The juror was also asked the questions: Have you, at any time, taken an oath or other obligation of such a character, that it has caused a prejudice in your mind against foreigners ? Are you bound under any obligation not to extend the same rights, privileges, protection, and support to men oí foreign birth as to native-born American citizens 1 Have you any prejudice' whatever against foreigners? Held that the court erred in ruling out the questions. Where a juror is challenged for actual bias, the triers are to determine the fact from the testimony, and any testimony which would lead to the conclusion that a bias existed in the juror’s mind is competent testimony. Prejudice is a state of mind more frequently founded in passion than in reason. If he had taken oaths and was under obligations which influenced his mind and feelings in such a manner as to deny to a foreigner an impartial trial, he is grossly unfit to sit as a juror, and such facts should be known. ’ ’

In the case of Bethel v. State, 162 Ark. 76, 257 S. W. 740, 31 A. L. R. 402, it was held that for the purpose of laying a foundation for peremptory challenges of jurors they may be asked if they are members of the Ku Klux Klan, where counsel states that that organization is taking a particular interest in the prosecution in which they were called to sit as jurors.

In the case of Clark v. State, 154 Ark. 592, 243 S. W. 868, there was a showing made that there was antagonism between the Miners’ Union and the Ku Klux Klan, by reason of the adoption of resolutions by the former condemning the latter. It was claimed that the passing of such resolutions by the Miners’ Union disqualified its members from sitting as jurors in a trial in which members of the other organization were interested. There was nothing to show that the particular jurors were under actual bias; it was merely sought to show that they were members of the organization known as the Ku Klux Klan. It was held that the mere membership in committees or societies which are organized for the purpose of suppressing crime or the achievement of any particular purpose, does not of itself operate as a disqualification of a juror, unless it is shown that the particular individual has actual bias or is directly connected with the matter under investigation in a way from which bias or prejudice will be implied. It does not follow, however, from the fact that the information to be elicited may not constitute disqualifying bias that the accused should be denied the right to propound the query; on the contrary, he was entitled to make the inquiry for the purpose of determining in what manner he should exercise his peremptory challenges.

In the case of Benson v. State, 95 Tex. Cr. R. 311, 254 S. W. 793, the court held that refusal to permit a negro defendant to ask the jurors on voir dire examination if they were members of the Ku Klux Klan was error, notwithstanding the fact that the prospective jurors stated that they belonged to no secret organization whose obligation would in any way interfere with or influence them against the defendant; and that the court should have permitted the question to be asked and answered in order to enable the defendant to elicit from them facts which would facilitate the exercise of his peremptory challenges in an intelligent manner.

In the case of Reich v. State, 94 Tex. Cr. R. 449, 251 S. W. 1072, it was held that, in a prosecution for manufacturing intoxicating liquor, where defendant’s counsel requested- permission to interrogate veniremen as to whether they were members of the Ku Klux Elan and stated that he believed that some of them were, and that the Ku Klux Klan had been discussing at their meetings numerous criminal prosecutions and insisting upon convictions and that he feared prejudice, it was error for the court to refuse permission to make such examination.

In Belcher v. State, 96 Tex. Cr. R. 382, 257 S. W. 1097, the court held that the trial court erred in not permitting accused to inquire of veniremen on their voir dire examina- ■ tion whether they belonged to the Ku Klux Klan, where counsel for the accused stated to the court that he. needed the information in order that his peremptory challenges might be intelligently exercised; that the fact that the trial court permitted general questions as to membership in any organization which would influence their verdict was insufficient; and that there was an abuse of discretion in limiting inquiries to organizations in general.

In the Bethel Case, supra, it was said that it was not necessary for the accused, or his attorney, to first prove the grounds for interrogating the jurors, but that, on the contrary, if the questions were asked in good faith and were not merely captious or impertinent, the. court should permit the inquiry to be made in order that the accused might intelligently and satisfactorily exercise his right of peremptory challenge; that mere membership in the order alone would not show that the inquiry was material, but that, where as in that case the defendant’s counsel informed the court of the fact that there was positive antagonism between the membership of the organization to which the accused belonged and the one to which the propsed jurors belonged, he was entitled to ascertain the facts as to whether or not the jurors were indeed members of the other organization, so that he could determine in what instances he should exercise his right of peremptory challenge.

Applying the rules announced in the adjudicated cases cited to the facts in this case, we hold that the defendant should have been accorded greater latitude in the examination of jurors. So holding, it will not be necessary to treat of the other errors urged.

The cause is reversed and remanded.

MATSON, P. J., and DOYLE, J., concur.