text:
    LON JACKSON v. STATE.
    No. A-1928.
    Opinion Filed April 1, 1914.
    (139 Pac. 704.)
    1. LIBEL AND SLANDER — Slander of Female — Jurisdiction. County courts have jurisdiction of the offense of orally or otherwise falsely imputing to any female, married or unmarried, a want of chastity as defined in the Penal Code (section 2388), Rev. Laws 1910.
    2. APPEAL — Verdict—Evidence. Where, upon trial for slander of a female, there was a conflict in the testimony, the verdict will not he disturbed.

      Appeal from County Court, Pontotoc County; I. M. King, Judge.

    Lon Jackson was convicted of slander of a female, and appeals.
    Affirmed.

      C. P. Green and C. C. Williams, for plaintiff in error.

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

Upon an information duly filed by the county attorney in the county court of Pontotoc county, the plaintiff in error, Lon Jackson, was charged with a violation of section 2388 of the Penal Code (Rev. Laws 1910), which reads:

“If any person shall orally or otherwise, falsely and ma-. liciously or falsely and wantonly impute to any female, married or unmarried, a want of chastity, he shall be deemed guilty of slander, and upon conviction shall be fined not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than ninety days, or by both such fine and imprisonment.”

Upon his trial, the jury found him guilty, but failed to agree on the punishment. The judgment and sentence of the court entered on the 10th day. of January, 1913, was that defendant be confined in the county jail for a term of 90 days, and pay a fine of $500.

The only question worthy of notice which the record presents is the assignment of error that: “The court erred when it overruled defendant’s demurrer to the jurisdiction of the court to try said cause.” In support of this assignment counsel cite section 12 of article 7 of the state Constitution, defining the jurisdiction of county courts. The clause in said section that the county court shall not have jurisdiction in actions of slander or libel has reference only to civil actions.-

It is further therein provided:

“The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which the justices of the peace have no jurisdiction.”

A misdemeanor is every crime other than those which are or may be punishable with death, or by imprisonment in the penitentiary. Penal Code, secs. 2086, 2087 (Rev. Taws 1910). Under section 2388 of the Penal Code (Rev. Laws 1910), already quoted, to impute a want of chastity to any female, married or unmarried, is made a misdemeanor.

The county court, therefore, not only had jurisdiction, but, in a county having no superior court, it had exclusive jurisdiction of this offense.

The evidence introduced on the trial justifies the verdict. We think no substantial error was committed in the case.

The judgment of the court below will therefore be affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    CHAS. BLANKENSHIP v. STATE.
    No. A-2009.
    Opinion Filed April 4, 1914.
    (139 Pac. 840.)
    1. JURY — Harmless Error — Right to Particular Juror. The defendant in a criminal action acquires no vested right to have a particular member of the jury panel sit upon the trial of his case until he has been accepted and sworn. In the instant case, held that, unless it be shown that an objectionable juror was forced upon the defendant after he had exhausted his peremptory challenges, he has no ground for complaint.
    2. INTOXICATING LIQUORS — Unlawful Conveyance — Sufficiency of Proof. In prosecutions for unlawfully conveying intoxicating liquor, the state is only required to establish by the proof, beyond a reasonable doubt, that the liquor charged to have been conveyed, or some portion of it, was conveyed as alleged in the information.

      Appeal from County Court, Choctazv County; W. T. Glenn, Judge.

    Charles Blankenship was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.

      Evans & Hcurdison,, for plaintiff in error.

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

Plaintiff in error was in the court below convicted of the offense of unlawfully conveying intoxicating liquor. The jury assessed his punishment at a fine of $100 and 60 days’ Imprisonment in the county jail. The judgment and sentence was rendered on the 10th day of May, 1913.

Error is assigned on an exception to the refusal of the court for a full jury panel of twelve jurors from which to select a jury of six to try the case.

Counsel cite section 3696, Rev. Laws 1910, in support of their contention. This provides for a special jury panel in the county court after the regular panel has been discharged, and provides:

“The full number of twelve jurors qualified to try such cause shall be in the jury box, from which a jury of six shall be selected and qualified to try such cause.”

That section has no application to the cause. In this case the regular panel was drawn as provided by section 3694, which provides for the drawing of not to exceed 24 names from the jury box.

The record shows that the court made an order requiring the drawing of eighteen jurors. This was done, the jurors summoned, and sixteen appeared. At the time the case was called for trial, only seven of the regular panel remained. From these seven jurors, it appears that the jury was selected to try the defendant.

No authoriites are cited to support the contention made. The defendant in a criminal action acquires no vested right to have a particular member of the panel sit upon the trial of his case until, at least, he shall have been accepted and sworn. 1 Thompson on Trials, sec. 120; Moore v. State A 9 Okla. Civ 9, 130 Pac. 517. What the defendant is entitled to is a trial by an impartial jury of the county. That the defendant had such a jury is not denied. No objectionable juror was forced upon him, and his peremptory right of challenge was not exhausted.

Section 3701 (Rev. Laws 1910) of the chapter on Jurors provides:

“A substantial compliance with the provisions of this chapter shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing and summoning or impaneling the same resulted in depriving a party litigant of some substantial right.”

The defendant’s contention we must regard as untenable, and without foundation in law.

It is also insisted that the evidence is not sufficient to support the verdict.- This contention is based upon the erroneous assumption that no crime was proved, except by the admissions of the defendant.

H. J. King testified that he was a deputy sheriff of Choctaw county, and saw the defendant coming down the road at the distance of about 50 yards from his house, and saw the defendant take a package from the buggy he. was driving and place it on the porch of his home; that he then went to the porch and picked up the package, which contained three quarts of-whisky; that he asked the defendant where he got the whisky, and defendant said he bought it from a man down on Red river.

R. H. Manley, city marshal of Ft. Towson, testified that he saw the defendant about 100 yards from his home, 'and he followed H. J. King, and was present when King seized the whisky, and arrested the defendant, and heard the defendant at that time say that he got the whisky down on Red river.

In prosecutions for unlawfully conveying intoxicating liquor, the state is only required to establish by the proof, beyond a reasonable doubt, that the liquor charged to have been conveyed, o.r some portion of it, was conveyed as alleged in the information. Rupard v. State, 7 Okla. Cr. 201, 122 Pac. 1108; Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644.

The judgment of the trial court is supported by the evidence. There being no error in the record, the judgment is affirmed.

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


text:
    DAVE KOONTZ v. STATE.
    No. A-1685.
    Opinion Filed April 7, 1914.
    (139 Pac. 842.)
    1. CEIMINAL LAW — Copy of Accusation — Bights of Defendant. The Constitution gives the accused the right to “be informed of the nature and cause of the accusation against Mm and have a copy thereof. ” Section 20, Bill of Eights. Under this provision he has the right to insist upon having a copy of the accusation delivered to him before his trial; and, if he so insists, the trial cannot lawfully proceed until the requirement has been complied with.
    2. JUEY — Challenge to Panel — Bias of Summoning Officer. Under the provisions of section 5848, Eev., Laws 1910, when a panel is formed, or in part formed, from jurors whose names are not drawn • from the jury box, a challenge may be taken to the panel, on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror.

      3. SAME — Summoning Officer — Disqualification. It is essential to the fair and impartial administration of justice that an open or special venire should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice.
    4. EVIDENCE — Declarations of Codefendant — -Hearsay. Declarations of a co-defendant, made after the commission of the crime and in reference to it, held hearsay and improperly admitted.
    5. SAME- — Evidence of Other Offenses — Admissibility. Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged.
    6. TRIAL — Conduct of Judge — Examination, of Witness. “Judges are as much judges for the defendant as for the state, and are supposed to sit fairly and impartially between the rights of the state, on the one hand, and the defendant, on the other. .To become a partisan either for the state or defendant is to desert the high position to which the judge is elevated, and assume the role of the advocate.”

      Appeal from District Court, Roger Mills County; G. A. Brozan, Judge.

    Dave Koontz was convicted of robbery in the first degree, and appeals.
    Reversed.

      Mouser & Moore and B. L. Mitchell, for plaintiff in error.

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

This appeal is prosecuted from a conviction had in the district court of Roger Mills county, in which plaintiff in error, Dave Koontz, was found guilty of robbery. October 16, 1911, the court rendered judgment and he was sentenced to be imprisoned in the penitentiary for a period of 50 years.

The information on which plaintiff in error was tried and convicted, jointly charged Dave Koontz, Charley Koontz, and Hal Buie, alias R. F. Graham, with the crime of robbery, committed in Roger Mills county on the 19th day of November, 1910, by taking from the possession and immediate presence of H. L-Goode $800. Each defendant was granted a separate trial. Charley Koontz was tried first and convicted, and Hal Buie, alias R. F. Graham, was next tried and convicted; the trial of plaintiff in error being the last of the trio.

The evidence shows that on the date alleged, a few .minutes after the Cotton Exchange Bank, in the town of Crawford, had opened for business that day, Charley Koontz and Hal Buie stepped in, and Hal Buie, holding a pistol on the cashier, H. L. Goode, told him and his wife and Don Roberts, who were present, to put up their hands, and Charley Koontz stepped into the vault _ and took between $800 and $900. They then compelled H. L. Goode and Don Roberts to leave the bank and go with them to where their horses were, and, mounting their horses, they rode off to the south. Plaintiff in error lived with his family on a farm between Crawford and Cheyenne, the county seat. The theory of the state is that plaintiff in error, though not present when the robbery was actually committed, aided and abetted in its commission.

The record is voluminous, consisting of more than 800 pages. Upon a careful examination of the same we have concluded that the judgment must be reversed.

Of the various assignments set forth in the petition in error, we shall notice those only which in the new trial granted will be liable to again arise.

On September 5, 1911, plaintiff in error was arraigned. The next day he entered a plea of not guilty, and was remanded to the custody of the sheriff. The case was set for trial September 11th, coming on for trial on that day; the county attorney obtained leave of court to indorse names of additional witnesses ■upon the information, and to amend said information by inter-lineation and by striking out certain words, and dismissing as to defendants Charley Koontz and R. F. Graham. Thereupon the state announced ready, and the defendant refused to answer at this time. A demurrer to the amended information was interposed and overruled. The defendant was not arraigned upon the aihended information, and no plea was entered thei-eon. The case proceeded to trial over the objection of plaintiff in error on the ground that he, being confined in the county jail, was not served with a copy of the amended information. The objection was overruled, and exception allowed. Plaintiff in error then objected to the impaneling of the jury to try said cause. The jury was impaneled and sworn.

When the state opened its case, plaintiff in error objected to the introduction of evidence, for the reasons, among others, that the defendant had not been furnished a copy of the amended .information; that the defendant was not present in court when the case was called for trial, at which time the court permitted the county attorney to serve a list of the state’s witnesses on counsel for plaintiff in error; that the same were not indorsed on the original information, and “the defendant renews his objection to the impaneling of the jury and to the array thereof for the reasons stated in his affidavit and challenge to the panel, because of the bias and prejudice of R. L. Trammell, sheriff, against this defendant.” The objection was overruled, exception reserved. We think that the action of the court in calling the case for trial before a copy of the amended information was furnished to plaintiff in error constitutes reversible error. The language of section 20 of the Bill of Rights is:

“In all criminal prosecutions the accused * * * shall be informed of the nature and cause of the accusation against him, and have a copy thereof.”

And the statute requires that the names of the witnesses shall be indorsed thereon. The constitutional provision preserves, an important right to the accused, and the manifest purpose of requiring the names of the witnesses to be indorsed upon the indictment or information is to inform the accused upon whose testimony the state relies to secure a conviction, so that he may know what evidence he may reasonably expect to be offered against him, and this in order to enable him to prepare for his. defense. Plaintiff in error did not offer any evidence upon his trial, and in no manner waived his objections.

Hal Buie, alias R. F. Graham, whose name was indorsed on the amended information, testified as an accomplice. On his cross-examination, he testified that he was a witness in his own behalf on his separate trial, and that he then testified that he was not acquainted with Dave Koontz. I-Ie further testified that his testimony in his own behalf was wholly false. The record' shows that thereupon plaintiff in error moved the court to withdraw the case from the jury and remand him to the custody of the sheriff for another trial, “for the reason that he is surprised at this time by the testimony and admission of Hal Buie, alias R. F. Graham, that his testimony given on his trial was false.” The offer of plaintiff in error, on the ground of surprise at the testimony of Hal Buie, the only witness for the state who gave positive and direct testimony tending to connect plaintiff in error with the commission of the offense' charged — and he had no notice that said witness would be called as a witness in chief against him — confirms our conclusion that the court committed error by compelling plaintiff in error to go to trial, over his objections as shown by the record. We also think that it is apparent from the record that the court erred in denying the motion to discharge the jury.

Error is also assigned on the action of the court in overruling the objection of plaintiff in error to allowing R. L. Tram-mell, sheriff, to summon talesmen to serve on the jury; said objection being made by affidavit, on the ground that said sheriff was biased and prejudiced against said plaintiff in error, and on a challenge to the panel. It appears from the record that the regular panel drawn from the jury box was exhausted before the requisite number of jurors had qualified on their voir dire, and the court thereupon issued an'order commanding the sheriff to summon twelve talesmen. Thereupon counsel for plaintiff in error presented to the court his affidavit, stating “that he has reason to believe, and verily believes, that R. E. Trammell, sheriff of Roger Mills county, is biased and prejudiced against him in this cause, and that said sheriff will not select and sum-, mon impartially and fairly the talesmen to be impaneled as jurors in this case by reason of his bias and prejudice against this defendant,” and moved the court to appoint some person other than said sheriff to summon and select the talesmen according to the order made. The court overruled the motion, and stated: “You will have an opportunity to examine the talesmen.” Thereupon plaintiff in error demanded the right to examine said sheriff in support of his motion, which demand was by the court overruled. Before the jurors summoned on the open venire were sworn, plaintiff in error interposed a challenge to the panel on the ground of the bias and prejudice of the 'sheriff who summoned them. Plaintiff in error’s affidavit as to the bias and prejudice of the sheriff who summoned the open venire was not controverted, and it appears from the record that the name of R. L. • Trammell was indorsed on the original and amended informa-tions, and that he testified on the trial as a witness for the state. The challenge was disallowed. We 'think the court erred- in overruling the motion to disqualify the sheriff, and in refusing to permit the sheriff to be sworn and examined in support of the motion and challenge to the panel, and in disallowing the challenge 'to the panel the court erred. Section 5848 (Rev. Laws 1910) Procedure Criminal, provides:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.”

The language of the statute is so plain that no room is left for interpretation. It authorizes a challenge to the panel, on account of the bias of the officer who summons a jury on an open or special venire, upon what would be good ground of challenge to a juror for bias. If, then, a challenge for cause would have been sustained against a person called as a juror because he was a material witness for the state, a challenge would also lie upon the same ground to a panel summoned by him. If he would not be qualified as a juror because of actual or implied bias, as defined by sections 5858 and 5859 (Rev. Laws 1910), he would also be disqualified for the same reason to summon a jury, in whole or in part, whose names are not drawn as jurors from the jury box.

The precise question has been considered by the Supreme Court of Idaho, upon a similar statute, in the case of State v. Jordan, 19 Idaho, 192, 112 Pac. 1049. Chief Justice Stewart, delivering the opinion of the court, used the following language:

“There is a very strong reason for the rule announced by the statute. The officer having the order for the special venire in serving the same would have power to exercise his judgment partially, and to summon jurors whom he might think would favor the prosecution, and thus return a jury wholly favorable to the prosecution, and it is because such power might be executed partially that the statute makes the fact that the officer is a witness for the prosecution a cause for challenge to the panel thus selected by him on the ground of implied bias. For this reason we think the court erred, in denying the challenge to the jury panel.”

And see State v. Kent, 4 N. D. 601, 62 N. W. 631, 27 L. R. A. 686.

It Í3 essential to the fair and impartial administration of justice, that an open or special venire shall be summoned by an officer .who is not disqualified by reason of- interest, bias, or prejudice. Harjo v. U. S., 1 Okla. Cr. 590, 98 Pac. 1021, 20 L. R. A. (N. S.) 1013.

A number of errors are assigned in regard to the admission of certain testimony. Notwithstanding objection and exception of counsel for plaintiff in error, the court permitted witness Hal Buie to testify in reference to a conspiracy to rob the Cheyenne State Bank. This testimony takes up more than 60 pages of the record, and was clearly inadmissible, because, if true, it had reference to a separate and distinct proposed crime, entirely disconnected with the offense with which this defendant was charged. Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or to connect the defendant with the .commission of the crime charged. The general rule as to the admission of testimony of the commission of offenses other than the one charged is that it is inadmissible, and the evidence objected to does not fall within the exception of the general rule. It appears that the court, in its instructions, directed the jury to disregard and not consider this part of the testimony of the witness Hal Buie. However, we do not think that the admission of this testimony to the defendant’s prejudice was, by any means, cured by giving the aforesaid instruction.

The court permitted witness R. L. Trammell to testify, against defendant’s objection, to a conversation had with the accomplice witness, Hal Buie, six months after the robbery was committed, and this is assigned as error. Witness R. E. Tram-mell testified in reference to Dave Koontz’s premises, describing the same in detail, and that Hal Buie while in the county jail had given him a correct description of the premises, and that he went to the premises and found that Buie’s description was correct. This evidence tended to corroborate Buie’s accomplice testimony, and that was its manifest purpose. It was clearly incompetent. Under the rules of evidence, declarations of joint defendants, made after the commission of the crime and in reference to it, in the absence of the defendant on trial, are not competent. Such declarations are regarded as any other hearsay testimony, and we cannot say that, without this incompetent testimony, the jury would have found the verdict for the state; this testimony may have made the complement of proof which satisfied their minds. In that case plaintiff in error would have been convicted upon illegal evidence.

Again, it is contended that the court erred by propounding to the witness Hal Buie a series of questions relative to a conversation had by the trial judge with said witness. It appears from the record that witness Buie testified that he made a written statement, implicating plaintiff in erroi', between the time of his conviction and before he was sentenced, at the instance of the sheriff and the county attorney, and that he talked with the trial judge at that time in their presence. The record then recites:

“Examination by the Court. Q. You sent word by Mr. Trammell and Mr. Grim that you would like to talk to the court ? A. Yes, sii'. Q. You were carried to Mr. Grim’s office for that purpose? A. Yes, sir. Q. Didn’t I tell you that if anybody else was in this offense, that we wanted them all? A. I believe that is the way it was mentioned. Q. If you knew airy facts that would establish the guilt of any one else, why, you could tell them to Mr. Trammell and Mr. Grim? A. Yes, sir. 0. That we didn’t want ány untruth; didn’t want any foolishness? A. That is the way you expressed it, didn’t want any foolishness. Q. I told you that the court had heard the evidence; that from the nature of it, it established the fact that you was the leader in the robbery ? A. That is what you said; you said that you intended to give me the full extent of the law, which would be 50 years. Q. The evidence showed that you was the leader, and that I intended to give you 50 years? A. Yes, sir. Q. But if you knew any facts and would tell them to the officers and substantiate them by the evidence, that I would take that into .consideration in fixing your punishment? A. You did; yes, sir. Q. Then I told you to go ahead and talk with the officers? A. Yes, sir, and left the room.” ' •

By this series of questions and the answers thereto it would seem that the learned trial judge unintentionally indicated to the jury that the witness was worthy of belief, because in his conversation with him he admonished him that the officers wanted no untruth.

In Hicks v. U. S., 2 Okla. Cr. 626, 103 Pac. 873, Furman, Presiding Judge, delivering the opinion of the court, said:

“Trial courts cannot be too careful and guarded in their efforts to avoid allowing the juries to discover the opinion of the judge as to the weight of the evidence and the credibility of the witnesses. No judge has the right to throw his opinion as to the credibility of any witness for the state or the defendant as a firebrand into the jury box. ‘Absolute fairness to all who have business here’ should be written over the portals of every court in Oklahoma, and this principle should control every action and every ruling of our trial courts.”

In the case of Murphy v. State, 57 S. W. 967, the Court of Criminal Appeals of Texas says:

“Judges are as much judges for the defendant as for the state, and are supposed to sit fairly and impartially between the rights of the state, on the one hand, and the defendant, on the other. To become a partisan either for the state or defendant is to desert the high position to which the judge is elevated, and assume the role of the advocate.”

We cannot say that the jury was not influenced by this series of questions, to the prejudice of the defendant.

Again, it is contended that the court erred in its charge to the jury, and particularly in misstating the issue.

The part of instruction No. 8 complained of is as follows : '

“* * * And satisfy your minds to a moral certainty, and beyond a reasonable doubt, that Charley Koontz and Hal Buie, alias R. F. Graham, on or about the 19th day of November, 1910, in Roger Mills county, in the state of Oklahoma, robbed the Cotton Exchange Bank, in the town of .Crawford, and that the defendant, Dave Koontz, aided and abetted the said Charley Koontz and Hal Buie, alias R. F. Graham, in the commission of said offense, then you are instructed that the law regulating the competency and character of circumstantial evidence will be satisfied, and in that event the said Dave Koontz was and is equally guilty with the said Charley Koontz and Hal Buie, alias R. F. Graham, as a principal in the commission of said offense, although he may not actually and personally have been present at said bank at the time of the robbery thereof.’’

Instruction No. 11 is as follows:'

“And if you further believe from the evidence, beyond a reasonable doubt, that the defendant, Dave Koontz, advised or encouraged the said Charley Koontz and Hal Buie, alias R. F. Graham, to rob said bank, did furnish or supply the said 'Charley Koontz and Hal Buie, alias R. F. Graham, or either of them, with a horse or horses, or with arms, guns, or ammunition, with intent on the part of him, the said Dave Koontz, thereby to encourage, aid, or assist the said Charley Koontz, and Hal Buie, alias R. F. Graham, to rob said Cotton Exchange Bank, or that he, the said Dave Koontz, knowing the unlawful intent and purpose of the said Charley Ko.ontz and Hal Buie, alias R. F. Graham, to rob said bank, with the intent to encourage, aid, and assist them in the commission of said offense, did show, advise, inform, and instruct the said Charley Koontz and Hal Buie, alias R. F. Graham, how to find and reach the town or place where said bank was situated, then you will find the said defendant, Dave Koontz, guilty of robbery in the first degree,” etc.

The objection made to these instructions is that while the information charges the defendant, Dave Koontz, and others, with the robbery of H. D. Goode, the court in the instructions tells the jury that if they find that the defendant, Dave Koontz, aided or abetted in the robbery of the Cotton Exchange Bank, then the jury should convict the defendant, Dave Koontz, on the charge of robbing H. L. Goode. The information does not mention the Cotton Exchange Bank, and does not allege that H. L. Goode was an officer, or that he had any connection with the Cotton Exchange Bank. These instructions are clearly in violation of the universally accepted doctrine and the fundamental principle of law that a person may not be convicted of any crime other than the one charged in the'indictment or information.

For the reasons herein expressed, the judgment will be reversed for proceedings consistent with this opinion. The warden of the penitentiary is directed to surrender plaintiff in error to the sheriff of Roger Mills county, who will hold him in custody until he shall be discharged therefrom, or as otherwise ordered according to law.

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


text:
    JOHN SPEARS v. STATE.
    No. A-1805.
    Opinion Filed April 11, 1914.
    (139 Pac. 841.)
    1. RAPE — Sufficiency of Evidence. The evidence tersely stated in opinion held sufficient to support a verdict of guilty of second degree rape.
    2. SAME — Punishment. Judgment and' sentence of 25 years’ imprisonment held excessive, and sentence reduced to ten years.

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

    John Spears was convicted of rape in the second degree, and appeals.
    Modified and affirmed.

      I. H. Lookaba%igh, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and A. L. Rmery, Co. Atty., for the State.
   DOYLE, J.

Plaintiff in error, herein referred to as defendant, was by information charged with, and found guilty of. having accomplished" an act of sexual intercourse with a female not his wife, and under 16 years of age. April 15, 1911, was the date of the crime, as alleged in the information. By the judgment of the court rendered on the 5th day of February, 1912,' he was sentenced to be imprisoned in the penitentiary for a term of 25 years. To reverse the judgment an appeal by case-made was perfected.

Several errors are assigned, but in the brief filed for defendant but two are discussed: First, that the evidence is insufficient to support the verdict; second, that the sentence is excessive.

Briefly stated, the evidence upon which defendant was found guilty was substantially as follows: The prosecutrix, Susie Gearhart, nee Sullivan, testified that she was born March 11, 1896, and had lived near Greenfield, Blaine county, with her parents since 1909; that defendant worked two or three months for her father in 1910; that he claimed to be a single man, and for several months they went to church and Sunday school together, and later became engaged to be married whenever her parents would consent; that the first act of sexual intercourse occurred in a buggy while they were driving home from church, in the fall of 1910, and the second act occurred in a buggy while they were out driving some time in March, 1911, and, as a result, she became pregnant, and her child was born December 28, 1911; that she married Henry Gearhart in July, 1911. All the evidence tended to prove that the prosecutrix was fifteen years of age March 11, 1911.

All the facts in evidence on the part of the state were admitted by defendant as a witness in his own behalf, except the fact that he had accomplished an act of sexual intercourse with the prosecutrix. Fie also admitted that, although he prom-iséd to marry the prosecutrix, he at that time had a wife and two children in the state of Texas.

In our opinion, there was sufficient evidence to convict the defendant, and it was exclusively for the jury to say whether they would believe the evidence given on behalf of the state, or that of defendant.

The jury were unable to agree on the punishment, and the judgment of the court imposing upon defendant a sentence of imprisonment for a term of 25 years is claimed to be excessive.

It is both the spirit and intention of our laws that sentences shall be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the- law. In view of the fact that the prosecutrix became the wife of another man before making complaint, and the fact that defendant, unable to give bail, has already been confined for more than two years in the county jail, and as the record shows he is now 40 years of age, we think that ten years’ imprisonment in the penitentiary will be as much protection to society and do him as much good as would 25. Carrying the sentence, thus modified, into execution will be sufficient, we think, to teach defendant his duties and obligations to his family and those about him, and possibly imbue him with some other and better notions than those only of gratifying his lust and sensual passions.

The judgment and sentence herein will therefore be modified by reducing the sentence to a term of ten years, said term to, begin to run upon the delivery of defendant to the warden of the penitentiary at McAlester, and, as thus modified, the judgment of conviction is affirmed.

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


author: DOYRE, J.

text:
    GEO. R. TUCKER v. STATE.
    No. A-1975.
    Opinion Filed April 14, 1914.
    (139 Pac. 998.)
    1. COURTS — County Court — Terms—Continuation. Under the statute (sections 1823, 1824, Rev. Laws 1910) the general terms of county courts begin on the first Mondays of January, April, July, and October. When the general term of a county court has been once regularly convened on the day fixed by law, it continues until the time fixed by law for the next succeeding general term, unless previously adjourned sine die.

      2. SAME — Adjournment. The clause of section 1824, Eev. Laws 1910, providing that when so convened it may, “by proper order of said court, be adjourned to such time as the judge thereof may deem proper: Provided, that the same shall not conflict with the term of said court provided for at any other place in said county'’ — is not intended as a grant of power to prolong the term. It merely commits to the sound discretion of the court the power to adjourn the sessions at the county seat from time to time as business may require.
    8. SAME. Where the statute provides that the county court shall hold terms at different places within the county other than the county seat, an adjournment of the regular term of court at the county seat may be had to a day later than an intervening term provided for by law at some other place in the county.
    4. SAME — Kegularity of Proceedings — Presumption. Irregularities in the proceedings of county courts will not be presumed, but must be properly and affirmatively shown.

      Appeal from County Court, Jefferson County; B: T. Price, Judge.

    George R. Tucker was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.

      Bridges & Vertrees and I. R. Mason, for plaintiff in error.

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

Plaintiff in error, George Tucker, was charged, jointly with one Will Hoskins, with the unlawful sale of intoxicating liquor. On a separate trial he was found guilty, and his punishment fixed at 30 days in jail, and $50 fine. The case was tried on the 1st day of Februaiy, 1913. Judgment and sentence pursuant to the verdict was entered on the 18th day of February. From that judgment this appeal is taken.

The only contention made is that:

“The county court was not legally in session when plaintiff in error was tried, convicted, and sentenced, in that it appears from the record contained in the case-made that the county court of Jefferson county convened on the first Monday in January, 1913, and plaintiff in error was tried on the 1st da3 of Februaiy, and was sentenced on the 18th day of February, 1913, and no order of court appears extending the term as fixed by law. Therefore the January term of the county court had expired by operation of law before the 1st da)'- of February, and before the 18th day of February, and for this reason the entire proceedings were a nullity, and are without force or effect in law.”

Sections 1823, 1824, and 1825 of the Revised Laws are as follows:

“Sec. 1823. In each county, commencing on the first Monday of January, April, July and October of each year, except as otherwise herein provided, county court shall convene at the county seat and continue in session so long as business may require : Provided, that said courts shall always be open and in session for the transaction of all probate business in their respective counties.

“Sec. 1824. In counties where it_may be provided by law for such court to be held at a place or places other than the county seat, such court shall convene on the first Monday of January, April, July and October of each year, at the county seat, and remain in session for a period of three weeks, and may then, by proper order of said court, be adjourned to such time as the judge thereof may deem proper: Provided, that the same shall not. conflict with the. term of said court provided for at any other place in said county; and provided, further, that said term of court cannot be adjourned to resume at a later date than eight weeks from the date of entering the order of such adjournment.

“Sec. 1825. If there is only one place other than the county seat at which it is provided by law for holding terms of the county court, the terms of said court at such place shall commence on the first Mondays of February, May, August and November of each year, and continue in session for the period of three weeks, if the public business requires it.”

By statute it is provided that the town of Cornish shall be an additional place for the holding of county court in Jefferson county, and the presumption is that on the 3d day of February, which was the first Monday in February, the county court, as by law provided, convened at Cornish. Upon careful consideration, plaintiff in error’s contention we must regard as untenable and without foundation in law. The rule is too well settled to admit of controversy that, where a general term of court has been once regularly convened, on the day fixed by law, it can expire only by adjournment sine die, or by operation of law, and, unless adjourned sine die, will not so expire by operation of law until the first day of the next general term. St. Louis & S. F. R. Co. v. James, 36 Okla. 196, 128 Pac. 279. The trend of the courts is to so construe the law, if possible, as to uphold the sessions of courts actually doing business.

The fair import of the language of section 1823, above quoted, is that when a general term of the county court has been regularly convened at the county seat, on the day fixed by law, the term continues until the convening of the next succeeding term at the county seat, unless previously adjourned sine die. The language of section 1824 providing that when so convened, it may then “by proper order of said court, be adjourned to such time as the judge thereof may deem proper: Provided, that the same shall not conflict with the terms of said court provided for at any other place in said county” — is not intended ai a grant of power to prolong the term, but merely commits to the sound discretion of the court the power to adjourn the sessions of court at the county seat from time to time as business may require.

The contention that the intervention of a term of the county court at the court town of Cornish caused a lapse of the January term at the county seat is also untenable. Bidwell v. Love, 22 Okla. 549, 98 Pac. 425; State v. Crilly, 69 Kan. 802, 77 Pac. 701.

The question presented in this case was first raised in the lower court as a ground for new trial. No evidence, record or otherwise, was offered tending to support the motion for new trial, and the case-made does not contain a certified transcript of the court records showing the adjournments for the January term of said county court.

“The offense charged being one within the jurisdiction of the court, the plaintiff in error being present, and the trial being had on a day between the dates fixed by law for convening and finally adjourning the term, every presumption is in favor of the regularity of the proceeding; and this must be overcome by a proper showing in the case-made before we should hold that the court did not have jurisdiction.” (Wilson v. State, 3 Okla. Cr. 714, 109 Pac. 289.)

The other errors assigned are not deemed material.

Having not been able to find any reversible error in the proceedings in this case, the judgment appealed from will be affirmed.

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


author: ARMSTRONG, P. J.

text:
    CHAS. MADDOX et al. v. STATE.
    No. A-1985.
    Opinion Filed April 17, 1914.
    (139 Pac. 994.)
    1. LARCENY — Appeal—Judgment—Sufficiency of Evidence, (a) A judgment of conviction will not be reversed by this court on any controverted question of fact, when the testimony in the record tends reasonably to support the finding of the jury. (b) For facts sufficient to suppiort a conviction, see opinion.
    2. APPEAL — Change of Venue — Discretion—Hearing, (a) An application for a change of venue, under the law of Oklahoma, is addressed to the sound discretion of the trial court, and the rulings of the trial court thereon will not be disturbed by this court, unless all the circumstances disclosed by the record clearly indi-caté arbitrary action and abuse of discretion on the part of such court.
    (b) A trial court may, in its discretion, examine any person or persons it may desire, for the purpose of determining the merits of an application for change of venue, and is not limited under our law to examination only of such persons ’ as file affidavits in support of the application. The law contemplates that the court will avail itself of all reasonable opportunity to determine the right of the accused to a change of venue, as well as the right of the people to resist the same; it being the object and purpose of the law to secure to the accused a fair and impartial trial, and the right of the people to have such trial at a minimum expense.
    3. CONTINUANCE — Grounds. The rule laid down by this court in Madison v. State, 6 Okla. Cr. 356, 118 Pac. 617, Ann. Cas. 1913C, 484, does not support the contention that an accused has the right to a continuance and to the delay of his trial for the personal appearance of witnesses who are beyond the jurisdiction of the courts of this state, arid an application for continuance, based on any such contention, is properly overruled.

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

      Charley and Roy Maddox were convicted of larceny, and appeal.
    Affirmed.

      Swan C. Burnette and J. L. Austin, for plaintiffs in error.

      C. /. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiffs in error, Charles Maddox and Roy Maddox, were convicted at the October, 1912, term of district court of Washita county, on a charge of larceny of domestic animals, and their punishment fixed at imprisonment in the state penitentiary for a term of three years. The information in usual form charges the plaintiffs in error with having stolen eight head of cattle in Washita county, in November, 1910.

The material evidence in behalf of the state may be epitomized as follows:

Ben Chappelear, an admitted accomplice, testified to the following material facts: That he had lived in Washita county for seventeen years; that he knew Charlie and Roy Maddox; had known them for fifteen years; that he lived near the same town ■ in which they lived; that he knew James Hogan and had known him for a few months; that he saw Roy and Charlie Maddox in Cordell and went with them to a place near Bessie; that they were on horseback; that they went to this place just after dark; that they went by the town site of Bessie, turned west to a creek, then north, and entered a pasture along by the creek, where they took nine head of cattle and drove them to Cloud Chief. The witness described minutely the route over which the cattle were driven, and said they were all acting together in taking the same; that after taking the cattle they met some person east of Bessie in a buggy; they also met a man by the name of Link Stewart, while driving the cattle through Cloud Chief; that Roy Maddox was with him at this particular time; that he never saw the cattle except at night, and that one of them was a white-faced, wine black cow; that after they passed through the town of Cloud Chief they turned the cattle into a pasture adjoining the town site on the south; that a person by the name of Umick had possession of the pasture at that time; that he did not know how far they had driven the cattle; that they were driven in the public highway most of the time; that he did not know at the time to whom the cattle belonged; that he was riding a spotted horse on the night of the theft, and that he and the Maddox boys did not leave together, but met a short distance from the starting point; that all of this occurred in the fall of 1910, along about November; that after the cattle were put in the pasture he went home; that it was 12 or 1 o’clock at night when he left the pasture. On cross-examination he stated that he was not positive whether or not there were eight or nine head of the cattle. This 'witness admitted thát he had had some trouble with the Maddox boys on account of money which he claimed they owed, him which had not been paid.

Witness Joe Douglas testified that he knew the plaintiffs in error; that he remembered the occurrence of some cattle being put in a pasture at Cloud Chief in the fall of 1910 and after-wards recovered; that he had a conversation with Roy Maddox and conveyed certain information to state’s witness Chappelear, at Maddox’s request; that he was out near Cloud Chief on the morning after the cattle were stolen; that Maddox overtook him and asked him to tell Chappelear that a bunch of cattle had been stolen near Bessie the night before, and had been tracked down as far as a certain rock house the following morning.

State’s witness Stewart testified that he lived at Cloud Chief, and that he knew Roy and Charlie Maddox; that he knew them in 1910; that he remembered hearing about some cattle being placed in a pasture near Cloud Chief and afterwards being recovered by one Hogan. Prior to hearing of this occurrence, he saw some cattle passing through Cloud Chief one night between 12 and 1 o’clock; that the next day he heard about cattle being put in a pasture adjoining town; that there were three parties driving the cattle which he saw, two of whom were Roy and Charlie Maddox; that a third man was farther away, and he could not tell for sure who he was; that he saw their horses; did not take any particular notice except to one of them; that the horse farthest away from him was a spotted horse; that one of the cattle was white-faced; that he got out of the road to let them pass, and stood still until they went by; that he spoke to the people at the time and said, "You are pretty late getting in to-night, boys,” but that none of them replied; that he had known Charlie and Roy Maddox for twelve years; that there were eight or nine head of cattle in the bunch; that he remembered the hour of the night because he and a man named Borrel had worked on some gin books until the clock struck twelve; that they stopped work and smoked a cigar; that they stayed there perhaps five minutes longer; that he got up and took the books under his arm and started home and met these people; that he told J. P. Stubblefield next morning, when he went to the gin, about the occurrence, also told Mr. Holt and the deputy sheriff stationed in the town. There was some testimony indicating that this witness and the plaintiffs in error were not on the best of terms, growing out of some debts owed b3r the plaintiffs in error to him.

Witness Chappelear was recalled and testified that, at .the time they passed witness Stewart, Roy Maddox was closer to Stewart, Charlie next, and that he was farther away and riding a spotted horse, as testified to by Stewart.

Witness Hogan, the owner of the cattle, testified that he lost eight head of cattle in November, 1910; that they were in a field near Bessie; that he found the cattle near Cloud Chief in a stalk field, or pasture, which adjoined the town on the south. One of the cows was a wine black cow, most of them were red; he found them on the evening after Thanksgiving; that he never missed them until Friday; that the cattle were taken without his knowledge and consent; that he did not know who took them. This witness testified that one of the cattle belonged to him, and that he owned a half interest in the others.

On behalf of plaintiffs in error, Charles Maddox testified that he did not have any connection of any kind with the theft of the cattle; did not know anything about it whatever; never had any arrangements of any kind with Ben Chappelear or any one else involving the cattle in question; never met him anywhere for the purpose of stealing the cattle in question; that he was not in Cordell at the time Chappelear said he was; that he could not tell where he was at that time; that he heard Stewart’s testimony; that he was not where Stewart said he was at the time detailed by Stewart; that he never had at any time driven any cattle to Cloud Chief in company with his brother and Chap-pelear, under the circumstances detailed by witness Stewart; that the first knowledge he had of the theft came to him after the cattle had been found and driven back to Bessie; that he did not know just when he heard about it; that he never saw the cattle that he knew of.

Roy Maddox, the other plaintiff in error, testified that he never had any connection with the cattle in any manner; that he was not in Cordell with Ben Chappelear and his brother; that he was in Co.rdell the day before the cattle were stolen; that he saw Chappelear in the livery barn; that he got into town about 1 and left about 4 o’clock, going home; that Chappelear was in the barn when he left; that he heard about the cattle being in a pasture near Cloud Chief the next evening after he was in Cordell; that he stayed at home the night before the cattle were discovered near Cloud Chief; that he heard the testimony of witness Stewart; that if he had ever met Stewart or any one else under circumstances such as those detailed by Stewart, he had forgotton it; that he was not driving the cattle as testified to by Stewart.

Witness McClanahan testified that he knew Charley and Roy Maddox; that he remembered hearing of the cattle in Umick’s pasture near Cloud Chief; that he lived in the northwest corner of the town site; that he never did see the cattle; that he heard of these cattle being there one morning; that he was at the home of Roy Maddox on the evening prior to that time; that Maddox was at home; that he did not remember the exact time Maddox arrived, but that it was before night; that he was working for Maddox at the time; that he stayed at the Maddox home until after 12 o’clock, leaving between 12 and 1 o’clock the night previous to the time he heard the cattle were discovered in a pasture near Cloud Chief.

Mrs. McClanahan, in behalf of the plaintiffs in error, testified that she lived near Cloud Chief in November, 1910; that she remembered the circumstances of some cattle being found in a pasture south of town; that she was' at' the home_ of Roy Maddox the evening and night prior to the time that she heard the cattle were so discovered; that she left Maddox’s home about 11 or 12 o’clock at night, and Maddox was there when she left.

Upon these facts, the case was submitted to the jury, and a verdict of guilty rendered.

When the case was called for trial, counsel filed in behalf of plaintiffs in error a petition for a change of venue, which was submitted to the court upon affidavits and oral testimony, both in favor of the petition and against the same. The court, after hearing the matter in detail, denied the petition, and, in our judgment, properly so. Counsel contend that the statute contemplates an examination of thos'e persons only who filed affidavits in support of the petition of plaintiffs in error, and not the examination of any other witness.

The rule announced by this court in Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988, and again in Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164, answers this contention conclusively. In those cases we said :

“Under this statute, the state may file counter affidavits stating any fact or facts that would show that a change of venue was not necessary. If the court is of the opinion, upon an inspection of the affidavits filed in support of any in opposition to a motion for a change of venue, that a change of venue should not be granted, then it should be so ordered; but, if the court is not satisfied on this question, it may have all of the parties making these affidavits on both sides, and such other persons as the court may think proper, sworn as witnesses and examined in open court touching the matter in controversy. The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and, if this is not true, the burden is upon the defendant to establish his .right to a change of venue. The granting of a change of venue is by the Constitution and statute made discretionary with the trial court, and this court will not reverse a ruling of the trial court denying an application for a change of venue, unless it is made clearly to appear that there has been such an abuse of this discretion as to amount practically to a denial of justice. By abuse of discretion is meant a clearly erroneous conclusion and judgment; one that is clearly against the logic and effect of the facts presented in support of and against the application. Whatever the decisions in other states may be, this is not an open question in Oklahoma.” (Black v. State, 3 Okla. Cr. 547, 107 Pac. 524; Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300.)

It is contended by counsel for plaintiffs in error that the court erred in denying a continuance upon the application of the plaintiffs in error. The application is based on an affidavit alleging that material witnesses were absent and could not be had. at the time of court then in session. The record shows, and it is not denied, that these witnesses were nonresidents of Oklahoma. The testimony which the plaintiffs in error expected to produce by said witnesses is not set out in narrative form. The county attorney, when the application was interposed, consented and agreed that the facts set out in the application for continuance should be submitted and read in evidence as the depositions of the absent witnesses, in so far as the testimony offered was competent. Thereupon the court denied the application for continuance, and the cause proceeded to trial.

Counsel contended that the accused had the constitutional right to have the personal presence of the witnesses, and that the order requiring them to go to trial without the production of the witnesses, under process of the court, was a denial of this right. Counsel attempts to justify this contention by the rule announced in Madison v. State, 6 Okla. Cr. 356, 118 Pac. 617, Ann. Cas. 1913C, 484.

The doctrine in the Madison case does not, in any reasonable interpretation of the rule it announces, support the contention made in the case at bar. In the Madison case the witnesses were within the jurisdiction of the court before whom the case was on trial, and as a matter of fact were within the limits of the city within which the case was being tried; but they were sick and conclusively shown to be unable to attend in person at the trial, and on that account a continuance was asked until such time as these witnesses could appear. The reason for the rule there announced and the authorities supporting the same are clearly set forth in that opinion, and it requires no discussion at this time to point out to a discriminating mind the difference in the doctrine of that case and the rule contended for in the case at bar. The witnesses were nonresidents of Oklahoma, and there is no law whereby they could be forced to appear in person and testify before an Oklahoma court. In such cases the law has provided for the taking of their depositions, and, upon a showing of proper and diligent effort in their behalf, that privilege must be allowed. See Smith v. State, ante, 139 Pac. 709.

Under the showing made, the county attorney was exceedingly liberal when he consented and agreed that the application for continuance could be read in evidence as the deposition of the absent witnesses, because the showing made and relief sought by the plaintiffs in error was not such relief as they were entitled to receive. They did not ask for an opportunity to take depositions nor make any showing as to why such depositions had not already been taken, but assumed the absurd position of insisting that a court should continue a case and wait the good pleasure of nonresident or absconding witnesses whom he could not by any rule of law compel to voluntarily return and offer their testimony. The contention is too ridiculous to be entitled to serious consideration. There was no allegation in the application for continuance that the defendant expected the return of the witnesses, nor any reasonable showing made that he ever intended to produce them or make any effort to do so. The Supreme Court of Washington, in the case of State v. Hutchinson, 14 Wash, 580, 45 Pac. 156, in disposing of this identical question, used the following language:

“The prosecuting attorney offered to admit, under section 338 of the Code of Procedure, that such testimony would be given, but defendant attacks this statute as unconstitutional. However it may be held as to witnesses within the state, it certainly could not be unconstitutional as to witnesses without the state, whose attendance the court could not compel, for as to these the defendant would only have the right to take their depositions; and an admission by the state that they would testify to the facts sought to be proven by them would be of as much benefit to the defendant as though the same appeared in a deposition.”

Counsel next contend that the evidence is not sufficient to support the verdict. With this contention we cannot agree. The evidence was sufficient to warrant the trial court in submitting the cause to the jury, under proper instructions, which he did. The controverted questions of fact and the credibility of witnesses are clearly questions for the jury. In'our judgment the conviction was not only warranted by the evidence, but any other verdict would have been a miscarriage of justice.

The record has been carefully examined in detail, and we find no error disclosed thereby prejudicial to the substantial rights of the accused.

The judgment is therefore affirmed.

DOYLE, J., concurs; FURMAN, J., not participating.


text:
    DAVE WHITE v. STATE.
    No. A-1996.
    Opinion Filed April 18, 1914.
    (139 Pac. 1154.)
    TRIAL — Failure to Read Indictment — Waiver of Objection. Failure of the clerk or county attorney to formally read the indictment and state the plea of the defendant to the jury after they were impaneled and sworn, as required by section 5870, Rev. Laws 1910, will not constitute reversible error, where no objection was made until after verdict. Proceeding to trial without objection will be deemed a waiver of the statutory requirement.

      Appeal from District Court, Choctaw County; A. H. Ferguson, Judge.

    Dave AVhite was convicted of larceny, and appeals.
    Affirmed.
    /. H. Warren, for plaintiff in error.

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

The plaintiff in error, Dave White, was indicted jointly with George Hughes and Will Williams for the larceny of a domestic animal. He was separately tried and convicted, and his punishment assessed at confinement in the penitentiary for one year. The judgment and sentence was rendered on the 16th day of November, 1912. From the judgment entered on the verdict, he appeals.

Plaintiff in error complains “that the -indictment was not read, and his plea stated to the jury by the clerk or county attorney, after the jury had been impaneled and sworn.” The case-made fails to show that the indictment was read and the plea stated, as required by section 5870, Rev. Laws 1910, providing :

“The jury having been impaneled and sworn, the trial 'must proceed in the following order: First. If the indictment or information is for a felony, the clerk or county attorney must read it, and state the plea of the defendant to the jury. In other cases this formality may be dispensed with.”

No objection was made in' any form -to the failure of the clerk or county attorney to so read the indictment and state the plea until after the verdict. The question was raised for the first time on the motion for a new trial. It appears from the record that plaintiff in error was duly arraigned, and entered a plea of not guilty, and that the jury were otherwise sufficiently informed of the nature of the charge against the plaintiff in error, and also of his plea. Criminal cases should be reviewed with the idea of promoting justice, and not for the purpose of determining as to whether there is some technical error by which the accused may be aided in avoiding just punishment for his crime; when the evidence establishes his guilt, no technical error which has not affected the result of the trial should be made the means of escape. If by the record it appeared that plaintiff in error had objected on that ground against proceeding with the trial, then a different question would be presented. Proceeding to trial without objection will be deemed a waiver of the statutory requirement.

The other errors assigned we deem unimportant and without substantial merit. The evidence is, in our judgment, sufficient to support the verdict and judgment.

Finding no reversible error in the proceedings, the judgment will be affirmed.

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


text:
    A. D. FENTON v. STATE.
    No. A-2013.
    Opinion Filed April 18, 1914.
    (139 Pac. 1155.)
    1. APPEAL — Time for Taking — Dismissal. An appeal from a judgment of a trial court to this court must be taken in the manner and within the time provided by the statute and the orders of the trial court made under the provisions of the statute, in order to give this court jurisdiction to consider the same on the merits.
    2. SAME — Dismissal. When an appeal is not taken within the time provided by the statute, and under the orders of the trial court made in pursuance of statutory regulations, this court has no jurisdiction to determine any question raised, and can only dismiss the appeal.

      Appeal from County Court, Pawnee County; Geo. B. Merritt, Judge.

    A. D. Fenton was convicted of violating Hie prohibitory law, and appeals.
    Dismissed.

      Goodwin & Dillard, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

Plaintiff in error, A. D. Fenton, was convicted at the March, 1913, term of county court of Pawnee county, on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days. Judgment was pronounced on the 17th day of March, 1913, at which time the court fixed 40 days within which to make and serve case-made, and 60 days within which the appeal should be filed in this court. On the 26th day of April the court by additional order extended the time for making and serving the case-made for fifteen days, making a total of 55 days, but made no order extending the time theretofore granted for filing an appeal in this court. The appeal was lodged with the clerk here on the 17th day of May, 1913. The Attorney Gen-' eral has filed a motion to dismiss this appeal, on the ground that the same was not lodged in this court until after the expiration of the 60 days provided by law and the orders of the trial court. Counsel for the plaintiff in error filed a response to this motion, in which they admit that the same was not filed within the 60 days provided by the trial court, and undertake to assert that they were entitled, after the 1st day of June, to lodge the appeal. This position is wholly without merit. This court has many times pointed out to the members of the bar the proper manner in which to preserve the rights of their clients in connection with perfecting these appeals. It may be that counsel intended to secure an extension of the time for filing the appeal until June 1st; but no such order appears in the record. It may be that the court intended to make such an order; but he failed to do so, or, if he did so, failed to include such order in the record. Appeals are not based upon the intention of counsel or courts, but upon specific statutory requirements. Counsel have not undertaken to amend the record to show that they come within any rule announced by this court under the provisions of the statutes of the state. The motion of the Attorney General is therefore sustained, and the appeal accordingly dismissed.

Mandate forthwith.

DOYLE and FURMAN, JJ., concur.


text:
    PETE MEANS v. STATE.
    No. A-2059.
    Opinion Filed April 18, 1914.
    (139 Pac. 1155.)
    1. APPEAL — Jurisdiction—-Notice of Appeal. Under the provisions of the statute law existing in this state at the time of appeal, a notice of appeal in due form had to be served on the clerk of the district court and the county attorney of the county in which the cause was tried, and proof thereof filed with the record on appeal, before this court could acquire jurisdiction to determine any questions raised on the merits.
    2. SAME — Service. It is the duty of counsel on behalf of persons desiring to appeal to this court from a judgment of a trial court to see that notices of appeal are served and that proper proof of such service is included in the case-made or transcript.
    3. SAME — Proof of Service —• Procedure. When a motion to dismiss an appeal is 'filed by the Attorney General on the ground that notices of appeal were not served as provided by law, it is the duty of counsel, instead of filing their statement to the effect that the same were served, to take immediate steps to correct the case-made, in the manner provided by law, to show that such notices'were properly served and to present the matter to this court in person and sécure an order protecting the rights of their clients.
    4. SAME — Dismissal. When a motion to dismiss an appeal is filed on the ground that the notices of appeal were not served, and no action is taken by counsel to correct the record, although sufficient time has elapsed, and no appearance made when the cause is set for submission, there is no course left to this court but to sustain the motion and order the appeal dismissed.

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

    Pete Means was convicted of burglary, and appeals.
    Dismissed.

      Champion & Champion,, for plaintiff in error.

      C. I. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Pete Means, was tried and convicted at the January, 1913, term of the district court of Carter county, on a charge of burglary, and his punishment fixed at imprisonment in the state penitentiary' for a period of two years. The Attorney General has filed a motion to dismiss the appeal on the ground that no notices of appeal were served on the county attorney and the clerk of the .district court. Counsel for the plaintiff in error have filed a response to the motion, in which they allege that notices were served, but no proof of the service is attached, and no effort has been made to prsperly correct the case-made as the law provides. The motion to dismiss was filed on September 9, 1913 ; the response thereto was filed on October 1, 1913. Many months have elapsed, yet no action has been taken looking to the correction of the record, or otherwise protecting the rights of the plaintiff in error, if any. The proper method for correction of a case-made is outlined in the statutes, and this court has repeatedly interpreted the same, so that there is no-reason apparent-why counsel have not taken some action in the premises, except-for the reason that the notices were not, as a matter of fact, served as the law requires. Instead of filing a response in the form of an unverified statement, counsel should have taken proper legal steps and secured the necessary orders from this court to meet the objections raised by the Attorney General.

Not having done so, there is no alternative left to us but to dismiss this appeal; and it is so ordered.

DOYLE, J., concurs. EURMAN, J., not participating.


text:
    EARNEST LOCKHART v. STATE.
    No. A-1876.
    Opinion Filed April 18, 1914.
    (139 Pac. 1156.)
    LARCENY — Sufficiency of Evidence. Evidence stated in tlie opinion considered, and found insufficient to warrant a conviction. rri
    SAME — Instructions'—Elements of Offense. An instruction whereby the court attempts to state the material elements of the crime charged, but which omits an essential element, is erroneous. OQ '
    TRIAL — Instructions—Evidence. Instructions set out in the opinion held to bo erroneous. CO

      Appeal from District'Court, McIntosh County; Preslie B. Cole, Judge.

    Earnest Lockhart was convicted of the larceny of a domestic animal, and appeals.
    Reversed.

      Griffing & Hopper and Brook & Brook, for plaintiff in error.

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

Plaintiff in error was tried, convicted, and sentenced to serve a term of two years’ imprisonment in the penitentiary on an information which, after alleging venue and timé, reads as follows:

“Did then and there unlawfully, willfully, and feloniously, by stealth, steal, take, and carry away, without the consent and against the will of the true owner, one two-year-old red cow, with white spot or spots on face, the personal property of one E. L. Nunnly, with the únlawful and felonious intent then and there of him, the said Earnest Lockhart, to deprive the said E. L. Nunnly thereof, and to convert the same h> his own use and benefit contrary to,” etc.

The following is a substantial statement of the evidence: Prosecuting witness, E. L. Nunnly, testified that he lived near Stidham; that he lost a two-year-old heifer in June, 1912; that he made search and found her in Mr. Killings worth’s pasture two weeks after he missed her; that defendant gave him another heifer for the stolen heifer; that defendant told witness that he had bought the heifer from an Indian.named Jones.

Cross-examined he stated that, when he took defendant’s heifer for his 'heifer, he told defendant he would give him a chance to get the man from whom defendant said he bought the heifer, if defendant would let him have $100 to stand good for his appearance; that defendant said that he did not have any money, but would let him have two cows to “stand good”; that under the agreement prosecuting witness was to hold the two cows until the last of July; that after that defendant came to him and said he could not find the Indian, Jones, and wanted the two cows back; that he refused to give defendant the cows, and defendant replevined them, and he then swore to the complaint.

Walter White testified that he lived about a mile from the prosecuting witness, and the alleged stolen heifer ranged with his cattle; that on or about the 10th or 13th of June, about midday, he was sitting on the porch of his house and saw defendant pass and ride up to the cattle on the prairie and drive one of them off; that Mr. Nunnlys heifer did not come up with his cattle that night.

Davis Killingsworth testified that in June he bought five head of cattle from defendant; that he paid $14 for the heifer; that Mr. Nunnly shortly afterwards claimed the heifer, and he was present when defendant offered to give Nunnly another heifer for the alleged stolen heifer, and Nunnly consented.

At the close of the state’s evidence, the defendant entered a demurrer to the evidence, which was overruled, and exception reserved.

Defendant, Earnest Lockhart, testified that he had lived at Stidham for about six years; was a farmer, and occasionally buys and sells cattle; that on the 12th day of June he bought two cows from Mr. McElroy, and the next day bought four from Mr. Rumsey, and on the 13th day of June he met an Indian driving this heifer and a cow along the road between Stidham and Lenna, and offered him $35 for the two; that the Indian said he would take $30 for the cow and $12 for the heifer, and he bought the heifer and drove it home, passing witness White’s place; that he tied the heifer by the side of the road in a grass patch, and a day or two later he sold the cattle he had bought to Mr. Killingsworth; that shortly afterwards Mr. Killingsworth told him that Nunnly was over and claimed the heifer; that he then went to Mr. Nunnly and asked him if he claimed the heifer, and he said he did, and he told him, if it was his heifer, he could have her; that he loaned Mr. Nunnly a horse, and they rode together over to Killingsworth; that while they were there he agreed to let Mr. Nunnly have another heifer for the one that Mr. Killingsworth had, and on the way back they went to defendant’s pasture, and Mr. Nunnly picked out another heifer from defendant’s herd and drove it home; that while they were there Mr. Nunnly said, “I don’t believe that you stole the heifer, and you let me hold two of your cows until the last of the month, and then, if you don’t find the man, I will turn the cows back, and I agreed to it;” that when the time came he went to Mr. Nunnly and asked him for his cows, and he said, “I won’t turn those cows over unless you pay me $100 for my trouble;” that he then replevined his cows.

Several witnesses testified to having' seen defendant driving the heifer along the road from Lenna towards his home. Several others testified as character witnesses, and that defendant’s general reputation for honesty and being a law-abiding citizen was good.

Many alleged errors are assigned as grounds for reversal of the judgment, only a few of which will be noticed and considered. The main question is the sufficiency of the evidence.

Exceptions were taken to several instructions in the charge of the court. Instruction No. 5 reads as follows:

“If you believe from the evidence in this case beyond a reasonable doubt that on or about the 13th day of June, 1912, or at any time within three years next prior to the filing of the information herein, that the defendant, Earnest Lockhart, unlawfully, willfully, and feloniously, by stealth, took, stole, and carried away the property described in the information, with the intent to convert the same to his own use, and to deprive the tfue owner thereof, you will find the defendant guilty; but, on the other hand, if, after a careful, candid, and impartial investigation of all the facts and circumstances adduced in evidence, or the lack of the same, you entertain a reasonable doubt as to any of the material allegations . of the information as above explained, and which is necessary to be proved, then you must give the defendant the benefit Of the doubt and acquit him. (plxcepted to by the defendant.)”

By this instruction the court attempted to state the material elements of the crime charged. It is apparent that the instruction omits an essential element of the crime of larceny of domestic animals as alleged in the information, to wit: The felonious intent to deprive the owner thereof, and to convert the same to the use of the taker. An instruction whereby the material elements of the crime charged is attempted to be stated, blit which omits an essential element, is' erroneous.

Instruction No. 6 reads as follows:

“You are further instructed that, if you believe • from the evidence in this case that said property was stolen from one Nunnly, and if you further believe that said theft was committed by some other person than the defendant, and that the defendant had no connection therewith, then you should find the defendant not guilty, or, if a reasonable doubt thereof exists, then you should give the defendant the benefit of the doubt and acquit him. And you are further instructed that, if you believe from the evidence that the defendant, without having any connection with said theft, did in good faith purchase said cow or animal from one Jones, then, in that event, you should acquit the defendant.”

It is apparent that within itself this instruction is inconsistent and contradictory, and we think it is subject to the criticism that it requires the jury to believe from the evidence the existence of the conditions stated before defendant would be entitled to an acquittal. In other words, it requires the jury to believe from the evidence that he is innocent before finding him not guilty, thus in effect depriving defendant of the benefit of the presumption of innocence until the contrary is proven. If the jury entertained a reasonable doubt, upon the whole evidence, of defendant’s guilt, it was their duty to acquit him, although they might not believe from the evidence the existence of the facts and conditions, or any of them, as stated in this instruction.

This court is of the opinion that the evidence introduced by the state is insufficient to support a conviction of the offense charged. Without considering the evidence which is favorable to defendant, but taking into consideration that only which might tend to prove his guilt, it appears therefrom that defendant took the alleged stolen heifer openly, in the daytime, and drove it along the highway to his home, and there tethered it by the roadside, and a few days later sold it to a party living in the same neighborhood of the real owner. There was no concealment in any way, and the testimony of the owner of the heifer is that he accepted another heifer which was voluntarily given to him by defendant in place of the alleged stolen animal immediately upon his claim of ownership. The prosecuting witness’ testimony would indicate that he then attempted extortion by demanding two cows, or $100. If the testimony for the state was sufficient to prove that the crime charged had been committed, then the prosecuting witness, on his own testimony, would be guilty of extortion or of compounding a felony. However, we think that the evidence shows that, when the prosecuting witness took defendant’s heifer in place of the one defendant had sold to Killingsworth, all the parties concerned believed defendant was innocent of the crime charged.

Where the taking is open, in the presence of others, and there is no subsequent attempt to conceal the property, and no denial, and where possession is not obtained by force, trick, or stratagem, a strong presumption of fact arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a jury may legitimately infer a felonious intent.

In a case like this, where the evidence is so plainly insufficient to show the necessary elements of the offense charged, there should be no hesitation in reversing the judgment of conviction.

The judgment of the lower' court is therefore reversed.

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


text:
    WM. JEFFRIES v. STATE.
    No. A-2183.
    Opinion Filed April 25, 1914.
    (139 Pac. 1153.)
    1. APPEAL — Notice of Appeal — Time of Service. In order to confer jurisdiction upon this court to determine any question on the merits raised by a record on appeal, it is necessary for notices of appeal to be served subsequent to rendition of judgment by the trial court, and not prior thereto.
    2. SAME — Dismissal. An appeal taken to this court, based upon the service of notices of appeal, when such service was had prior to the rendition of judgment, confers no jurisdiction on this court over the cause, and we can only dismiss the same, and direct the enforcement of the judgment of the trial court.

      Appeal from District Court, Greer County; G. A. Brown, Judge.

    William Jeffries was convicted of assault with intent to kill, and appeals.
    Dismissed.

      B. M. Stewart, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

Plaintiff in error, William Jeffries, was convicted at the July, 1913, term of the district court of Greer county, on a charge of assault with intent to kill, and his punishment fixed at a term of three years in the state penitentiary. Judgment was pronounced by the trial court on the Ith day of August, 1913. The appeal was filed in this court- February 3, 1914. The Attorney General has filed a motion to dismiss the appeal on the ground that no notices of appeal were served on the county attorney and clerk of the district court of Greer county after the rendition of the judgment.

It appears from the record that the motion for a new trial was overruled on August 2, 1913; that service of notices of appeal was accepted under date of August 3, 1913, four days prior to the rendition of the judgment. It is the contention of the Attorney General that the attempt to take the appeal by serving notices prior to the rendition of the judgment is unauthorized, and that the service of such notices does not confer jurisdiction on this court to determine the questions raised by the appeal upon the merits.

In Johnson v. State, ante, 135 Pac. 1154, we said:

“A notice of appeal must be served after the rendition of the judgment in a criminal case, and before the expiration of the time allowed by law. If served before the rendition of the judgment, it is a nullity, and such an attempt to appeal will be dismissed for want of jurisdiction.”

In Thompson v. State, 7 Okla. Cr. 384, 123 Pac. 853, we said:

“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.”

Under the law as it existed at the time this appeal was taken, there was no method whereby appeals could be lodged in this court, except by the proper service of notices of appeal, and such notices had to be served subsequent to, and not prior to, the rendition of the judgment of the trial court.

These matters have been passed upon so frequently by this court and by its predecessors that we do not feel called upon to enter into a discussion of the same at this time. The notices of appeal take the same place in this court as the ordinary process in a trial court. We do not acquire jurisdiction to determine any question raised on the merits of an appeal, unless notices are served within the time provided by law, subsequent to the rendition of the judgment by the trial court, and not before. It follows that the motion of the Attorney General is well taken, and must be sustained. The appeal is therefore dismissed.

DOYLE, J., concurs. FURMAN, J., not participating. ■


text:
    LAURA COURTNEY v. STATE.
    No. A-1980.
    Opinion Filed April 25, 1914.
    (140 Pac. 163.)
    1. TRIAL — Instructions—Evidence. The accused, in a criminal ease, is entitled to instructions defining the law applicable to his theory and covering his defense, if there is competent evidence tending reasonably to substantiate such theory.
    2. SAME — Alibi—Evidence. When, in the trial of a criminal ease, the only defense is that of alibi, and the proof tends clearly to establish such defense, it is -the duty of the trial court to instruct on the law of alibi, and especially so when requested to give such ■ instructions.
    3. SAME — Practice. This court is not warranted in departing from well-established rules of law universally upheld by all the courts of last resort, and especially so when such rules work no hardship upon the state, but are easily understood and well de fined.

      4. SAME — Eight of Accused. The rights of the citizen are as much entitled to the protection of the courts as the rights of the people, and no unfair burden is imposed when t’he courts elected by the people are required to follow plain, universal rules of law, which are fair alike to all concerned.

      Appeal from County Court, Garfield County; Winfield Scott, Judge.

    Laura Courtney was convicted of violating the prohibition law, and appeals.
    Reversed.
    /. H. Sykes, for plaintiff in error.

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

The plaintiff in error, Laura Courtney, was convicted at the January, 1913, term of the county court of Garfield county on a charge of selling intoxicating liquor, and her punishment fixed at a fine of $250 and imprisonment in the county jail for a period of 60 days. The proof on behalf of the state was by two witnesses, who testified that at about 7:30 p. m. on the 14th day of January, 1913, they bought one-half pint of whisky from the plaintiff in error, at a certain rooming house in Enid, and paid 75 cents therefor. The court improperly sustained objections to certain questions asked on cross-examination of the principal witness. Two witnesses, in addition to the plaintiff in error, testified that she was not at the place where the pi-osecution contended, at the time contended, but was at their home some distance away, and was there from 10 o’clock in the morning until about 11 o’clock at night. After the testimony was closed, and before instructions were delivered to the jury by the court, counsel for plaintiff in error requested instructions on the law of alibi as a defense, which instructions were refused by' the court. No instruction was given covering the law of alibi. The usual instructions as to presumption of innocence, burden of proof, etc., were given.

The only material question presented by this appeal is whether or not it was error for the trial court to refuse to give specific instructions covering the law of alibi as a defense, when properly requested so to do, when there is evidence in the record tending clearly to establish such defense, and when no other ■ defense or testimony is offered. This specific question has never been presented to this court.

In Brock v. State, 6 Okla. Cr. 24, 115 Pac. 1027, we said:

“The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jury has been properly instructed as to the law of the case, and, when the instructions do not fully present all the material issues raised, the judgment of conviction' must be set aside.”

And in Roberson v. U. S., 4 Okla. Cr. 336, 111 Pac. 984, we said:

“Where an instruction requested by the defendant is not in proper form, but pertains to a material issue in the case as made by the evidence, the court should correct it and give it in proper form, if he has not otherwise instructed upon that issue.”

In Reed v. State, 3 Okla. Cr. 18, 103 Pac. 1071, 24 L. R. A. (N. S.) 268, we said:

“The defendant is entitled to an instruction defining the law as applicable to his theory of the case covering his defense, if there is any competent evidence reasonably tending to substantiate that theory.”

See, also, the general rule stated in 12 Cyc. 619, and cases cited under note 1.

Under these authorities the failure of a trial court to instruct on the law of alibi, when requested so to do, and when the evidence clearly raises that issue, is prejudicial error, and in our judgment of necessity requires the reversal of a judgment of conviction. It appears to be practically the unanimous rule that where alibi is the sole defense, and there is material evidence in support of it, it is reversible error for the trial court to refuse to instruct on that question. See Ayres v. State, 21 Tex. App. 399, 17 S. W. 253.

The Assistant Attorney General has filed a written brief urging this court to abandon or depart from the well-established doctrine of practically all courts on this question. We are unable to conclude that the position is tenable or that such departure on the part of this court would be warranted. It is just as important to the public that persons who are charged with crime be accorded a fair and impartial trial as it is that the law be enforced at all.

This court has. gone as far as any court to aid in the enforcement of the law, but we do not feel called upon to overturn all established customs and usages for the purpose of upholding the judgment of careless or indifferent trial courts.

The rights of the citizen should be protected as well as the rights of the public, and it is not imposing an unfair burden on the people to require the trial courts of Oklahoma to follow the rules of law which have been in force and universally upheld by all courts of last resort, and especially so when such rules are fair alike to all concerned.

The judgment is reversed, and the cause remanded.

DOYTE and FURMAN, JJ., concur.


text:
      Ex parte GEO. E. WINTERS.
    No. A-1988.
    Opinion Filed April 27, 1914.
    (140 Pac. 164.)
    1. BRIBERY — Defense—Want of Official Authority. A person who holds himself out as an officer under color of authority, and who solicits and accepts a bribe, has no right to defend and be discharged on the ground that, as a matter of law, he had no right to act as such officer.
    2. SAME. One cannot hold himself out as an officer of the law and prostitute the public trusts and debauch the public conscience by soliciting and accepting bribes, and be exonerated by the courts of this state, on the ground that he had no legal right to act in the capacity he assumed. If he is officer enough to solicit and accept a bribe, he is also officer enough to be sent to the penitentiary for his conduct.
    Original action for writ of habeas corpus by George E. Winters.
    Writ denied.

      Hargis & Conwell, for petitioner.

      C. J. Davenport, Asst. Atty. Gen., opposed.
   ARMSTRONG, P. J.

This is an original action begun in this court by George E. Winters for the writ of habeas corpus. The petition alleges that an information had been filed in the district court of Osage county by the county attorney of said county, charging petitioner with bribery. The information is as follows:

“Comes now C. K. Templeton, the duly qualified and acting county attorney, in and for the county of Osage, state of Oklahoma, and in the name and by the authority of the state Oklahoma, informs the court that on or about the 14th day of September, 1911, in the said county of Osage, state of Oklahoma, the said defendant, George E. Winters, then and there being a duly and regularly appointed and acting deputy special state enforcement officer of the state of Oklahoma, did then and there wrongfully, unlawfully, and feloniously accept and receive the sum of $15, good and lawful money of the United States for himself, for and in consideration of an agreement and understanding with one W. T. Crabtree, that he, the said W. T. Crabtree, should be permitted to violate the provisions of the prohibitory liquor laws of the state of Oklahoma, in this, to wit: To sell, barter, give away, and otherwise furnish intoxicating liquors at Avant, in said county and state, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The Assistant Attorney General filed a demurrer to the petition.

In our judgment the pleadings raise only one question which is entitled to our consideration in this proceeding; that is; Does a person who holds himself out as an officer under color of authority, and who solicits and accepts a bribe, and endeavors to and does corrupt other persons, have a right to defend and be discharged upon the contention that, as a matter of law, he had no right to act as such officer, and therefore the accepting of a bribe was not a violation of the statute? It is not necessary for us to determine in this proceeding the right and power of the state enforcement officer, as that office existed at the time of the filing of this petition, and at the time he is alleged to have appointed the petitioner as a deputy enforcement officer, to lawfully make such appointment, nor is it necessary in our judgment to determine that persons so appointed were entitled to act as officers. It has been the policy of this court since its organization to assume every reasonable position possible, tenable with the view of aiding the enforcement of the law and the maintenance of good government in Oklahoma. As said by this court in Ellington v. State, 7 Okla. Cr. 252, 123 Pac. 186, which was an embezzlement case wherein a guardian was prosecuted for embezzling moneys of his ward, and who attempted to defend on the ground that the money embezzled by him did not legally belong to his ward, and therefore it was no crime for him to embezzle it, “if he was agent enough to collect this money, he was agent enough to be punished for its embezzlement.” The same might be said of the petitioner; if he was officer enough to solicit and accept a bribe, he was also officer enough to be sent to the penitentiary for so doing. Corruption and debauchery are not tolerated in civilized communities. It makes no difference for the purpose of this prosecution whether the state enforcement officer had the right and power to appoint deputies, as a matter of law, or not; if he did make such appointments, and such appointees assumed to act and hold themselves out as officers of the law, they were amenable to the criminal statutes of this state for soliciting and accepting bribes, and the good of society demands that any such persons so accepting bribes be punished. In this position we are not wholly without support by the authorities.

In State v. Duncan, 153 Ind. 320, 54 N. E. 1067, the Supreme Court of Indiana, in considering a similar question, said:

“Bribery is an offense against public justice. The essence of it is the prostitution of a public trust, the betrayal of public interests, the debauchment of the public conscience. If one admits the doing of the things that produce these results, shall he escape by saying he had no right to act at all? It would seem passing strange if the consequences of one breach of law might be evaded by showing another.”

In the Indiana case the accused was a gravel road engineer, and was prosecuted for accepting a bribe. His defense was based on the contention that there was no valid law authorizing his appointment. The Supreme Court of Indiana says that he could not thus prostitute the public trust and debauch the public conscience, and urges that, although he accepted the bribe, he had no authority to act as an officer. The petitioner was appointed as an officer; he assumed to act and exercise the duties of an officer; he will not now be permitted to say he had no authority in the premises.

The Supreme Court of Ohio, in State v. Gardner, 54 Ohio St. 24, 42 N. E. 999, 31 E. R. A. 660, promulgated a similar doctrine. In the Ohio case Gardner was prosecuted for offering a bribe to one purported to hold an office. His defense was that such office did not legally exist. The court held that he could not maintain any such defense.

In Price v. State, ante, 137 Pac. 736, we had under consideration a question involving the principle now under discussion. In that case Price was prosecuted for embezzling money as an attorney. He had moved from another state to Oklahoma, but had not been legally admitted to the bar in Oklahoma. His defense was based on the contention that, not having been legally admitted to the bar, he could not be charged with embezzlement as a lawyer. In determining that question, we said:

“When a lawyer from another state moves into Oklahoma and, without securing admission to the bar of this state, holds himself out to the public as a lawyer, accepts business as such, and embezzles money collected by him as a lawyer, he cannot escape punishment upon the ground that he was never legally admitted to the bar of Oklahoma.”

See, also, Flores v. State, 11 Tex. App. 102.

We are of opiniqn that the demurrer should be sustained, and the petition dismissed; and it is so ordered.

DOYLE and FURMAN, JJ,' concur.