author: RICHARDSON, Judge.

text:
    JOHN SCHAVE v. STATE.
    No. A-145.
    Opinion Filed November 23, 1910.
    1. APPEAL AND ERROR — Case-Made—Record. An assignment of error based on the overruling of a demurrer to an information, where the record does not show that a demurrer was ever filed or presented, cannot be considered.
    2. INTOXICATING LIQUORS — Conveying Liquor — Information. An information charging the unlawful conveyance of liquor from one place in the state to another place therein is not defective for failing to state the place from which the liquor was conveyed, where it alleges that such place was unknown to the informant.

      3. SAME — Evidence—Sufficiency. Evidence examined, and held to warrant a finding that defendant was guilty of conveying liquor.
    4. SAME — Information — Negativing Exceptions. In a prosecution instituted under sec. 4180, Snyder's Comp. L. Ok'la., making it an offense for any person to convey certain kinds of liquor from one place in the state to another place therein, except the conveyance of a lawful purchase as authorized in a different section, it is not necessary that the information negative the exception contained in the statute.
    5. SAME — Burden of Proof — Matters of Defense. In a prosecution instituted under see. 41S0, Snyder’s Comp. Law. Okla.. making it an offense for any person to convoy certain kinds of liquor from one place in the state to another place therein, except the conveyance of a lawful purchase as authorized in a different section, the state is not required to .prove in the first instance that the liquor conveyed was not,Ja lawful purchase. 'That it was a lawful purchase is a matter of defense to be raised 'by the evidence in behalf of the accused.
    6. SAME — Lawfulness of Purchase — Presumption. In a prosecution for the conveyance of liquor under sec. 4180, Shyder’s Co.mp. L. Okla., if there is no evidence, introduced 'by either party tending to show that the liquor conveyed was a lawful purchase, then the presumption is that it was not such.
    7. SAME — Measure of Proof Required of Defense. To relieve himself of liability for the conveyance of liquor on the ground that the same was a lawful purchase, the defendant is required to produce only evidence sufficient to raise a reasonable doubt on the whole case as to whether the liquor conveyed was a lawful purchase; and he is not required to prove that it was such by a preponderance of the evidence.
    8. SAME — Instructions—Harmless Error. An erroneous instruction to the effect that the burden is on the defendant to show by a preponderance of the evidence that the liquor conveyed by him was a lawful purchase, is not prejudicial where the evidence of neither party m any manner tends to show that the liquor conveyed was a lawful purchase.
    9. SAME — Evidence—Competency. In a, prosecution for the unlawful conveyance of. liquor where the proof shows that the defendant was found with the liquor in a certain building and that he did not procure it there, evidence that a few days before the defendant obtained a quantity of liquor of the same kind and brand, and took the same to .his home, is1 competent as a circumstance tending to show a nro'bable connection between the liquor with which he was found and that which he had carried to his home, the probability of the conveyance, and the probable place from which he conveyed it.
    (Syllabus by the Court.)

      Appeal from Canadian County Court; H. L. Fogg, Judge.

    John Schave was convicted-of conveying liquor, and he appeals.
    Affirmed.

      J. M. Frame and Roberson & Roberson, for plaintiff in error.

      Fred S. Caldwell, for the State.
   RICHARDSON, Judge.

The first and second assignments of error are: “That the court erred in overruling plaintiff in error’s demurrer to the information herein,” and “that the court erred in overruling plaintiff in error’s objection to the introduction of any evidence under the information.” The ease-made nowhere shows or indicates that a demurrer to the information was ever filed, or that any such objection was ever made to the introduction of evidence; and for that reason neither of these assignments can be considered.

The amended information charged that plaintiff in error did “wilfully and unlawfully carry liquor, to wit, whisky, from one place in the state, to affiant unknown, to another place therein, to wit, the place known as the Fortner Confectionery on Russell Street between Biekfort Avenue and Rock Island Avenue in the City of El Reno, the same not being a lawful purchase as provided by law.” After verdict plaintiff in error filed a motion in arrest of judgment, on the ground that the information did not state facts sufficient to constitute an offense in that it did not .allege the place from which the liquor was conveyed; and he assigns the action of the court in overruling the motion as error. The court committed no error in this respect. If the place from which the liquor was conveyed was unknown, it was proper to allege that fact; and an information containing such an allegation is not defective because it does not state the place from which the conveyance Avas made.

It is next contended that the verdict was not supported by the evidence. The eAÚdence on the part of the state was to the effect that a deputy sheriff went into a confectionery on the occasion in question; that plaintiff in error was in the building, and when he saw the deputy, he immediately went into a back room. The deputy followed him and saw him put a gunny sack in a box as if to. hide it. The deputy took the sack and found that it contained a bottle of whisky. The proprietress then came into the room, and seeing the whisky said to plaintiff in error1: “What did you bring that around here for? I told you not to. I told you to keep that away from here.” And then she said to the officer in plaintiff in error’s presence: “That is his. We have nothing to do with it.” To all this plaintiff in error said nothing. The proprietress testified that plaintiff in error did not get the whisky in her place of business. Plaintiff in error did not take the stand himself and introduced no witness in his behalf. The evidence was sufficient to warrant the jury in finding that plaintiff in error conveyed the liquor into the building where he was found with it.

The following instruction is complained of:

No. 2. '“If you find from the evidence beyond a reasonable doubt, that the defendant carried liquor as charged in the complaint herein, you should find the defendant guilty, unless you should find from the evidence that the defendant has shown by a preponderance of the evidence that the carrying was not unlawful because coming within the terms of a condition or proviso in the statute, or because such carrying was done for specially permitted purposes, or under other circumstances which would relieve him of criminal responsibility.”

Without doubt this instruction is an erroneous statement of the law; but when considered in connection with the record in this case, we are unable to perceive how it was prejudicial. _ The statute makes it an offense for any person to ship or in any way convey any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor, from one place within this state to another place therein, except the conveyance of a lawful purchase as provided for in the act. (Section 4180, Snyder’s Comp. L. Okla.) In a prosecution under this statute, it is not necessary that the indictment or information negative the exception contained in the statute. (Smythe v. State, 2 Okla. Cr. 286, 101 Pac. 611; De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538; Beasley v. State, 3 Okla. Cr. 699, 109 Pac 24-0.) Nor is it necessary that the state prove in the first instance that the liquor conveyed was not a lawful purchase. That it was a lawful purchase is a matter of defense, to be raised by the evidence in behalf of the accused. (De Graff v. State, 2 Okla. Cr. 519, 544, 103 Pac. 538; United States v. Cook, 84 U. S. 168, 21 L. Ed. 538.) When the prosecution has proved beyond a reasonable doubt that the defendant conveyed the designated liquor from one place in the state to another place therein, without showing facts sufficient to raise a reasonable doubt as to whether such liquor came within the exception contained in the act, then the burden is on the defendant, if he contends that the liquor was a lawful purchase, to produce evidence sufficient at least to raise a reasonable doubt in the jury’s mind upon that question. If he does that, then to warrant a conviction the state must produce evidence sufficient to overcome such reasonable doubt thus engendered, proving beyond a reasonable doubt that the liquor conveyed was not within the exception contended for. And if there is any evidence adduced by either side tending to show that the liquor conveyed came within the exception, then the court should instruct the jury that if, upon a consideration of.all the evidence in the case,'they entertain a reasonable doubt as to whether the liquor alleged to have been conveyed was obtained by the defendant under circumstances constituting it a lawful purchase, specifying such as the evidence may tend to show, they should acquit. At no stage of the proceeding is it required that facts constituting the liquor a lawful purchase be shown by a preponderance of the evidence. If a reasonable doubt as to the existence of such facts be engendered by the evidence on either side, and remains after an honest consideration of all the evidence in the case, the defendant is entitled to an acquittal. But if the state proves beyond a reasonable doubt that the defendant conveyed the liquor in question from one place within the state to another place therein, and no evidence is adduced by. either party tending to show that the liquor was a lawful purchase, then the presumption that it was not such becomes conclusive; and in such case the court should tell the jury that if they find from the evidence beyond a reasonable doubt that the defendant conveyed the liquor from one place within the ptate to another place therein, then they should convict, for there being no evidence tending to show that the same was a lawful purchase, the law conclusively presumes that it was not. Now in this case the evidence on the part of the state did not tend in any degree to show that the liquor in question was a lawful purchase, and plaintiff in error introduced no witness and did not testify himself. Therefore when the court came to instruct the jury the state of the case was such that the law conclusively presumed that the liquor which plaintiff in error conveyed, if he conveyed any, was not a lawful purchase. Plaintiff in error therefore was not and could not have been prejudiced by the court's instruction to the effect that the burden was on him to show by a preponderance of the evidence that the liquor was a lawful purchase. He was required to produce evidence sufficient to raise a reasonable doubt upon that question, and he produced none. Where the conditions are such that the law requires of a defendant a certain amount of evidence, and he produces none, he is not prejudiced by an erroneous instruction placing the requirement higher than the law places it.

During the trial certain evidence was offered by the state and excluded by the court as follows:

“Q. You may state, Mr. Haekett, if you were in charge of the jail just prior to this time when some whisky was taken under search warrant from Mr. Schave, from Mr. Schave’s residence out on his farm. By Frame: Objected to as incompetent, irrelevant and immaterial, neither proving or tending to prove any of the allegations in this information. By the Court: What is the purpose of that question? By Clark: The purpose is to show that the whisky taken from the residence of this man is identically the same whisky as this that he had at Mr. Fortner’s in this case, same brand. By the Court: Sustained. Exceptions. By Clark: State now offers to show by this witness that just a few days prior to the taking of this whisky from Mr. Schave, that the defendant had obtained from the Bock Island & Pacific depot in El Beño, 16 cases of whisky, of this same brand, and in this same sized bottles, made at the same time and at the same place, and that he took, all of the sixteen cases to his residence on his farm, about four miles southeast of this city. By Frame: Objected to as incompetent, irrelevant, and immaterial, neither proving or tending to prove the specific charge of conveying liquor at the time alleged in the information. By the Court: Offer rejected.”

Counsel for the state requests us to pass upon the admissibility of the offered evidence. Considering the nature of the charge and the status of the case at the time this proof was offered, we think that the same was competent. If the plaintiff in error had just obtained the whisky, which he was alleged to have' conveyed, in the building in which he was found with it, then he was not guilty of conveying liquor from one place in the state to another. De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538. But on the other hand, if he brought this liquor from his residence out on his farm into the building in town where he had it, then he was guilty of conveying; and proof that he had kept-whisky of this same brand at his home, that only a few days before he had obtained sixteen cases of whisky from the depot in El Beno of the same brand and in the same sized bottles, and that he had carried all of the sixteen cases to his farm, would have been a circumstance tending to show a probable connection between the whisky with which he was found and the whisky which he had carried to his home, and the possibility and probability of the conveyance, as well as the probable place from which he conveyed it. Com. v. Locke, 114 Mass. 288; Com. v. McConnell, 11 Gray, 204; Com. v. Commesky, 13 Allen, 585; Black on Intoxicating Liquors, sec. 530. Let the judgment be affirmed.

FTJBMAN, PRESIDING Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    ETHEL GRAY v. STATE.
    No. A-206.
    Opinion Filed November 23, 1910.
    1. PERJURY — Information—Negativing Truth of Statements. An information for perjury which alleges that the defendant wil-fully, corruptly and falsely testified to a certain stated fact; that said statement was then and there not true, but false; and was not then and there believed by the defendant to be true, but was by the defendant believed to be false, sufficiently negatives the truth of the alleged false testimony, without setting out the true facts by way of antithesis.
    2. SAME — Alleging Jurisdiction of Court. Under sec. 6711, Snyder’s Comp. L. Okla., an allegation in an information ' for perjury that the clerk of the court before whom the false oath was alleged to have been taken had authority to administer it, is a sufficient averment that the court had jurisdiction of the cause in which the perjury was charged to have been committed.
    3. PERJURY — Evidence—Result of Trial in Question. In a prosecution for perjury alleged to have been committed in the trial of a certain criminal case in testifying in behalf of the defendant therein, it is ordinarily not competent for the state to prove that such trial resulted in a conviction.
    4. SAME — Instructions as to Purpose of Such Evidence. Where, in a prosecution for perjury charged to have been committed in testifying in behalf of an accused in the trial of a certain criminal case, the state proves without objection that such trial resulted in a conviction, it is proper for the court to instruct the jury that such evidence may be considered by them only as tending to show that the alleged perjured testimony was given in a judicial proceeding, as alleged, and not as tending to show the falsity of such testimony. But it is not error for the court to omit to give such instruction if no request therefor is made.
    5. INSTRUCTIONS — Mere Verbal Inaccuracies. An instruction must be considered as a whole; and when so considered, if it properly and intelligibly states the law, mere verbal inaccuracies will not vitiate it.
    6. WITNESSES — Impeachment—Cross-Examination. In a prosecution for perjury alleged to have been committed in the trial of a certain criminal case, it is not error for the state to ask defendant’s witness if he, too, is not under indictment for perjury committed in the trial of that same criminal case.
    7. PERJURY — Instructions—Refusal. In a prosecution for perjury, where the whole of the defendant’s testimony, in giving which the perjury is charged to have been committed, is read to the jury by the court reporter who took it in the former trial, and where the defendant in the perjury trial does not take the stand in his own behalf, the court should not, at the defendant’s request, instruct the jury that they shall consider his former testimony as read to them as his testimony in the instant case.
    (Syllabus by the Court.)

      Appeal from District Court, Muslco.gee CountyJohn H. King, Judge.

    Ethel Gray was convicted of perjury, and she appeals.
    Affirmed.

      J. E. Wyand, De Roos Bailey and Thos. Ma/rcum, for plaintiff in error.
    On sufficiency of information: 2 Bishop, Crim. Proc. secs. 910a, 918; Rofvrer v. State, 13 Tex. App. 167; QabrielsTcy v. State, 13 Tex. App, 437; Rich v. U. S., 1 Okla. 359; Z7. S. v. Hess, 124 IJ. S. 483; Petiibone v. U. S., 148 U. S. 197; Anderson v. State, 18 Tex. App. 17, On necessity of instruction limiting-effect of evidence: Washington v. State, -23 Tex. Cr. App. 338; Littlefield' v. State, 24'Tex. Cr. App, 169; Davidson v. State, 22 Tex. Cr. App. 382. On question of proper cross-examination: Slater v. U. S., 1 Okla. Cr. 275.

      Chas. West, Atty. Gen., and Smith C. Malson, Asst. Atty. Gen., for the State.
    On sufficiency of information: People v. Ah Bean, 77 Cal. 12; People v. De Carlo, 124 Cal. 452; People v. Ennis, 137 Cal. 263.
   RICHARDSON, Judge.

Plaintiff in error demurred to the information in this case on the ground that the facts alleged were insufficient to constitute an offense. The deficiencies complained of were two: First, that the information did not properly negative the truth .of the alleged false testimony; and second, that it did not allege that the court before which the perjury was charged to have been committed had .jurisdiction of the cause in which the alleged false testimony was given, nor did it state facts showing jurisdiction in such court. The court overruled the demurrer, and its action in so doing is assigned as error.

The information, omitting formal parts, was as follows:

“Now comes W. J. Crump, the .duly qualified and acting county attorney, in and for Muskogee County, State of Oklahoma, and gives the District Court of Muskogee County, State of Oklahoma, to know and be informed that Ethel Gray did, in Muskogee County, and in the State of Oklahoma, on or about the 23rd day of October, in the year of our Lord one thousand nine hundred and eight and anterior to the presentment hereof, commit the crime of perjury (for which she has had a preliminary examination before an examining magistrate in said county and state) in the manner and form as follows, to wit: That the said Ethel Gray, in the County of Muskogee, State of Oklahoma, on the 23rd day of October, 1908, in the District Court for the Third Judicial District, sitting at Muskogee, the Hon. John H. King, the regularly elected, qualified and acting judge for said district, then and there presiding and acting, wherein the case of the State of Oklahoma v. John Cieloha, charged with murder, being No. 129 on said court docket, was then and there being tried and heard before the court aforesaid, and the said Ethel Gray was then and there produced as a witness in said case on behalf of the defense, and was then and there duly sworn to testify truly in said case by E. A. Coker, the duly acting and qualified deputy clerk of the district court aforesaid, who was then and there duly authorized and empowered to administer oaths in such cases, and to administer said oath in that case, in manner and form as was then and there done as aforesaid. That then and there it became a material question in said case whether John Cieloha, the defendant in said case, and Ethel Gray, the witness in said case, were in Muskogee at a certain carnival show on the evening of June 11th, 1908; that then and there being a witness as aforesaid, the said Ethel Gray did knowingly, wil-fully, corruptly, feloniously and falsely testify, depose and say in substance and effect that she and the said defendant, John Cieloha, were in Muskogee together on the evening of June 11th, 1908, at the carnival show, in all which particulars the testimony, statements and declarations so testified and deposed unto by the said Ethel Gray were then and there material matter in and to said case of the State of Oklahoma v. John Cieloha, charged with murder, as aforesaid, instituted, begun and heard, as aforesaid, and were then and there not true, but false, and were then and there by said Ethel Gray not believed to be true, but were then and there by said Ethel Gray believed to be false, contrary to the. form of the statutes in such cases made and provided and against the peace and dignity of the state.”

The first contention is that, in addition to the averments contained in the information as to the falser of the testimony upon which the perjury was predicated, it was also necessary to negative the truth of such testimony by setting out the true facts by way of antithesis; in other words, that the information should have further negatived the truth of plaintiff in error’s testimony wherein she swore that she and John Cieloha were in Muskogee together on the evening of June 11, 1908, at a carnival show, by charging that, “Whereas, in truth and in fact, the said Ethel Gray and the said John Cieloha were not in Muskogee together on the evening of June 11, 1908, at a carnival show.” Such is the usual and better way of assigning the perjury, and some text-writers and many adjudged cases hold that such an allegation or its substantial equivalent is indispensable. While we commend the form contended for, and think it better pleading than that used in this case, yet under our statutory provisions we do not regard it as absolutely essential. Section 6704 of Snyder’s Comp. Laws provides that the indictment is sufficient if “the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.” This information alleges explicitly that plaintiff in error “knowingly, wilfully, corruptly, feloniously and falsely” swore that she and John Cieloha “were in Muskogee together on the evening of June 11, 1908, at a carnival show, in all which particulars the testimony, statements and declarations so. testified and deposed unto by the said Ethel Gray * * * were then and there not true, but false, and were then and there by said Ethel Gray not believed to be true, but were then and there by said Ethel Gray believed to be false.” And we think that any person of common understanding would know from this allegation that it was intended thereby to charge that in truth and in fact Ethel Gray and John Cieloha were not in Muskogee together at a carnival show on the evening of June 11, 1908. The information alleged that said statement was false in every particular, and that it was corruptly and falsely made, and the addition of the clause suggested would have constituted in effect a mere repetition of that averment, a thing declared by the statute to be unnecessary. Sec. 6705 of* Snyder’s Comp. Laws also provides that “no indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” And we think that the defect complained of, if it be a defect, under the circumstances of this case, where the perjury was assigned upon only one statement and that short and plain, was one of form merely; and this record shows affirmatively that it in no manner tended to the prejudice of the substantial rights of the accused on the merits. She knew exactly what was intended to be charged, and the evidence introduced in her behalf went squarely to that issue.

Also sec. 2176 of Snyder’s Comp. Laws defines perjury as follows :

“Every person who having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, wilfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.”

And in People v. Ennis, 137 Cal. 263, 70 Pac. 84, the Supreme Court of California, construing this same statute in passing upon this same question, said:

“The averment that the defendant did ‘wilfully, unlawfully, and contrary to said oath’ make certain specified statements, and that ‘said statements so made as aforesaid were then and there, and are, false and untrue, and were at the time of the making thereof by the said defendant, Arthur Ennis, known by the said defendant to be false and untrue,’ sufficiently shows that the defendant testified falsely.”

In Lawson v. State, 71 Tenn. (3 Lea) 309, the indictment alleged that “Edward Lawson feloniously, wilfully, deliberately, absolutely and corruptly swore then and there before the Grand Jury aforesaid, that, he, the said Edward Lawson, had bought one pint of whisky from one Fanny Chambers, and that he, the said Edward Lawson, had paid her, the said Fanny Chambers, fifty cents for said pint of whisky, and which said swearing was material to the point under investigation by the said Grand Jury, and was knowingly, maliciously, feloniously, wilfully, deliberately, absolutely and corruptly false, and the said Edward Lawson then and there well knew the same to be false in point of fact when he deposed it.” On appeal the sole point relied upon for a reversal was that the indictment did not properly or sufficiently negative the truth of the testimony upon which the perjury was assigned. To this the Supreme Court of Tennessee, in holding the indictment sufficient, said:

“At the common law, the general averment that defendant swore falsely, would not be sufficient, it being deemed essential that the words of the false swearing should be expressly and in terms contradicted. 3 Am. Cr. L., sec. 259. But we have statutory enactments intended to simplify and abbreviate the prolixity of the common law form of indictments.
“Experience has shown how difficult it is, in the hurry of the duties of his office, for the attorney general to avoid mistakes, especially in drawing an indictment for perjury in the common law form. Our Code provides, sec. 5114, .as to all indictments, that the facts constituting an offense, shall be charged in concise language, without prolixity or repetition.
“And as to perjury, it specially provides that it is sufficient to give the substance of the controversy or matter in respect to which the offense was committed and in what court or before whom the false oath was taken; and. that the court or person before whom it was taken had authority to administer it, 'with proper allegations of the falsity of the matter on which the perjury is assigned.’ Section 5130.
“This, we think, has been all done fin ordinary and concise language,’ and as explicitly and intelligibly expresses a charge of perjury as the most prolix and technical common law indictment could do.
“And while we do not recommend a hasty departure from long used and approved forms, our experience satisfies us that cautious and well-considered changes which simplify, and at the same time preserve the substance of such forms, are subservient to the ends of justice. We think, therefore, the .indictment in this case is a substantially good one, containing as it does proper and distinct allegations of the falsity of the matter which is set out as constituting the false swearing/’

In Johnson v. State, 76 Ga. 790, the court held that, “Where the indictment alleged that ‘by her own act and consent, and of her most wicked and corrupt mind, in manner and form aforesaid, she wilfully, knowingly, absolutely and falsely did~commit wilful perjury/ this was a sufficient allegation that her testimony was false, without setting out in opposition to it what -was the truth.”

Again in People v. Williams, 50 Hun. (N. Y.) 601, 2 N. Y. Suppl. 382, the court said:

“Section 291 of the Code of Criminal Procedure provides that an indictment for perjury shall contain ‘proper allegations of the falsity of the matter on which the perjury is assigned/ The indictment in this case contains the allegation that the defendant ‘wickedly, knowingly, designedly, corruptly, falsely, and felon-iously’ testified to certain matters specified, and it does not otherwise allege the falsity of the testimony given. For that reason the indictment was held insufficient. Section 684 of the same statute provides that no departure from the form or mode prescribed by the Code in respect to any pleading renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a substantial right. The two sections cited must be read together, as bearing upon the sufficiency of the indictment in question.
“And, first, is not the allegation of the indictment a substantial compliance with the requirement of section 291? Is it not an allegation of the falsity of the matter upon which’ perjury is assigned? It charges that the matter was falsely testified. Is not that equivalent to the charge that the matter testified was false? But, second, if it be held that the allegation is not in full compliance with the requirement of section 291, is the departure anything more than a matter of form? And, if n,ot, has it prejudiced the defendant, or does it tend to her prejudice, in respect to a substantial right?
“We think the two sections, read together, uphold the form of pleading adopted by the district attorney. The allegation that certain testimony, specified, was falsely given, differs only in form from the allegation that the testimony given was false. A man cannot falsely testify to that which is true. Even though he intended to falsify, if what he testifies to is in fact true, he does not testify falsely. In the case of the People v. Clements, 107 N. Y. 205, 13 N. E. Rep. 782, the court of appeals held that an allegation that the defendant well knew the matter sworn to be false was a sufficient allegation of its falsity; and the court (by Kapallo, J.) says: “The objection to this indictment, if there be any, was that the falsity of the statement sworn to was only argumentatively alleged. But that it was fairly.and even necessarily to be implied from the facts stated is very clear. The objection goes only to the form of the allegation/ And the indictment in that case was justified under the provisions of section 285 of the same statute, which declares that no indictment is insufficient by reason of imperfections in matters of form which does not tend to the prejudice of the substantial rights of the defendant on the merits. The provisions of section 684, supra, seem to be even more directly applicable to those cases than those of section 285. The latter section is general in its application, and is intended to cure defects in form under the general rules of criminal pleading. Section 684 more specificalty cures deviations from the particular forms prescribed by the statute itself, of which the section forms a part, including the special requirements of section 291 in respect to indictments for perjury. The defect in this indictment, if any, being merely in the form of the allegation of the falsity of the testimony specified, and such defect of form not being such as to prejudice or tend to prejudice the defendant in respect to a substantial right, we must hold it to be immaterial, and the indictment good. The judgment sustaining the demurrer must be reversed, the demurrer overruled, and the case remitted to the court of sessions to proceed upon the indictment.”

See, also, People v. Clements, 107 N. Y. 205. We are in accord with the decisions quoted, and therefore hold that the information sufficiently averred the falsity of the testimony alleged to have been given.

In support of the contention that the information failed to aver that the court had jurisdiction of the proceeding in which it is alleged the perjury was committed, it is urged that the information contained no direct allegation that the court had jurisdiction, and no averment that the cause then in hearing was being prosecuted by an indictment or information; one or the other of which was necessary to.give the court jurisdiction of the cause. It is true that the court must have had jurisdiction of the cause in hearing before perjury could have been committed therein, and that the fact of such jurisdiction must be averred in some proper manner. Under the common law it was necessary that the facts essential to the jurisdiction of the court be pleaded, and that with considerable particularity; but under, our statute, and in the great majority of the states as well as in England now, that is no longer necessary, it being sufficient if the accusation contains the allegation that the court'then and there had jurisdiction of said cause, or any other allegation substantially its equivalent in effect and meaning. We, and nearly all of the other states, have a statute (sec. 6711, Snyder’s Comp. L. Okla.) prescribing the requisites of an indictment for perjury, which reads as follows:

“In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court or before whom the'oath alleged to be false was taken; and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the' perjury is assigned; but the indictment need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission’ or authority of the court or person before whom the perjury was committed.” ,

This statute has been construed by the highest courts of many states, and so far as we are able to find, it has been uniformly and we think correctly held that under the statute an allegation that the court or person before whom the false oath was charged to have been taken had' authority to administer it, is an allegation, and a sufficient one, that the court or tribunal then and there had jurisdiction of the matter pending, and is equivalent to an averment of every fact essential to the court’s jurisdiction. Thus it is said in Eighmy v. People, 79 N. Y. 546:

“It is not necessary, even in an indictment for perjury committed before an inferior court, to set out all the facts to show authority of such court of limited jurisdiction, and it is sufficient to aver that it had sufficient and competent authority to administer the oath; (Reg. v. Lawler, 6 Cox Cr. Cas., 187; Lavey v. The Queen, 5 Id., 269.) Much less is so great a degree of exactness required where the averment relates to a court of general jurisdiction.”

Again in State v. Douette, 31 Wash. 6, 71 Pac. 556, it was said:

“It may be admitted that, under the technical rules of pleading at common law, this information would be defective and insufficient. But the common-law forms of pleading have been changed and simplified by statute in this state, and it is not necessary here to specifically allege that the court had jurisdiction of the cause of action in which the alleged perjury was committed. Commonwealth v. Knight, 12 Mass. 274 (7 Am. Dec. 72); State v. Newton, 1 G. Greene, 160 (48 Am. Dec. 367.)
‘A direct allegation of authority to administer the oath is sufficient to show the jurisdiction of the court or officer/ 16 Enc. PI. & Pr. 326.
“It is provided in paragraph 6857 of Bal. Code that:
“ ‘In an indictment or information for perjury, or subornation of perjury,, it is sufficient to set forth the substance of the controversy or matter in respect to which the crime was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment or information need not set forth the pleadings, record or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed/
“It is apparent that under the provisions of this section of the statute it is sufficient, so far as the question of jurisdiction is concerned, to set forth in the information in what court or before whom the alleged false oath was taken, and that the court or person before whom it was taken had authority to administer it. And an examination of this informatiofi will disclose that it contains all the averments necessary under the statute. It alleges, in substance, that upon the trial by a jury of the case of State y. Vance for murder in the first degree, in the superior court of Pierce county, the appellant was then and there duly sworn as a witness by Samuel Walker, who was then and there deputy clerk of said court, and had competent and sufficient power and authority to administer said oath in that behalf. The information does not expressly allege that the superior court of Pierce county had jurisdiction of the case in which the alleged perjury was committed, but that the court had in fact jurisdiction of the Vance case, is, we think, necessarily implied from the averments that it was a case of felony, and was tried in that court. Our superior courts are vested by the Constitution with jurisdiction fin all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for by law.’ Constitution, art. 4, par. 6. The averment in the information that the oath alleged to be false was taken in a certain superior court shows prima facie that the court had jurisdiction of the proceedings in which the oath was administered. The question here under consideration was presented to and determined by the Supreme Court of Colorado, in Thompson v. People, 26 Colo. 496 (59 Pac. 52), under a statute similar in substance to ours. And in. that case the court, after quoting the statute, said:
“ Tt will be observed that by the provisions of this section it is sufficient to aver in the information that the court or authority before which the oath was taken had full power to administer the same. This section is substantially the same as the statute 23, George II. chap. 11. Under that statute the English decisions are that it is only necessary to state the substance of the offense, the name of the court, and aver the court’s authority to administer the oath. To the same effect are the decisions in this country, under similar statutes. * * * While it is true that the information docs not contain an express averment that the district court of El Paso county had jurisdiction of the case in which the alleged false testimony was given, it does aver that upon the trial of a certain criminal case, of which that court prima facie had cognizance, the plaintiff in error was duly sworn as a witness by the deputy clerk, and that he had sufficient authority to administer the oath. We think, therefore, that in this particular the information not only conforms to the requirements of the statutes, but by necessary implication states that the proceeding in which the oath was administered was one over which the district court had jurisdiction. Nor is the information defective because of the failure to set forth how or in what way the evidence alleged to be false was material to-the issue. It is well settled that it is sufficient if its materiality appears either from the facts alleged, or by direct averment.’
“The objection that it does not appear from any averment in the information that the superior court of Pierce county had jurisdiction of the case of State v. Yance is not tenable, and the court below committed no error either in denying the motion to set aside the information or in overruling the demurrer to the information interposed by the appellant.”

Also, in Fitch v. Com., 92 Va. 824, 24 S. E. 272, the court held likewise, saying:

“The effect of‘this statute was to dispense with the necessity of setting out the record or the facts to show the jurisdiction of the tribunal, or of alleging in terms that it had jurisdiction over the cause or proceeding in which the false testimony was given. It was thereafter held by the.courts of England to be sufficient to set forth the substance of the offense, and the name of the court-before which the oath was taken, to aver that it had competent authority to administer the same, and to falsify by proper aver-ments the defendant’s assertions. 3 Russell on Crimes, 59; 2 Chitty on Cr. Law, 287; Archbold’s Cr. Pl. and Pr. 1719; Lavey v. The Queen, 79 E. C. L. 496 ; and 2 Bishop on Cr. Pr., sec. 914. Many of the states have enacted the same or a like statute, and the same effect has been given to it by their courts as was done by the courts of England. 2 Bish. Cr. Pr., sec. 848. See. also. The People v. Phelps, 5 Wend. 9; Campbell v. People, 8 Wend. 636; Commonwealth v. Knight, 12 Mass. 274; State v. Ledford, 6 Ired. 5; Staste v. Davis, 69 N. C. 495; and State v. Stillman, 7 Colo. 345. * * * It follows, therefore, that it is now unnecessary in this state to set forth the record of the case upon the trial whereof the false testimony was given, or to aver the jurisdiction of the tribunal over it; but only necessary, instead thereof, to state the substance of the offense charged against the accused, in what court or by whom the oath was administered which is charged to have been falsely taken, and to aver that such court or person ■had competent authority to administer the same, together with proper averments to falsify the matter wherein the perjury is assigned.”

To the same effect is Halleck v. State, 11 Ohio, 400, in 'which the court said:

“The objection to the indictment is, that it does not show that Crosby, before whom the perjury is alleged to have been committed,-had any jurisdiction to administer the oath, inasmuch as it does not set forth that a complaint, in writing, on oath or affirmation, was made before him. The indictment charges, that the plaintiff’s offense was committdd before David Crosby, a justice of the peace for Saybrook, in the county of Ashtabula; and, it avers that said Crosby had full power and authority to administer the oath; that it was taken on the hearing of a complaint against said Southwick, for perjury, which complaint had been made in due form of law, and was then on hearing before said Crosby, as such justice. It may be admitted that this general form of allegation would be bad, by the rules of common law, without it necessarily following that the court of common pleas erred in refusing to arrest judgment in this case, for, by recurring to section 11 of the act providing for the punishment of crimes, Swan’s Stat. 231, it will be seen that, in this state, -the common law has been modified by express legislation. Section 11 provides That, in an indictment for perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and before what court or authority the oath or affirmation was taken, averring such court or authority to have had full power to administer the same without setting forth any part of any record or proceeding, in law or equity,’ etc.
“A careful comparison of this indictment with the section of this statute (parts of which I have given) will convince the mind that it contains all the averments which our statute requires, and that the court of common pleas could not have pronounced it defective without disregarding the law, and requiring of the prosecutor something beyond what it had made sufficient.”

In People v. Phelps, 5 Wend. 10, it was held, that “In an indictment for perjury by an insolvent debtor, in the oath taken by him on presenting his petition and the inventory of his estate required by the statute, it is not necessary to set forth the facts which give jurisdiction to the officer, as is done in pleading a discharge in a civil suit; it is enough to aver that the officer had lawful and competent authority to administer the oath.”

And again in Kizer v. People, 211 Ill. 407, 71 N. E. 1035, the court said:

' “An averment in an indictment for perjury that the accused was duly sworn before the clerk of the court in which the trial was had and that the clerk ‘had full power and authority to administer the oath/ is, in legal effect, an averment that the court had jurisdiction of the subject matter.”

To the same effect, also, are Maynard v. People, 135 Ill. 416, 25 N. E. 740; Thompson v. People, 26 Colo. 496, 59 Pac. 51; People v. DeCarlo, 124 Cal. 462, 57 Pac. 383; State v. Newton (Iowa) 1 Greene, 160, 48 Am. Dec. 367; Com. v. Knight, 12 Mass. 273, 7 Am. Dec. 72; State v. Keel, 54 Mo. 182; Burns v. People, 59 Barb. 531; State v. Green, 100 N. C. 419, 5 S. E. 383; State v. Roberson, 98 N. C. 751, 4 S. E. 511; People v. Greenwell, 5 Utah, 112, 13 Pac. 89; State v. Belew, 79 Mo. 584.

The information in question charged that plaintiff in error “was then and.there duly sworn to testify truly in said cause by E. A. Coker, the duly acting and qualified deputy clerk of the district court aforesaid, who was then and there duly authorized1 and empowered to administer oaths in such cases, and to administer said oath in that case, in manner and form as was then and' there done as aforesaid.” And under the statute and its uniform construction this was a sufficient allegation of the court’s jurisdiction. The demurrer was therefore properly overruled.

The next assignment is that “the court erred in not instructing the jury that the evidence introduced by the state showing the trial and conviction of John C'ieloha was introduced only for the purpose of showing' that the evidence was given in a judicial proceeding as alleged in the" information, and limiting its; effect to such purpose only.”

The only evidence in the record tending to show the conviction of John Cieloha is to be found in the cross-examination of W. H. Hohimar, one of the witnesses for the defendant, wherein the county attorney asked the question, “You know that they hhve all been convicted?” To which the witness answered, “Yes, sir.” No objection, was made to this question or answer, nor was any request made to the trial court for an instruction limiting the effect of this testimony. The question and answer were both incompetent; but as plaintiff in error did not see fit to object to the same, and inasmuch as she requested of the court no instruction limiting the purpose for which the testimony could be considered, she is not now in a position to complain that the court did not give such instruction. Such an instruction, though proper, would have been merely adjective and collateral to the main issue, and it is not one of that character which the court was bound to give without a request therefor.

It is next urged that the court erred in instructing the jury as follows:

“The testimony complained of as given by the defendant must not only have been false and material to the issue, but must have been wilfully and corruptly false. It was wilfully false if the defendant and John Cieloha were not present in Muskogee at the carnival show on the evening of June 11, 1908, yet she testified that they were present, she knowingly and intentionally testified to what was untrue.”

It is contended that this instruction was misleading and prejudicial to the defendant, in that it was subject to be interpreted as stating as a fact that plaintiff in error testified that she and John Cieloha were present in Muskogee on the occasion in question, and that she thereby knowingly and intentionally testified to what was untrue. The instruction was not happily framed, but we are satisfied that the jury could not have misinterpreted it; we think it apparent to anyone that the court meant to tell the juiy that the testimony was wilfully false, if the defendant and John Cieloha were not present in Muskogee at the carnival show on the evening of June 11, 1908,.and if she nevertheless testified that they were present, and in so doing knowingly and intentionally testified to what was untrue. This further appears from a consideration of the whole instruction, which proceeds: “You should ask this, was the testimony false, and did Ethel Gray know that it was false? Again, the law says it must have been corruptly false. If a person in order to help a friend or harm an enemy, testifies falsely for the purpose of misleading the court or the jury, you may well believe and find that her purpose was a corrupt one. If, however, the false testimony is given by mistake, or by inadvertence, and with no purpose of wrongly influencing a court or jury, you cannot convict.” The instruction must be considered as a whole; and when so considered, it properly and intelligibly states the law, and mere verbal inaccuracies will not vitiate it.

Next it is contended that the court erred in permitting the prosecution to ask certain of plaintiff in error’s witnesses if a charge of perjury was not then pending against them in that court. It was held in Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, that it is error to ask a witness if he has been indicted, arrested or imprisoned before conviction for any offense. In this ease, however, it appears from the answers to the questions objected to that these particular witnesses at the time of their testifying stood charged by. information with perjury alleged to have been committed in the trial of this same case against John Cieloha; and we think that those circumstances would constitute an exception to the rule, and that the questions and answers were competent for the purpose of permitting the jury to judge to what extent, if any, these witnesses were interested in the result of this particular case. If two persons are indicted for the same offense, or for different offenses, and it should appear from the evidence that from the acquittal or conviction of one even a slight inference of the guilt or innocence of the other could be-drawn, or that the fate of one could have any probable bearing, however remote, upon that of the other, and one should testify either for or against the other, under such circumstances it would not be error for either party to ask the witness and require him to answer whether he was then under indictment for that same or such different offense; and we think that rule applicable in the present ease.

Plaintiff in error did not testify in this case; and after each side had rested, and after the court had instructed the jury, she made the following request:

“By Mr. Marcum: The defendant requests that the testimony of defendant in her former trial stand as her testimony now. The testimony as read by the stenographer. Mr. Crum: The state objects. By the Court: The objection will be sustained. Mr. Marcum: The defendant excepts. By the Court: Let the record show that the court also offers to allow the defendant’s attorney to put the defendant on the stand at this time.”

There was no error in the court’s refusing to tell the jury that the testimony of Ethel Gray given in the trial of the case of John Cieloha, which had been read by the stenographer, should be considered by them as her testimony in this case. The request was a verjr peculiar one, and is not supported by either reason or authority. If plaintiff in error desired the court and jury to have tlie benefit of her testimony in this case, it was her duty to take the stand and testify under oath. The court did instruct the jury that the defendant was presumed to be innocent, that this presumption abided with her until it was overcome by competent evidence which established her guilt beyond a reasonable doubt, and that the burden of proof was upon the prosecution to establish each and every material allegation in the information by competent evidence beyond a reasonable doubt before a verdict of guilty was warranted; and from this charge the jury were bound to presume, until the evidence established the contrary beyond a reasonable doubt, that the testimony given by Ethel Gray in the former trial ivas true. But that presumption was one of law only, and if plaintiff in error desired it reinforced by her personal testimony in this trial, it was necessary that she take the stand and testify.

The judgment of the lower court will be affirmed.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    WALTER STEEN and AL CARR v. STATE.
    No. A-45.
    Opinion Filed November 23, 1910.
    1. TRIAL — Severance—Application—Appeal—Record. Under section 6830 of Snyder’s Comp. Laws, where two ór more persons are jointly charged with a misdemeanor, the granting or refusal of a severance rests in the discretion of the court. The exercise of such discretion is reviewable; but to be reviewed, the case-made or bill of exceptions must show an application for a severance setting out sufficient grounds therefor, and supported by affidavits or oral testimony; and the application must be made before the empaneling of the jury is begun.
    2. TRIAL — Misnumbering Cases — Correction.. Where two informa-tions filed against the same defendant charging him with two separate violations of the. same law, are erroneously given the same number and are unwittingly treated as one case until after defendant has announced ready for trial and the trial jury is empaneled and sworn, it is not error for the court then to permit the informations to be renumbered, to require defendant then and there to plead to each- information separately, and to proceed to trial before said jury, giving the defendant the right to elect upon which case he will then be tried.
    3. CONTINUANCE — Surprise—Renumbering Cases. Two informa-tions against the same defendant were erroneously given the same number and docketed as one case; the defendant waived arraignment, pleaded not guilty, and announced ready for trial. The court discovering the error, ordered the informations renumbered, the cases separately docketed, 'required the defendant to plead to each information, and gave the defendant the right to elect upon which information he should then be tried. The defendant refused to elect and moved for a continuance on the ground of surprise. Held, that a continuance was properly de- ” nied, and that the defendant having refused to elect, the court could order the trial to proceed on either information.
    4. WITNESSES — Endorsement on Information — Necessity. Under section 6644 of Snyder’s Comp. Laws, it is error for the court to permit a witness to give testimony in chief in beha-lf of the state, over the defendant’s objection, if the witness’s name has not been endorsed on the information.
    5. SAME — Endorsement During Trial. Before the county attorney files an information he should endorse thereon the names of all state’s witnesses then known to him; if thereafter he learns of other witnesses; he should obtain leave of court and endorse their names on the information as early as possible. If, after the trial has begun, the county attorney learns of other witnesses whom he did not know of before, upon" a proper showing of that fact made to the court, leave to endorse the names even while the trial is in progress, and to permit the witnesses to testify, may be granted by the court in the exercise of its discretion.
    6. INTOXICATING LIQUORS — Parties to Offenses — Soliciting and “Steering.” One who solicits a person to purchase liquor and pilots him to another who has the liquor and sells it, assists in making the sale and is indictable and punishable as a principal in the transaction.
    (Syllabus by the Court.)

      Appeal from Tulsa County Court; N. J. Gubser, Judge.

    Walter Steen and A1 C'arr were jointly convicted of selling intoxicating liquor, and they appeal.
    Reversed and remanded.

      Sleeper & Davidson, for plaintiffs in error.

      Fred S. Caldwell, for the State.
   RICHARDSON, Judge.

The information in this case charged plaintiffs in error jointly with a violation of the prohibition law. When the cause came on for trial and after the jury had been empaneled and sworn,' plaintiff in error Walter Steen moved for a separate trial, which motion the court overruled. This ruling is assigned as error. Section 6830 of Snyder’s Comp. Laws provides that, “When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.” The exercise of the discretion here given to the trial court in granting or refusing a severance in a misdemeanor case is reviewable; but to make the same the subject of review, the case-made or bill of exceptions must show an application for a severance setting out some unusual and extraordinary condition or state of facts in connection with the case which would materially prejudice the rights of the applicant in a joint trial; and this must be supported by affidavits or oral testimony, and may be controverted by the state in the same way. In the absence of such showing on the part of the applicant the trial court cannot know and is not required to anticipate that a situation will arise in the trial justifying a severance. The fact that the trial does subsequently develop such a situation is immaterial ; and unless such application is filed and thus supported, there is nothing before the' court calling for the exercise of the discretion given it. The case-made before us discloses no such application or showing. The application in this case appears to have' been oral; no ground for it whatever was stated, and no showing of any kind or character was made, and we might add gratuitously that the record of the trial shows nothing which justified a severance. The court therefore did right in overruling the application. Also the record before us shows that the application was made only after the jury was empaneled and sworn to try the cause. It therefore came too late. The application should not be entertained after the empaneling of the jury has begun.

The county attorney of Tulsa County filed two informations against plaintiffs in error, in one of which he charged them jointly with selling intoxicating liquor to L. M. Boyer and William Chisholm on July 11, 1908, and in the other he charged them jointly with selling intoxicating liquor to Aaron Tyner on the same day Both informations were filed on July 17, 1908; each was numbered and endorsed “Criminal Case 377,” and they were e'ntered in both the appearance docket and the trial docket as one case numbered 377. Only one warrant of arrest was issued for plaintiffs in error, and it was numbered “Criminal Case 377.” The court entered an order fixing plaintiffs in error’s appearance bond; one of the accused executed a bond and caused it to be filed and the bond was numbered “Criminal Case 377.” On July 23, 1908, case numbered 377 was called for trial, and on motion of the state was continued .until July 29, 1908, on which latter date the case was again called for trial and plaintiffs in error waived arraignment and pleaded not guilty. Thereupon both the state and the accused announced ready for trial, and a jury was empaneled and sworn to try the cause. The county attorney then asked leave to renumber the two informations and to separate the two cases. Leave was granted, plaintiffs in error excepting, and the informations were renumbered. 377-A and 377-B respectively. Plaintiffs in error, over their objection, were then arraigned upon and required to plead to each information separately. They excepted, and pleaded not guilty. The court then gave plaintiffs in error the right to elect upon which of the two informations they should go to trial; but they refused to elect, whereupon the court ordered the case to proceed on the information numbered 377-A. Plaintiffs in error then moved for a continuance on the ground that until the county attorney requested leave to separately number the informations they had no knowledge that there was more than one charge, or that they would be tried on any such information as 377-A, and because the action of the county attorney and the court had taken them by surprise so that they had had no opportunitjr to prepare their defense. The court overruled the motion, and the cause proceeded to trial before the jury empaneled and sworn for the trial of case number 377, the jury not being resworn. Upon this proceeding plaintiffs in error assign and urge that error was committed in the following particulars: 1st. In separately numbering the two informations. 2nd. In separating the prosecution into two separate and distinct eases after plaintiffs in error had waived arraignment on and had pleaded to a single prosecution, and after the jury had been empaneled and sworn to try plaintiffs in error on a single charge. 3rd. In overruling plaintiffs in error’s motion for a continuance and requiring them to proceed to trial forthwith on information numbered 377-A.

The two informations filed constituted two separate and distinct charges, to each of which plaintiffs in error were answerable, even though such informations were given the same number, or though neither of them had ever been numbered at all. The number is no part of the information, and is not essential to its validity. It is only for convenience, for ease and dispatch in finding and identifying the information, the docketed case, and the various orders made, in reference thereto. To omit the numbers or confuse them may cause the court and its officers and even the defendants some inconvenience, but it is not fatal to the proceedings. There was therefore no error in separately numbering the informations; that might have been done even after judgment, for it had nothing whatever to do with the ease or the trial. Nor did the court by separately numbering the informations thereby divide one case into two separate and distinct cases. There were tivo separate and distinct informations, and therefore two separate and distinct cases, from the beginning. And the further fact that plaintiffs in error had previously waived arraignment and pleaded hot guilty to the so-called single case numbered 377 was immaterial.

But it is urged that the jury had already been empaneled and sworn to try the dual case numbered 377, and that 377-A was tried before the jury without their being reimpaneled or resworn. Both informations, however, charged the same joint defendants with selling intoxicating liquor; the oath would have been the same in each case; there was nothing about the oath administered to identify it with either case as distinguished from the other. The jury were sworn to try the case about to be submitted to them, wherein the State of Oklahoma was plaintiff and plaintiffs in error were defendants; the oath was for the case tried, and was binding and sufficient.

The contention that the court erred in overruling plaintiffs in error’s motion for a continuance is without merit The record does not show whether this motion was oral or in writing, and it discloses no showing of surprise made to the court by affidavit or otherwise. Plaintiffs in error say that they did not know that there was more than one case against them until the.county attorney requested leave to separately number the informations. If that be true, still they did know that there was at least one case against them, for one of the accused was on bond and the other in jail awaiting the trial of the case. They had attorneys of their own choosing, and had evidently made some preparation for tx'ial. They waived arraignment, thereby saying that they did not care to hear the information read, that they were familiar with at least one of the informations and ready to plead thereto; and the rec-orcl shows, and plaintiffs in error expressly state in their brief, that they announced ready for trial in case number 377. The court gave them the right to elect upon which information they should be tried. Had they been acting in good faith, they would have elected to go to trial in the case for which they had made-preparation, the one they had in mind when they announced ready. But they refused to elect; and thereafter they could not complain, no matter upon which information the court put them to trial.

The state introduced one Dan Ezell as a witness' in chief against plaintiffs in error, and the latter objected to his testifying on the ground that his name had not been endorsed on the information as a witness. The court overruled the objection, and the witness gave damaging testimony against plaintiffs in error. The endorsement of the witness’ name does not appear on the information. Section 6644 of Snyder’s Comp. Laws, relating to the endorsement of the names of the state’s witnesses on the information, is as follows:

“The county attorney shall subscribe his name to informations filed in the county or district court and indorse thereon the names of the witnesses known to him at the time of filing the same. ' He shall also indorse thereon the names of such other witnesses as may afterwards become known to him, at such time before the trial as the court may by rule prescribe.”

Hnder this statute it is the duty of the county attorney, before he files1 the information, to endorse thereon the names of all persons whom he knows or has reason to believe will be called by the state as witnesses to testify in the ease in chief; and if subsequently the names of other witnesses to be used to prove the case in' chief become known to him, leave of court should be obtained to place their names on the information, and this should be done and the endorsement made as early as possible before the trial begins. Where, however, after the trial is begun, the county attorney learns of other witnesses in chief whom he did not know of before, upon a proper showing of that fact made to the court, leave to endorse their names even while the trial is in progress, and to permit them to testify, may be granted by the court in the exercise of its discretion. This is held by the courts in a majority of the states having a similar statute, and is conceded to be correct by plaintiffs in error in this case. State v. Cook, 30 Kan. 82, 1 Pac. 32; State v. Berkeley, 109 Mo. 665, 19 S. W. 192; State v. Doyle, 107 Mo. 36, 17 S. W. 751; State v. Schnepel, 23 Mont. 523, 59 Pac. 927; Rauschkolb v. State, 45 Neb. 658, 65 N. W. 776; State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322; State v. Price, 55 Kan. 606, 40 Pac. 1000; State v. Reno, 41 Kan. 674, 21 Pac. 803; State v. Dowd, 39 Kan. 412, 18 Pac. 483; State v. Taylor, 36 Kan. 329, 13 Pac. 550; Hyde v. Territory, 8 Okla. 69, 56 Pac. 851; Cochran el al. v. United States, 14 Okla 108, 76 Pac. 672.

But in the present case the name of the witness Ezell was never endorsed on.the information, and the case-made does not disclose when the witness was discovered, or that any showing was made by the county attorney to the court that he had just learned of the witness. On the contrary the circumstances indicate that the prosecution had the evidence of this witness in mind all along in the preparation of its case. The court therefore erred in overruling the objection.

It is contended that the court should have advised the jury to acquit Steen, because the evidence failed to connect him with the offense. But, waiving the testimony tending to show that Steen was exercising control over the liquor, it was nevertheless shown that Steen solicited two of the prosecuting witnesses to purchase the liquor in question, and piloted them to 'the place where Carr is said to have sold it to them. He was therefore assisting Carr in making the sale, and under our statute was indictable and punishable as a principal.

There are other assignments of error, but we find no merit in them, and we think that a discussion of them would be of no value. For the error indicated the judgment is reversed and the cause remanded with directions to grant the plaintiffs in error a new trial.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


author: EITRMAN, Presiding Judge.

text:
    W. S. PAYTON v. STATE.
    No. A-111.
    Opinion Filed November 23, 1910.
    TRIAL — Instructions Required by Evidence.. The defendant in a criminal case has a right to have a clear and affirmative instruction given to the jury applicable to his testimony, based upon the hypothesis that it is true, when such testimony affects a material issue in the case.
    (Syllabus by the Court.)

      Appeal from District Gourl, Aloha County; A. T. West, Judge.

    The defendant was convicted for the, crime of stealing hogs and sentenced to one year’s imprisonment in the penitentiary, and appealed.
    Reversed.

      J. M. Humphreys, for plaintiff in error.

      Smith C. Matson, Assistant Attorney General, for the State.
   EITRMAN, Presiding Judge.

1. The court did not err in refusing to advise the jury to find the defendant not guilty. But as this case will have to be reversed, we deem it improper to discuss the evidence.

2. Upon the trial of this case there was a square conflict in the evidence. The testimony for the state tended to sustain the charge contained in the indictment. The defendant and his witnesses testified that the defendant had purchased the hogs in question in good faith from one Daniel Webster.' The court instructed the jury with reference to the law applicable to the evidence for the state, but'the charge is silent as to the issue presented by the testimony for the defendant. As we understand the law, a defendant has the right to have a clear affirmative charge based upon the hypothesis that his testimony and the testimony of his witnesses is true, when this testimony affects a material issue in the case.

Counsel for defendant requested eight special instructions, all of which were refused by the court. While we are not prepared to say that the court erred in refusing any one of the requested instructions, yet their general effect was to call the attention of the court to the point in issue, and the court should have instructed the jury correctly -as to the law with reference to purchasing property in good faith, and then left it to the jury to say which testimony they believed. For this defect in the instructions the case is reversed and remanded.

DOYLE and EICHAKDSON, Judges, concur.


text:
    ROSS HARRIS v. UNITED STATES.
    No. A-89.
    Opinion Filed November 23, 1910.
    1. JURY — Decrease of Number of Challenges — Ex'Post Facto Acts. A law. curtailing the number of peremptory challenges which a defendant may have in the impaneling of a trial jury, enacted after the commission of the offense charged, is not ex post facto as to such offense.
    2. SAME — Felonies in Ind. Ter. Antedating Statehood. In the Indian Territory a defendant charged with a felony was allowed to challenge twenty jurors peremptorily; and under sec. 28 of the Schedule of the Oklahoma Constitution, accepting the terms of an amendment to the Enabling Act, providing that all criminal cases pending in the Indian Territory not transferred to the federal courts should be proceeded with in the state courts under the laws then in force in the Indian Territory, a defend- . ant tried in the state court for a felony committed in the Indian Territory before statehood is entitled to twenty peremptory challenges; and it is error for the court to restrict him to five.
    3. ARRAIGNMENT AND PLEAS — Necessity of Arraignment. Under the law in force in the Indian Territory before statehood, it was error to • put a defendant on trial without arraignment and plea.
    (Syllabus by the Court.)

      Appeal from- District Court, Johnston County; A. T. West, Judge.

    On March 20, 1907, Eoss Hárris was indicted in the United States Court for the Southern District of Indian Territory for the crime of larceny. Upon the admission of Oklahoma into the Union the cause was transferred to the District Court of Johnston County, and was tried during the September, 1908, term of said court, resulting in a conviction and a judgment imposing upon the defendant a term of imprisonment in the penitentiary. He filed a motion for a new trial, which was overruled, and he appeals.
    Reversed and remanded.

      Summers Hardy and Wm. M. Franklin, for plaintiff in error.
    —On necessity of arraignment: Dansby v. U. S., 2 Ind. Ter. 456; Orain v. ü. S., 162 U. S, 643; Eopl v. Utah, 28 L. Ed. (U. S.) 262.

      Charles West, Atty. Gen., and E. G. Spilman, Asst. Atty. Gen., for defendant in error.
   RICHARDSON, Judge.

In the impaneling of the trial jury plaintiff in error demanded twenty peremptory challenges, the number allowed a defendant in felony cases under the law in force in the Indian Territory before the admission of Oklahoma into the Union. This the court refused, and restricted plaintiff in error’s peremptory challenges to five, the number authorized by the statutes of Oklahoma. Such action of the court is assigned as error. The state has- filed a confession of error upon this point, stating in effect that a law curtailing the defendant’s peremptory challenges, enacted after the commission of the offense, is ex post facto and void, and citing Kring v. Missouri, 107 U. S. 221, 27 L. Ed. 506, and State ex rel. v. Caruthers, 1 Okla. Cr. 428, 98 Pac 474. We do not think that such a law is ex post facto, or that the authorities cited so hold. The granting or withholding of peremptory challenges is solely a matter of procedure. The constitutionality of such a law when enacted after the' commission of the offense charged has been passed upon frequently, and so far as we are able to find, the law has been upheld in every instance. Lore v. State, 4 Ala. 173; South v. State, 86 Ala. 617, 6 So. 52; Perry v. Com., 3 Grat. 632; People v. Mortimor, 46 Cal. 114; People v. Campbell, 59 Cal. 243; Mathis v. State, 31 Fla. 291, 12 So. 681; Stokes v. People, 53 N. Y. 164, And on the same principle it has been held also that a subsequent act increasing the number of' the state’s peremptory challenges is not ex post facto. State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89; Walston v. Com., 16 B. Mon. (Ky.) 15; State v. Ryan, 13 Minn. 370; Jones v. State, 1 Ga. 610; Warren v. Com., 37 Pa. St. 45; Walter v. People, 32 N. Y. 147; State, v. Wilson, 48 N. H. 398; Com. v. Dorsey, 103 Mass. 412.

Nevertheless the court erred in refusing plaintiff in error’s demand, not because such a change in the law would be ex post facto with respect to offenses previously committed, but because no such change in the law was in fact made with respect to this case. The act of Congress approved March 4, 1907, e. 2911, sec. 3, 34 Stat. 1287, amending section 20 of the Enabling Act, the terms of which amendment were specifically accepted by section 28 of the schedule of the State Constitution, provided that, “All criminal cases pending in the United States Courts in the Indian Territory not transferred to the United States Circuit or District Courts in the State of Oklahoma, shall be prosecuted to a final determination in the State Courts of Oklahoma under the laws now in force in that territory.” And by the terms of that provision the right claimed was preserved to plaintiff in error. Hawkins v. United States, 3 Okla. Cr. 651, 108 Pac. 561.

The defendant was put upon trial in this case without being arraigned and without waiving arraignment and without entering a plea to the indictment; and the action of the court in so putting him upon trial is assigned as error. The Court of Appeals in the Indian Territory passed upon this question in the case of Dansby v. United States, 2 Ind. Ter. 456, 51 S. W. 1083; and it there held that without a plea there can be no valid trial, and that the proceeding will not be held good because of the fact that the defendant went to trial voluntarily and without objection, knowing that no plea had been entered. See also Crain v. United States, 162 U. S. 625. Without intimating how we should hold upon this question in a case arising under the laws of Oklahoma, we do hold that the law as it existed in the Indian Territory in regard to the defendant’s arraignment and plea was and is applicable to this case, and that therefore an arraignment or a waiver of it, and the entering of a plea for the defendant was necessary to a valid trial.

Other rulings of the court were assigned as error, but they bear upon matters which are not likely to arise in another trial of the cause, and we shall not discuss them.

For the errors indicated the cause is reversed and remanded with • directions to set aside the judgment and grant plaintiff in error a new trial.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    JOSEPH FLOWERS v. STATE.
    No. A-205.
    Opinion Filed November 23, 1910.
    SHOOTING WITH INTENT TO KILL — Indictment—Sufficiency. The allegation in an indictment or information that the defendant shot at another with a pistol, by necessary implication avers that the pistol was loaded.
    (iSyllabus by the Court.)

      Appeal from, District Court, Muskogee County; John E. King, . Judge.

    Joseph Flowers was convicted of an assault with intent to kill and he appeals.
    Affirmed.

      Frank Pace, De Boos Bailey and Eck E. Brook, for plaintiff in erroi\

      Charles West, Attorney General, and Smith C. Matson, Assistant Attorney General, for the State.
    Citing Eeatley v. Territory, 15 Okla. 72.
   RICHARDSON, Judge.

The indictment in this case alleged that plaintiff in error) Joseph Flowers, on the 15th day of March, 1908, “intentionally, wrongfully, unlawfully and felonl-ously did make an assault upon and shoot at one William B. Beam, with a certain pistol, with the felonious intent to- kill him, the said William B. Beam, with ’the pistol aforesaid, which said pistol the said Joseph Flowers then and there had and held in his hand, the same being a deadly weapon.”

. To this indictment plaintiff in error interposed a demurrer on the ground that the facts stated were insufficient to constitute a public offense; his contention being that the indictment was fatally defective- in «that it failed to allege that the pistol was loaded. The demurrer was overruled and a trial had, .resulting in a verdict of guilty. Thereupon plaintiff in error filed a motion in arrest of judgment, basing that also on the same alleged insufficiency of the indictment. The court heard the motion, overruled the same, and rendered judgment upon the verdict.

The case comes to us on a transcript of the record, and'the-only matter urged as, ground for a reversal is that the indictment does not charge that the pistol with which plaintiff in error is-alleged to have shot at the said Beam was loaded, and that -such an allegation is necessary. It is contended that although the statute does not expressly so provide, yet the present ability to-kill or injure is a necessary ingredient of the crime intended to-be charged, and that facts showing such present ability must be averred and proved. The statute under consideration (Section-2307, Snyder’s Comp. L. Okla.) reads as follows:

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person,, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force a-s is likely to produce death, or in resisting the execution of any legal process, is punishable by imprisonment in the state prison not exceeding ten years.”

It will be observed that this statute is separable into several subdivisions, each one describing a different act and defining the offense in a different form, and neither subdivision dependent upon or necessarily related to the other. The particular portion thereof tinder which this indictment was drawn reads as follows:

“Every person who intentionally and wrongfully shoots at another with any kind of firearm, with intent to kill any person, is punishable by imprisonment in the state prison not exceeding ten years.”

The indictment in this case alleged explicitly that plaintiff in error intentionally and wrongfully did shoot at one William B. Beam with a certain pistol with the intent to kill the said Beam. The allegation is in the very words of the statute, and ordinarily that is held sufficient.

In Clark v. State, 106 Pac. 803, the indictment alleged that the defendant attempted to shoot another with a pistol; and st was there held that, under the statute, it was not necessary to allege that the pistol was loaded. That ease is now pending on a motion for a rehearing; but however it may finally be determined, we think that the present case is clearly’ distinguishable from it. For, conceding for the sake of argument that the present ability to kill or inflict serious injury is an essential element of the crime as defined by the statute, and that it is therefore necessary to aver that the pistol was loaded, we think that this indictment charges that very fact and is sufficient even when tested by the rule which plaintiff in error contends for. In Clark v. State, supra, the defendant was charged only with aittempting to shoot at another. The difficulty never progressed to the stage where a shot was actually fired; and it is easily conceivable how one might attempt to shoot at another with an unloaded gun, believing that it was loaded. But where it is averred, not that the defendant attempted to shoot, but actually shot at another with a gun, that is an affirmative allegation that he discharged a loaded gun at such other person. Webster’s New International Dictionary defines the word “shoot” as meaning, “To let fly, or cause to be driven, with force, as an arrow, bullet or other missile, from a bow, sling, gun, or the like; to discharge.” Section 6704 of Snyder’s Comp. L. Okla. provides that the indictment is sufficient if “the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to- enable a person of common understanding to know what is intended.” And Chief Justice Burford, speaking for the Supreme Court of the Territory, in passing upon this very question in Heatley v. Territory, 15 Okla. 72, 78 Pac. 79, said:

“It is a common and ordinary mode of expressing the fact, to say that one person ‘shot another.’ And when it is said that a man was ‘shot’ or that one person ‘did shoot’ another, every person of common understanding knows what is intended without explanation, and in order to set forth such fact in ordinary and concise language it is no longer necessary to express in words each component or elemental constituent embraced in the fact. The term ‘did shoot embraces the weapon, the load, the discharge, and the act of discharging, and it is so meant and understood by courts, counsel, jurors, and witnesses, and why should more particularity or repetition be required in a pleading than is required to express the same fact in every day parlance? The law does not require it, and the necessity for following ancient and obsolete forms made up of repetitions, unnecessary particularization, and crude phraseology, if it ever existed, no longer prevails. (Stutsman v. Territory, 7 Okla. 490: People v. Steventon, 9 Cal. 274; People v. Choiser, 10 Cal. 311.) The tendency of prosecuting attorneys to abandon prolix, abstruse and superfluous terms and phrases in criminal pleading is rather to be' commended than ■ condemned. When the character of the ‘firearm’ is designated, the manner of using it, the intent with which the act is done, and the person against whom the act is directed are averred in plain, common sense English language, the act charged as the offense is sufficiently pleaded, and the law requires no more.”

The allegation that plaintiff in error “did shoot at one William B. Beam with a certain pistol” was a sufficient averment that the pistol was loaded; and sufficiently showed, if such a showing was necessary, that so far as the load was concerned he had the present ability to kill or injure. After one has discharged a pistol, his ability to do so at the time he did it is no longer a question; it is a demonstrated fact. It may be that plaintiff in error possesses the miraculous power of shooting an unloaded gun; but if he does, he is forbidden by the statute to exercise it upon, at or toward his fellow man, especially with the intent to kill. Let the judgment be affirmed.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    S. C. MULDROW v. STATE.
    No. A-79.
    Opinion Filed November 23, 1910.
    1. INFORMATION — Verification—Waiver of Defects. An information verified only on information and belief should be set aside on a timely motion for that purpose; but if no such motion be filed, the defect is waived.
    2. SAME — Cure of Defects — Reverifioation. Where an information is filed verified only on information and belief, but before the defendant pleads thereto is - reverified in positive terms, the defect • is cured.
    3. JURY — Number Concurring — County Court. Under sec. 19, art. 2 of the Constitution, six men constitute a jury in the county court, and five of the six concurring may render a verdict.
    (Syllabus by the Court.)

      Appeal from Coal County Court; B. II. Wells, Judge.

    S. C. Muldrow was convicted of the offense of pointing a gun at another, and he appeals.
    Affirmed.

      W. L. Richards and J. G. Ralls, for plaintiff in error.

      Charles West, Attorney General, and Smith C. Matson, Assistant Attorney General, for the State.
   RICHARDSON, Judge.

Plaintiff in error’s first contention is that the information on which he was tried was not properly or sufficiently verified. The original verification of the information was as follows:

“State of Oklahoma, Coal County,* ss.
“Personally appeared before me, R. H. Wells, County Judge for Coal County, State of Oklahoma, J. R. Woods, of lawful age, who, being duly sworn, upon his oath deposeth and-says, that he is County Attorney of said County, that he has read the foregoing information and knows the contents thereof and from his best information and belief the facts and allegations therein contained are true.
“Subscribed and sworn to before me this the 1st day of October, A. D. 1908. ’ E. I-I. Wells,
“County Judge of Coal County, Oklahoma.”

This verification purports to have been made only on information and belief; and for that reason, if properly challenged and standing alone, would have been' insufficient. Whether the county attorney’s failure to subscribe his name to the verification would alone render it defective, or whether the county judge’s certificate that the county attorney appeared before-him and made oath to .the facts therein stated is sufficient, it is not necessary to decide; for this verification does not stand alone. Before- the defendant entered his plea J. E. Holland, the prosecuting witness, verified the information in positive terms; and this cured any defect in the matter of the verification. Also this court has held in the ease entitled In re Talley, infra, decided at this term, that the total lack of a verification is not a jurisdictional defect, and that it is waived by pleading to the informar tion without filing a motion to quash or set it aside based on that specific ground. The record before us shows the filing of no such motion, and the matter cannot.be raised by a motion in arrest of judgment.

The only other question raised is that the verdict was void because it was not concurred in unanimously, but was signed by only five jurors. Section 19, art. 2 of the Constitution expressly provides that six men shall constitute a jury in the county court, and that in civil eases and in criminal cases less than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict. A valid verdict in a misdemeanor case tried in the county court may, therefore, be rendered by five of the six jurors constituting the jury.

Finding no error, the judgment of the county court is affirmed. ,

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


author: FURMAN, Presiding Judge.

text:
    SAM FIFE v. STATE.
    No. A-155.
    Opinion Filed November 23, 1910.
    COURTS — Jurisdiction—Offenses Antedating Statehood. The courts of the State of Oklahoma have jurisdiction of offenses committed prior .to statehood.
    (Syllabus by the Court.)

      Appeal from District Court, OJcmulgee County, John Caruthers, Judge.

    The defendant was convicted of the crime of assault with intent to kill and sentenced to seventeen months’ confinement in the penitentiary, and appealed.
    Affirmed..

      M. A. Holcomb and J. H. Clapp, for plaintiff in error.

      Smith C. Matson, Assistant Attorney General, for the State.
   FURMAN, Presiding Judge.

The brief for the state correctly states the alleged errors relied upon and the law governing Such questions as follows:

“The errors alleged and argued as causes for reversal are two, namely:
“ ‘1st. ■ That defendant was indicted by a grand jury composed of only twelve men, any nine of whom concurring could return an indictment, when under the laws in force at the time of the commission of said crime, if any, a lawful grand jury was composed of sixteen men, any twelve of whom could return an indictment. And that the grand jury had no jurisdiction to return this indictment.
“ ‘2nd. That the accused had the right to be tried by a petit jury of twelve men who had no right to return other than a unanimous verdict.’
“The questions herein presented have already been decided by the Supreme Court of this state and also by your Honorable Court adversely to the contentions of counsel for defendant, and it is only necessary to cite those cases in this brief.
“As to the jurisdiction of the District Court of Okmulgee County, we cite: Higgins v. Brown, Judge, 1 Okla. Cr. 33, 94 Pac. 703, and other cases there cited.
“As to the question of the sufficiency and legality of an indictment returned by grand jury only of twelve men for crimes committed prior to statehood in the old Indian Territory, we cite: John Hopkins v. State, (infra); Canard v. State, 2 Okla. 505, 103 Pac. 737.
“The indictment in this case is endorsed True bill, H. S. Brown, foreman/ (See record). As to the second contention the record shows that the verdict of th.e petit jury is signed by the foreman and the presumption is in favor of its regularity and that it is an unanimous verdict. There is nothing in this record to show that the court instructed the jury that less than the entire twelve could return a verdict, and there is nothing to show that less than the twelve concurred in the verdict returned. This record does not disclose that the defendant was deprived of the number of peremptory challenges to which he would have been entitled prior to statehood or of any other right that this court has held to be a substantial right.”

Counsel for appellant then contends that the verdict is contrary to the evidence. An examination of the record will show that-the testimony offered on behalf of the state tended to establish an unprovoked attempt at assassination on the part of the defendant. The evidence for the defendant tends to show that he acted only in self-defense. The witnesses were before the jury and they were in a much better position to determine as to which testimony was credible than are the members of this court.

The judgment of the trial court is affirmed, with directions that it be amended so as to provide for the confinement of the defendant in the state penitentiary at MeAlester.

DOYLE and RICHARDSON, Judges, concur.