text:
    JOHN A. TUCKER v. STATE.
    No. A-1607.
    Opinion Filed June 7, 1913.
    (132 Pac. 689.)
    1. INTOXICATING LIQUORS — Prosecution—Evidence—'License. (a) Where a defendant is prosecuted for having in his possession intoxicating liquors with intent to sell the same and the state offers evidence that the defendant had paid for and obtained a United States revenue license as a liquor dealer, such license will not be admissible in evidence unless it covers the period of time within which it was proven that the defendant was in possession of such liquors.
    (b) The fact that a defendant may have paid for and obtained a United States license as a liquor dealer is prima facie evidence of the intention on the part of the defendant to sell liquors within the period of time covered by said license, and does not create any presumption against the defendant as to any other time.-
    2. TRIAL — Prosecution—Evidence—Ground for Reversal, (a) Where a defendant is upon trial charged with having possession of intoxicating- liquors with intent to sell the same, it is not competent for the state to prove that intoxicating liquors were delivered to other persons without first producing some evidence showing that such other persons were connected with the defendant.
    (b) If courts permit incompetent evidence to be introduced against a defendant upon the promise of the prosecuting attorney to subsequently show that such evidence is admissible, and the admissibility of such evidence fs not afterward shown, and it appears from the whole record that such evidence was of a material and injurious character, the error of the court in admitting such testimony will not be cured by the subsequent action of the court in striking such testimony out, and in instructing the jury not to consider the same in their deliberations, and in such a case a new trial should be granted to the defendant.
    3. APPEAL — Brief—'Citations. In preparing briefs, where counsel cite the decisions of this court or of the Supreme Court, they should also give the volume and page of the Oklahoma report upon which such decision will be found.
    ('Syllabus by the Court.)

      Appeal from Superior Court, Grady County; Will Linn, Judge.

      John A. Tucker was convicted of violating the prohibitory law, and he appeals.
    Reversed.

      Barefoot & Carmichael, for appellant.

      Smith C. Matson and €. J. Davenport, Asst. Attys. Gen., for the State.
   FURMAN, J.

First. Upon the trial of this cause the state was permitted to show that the appellant had paid the special tax and had obtained a United States retail dealer’s license to sell intoxicating liquors from the 10th day of December, 1909, to the 30th day of June, 1910, and had also paid the tax and obtained a license from the United States government as retail, liquor dealer from the 19th day of July, 1910, to the 30th day of June, 1911.

The facts upon which this prosecution is based occurred on September 9, 1911, long after the time covered by the licenses introduced in evidence had expired. To the introduction of this evidence appellant objected and reserved an exception. The court instructed the jury touching this (matter as follows:

“You are instructed, gentlemen of the jury, that I have permitted the introduction of the certificates from the Internal Revenue Department showing that the defendant had paid the special tax required by the laws of the United States for the privilege of engaging in the business of a retail liquor dealer for the years 1909-10-11. While ordinarily under the law, gentlemen, the possession of such licenses are prima facie evidence of the guilt of the defendant, still in this case the proof shows that the licenses were issued and expired prior to the date of the alleged crime as charged in the information -and therefore they are not pñma facie evidence of the guilt of the defendant, and alone are not sufficient to warrant a conviction in this case, but only permitted to be introduced as a circumstance that you may consider with the other evidence in arriving at your verdict.”

In permitting the introduction of the evidence complained of, and in giving the above instruction, the court erred.

In the case of Harry Deeds v. State, 4 Okla. Cr. 210, 111 Pac. 667, in discussing this question, this court said:

“We think the ruling was erroneous. This prosecution was instituted under the prohibitory provision of the Constitution separately submitted to a vote of the people. It is there provided that the payment by any person of the special tax required of liquor dealers by the laws of the United States shall constitute prima facie evidence of such person’s intention to violate said section. Undoubtedly this provision should be construed so as to give the payment of such tax only a prospective and not a retroactive effect as evidence; that is, that the payment of such special tax shall be prima facie evidence of the party’s intention thenceforth, so long as the license shall remain in force, to violate said provisions of the law, and not that it shall be evidence of his intention to do so theretofore. Snyder v. State, 78 Miss. 366, 29 South. 78. We think the language of the provision will bear no other interpretation, and certainly the reason and philosophy of it exclude any other. The provision is based upon the legitimate presumption that a person will not procure a license to sell intoxicating liquors unless he intends to sell them; that he will not voluntarily expend money for a useless thing; and that, when he pays the special tax and procures the license required of liquor dealers, he intends to do what the license authorizes him to do, namely, sell liquor during the licensed term. Woolen & Thornton’s Law of Intoxicating Liquors, sec. 972. The license is not retroactive, and its subsequent issuance is no authority for a sale made prior to the payment of the tax. United States v. Angell [C. C.] 11 Fed. 34. If there had been any evidence from which the jury could legitimately have found that the sale in question was made on- or after April 28, 1909, the day the special tax was paid, then the certified copy in question would have been competent and admissible under an instruction from the court that it should be considered by the jury only if the transaction in question took place after the payment of the tax; but in- this case there was no such evidence. The date of the sale was definitely fixed by the prosecution at 23 days before the payment of the tax; and under such circumstances the court erred in admitting the certified copy in evidence.”

Joyce on Intoxicating Liquors, sec. 683, speaking of the inadmissibility of internal revenue licenses, says:

“To render the evidence of such licenses admissible it is essential that each shall cover the period within which the offense is alleged to have been committed.”

In the case of Schoennerstedt v. State, 55 Tex. Cr. R. 638, 117 S. W. 829, the Court of Criminal Appeals of Texas said:

“The license would not be admissible as evidence, or the fact that it was posted up would be equally inadmissible, if, as a matter of fact, the license did not cover the time involved in this transaction.”

Second. Over the objection and exception of appellant and upon the promise of the county attorney to connect appellant therewith, the state was permitted to prove that large quantities of whisky were delivered to persons by the names of J. Johnson, R. Jones, and C. 'Conner. When the testimony was all introduced, counsel for appellant made a motion to exclude the same upon the ground that appellant had not been connected therewith. Whereupon the court instructed the jury as follows:

“Gentlemen, as to the evidence of the witnesses Crews, Ramsey, and White, all of Crews’ and Ramsey’s and that portion of Wilmouth’s evidence wherein he testified with reference to the receipt and delivery of whisky and beer to C. Conner, R. Jones, and J. Johnson, should be excluded, and you will not consider the same. You are also instructed that that portion of his evidence in regard to testifying to hauling five or six barrels that was taken from him and Mr. Edwards marked C. Conner, you must not consider that evidence. Also, as to the evidence of the witness Ramsey, as to the names that were on the barrels that the officers took from Edwards and Crews, and that portion of Mr. Wil-mouth’s testimony where he testified as to certain shipments being received at the Frisco Railroad Company’s office here addressed to J. Johnson, C. Conner, and R. Jones, as the state had introduced no proof to connect the defendant with these shipments.”

This court has frequently condemned the practice of permitting the introduction of testimony without first connecting the defendant therewith, and we desire now to repeat what we said on this subject in the case of Thompson v. State, 6 Okla. Cr. 50, 117 Pac. 216, as follows:

“It is true that at the time that this evidence was introduced the state had not offered any evidence of a conspiracy between appellant and his codefendant, Tom Gill-strap, to kill the deceased, and the evidence was admitted upon the promise of the state to connect this testimony with the defendant. We think that this is a dangerous practice, and should not be encouraged. If the state is permitted to get incompetent evidence before a jury upon the 'promise of a prosecuting attorney to connect it with the defendant, and he fails 'to do so, impressions may be made upon the jury which it would be difficult, if not impossible, to destroy by instructions from the court that they should not consider such testimony. In the case of Sturgis v. State, 2 Okla. Cr. 385 [102 Pac. 66], this court said: Tn the ease of Devore v. Territory of Oklahoma, 2 Okla. 565, 37 Pac. 1092, it was held that such evidence might be introduced before there was any evidence of such acting together by the defendant and the persons whose acts and statements 'were so admitted in evidence, upon the promise of the county attorney that such acting together will subsequently be shown/ To prevent what we conceive to be questionable practice in the future, we would advise the trial courts against pursuing this course. The safe rule is to require some evidence of such acting together before the acts and declarations of others concerned in the' commission of an offense are admitted in evidence, when such acts were not committed or statements were not made in the presence of the defendant. If it is made to appear to this court that incompetent and damaging testimony has been introduced against a defendant upon a promise of a prosecuting attorney to subsequently connect this testimony with the defendant, and this connection is not made, we would feel strongly inclined to reverse a conviction upon the ground that the jury may have been influenced by such improper testimony, notwithstanding the instructions of the court that they should not consider it. We know that promises to connect testimony are often made in good faith when through overzeal counsel may be ' mistaken as to the effect of the testimony by which they expect to make this connection. TJpon the other hand, it gives attorneys who are indifferent as to the means by which they get a verdict an opportunity to inflict irreparable injury upon their opponents.' If trial courts will persist in allowing testimony to be prematurely introduced upon the ground that the competency of such testimony will be made to appear, they do so at their peril. If the competency of the testimony is subsequently made to appear, the error will be immaterial and harmless; but, if this is not done and the testimony is material and damaging to a defendant, we doubt if any instructions by a trial court could do away with the injury which has been done to a defendant by such testimony, and a new trial should be granted.”

It is contended on the part of the Assistant Attorney General that the appellant is an old and confirmed offender,, and that upon this ground, and as there is some evidence in the record tending to establish his guilt, this conviction should be sustained. We have always held- that, where the guilt of a defendant is clearly established by the evidence,, a conviction will not be reversed on account of the introduction of incompetent evidence which reasonably could not have influenced the action of the jury in finding him guilty. But this rule does not apply in cases in which the incompetent evidence is of a highly injurious character and which may have influenced the jury in finding the defendant guilty. It is true that the records of this court do show that appellant is a confirmed offender, but he should not be convicted on general principles. Every citizen of Oklahoma,, whether guilty or innocent, has the constitutional right to-have a fair trial, it matters not whether the crime with which he is charged be great or small. See Tegeler v. State, ante,. 130 Pac. 1164, decided at the last term.

On account of the errors heretofore pointed out, the judgment of the lower court is reversed, and a new trial is-, awarded.

ARMSTRONG, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: FURMAN, J.

license: Public Domain

text:
    T. E. SIMS v. STATE.
    No. A-1600.
    Opinion Filed June 7, 1913.
    (132 Pac. 508.)
    APPEAL — Former Jeopardy. Thd* plea of former jeopardy cannot be considered by the appellate court, unless it is presented in the lower court in the'manner prescribed by statute.
    ('Syllabus by the Court.)

      Appeal from Oklahoma County Court; John W. Hayson, Judge.

    T. E. Sims was convicted o-f a sale of intoxicating liquor, and appeals.
    Affirmed.
    See, also, 7 Okla. Or. 7, ISO Pac. 1032.

      Pruiett, Sniggs & Wilson, for appellant.

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

The evidence of tbe guilt of appellant is clear and uncontradicted. In fact, no defense was made in the lower court. When the state was through with its evidence the defendant made the following motion:

“Comes now the defendant and moves • the ‘ court to direct the jury to return a verdict of not guilty in this case, for the reason that the .testimony introduced in the case is the same testimony that was introduced by the same witnesses in the trial of T. E. Sims on the 15th day of May, 1911, in which the defendant was charged with selling whisky to J. S. Douglas, and the same testimony has been introduced in each case.”

This motion was by the trial court overruled, to which the defendant excepted. • ;

The plea of former jeopardy cannot be presented in this manner. Section 5802, Rev. Laws 1910, in mandatory terms directs how this plea shall be presented to the trial court. As the statute was not complied with, ' there was no issue ' on this question before tbe trial court.. Our jurisdiction is purely appellate, except in certain specified .instances. Questions which were not presented to the trial court cannot be considered by this court, unless they are jurisdictional. We therefore cannot consider this matter. We cannot permit a hard case to cause us to disregard the mandatory provisions -of the statute. It is the duty <5f this court to declare the law. The pardoning power is vested in another department of the state government, to which this matter is respectfully referred.

The judgment of the lower court is affirmed.

ARMSTRONG, P. J., and DOYLE, J., concur.


text:
      Ex parte H. H. SHERRILL.
    No. A-2006.
    Opinion Filed June 7, 1913.
    (132 Pac. 508.)
    'BAIL — Admission to Bail. When a defendant is charged with murder, and the facts and circumstances of the entire case reasonably present the issue that the defendant acted in good faith in fairing the life of the deceased, and the issue of self-defense is raised by the testimony, bail should be granted pending the final trial.
    ('Syllabus by the Court.)
    The petitioner, II. II. Sherrill, being confined in the .county jail of Pittsburg county, charged with the murder ■of Dan Beats, -alleged to have been.'committed in the town of Kiowa on the 29th day of April, 1913, has applied' for :a-! writ''of habeas corpus in order that he might be allowed bail pending his final trial.
    Writ granted, and bail placed at '■$10,000.'" •

      Mill' & Hill.and Carl Monk, for petitioner.-.

      Smith.:G. Matson, Asst. Atty. Gen., and Wallace Wilkinson, for the State.
   FURMAN, J.

'There is an irreconcilable conflict between the evidence for the state and the evidence for petitioner as to the immediate facts of the killing. If this were' all of the evidence in the record, we would not be willing to allow bail in this cause. But these facts should be considered in the light of all of the antecedent- circumstances leading up to the fatal difficulty. •

It was proven by a number of affidavits that the deceased entertained feelings of bitter hatred toward petitioner and had threatened to take the life of petitioner, and that petitioner had frequently requested his friends to talk to deceased and, if possible, effect a peaceable settlement of the trouble existing between deceased and petitioner, and that in reply to those overtures deceased would continue to threaten the life of petitioner.

The pivotal question in this case is as to the intention of petitioner -as to whether or not he was acting in good faith and was seeking to effect a reconciliation with deceased of their trouble. This question must be ultimately determined by a jury. For the purpose of determining as to whether or not appellant is entitled to bail we must consider all of the evidence in the case, not only as- to the immediate facts of the killing, but all that preceded and led up to and throws light upon the killing. The previous threats of the deceased and all that happened between deceased -and petitioner, therefore, become important.

This court has repeatedly held that it- would not reverse a conviction where a defendant was clearly proven to be guilty, upon -any purely technical objection. We think this rule should be enforced in favor of as well as against a defendant, and that no man should be denied bail upon a purely technical case of murder, when there is a serious question as to the good faith of the defendant and of his right of self-defense. We are not. attempting to pass upon the question of justification. That is, a question which ^ a jury must settle. We think upon the entire record that petitioner is entitled to bail pending his final ferial, when the good faith of his de.fense will be passed upon by a jury with the witnesses before them.

It is therefore ordered that the writ of habeas corpus prayed for be granted, and that petitioner be allowed bail in the sum of $10,000 pending his final trial, to be approved by the clerk of the superior court of Pittsburg county.

ARMSTRONG, P. J., concurs. DOYLE, J., not participating.


author: ARMSTRONG, P. J.

text:
    D. L. PATTERSON v. STATE.
    No. A-1397.
    Opinion Filed June 7, 1913.
    (132 Pac. 693.)
    1. DISORDERLY HOUSE — Burden of Proof — Gist of Offense. On the trial of a person charged with keeping a bawdyhouse, the issue is, Did such person in fact keep a bawdyhouse? and not, Did he keep a house which had the reputation of a bawdyhouse?
    2. SAME — Gist of Offense. The offense defined by the statute is not keeping a house which is reputed to be a bawdyhouse, but keeping one which is so in fact.
    3. SAME — Evidence—Admissibility. It is competent to introduce in evidence proof tending to show that persons of immoral character resort to a place for immoral purposes on the trial of a person charged with keeping a bawdyhouse at such place.
    4. SAME — Sufficiency of Evidence. For testimony upon which a conviction cannot be upheld, see opinion.
    5. SAME — “Bawdyhouse”—“House of III Fame.” The terms “bawdy-house” and “house of in fame” are synonymous.
    (Syllabus by the Court.)

      Appeal from, County Court, Jachson County j E. E. Gore, Special Judge.

    D. L. Patterson was convicted of keeping a bawdyhonse, and appeals. Reversed and remanded, with directions.

      Garrett & Gastleman, for plaintiff in error.

      Smith G. Matson, Asst. Atty. Gen., and H. A. King, Sp. Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, D. L. Patterson, was tried and convicted at the July, 1911, term of the connty court of Jackson county on the charge of keeping a bawdyhouse, and his punishment fixed at a fine of $150. To reverse this judgment, an appeal was taken.

Of the various assignments of error, it is only necessary to notice the one: “That the evidence is insufficient to. sustain a conviction.”

The. language of the statute is as follows (section 2467, Rev. Laws 1910) :

“Any person who keeps any bawdyhouse, house of ill fame, of assignation, or of prostitution, or any other house or place for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene or indecent purpose, is guilty of a misdemeanor.”

The relevant evidence on the part of the state was substantially as follows: John D. Bailey, the first witness called for the state, testified that he was sheriff of Jackson county, and was acquainted with the Blue Goose Rooming House, or Hotel, located in the town of A)tus, near the Orient Depot and the defendant had been running the place two or three weeks, when on the day alleged in the information he went there with a search warrant and found • two women upstairs in a room. He was then asked:

“Q. Did Mr. Patterson make any statement to you as to what these girls were doing there ? A. He said the girls came there the night before, and he found them there that morning; that they said they wanted to stay there until they could get out on the train; and that he told them they could stay until he went up town to see the officers about it, and, if no objections, they could stay there until train time.”

And that he said Jesse O’Daniel was running the place for him. He further testified that about two weeks before a woman by tbe name of’ Cribbs lodged there one night; that she had the reputation of being a lewd woman, and was on her way to Texas.

. F. E. Ga'rdenhire testified that he was jailer and assisted the sheriff in serving the search warrant; that they took the two girls they found there and put them in jail, and they said that they were released from the city jail the day before and they had come there about 3 o’clock in the morning; that a man had brought them there, saying that he was an officer, and if they did not go with him and stay in the building that he would put them back in jail; that the defendant came there that morning and asked them what they 'were doing there, and they told him that they wanted to go -out on the train that went to Elk City, and that he told them that it was too late to catch that train; that it was already gone, but told them they had to get out, and they told him there was no other train they wanted to leave on, and he promised them if they would stay in one room that he would let them stay there until their train came; that Claude Duke and Warren' Tucker were in and around the place at the time.

M. L. I-Tankins, county attorney, testified that about May 1st the defendant told him that he was the owner of the Blue Goose, and that he was running it, and said he was cleaning it up and renovating it and was going to run a respectable place. That the general reputation of Jesse O’Daniel, Claude Duke, and Warren Tucker was that of men who associated with lewd women.

. The defendant demurred to the testimony and asked the court to instruct the jury to return a verdict of not guilty in the case; which demurrer was overruled and motion denied.

The defendant as a' witness in his own behalf testified: That he was a constable of Altus township; that he purchased-or leased the premises about the 1st of May, two weeks prior to the arrest, and was endeavoring to conduct a respectable business; that he did not live at the rooming house, but it was conducted for him by an employee; that when he left there Saturday evening the girls were not there, and he knew nothing about their presence at the place until he went there Sunday morning; that he told them they would have to get out, but would permit them to stay in one room until time for the next train to leave for Elk City; that shortly after the sheriff appeared and raided the place; that the 'Other woman who had lodged at the place, Mrs. Cribbs, had two children with her and left for Texas the next morning; that he had given explicit instructions to his employees to permit no unlawful conduct on the premises and none had been permitted with his knowledge or consent; that as a peace officer he had assisted in raiding the place several times during the preceding year.

In order to make out the offense charged in the information, under our statute, two facts must be established by the evidence before the defendant can be lawfully convicted: First, that the house in question was a bawdyhouse, house of ill fame or assignation, or of prostitution, or place for persons to visit for unlawful sexual intercourse, or for any other lewd., obscene, or indecent purpose; and, second, that -the defendant was the keeper thereof.

The offense defined by the statute is not keeping a house which is reputed to be a “bawdyhouse,” but keeping one which is so in fact; the gist of the offense is the keeping of the house, irrespective of its fame. The statute aims at the fact, not the fame; at the substance, not the shadow. In some of the states similar statutes are construed to require proof that the house had an ill fame in order to convict, and that the words “ill fame” refer to the reputation of the house, so that it must both be a bawdyhouse and be reputed such. But we regard such a rule as illogical and unsound, as it amounts to saying that, however bad the house is in point .of fact, it is no offense under the statute to keep it, if it has not an ill fame.

The terms “bawdyhouse” and “house of ill fame” are synonymous. A “bawdyhouse,” says Bouvier, “is a house of ill fame, kept for the resort and convenience of lewd people of both sexes.” Says Mr. Bishop:

“The common and better interpretation is believed to be that the term ‘house of ill fame’ is a mere synonym for ‘bawdyhouse/ denoting the fact, not .the ‘fame/ of it: And still, in matter of evidence, some courts allow the proof of the fact to be aided by the fame. Beyond which, express provisions in the statutes of a few of our states authorize, in these cases, proof of the reputation of the house in aid of the other proofs. And they are held not to violate our Constitution, though it would be otherwise if they made punishable the mere reputation, regardless of the fact.” (1 Bish. New Grim. Law, par. 1088.)

Upon a careful consideration of the record it is our opinion that the evidence offered was not sufficient to sustain a conviction. There was no proof on the part of the state that any immoral conduct was ever permitted on the premises with the knowledge and consent of the defendant; and while this court recognizes the admissibility of evidence of the general reputation of a house as to being a place where lewd and lascivious persons of both sexes congregate for unlawful sexual intercourse, and that the prosecution is not required to show particular acts of lewdness or prostitution in the house, if the evidence demonstrates that it is resorted to by people of both sexes who are generally reputed to-be of lewd and lascivious character, it is sufficient to authorize the jury, if they see fit, to find therefrom that it is a bawdyhouse. Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003; Carroll v. State, 4 Okla. Cr. 242, 111 Pac. 1021. See, also, Nelson v. Territory, 5 Okla. 512, 49 Pac. 920.

This rule of evidence we think is sound in principle and accords with nearly all the authorities on the subject. However, the only evidence of -this character offered in the case related to the fact that a woman -and -her children obtained lodging for one night, and two women of loose character obtained lodging on the night in question. This evidence is insufficient to sustain the charge. Even though -the proprietor had knowledge of their reputation and character, however low such women have fallen, -and however great an evil the existence of such a class in the community might be considered, still they are human beings and entitled to shelter, and there is no law which makes it a crime to give them shelter. The law only forbids the giving of shelter or lodging to such persons for immoral purposes. For this reason the facts in our opinion do not warrant a conviction, and as a matter of law the verdict is contrary to the evidence.

The judgment of the county court of Jackson county is therefore reversed, and the cause remanded, with direction to grant a new trial if additional testimony can be had to warrant such a proceeding.

DOYLE and FURMAN, jj., concur.


author: DOYLE, J.

text:
    WILL BACON v. STATE.
    No. A-1615.
    Opinion Filed June 11, 1913.
    (132 Pac. 829.)
    APPEAL — Ground for Reversal — Erroneous Evidence. Evidence, which does not tend in any degree to prove the offense charged and has no bearing upon any legitimate issue, and the only effect of which is to prejudice the jury, is incompetent; for this reason it was reversible error to admit and read to the jury, over the defendant’ objection, an information charging another person with a similar offense and verified by the complaining witness in the case on trial.
    (-'Syllabus by the Court.)

      Appeal from, County Court, Caddo County;

      C. Boss Hume, Judge.

      Will Bacon- was convicted of violating the prohibition law, and he appeals.
    Reversed.

      Jorgenson & Wamsley, and Pruiett & Sniggs, for plaintiff in error.

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

Plaintiff in error was convicted on an information filed in the county court of Caddo county, October 17, 1911, wherein it was charged that Will Bacon did on September 30, 1911, in said county, sell A. D. Blasingame two pints of whisky. On November 28th the court sentenced him in accordance with the verdict of the jury to be confined in the county jail for 60 days and to pay a fine of $200. To reverse the judgment an appeal was perfected by filing in this court February 15, 1912, a petition in error with case-made.

The complaining witness, Blasingame> testified, in substance, that he was a deputy state enforcement officer; that ■the defendant, Will Bacon, conducted a wagon yard in the town of Carnegie; that on September 30th he and John Cum-mins went to a livery bam in Carnegie and got a team, and with Buery Knight they drove down Main street and there met the defendant and called him to the buggy and asked him if he had -any whisky, and he said “yes”; that the defendant got in and they drove to his wagon yard where the defendant got out and asked him how much he wanted, and he said a pint; that he went and got a pint of whisky and came back, and witness said to the boys, “I believe we will get another pint”; and the defendant went and got another pint and he' paid him. $2, and they then drove to his father-in-law’s seven or eight miles in the country.

Buery Knight testified that he did not see the defendant sell or deliver any whisky to Blasingame; that it was dark; that when they drove out in the country Blasingame produced a bottle of ■whisky and they all drank; that Mr. Lewis was standing by the bnggy when the defendant got out; that they left Blasingame at his father-in-law’s and he and Cum-mins drove back.

John Cummins testified that they all started to a dance and Blasingame said he would not go, they drove to the defendant’s feedyard and he got out there; it was about 8:30 in the evening. As they drove there, Blasingame wanted to know where they could get some whisky and nobody said anything; that when the defendant got out they started to his father-in-law’s; that on the way Blasingame produced some whisky and they all drank some. The prosecuting attorney then asked him:

“Q. Didn’t you tell me yesterday, in my office, that Will Bacon came back to the buggy and put something in it? A. No, sir. Q. Didn’t you say Bacon came back to the buggy after he got out? A. I did not.”

Ben Daisy testified that he was staying at Bacon’s wagon yard; when these men drove up there he was standing in' the door and the defendant got out and walked across the street and went up town; that he did not see any whisky there. He was then asked:

“Q. Did you tell me,, in my office yesterday, that you saw Will Bacon deliver two- bottles of whisky to Blasingame the night of the 30th day of September? A. It is just like I told you a while ago; I was drunk and didn’t know what I told you. I might have told things I didn’t mean to tell; I was drunk. I was not on the stand when I was talking to you.”

A. D. Blasingame, recalled,- testified that he knew Ben Daisy and saw him in the county attorney’s office yesterday; that he was drinking some, but witness did not think he was drunk; that he heard the county attorney ask him what took place at Bacon’s feedyard on the evening of September 30th, and he said he saw this fellow, Will Bacon, sell this whisky. He was then asked if he knew a man by the name of Sain, and said he did, and in company with John Cummins he bought whisky of him and afterwards filed a complaint against Sain in the county court. Cross-examined be said be was allowed $5 a day expenses as an enforcement officer; and tbat Mr. Davis and Mr. Boys paid him the money here. He was then asked if Mr. Davis was not the man that owned the feedyard right, across the street from the defendant’s feed-yard, and answered that he did not know. Thereupon, over the objection of the defendant, -the state was permitted to introduce an information which charged that one Bill Sain did unlawfully sell whisky to A. D. Blasingame, which information was sworn to by A. D. Blasingame.. Thereupon, defendant asks that the information be withdrawn from the consideration of the jury, which request was overruled and exception allowed.

A person charged with the commission of a crime is entitled to a fair trial, which is but another way of saying one conducted according to law. We think the trial of the defendant was not conducted in this way. The court erred in several of its rulings in admitting incompetent evidence. The information against some person other than the defendant for selling whisky was clearly incompetent and inadmissible for any purpose.

Three of the witnesses for the state testified directly contrary to the testimony of' the complaining witness, and the admission of the incompetent evidence was obviously an attempt to corroborate his testimony, and that in itself constitutes reversible error. Spear v. State, 7 Okla. Cr. 379, 123 Pac. 852.

The Attorney General admits in his brief that the language used in one of the instructions excepted to is improper, but argues that it does not constitute reversible error where the evidence conclusively shows guilt. We think that in this case the verdict has but little support in the evidence. The state, when it placed the other three witnesses upon the stand, vouched for their credibility, and we cannot say that the incompetent evidence admitted did not affect the case or prejudice the defendant. Whether the defendant be innocent or guilty, in our opinion he has not been adjudged guilty in accordance with law.

It follows that the judgment of conviction must be reversed.

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


text:
    ALEX JEFFRIES v. STATE.
    No. A-1862.
    Opinion Filed June 11, 1913.
    (132 Pac. 823.)
    APPEAL — Right of Appeal — Payment of Costs. Where a party has been convicted of crime and desires to appeal, upon a proper showing made to the trial court that he is unable to pay the stenographer for extending the notes of the testimony or the clerk of the court for making up the record, it is the duty of the trial court to make an order directing that this he done without expense to the defendant.
    (Syllabus by the Court.)

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

    Alex JefEries was convicted of manslaughter in the first degree, and he appeals.
    Reversed.

      Wayne H. Lasater and B. W. Patterson, for appellant.

      C. J. Dcmenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

Appellaut was prosecuted in the district court of Garvin county charged with the crime of murder. It being made to appear to the satisfaction of the court that, appellant was ia pauper and was unable to employ counsel, the court appointed Wayne H. Lasater, Esq., and B. W. Patterson, Esq., two members of the Garvin county bar, .to defend appellant. Appellant was tried and convicted of manslaughter in the first degree, and his punishment was assessed at 15 years’ imprisonment in the penitentiary. Appellant gave notice of appeal, and moved the court to direct-'that the case-made and record should be prepared without expense to him upon the ground that he was without friends and money and was unable to pay the stenographer for extending his notes and to pay the clerk of the court for making up the record. The fact that .appellant was a pauper was not contested by the state. But the motion was denied by the court. In this we think there was error.

Section 6 of the Bill of Rights of the Constitution of Oklahoma is as follows:

“The courts of justice of this state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” .

It is a violation of both the letter and spirit * of this provision of the Constitution to require any man to pay any costs of court if he is a pauper and without the means of doing so, and to deny to him the issuance of such process or the services of the officers when he is unable to pay for the same. In other words, justice in ' Oklahoma is the right of the poor as well as the luxury of the rich. Every person convicted of crime in Oklahoma has the constitutional right to appeal to this court both upon the facts -and upon the law of his case, conditioned only upon a compliance with the regulations established by law for the exercise of this right. It is true that the stenographer’s notes are not the only means by which a case-made can be prepared. If for any reason the stenographer’s notes cannot be obtained and a ‘ defendant has been unable to employ lawyers to represent him, it. is their duty to use their best exertions to make up a case-made .from memory, and, if they -do not do so, the defendant will be held responsible for this neglect of duty on their part. See Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, 115 Pac. 370. But this rule only applies to cases in which a defendant is able to employ counsel. It is necessary as a means of protecting the stenographer’s notes because, were it not for this rule, there would be a constant temptation to defendants and their friends to steal the stenographer’s notes or to bribe the stenographer to lose or destroy them. But, where a defendant is unable to employ counsel, this rule should not be enforced against him. When lawyers .are appointed by the court to defend a case, it is their duty to do everything that is usual in defense of their client, and when they have conducted the trial according to law no more should be expected of them. Stenographers are paid by the state $100 per month for their services. They are also allowed to charge liberal fees for extending their notes where the parties desiring such extension are able to pay for the same. But, when a defendant is unable to pay for extending the notes, of the stenographer, he is as much entitled to have this done without cost to him as he is to have the services of the sheriff in summoning witnesses or any other court officer in the performance of his duty in such cases. It is therefore the right of a defendant if he is unable to pay for the same to -have the stenographer’s notes extended without cost, .and it is the duty of the trial court to make .an order to this effect, .and .to see .that it is obeyed. As this was not done in the case at bar, there is no case-made in the record, and appellant has been denied his constitutional right to have his case reviewed by this court upon the facts. Whether he is guilty or innocent he has this right, and he cannot lawfully be deprived of it.

In .the case of Tegeler v. State, 3 Okla. Or. 595, 107 Pac. 949, 139 Am. St. Rep. 976, this court held that, where a defendant without fault on his part or on the part of those who represented him has not been able to obtain a case-made upon which to prosecute an appeal, a new trial will be granted him. In the case at bar appellant has prosecuted an appeal upon a transcript of the record in which there are numerous assignments of error alleged to have been committed by the trial court in its instructions to the- jury. We cannot determine intelligently as to whether or not the trial court erred in its instruc'tions tothe jury unless the testimony in the case is also before us, because instructions are always viewed in the light of the testimony to which they are applicable.

It is true that appellant is only a friendless negro without money, and dependent upon the charity of his attorneys for his defense. But the law is no respecter of persons. It can-. not look to the color of a man’s face, the size of his poeketbook, or the number of his friends. We want the people of Oklahoma to understand, one and all,. that the poorest- and most ' unpopular person in the state, be he white or black, can depend upon it that justice is not for sale in Oklahoma, and that no one can be deprived of his right of appeal simply because he is unable to pay a stenographer to extend the notes of the testimony.

The judgment of the lower court is reversed and the cause is remanded for a new trial.

ARMSTRONG, P. J., and DOYLE, J., concur.


text:
    SAM BOWMAN v. STATE.
    No. A-1616.
    Opinion Filed June 11, 1913.
    (132 Pac. 824.)
    APPEAL — Objection Below — Necessity — Presence of Defendant. Where the record shows that a defendant participated in the trial ■and after conviction filed a motion for a new trial in which he did not claim that any portion of the trial took place in his absence, and where the record also shows that the defendant was present when judgment was pronounced against him and was asked by the' court what, if anything, he had to say why judgment should not be pronounced, and the defendant said nothing, this court will presume that the defendant was present during his entire trial, and the question of his absence during such trial cannot he raised for the first time upon appeal.
    (Syllabus by the Court.)

      Appeal from District Court, Custer County; Jas. B. Tolbert, Judge.

    Sam Bowman was convicted of larceny of cattle, and he appeals.
    Affirmed.

      W. B. Merrill ,and B. E. Echols, for appellant.

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

This case was appealed upon .a transcript alone and does not contain any statement of the evidence. Therefore we know nothing of the testimony and must decide it alone upon the record.

Counsel for appellant in their brief say:

“We maintain that it is mandatory that the record of the case show the presence of the plaintiff in error, who was the defendant below, at all stages of the trial.”

The transcript of the record shows that appellant was present in court .and announced ready for trial, .and that he was present when the verdict was received. It also shows that appellant filed a motion for a new trial complaining of 10 grounds of error. No complaint is made in this motion that any part of the trial took place in the absence of appellant. The, record also shows that appellant was present when the judgment was pronounced against him. He was then asked by the trial court what, if any, reason he had why judgment and sentence should not be passed upon him. To this he made no reply. If, as a matter of fact, any part of the trial took place in the absence of appellant, he should have complained of this matter either in his motion for a new trial or when sentence was pronounced against him, and should -have taken some steps to make such absence appear in the record, and, having failed to do this,, he cannot now be heard to complain. This question has been repeatedly passed upon by this court. The last utterance of this court on this question will be found in the case of Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657. As this question has been raised in a number of cases, we will repeat what we there said:

“Fourth. Counsel for appellant contend in their brief and oral argument that the judgment should be set aside because the records of the court do not affirmatively show the presence of the defendant during the trial. The record does show that the defendant entered a plea of not guilty;, that 'he was present when the state’s witnesses were examined; that he testified in his own behalf, and was present when the sentence of the court was pronounced. It affirmatively appears from the motion for a new trial that appellant was present during the trial of this case, and that he requested the court to send the jury to inspect the place where the shooting occurred, and that he took numerous exceptions to the introduction of evidence and the instructions of the court as given to the jury. Upon the authority of Sam Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11, tins record would sustain this conviction, even though it should be held that the record must affirmatively show the presence of the defendant during his trial. To hold that .this ease should be reversed on account of the question now raised would be a very severe reflection upon counsel for appellant. It would be based upon the presumption that they were so negligent or so ignorant as to allow their client to be tried for a felony during his absence. We cannot presume anything of the kind, because this court has actual knowledge of the fact that counsel for appellant are among the ablest and most zealous lawyers in the state, and that they haye taken care of every right of their client. If appellant was not present during the .trial in the court below, why was this objection not presented then? Why was it not embodied in the motion for a new trial, and why, when the appellant was called upon to state his reasons, if any he had, why sentence should not be pronounced upon him, was the objection not made that the trial had taken place during his absence? Every presumption of law must be indulged in favor of the regularity of proceedings of a court of record and of the ability and fidelity of counsel for a defendant in the failure of the record to affirmatively show the absence of appellant. We therefore cannot assume, as counsel now claim we should do-, that appellant was not present during his trial. Of course, if the record affirmatively showed that he was not present during the trial, we would be forced to set aside this judgment, but there is nothing in the record upon which such a presumption can be based. Since the decision in the Sam Wood case we have investigated this question more fully, and we are now satisfied that an appellant should not be heard to complain for the first time in this court that he was not present during the trial of his .case in the lower court, unless this fact affirmatively appears from the record.”

This is the only question presented in the -brief of counsel. We could not grant a new trial upon this ground without re-' versing a number of our former rulings and establishing a dangerous precedent.

The judgment of the lower court is affirmed.

ARMSTRONG, P. J., and DOYLE, J., concur.


author: FUBMAN, J.

text:
    STERLING CLUCK v. STATE.
    No. A-1424.
    Opinion Filed June 11, 1913.
    (132 Pac. 930.)
    1. SEDUCTION — Evidence—Corroboration—Necessity. In a prosecution for seduction under promise of marriage, the testimony of the prosecutrix must he corroborated as to the promise of marriage and the illicit intercourse, but need not be as to her being unmarried and of previous -chaste character.
    2. SAME — Sufficiency of Evidence. Por testimony held to be sufficient to sustain a conviction for seduction under promise of marriage, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Le Flore Countyj Malcolm F. Rosser, Judge.

    Sterling Cluck was found guilty in the district court of Le Flore county of the crime of seduction, and 'his punishment was assessed at confinement in the penitentiary at MeAlester for 18 months, and he appeals.
    Affirmed.
    Lola Bali testified that she was 18 years of age and lived ■at Cowlington; that she had known appellant for about four years; that her mother was dead; that her mother died when she was seven years of age; that appellant had been going with witness 2% years; that a year after appellant began going with witness they became engaged to be married; that when .appellant first -asked witness to marry him she declined t-o do so, upon the ground that slie was too- young, but that she would marry him as -soon as she got old enough; that appellant frequently called at witness’ house to see her, .and frequently took her t-o church and -singing; that the father of witness objected to her going with appellant; that appellant frequently met witness at her aunt’s house, and had seen her at singing and church and at parties; that after appellant had been engaged
      to witness for some time be aslted ber to have intercourse with him; that witness declined. Witness then testified as follows:
    “He asked me why, and I said it was wrong. He said that there was no harm in it, and I said that there was. I said he would not think as much of me if I did, .and he said, Wes;’ he would think three times as much of me if I did. He said that other girls did that, and I said I did not care; I did not want to do that way. The Court: Go on. A. He said that I was going to be his wife, -and I told him that I did not want to do that way. He kept on begging, and said: ‘I’ll do the right thing; I’ll hold up my right hand and swear that I’ll marry you.’ Q. Did he swear it? A. Yes, sir; he knelt down on his knees and swore it. Q. Then you consented? A. Yes, sir. Q. Where were you when he had intercourse with you? A, I was lying down on the carpet. Q. Did you lay down yourself? A. No, sir; he laid me down. Q. Who unfastened your clothes, Lola? A. He did. Q. Did he hurt you or not? A. Yes, sir; he did. Q. Did you tell him that he was hurting you? A. Yes, sir. Q. Did he have intercourse with you after that? A. Yes. Q. How long after? A. It was-a. night or two. Q. What -did he say to you about it then? A. He said for me to 'do like other men’s wives, and I s-aid I did not want to, and he said that other girls -did that way. Q. Did he tell you that the second time? A. Yes; he told me that every time. Q. Was anything said about marrying these -other times? A. Yes, sir; he- gave me his hand each time and s-aid that we would marry. Q. What did he do? A. He gave me his right hand and knelt down on the floor. Q. You say he would give you his right hand and kneel down on the floor? A. Yes, sir. Q. Is that right? A. Yes; he would give me his right hand and swear that we would marry. Q. What was it he would say when he would swear? A. He said, ‘I’ll swear before God that we will marry.’ Q. Would he do -that every time he had intercourse with you? Defendant: We object to leading the witness in this manner; we do not think it is fair to the defendant. The Court: She has -already stated that; but, it is not proper to repeat what the witness has stated, and it is a waste of time. Q. How many times did he have intercourse with you? A. Four times. Q. Four times? A. Yes, sir. Q. Were there, or not, any resulte from these acts of intercourse? A. Yes, sir. Q. Anything that followed it? A. Yes, sir. Q. What was it? A. I don’t know what it was. .Defendant: We object. Q. Wa.s there .a child horn? A. Yes, sir. Defendant: We object. The Court: I think it is competent for her to show whether she became pregnant, and that a child was born. Defendant: We except. Q. When was the last time he had intercourse with you? A. On Wednesday night before he married Thursday. Q. Was anything said about marriage at that time? A. Yes, sir; he gave me his hand and swore that he would marry me.”
    She also testified that she had never had sexual intercourse-with -any other person than the defendant.
    James Ball testified that he was the father of Lola Ball; that her mother died in 1902; that the appellant frequently waited on his daughter; that appellant was with his daughter so often that witness requested him to quit keeping company with her; that during the last week of December, 1910, Lola Ball gave birth to a child.
    Mrs. Martha Ball testified that she was the stepmother of Lola Ball; that in the latter part of December, 1910, Lola Ball gave birth to a child; that appellant had been going with Lola Ball for about two years before this.
    Mrs. Mary Ball testified that she was a sister-in-law of Lola Ball; that she was acquainted with appellant; that -appellant kept company with Lola Ball; witness once heard appellant call Lola Ball his freckled-faced wife.
    Mrs. J. F. Bridges testified that she was acquainted with Lola Ball, and was -also -acquainted with -appellant; that appellant frequently came to her house for the purpose of meeting Lola Ball; that they acted just like young people sparking.
    West Sumner testified that Lola Ball was a niece of his wife; -that he was acquainted with appellant; that appellant visited Lola Ball at the house of witness; he heard appellant talking about marrying Lola Ball, and in this conversation appellant said he would have her if it took him 10 years to get her.
    Mrs. J. F. Husband testified that she was acquainted with appellant and also Lola Ball; appellant once came to the house of witness and wanted her to make some clothes for Lola Ball; witness had heard appellant say he would not deny that he had been engaged to Lola Ball.
    Mrs. Maud Person testified that appellant had been visiting Lola Ball- about two years; that at the request of appellant witness had made a waist; that before making the waist she took ■the measurement of Lola Ball to make it by.
    Appellant introduced his wife, Mrs. Gertie Cluck.- She did not testify to any material facts or offer any further evidence.

      Tom W. Neal, for appellant.

      Smith G. Matson, Asst. Atty. Gen., for the State.
   FUBMAN, J.

First. The testimony in this case is clear and conclusive as to the guilt of appellant. Lola Ball testified that she had never had sexual intercourse with any other person than appellant. She gives -a detailed account of the manner in which her seduction was accomplished by appellant, all of which is corroborated by the circumstances of the case. Appellant did not take the witness stand, and offered no testimony in his behalf which threw any light upon the material questions in ..the case.

Section 6838, Comp. Laws 1909, Bev. Laws, 5886, is as follows:

“Upon a trial for inveigling, enticing or taking away ah unmarried female of previous chaste character, under the age of twenty-five years for the purpose of prostitution, or aiding or assisting therein, or for having, under promise of marriage, seduced .and had illicit connection with an unmarried female of previous chaste character, the defendant cannot be convicted upon the testimony of the person injured unless .she is corroborated by other evidence tending to connect the defendant with the commission of the offense.”

Under this statute the testimony of the prosecutrix - must be corroborated as to the promise of -marriage, and illicit intercourse, but not as to her being unmarried and of previous chaste character. That Lola Ball was a country girl -of previous chaste character is proven by her testimony; for she testified that she had never had sexual intercourse with any person except appellant, and this was not called in question by any evidence on behalf of appellant. That appellant had been her accepted beau since she was 15 years of age is also proven. To one witness appellant once referred to her as his freckled-faced wife. In .talking to another witness with reference to his engagement to her, he said that he was going to have her if it took him 10 years to get her. To another witness appellant stated that he would not deny that they had been engaged to be married. These statements of appellant corroborate the testimony of Lola Ball as to the promise of marriage. The facts that appellant was constantly with Lola Ball and was her accepted beau, and .the birth of her child, corroborate her statements as to her seduction by appellant. This is all the corroboration which is needed, or that the law requires.

In the case of Harvey v. Territory, 11 Okla. 157, 65 Pac. 838, Judge Burford, in considering this question, said:

“It is contended by plaintiff in error that this statute requires corroboration of the prosecutrix on every element of the offense. We cannot agree with this contention. The authorities seem to be in irreconcilable conflict on this question, but such conflict is more apparent than real. Almost every state has a statute requiring some kind of corroboration in tins class of cases, yet these statutes very materially vary in their provisions and requirements. It is by reason of this difference in the various statutory provisions that the seeming conflict in the decisions of the courts arise. We must first determine the meaning and purpose of our own statute. The only requirement is that the prosecutrix must be ‘corroborated by other evidence tending to connect the defendant with commission of the offense.’ Now, there are but two things that he is charged with doing, viz., promising to marry the prosecutrix, and having illicit connection with her. The other two elements of the offense go to the character of the person protected by the law, viz., an unmarried female, and the one of chaste character. With these two elements the defendant is in no way connected; no action of his brings about either condition; but if he has promised to marry her, then, he is connected with this element of the crime, and her evidence alone is not sufficient to establish such promise; and if he has had illicit intercourse with her this act also connects him with the offense, and the evidence of the female with whom the intercourse was had is not sufficient to prove such fact. Hence we think the purpose of the statute is to require the prosecutrix to be corroborated on the promise of marriage and the illicit intercourse, and not upon the elements that go alone to her characteristics, viz., that she was unmarried, and that she was of chaste character.”

An examination of the ease of Harvey v. Territory, supra, in which the conviction of appellant was affirmed, will show that the case -at bar is much the more flagrant of the two, and is supported by a much greater weight of evidence.

In the case of State v. Smith, 84 Iowa, 522, 51 N. W. 24, the Supreme Court of that state held that in a prosecution for seduction the fact -that the parties kept company and acted as lovers usually do-, and other like circumstances, -are sufficient corroboration of the evidence -of the prosecutrix.

The evidence in the case at bar makes -out -a most inexcusable, long planned, cunningly devised seduction planned by appellant, -and there is not one word of testimony in the record which raises the .suspicion that he is not guilty as charged.

We desire, in this connection, to repeat what we said in the ease of Hast v. Territory, 5 Okla. Cr. 162, 114 Pac. 261, as to the enormity of the crime of seduction:

“The offense of which the -defendant has -been convicted is the blackest in the catalogue of crimes. It is a much graver crime than that of rape by force. A rape fiend is generally carried away by the sudden irresistible impulse of the strongest pa-ssion to which man is -heir. As soon -as the crime is committed, he may deeply regret it. It is true that he has committed a fearful outrage upon the body of his victim; but her soul remains pure, and she may still be a loving mother, a trusted wife, and an honored member of society. None of these things can exist in a case of seduction. The-seducer -acts with the utmost deliberation. He coolly lays siege to the citadel of his victim’s .heart, and, by all manner of flattery, promises, and protestations of love, he gains her affections and subjects her will to his. This is not the work of a moment, /but it extends over' days and weeks and maybe months of time. The appellant was over 20 years the senior of this unsuspecting country girl. He was a man of experience and property. She was a mere child. There was no blacker and more deadly treachery in the heart of Judas Iscariot when he betrayed the Savior of mankind with a kiss than there is in the heart of the seducer, when in the sacred name of love he violates the body and crushes the soul of his unfortunate and trusting victim, merely to gratify his base .animal passion. She is as powerless in his hands as a sparrow in the talons of a hawk; as a lamb in the bloody jaws of a wolf. He not only outrages her body, but he —
“Ne’er can give her back again That which he has taken away,
The brightest jewel woman wears Throughout her little day.
The brightest and the only one Which from the cluster riven Shuts out forever woman’s heart.
From all its hopes of heaven.’
“No punishment can be too great for the seducer. Hnder the Mosaic law, the penalty of death was inflicted for this offense. The seducer was taken beyond the gates of the city and stoned to death. If this was the law now, there would not be so much impurity in our country. Whicli is worse, to kill the body and let the .soul live, or to kill the soul and let the body live? One is physical death; the other spiritual assassination. The courts and juries of this state cannot be too vigilant in protecting the innocent girls of our country against the wiles and machinations of such incarnate fiends in human form. The virtue of our girls is the most sacred thing this side of heaven. The man who boasts that he can take $1,000 and beat a prosecution for seduction, as appellant did, had better leave this state if he desires to preserve his liberty. Of course, no one should be convicted upon suspicion; but where a defendant has been found guilty of this infamous and detestible offense, after having had a fair and impartial trial, and the evidence clearly shows his guilt, as it does in this case, it would be a crime against society and treason to virtue to set the verdict aside.”

The legal propositions presented in the oral argument and brief of counsel for appellant have all been repeatedly decided adversely to the contentious therein made by this court. It is therefore not necessary to repeat them.

The conviction of appellant is just and merited. We 'find no material (error in the record. The judgment of' the lower court is therefore in all things affirmed.

The imprisonment of appellant will begin on the day of his reception in the penitentiary. Mandate will issue without delay.

ARMSTRONG, P. J\, and DOYLE, J\, concur.


text:
    HUNTER TUCKER v. STATE.
    No. A-1792.
    Opinion Filed June 14, 1913.
    (132 Pac. 825.)
    1. INDICTMENT AND I NFORMATION — Preliminary Examination-Necessity — Variance Between Information and Preliminary Complaint. Section 1Y, Bill of Rights, prescribes: “No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.” Held that, under the constitutional provision, the precedent fact that a preliminary examination has been had or waived constitutes the jurisdictional basis for a prosecution on information in the superior court. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to believe that defendant is guilty thereof that confers jurisdiction on the superior’court and authorizes the county attorney to file an information in said court charging the crime complained of in the preliminary complaint when such examination has been waived by the defendant. And further held, that if the defendant on being brought before the examining magistrate waives his right to a preliminary examination, and it appears that the charge in the preliminary complaint is substantially the same as that set forth in the information filed by the county attorney in the superior court, a plea of want of a preliminary examination, or a variance between the preliminary complaint and the information, is unavailable.

      2. TRIAL — Continuance—Discretion—Appeal. An application for a continuance is addressed to the discretion of the trial court, and in reviewing the refusal of a continuance asked on account of an absent witness the evidence adduced at the trial will be considered by this court for the purpose of determining whether the alleged testimony was probably true, as well as whether it was material, if true, and this court will not reverse the judgment of the trial court upon its action' in a matter of discretion, unless there appears a plain abuse of such discretion.
    3. APPEAL — Exceptions—Remarks of Counsel — Preservation in .Record. Exceptions must be saved to alleged improper remarks of the prosecuting attorney in his argument to the jury, and such remarks must be preserved by being incorporated in the case-made, or by bill of exceptions, duly allowed, to render them available on appeal; and, when not so preserved in the record, such remarks cannot be shown by affidavit or mere recitals in a motion for new trial.
    4. RAPE — Sufficiency of Evidence. In a prosecution for rape, the evidence is held sufficient to support the verdict, and that no reversible error was committed on the trial.
    ('Syllabus by the Court.)

      Appeal from -Superior Court, Custer County; J. W. Lawter, Judge.

    Hunter Tucker was convicted of rape, and appeals.
    Affirmed.

      Shackleford & Norfleet, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., (Jos. L. Hull, of counsel), for tbe State.
   DOYLE, J.

Tbe plaintiff in error, Hunter Tucker, was at tbe M>ay, 1912, term of the superior court of Custer county, convicted upon an information charging him with the crime of rape committed upon one Jessie Tucker, the daughter of the defendant, and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of 31 years. On May 27, 1912, the court pronounced judgment, and sentenced the defendant in accordance with the verdict of the jury. To. reverse the judgment an appeal by case-made was perfected.

The record shows that the complaint was filed before S. A. Smith, justice of the peace, January 26, 1912, charging Hunter Tucker with the crime of rape, committed upon Jessie Tucker, verified by the oath of Jessie Tucker, and on the same day the .defendant was arrested and brought before the committing magistrate, and waived a preliminary examination. March 2d an information was filed.in the superior court charging rape in the second degree. On May 23, 1912, by leave of court an amended information was filed, charging rape in the first degree, committed upon Jesse Tucker, • a female under the age of 14 years. Thereupon the defendant moved to dismiss the case for the reason that the defendant had no preliminary examination, nor had he waived the same. The court overruled the motion, and permitted the committing magistrate to indorse his finding and order of commitment on the original complaint, as follows:

“It appearing to me that the offense in the within information mentioned, to wit, the crime of rape has been committed, and that there is sufficient cause to believe that -the within named Hunter Tucker guilty thereof, he having been arraigned and advised' of his right to counsel, and he having waived preliminary examination, he is admitted to bail in the sum of $15,000, and it is further ordered that he is committed to the custody of the sheriff of Custer county until said bail be given. Dated January 26th, 1912. S. A. Smith, Justice of the Peace.”

Our Procedure Criminal (section 5680, Rev. Laws) prescribes that the magistrate must in like manner indorse on the complaint an order signed by him,” and (section 5692) prescribes that, when the magistrate has held a defendant to answer, “he must return immediately to the clerk of the district court of the county, the warrant, if any, the complaint, the depositions, if any has been taken of all the witnesses examined before him, the statement of the defendant, if he have made one, and all undertakings of bail, or for the 'appearance of witnesses taken by him, together with a certified record of the proceedings as they appear on his docket.”

The constitutional provision (section 17, Bill of Rights) and the statute were construed in the case of Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006. In the opinion it is said:

“Under the constitutional provision the precedent fact that a preliminary examination has been had or waived constitutes the jurisdictional basis for a prosecution for a felony by information in the district court, and, even though the examining magistrate failed to indorse his finding and order on the preliminary information, the district court had jurisdiction to order that a proper indorsement as prescribed by the statute be made. The finding and order -of the magistrate made upon the preliminary examination and entered on his docket was sufficient to confer jurisdiction on the district court.”

The failure of the committing magistrate to indorse his findings and order in the first instance on the preliminary complaint is not jurisdictional, and where the proper order has been made and entered, and is shown by the transcript transmitted to the superior court, that in itself is sufficient to show jurisdiction. The defendant having waived his right to a preliminary examination and no- testimony having been taken, the county attorney was authorized to file an information in the district court or superior court for the offense charged in the preliminary complaint before the committing magistrate. The preliminary complaint in this case charged the crime of rape, committed upon one Jessie Tucker, and was sufficient to sustain either the first or the amended information. Wines v. State, 7 Okla. Cr. 450, 124 Pac. 466. Whether an examination has or has not been had or has been waived is a question of fact to .be raised by the defendant. If he claims that this constitutional right has been denied to him, he can and should do so when he is arraigned upon the information by filing a plea in abatement, or by a motion to quash or to set aside the information. Williams v. State, supra. The motion to dismiss, which we have considered here as a motion to quash, is not presented by the record so as to make it available as it appears that said motion was not made until after the defendant had entered his plea of not guilty to the amended information. This plea was never withdrawn, nor was any request to Withdraw ■the same ever made. However, there can be no question but that the defendant’s constitutional right to a preliminary exam-inat'ion was warred in the first instance; therefore the trial court properly overruled the motion.

When the case was called for trial, the defendant presented to the court his affidavit for a continuance, which, omitting the formal parts, is as follows:

“That one Henry Bailey, whose evidence is material in this case, has not been found, and is now absent from this county; that the defendant at the earliest possible date, had a subpoena issued for the said Henry Bailey and sent (to the sheriff of Grady county, the last known place of residence of the said Bailey, and that the said subpoena has been duly returned stating that the said Bailey has not been found; that he is not absent through any fault or connivance of this defendant, and * the defendant with due diligence has thus far been unable to ascertain his exact whereabouts, but expects to have the evidence of the said Henry Bailey by the next term of this court; that if present the said Henry Bailey would testify- as follows, to wit: That during the months of October and November, 1911, he was in the employ of the defendant on his farm; that by virtue of his said employment he had occasion to be in. and around this defendant’s home quite frequently; that upon many different occasions he saw one Oscar Stoughton at the defendant’s home; that upon two different occasions he caught the said Oscar Stoughton in the act of sexual intercourse with Jessie Tucker; that he had a conversation with the said Stough-ton relative, to his conduct, in which the said Stoughton told him he had not only had intercourse with Jessie Tucker, but that he had been 'playing the game with the whole family’; that witness had heard that the said Oscar Stoughton was afflicted with syphilis, and in said conversation he asked the said Stoughton if this report were true, to which he replied, 'Yes; I have it, and I expect I have given it to the whole damn family’; that he asked the said Stoughton if he were not uneasy for fear this defendant, the father of Jessie Tucker, would do him personal violence should he learn of his conduct; that the said Oscar Stoughton told him that he was not afraid in the least because if any trouble were to arise, or if this defendant learned of his conduct and started any trouble, he would make the whole family swear that it was this defendant who had been having such illicit intercourse with them; that they were all -afraid of him, the s-aid Oscar -Stoughton, and he would make them swear anything he wanted them to; that the said Bailey just before leaving the employ of the defendant in November stated to this defendant the matters and facts above set forth, and told him not to take his word, but if he would watch he could be convinced of its truth; this af-fiant believes said statements to be true, and that he knows of no other source by which such evidence could be furnished; that this application for continuance is not made for the purpose of delay, but that justice might be done him. Wherefore he prays the court to continue this cause until the August term thereof.”

The court overruled the application, and ordered the trial to proceed, and this ruling of the court is assigned as error.

Under our statutes, the granting or refusing of an application is a matter within the judicial discretion of the trial court. In reviewing the refusal of a continuance, on account of absent witnesses, the testimony taken in the trial is considered by this court for the purpose of determining whether the absent testimony was probably true, as well as whether it was material, if true. Oscar Stoughton was a witness for the state and the defendant did not cross-examine him at all, and no predicate was laid for this impeaching testimony which it is averred the absent witness would have given. The affidavit does not show the exercise of proper diligence to procure his attendance, and there was no showing of any probability of securing his attendance at a future date. The complaint was filed in January;, and, if the whereabouts of the witness had not been learned in May at the time of the trial, what reason had the court to believe ' that he would ever be found. No abuse of discretion being shown, there was no error in overruling the motion for continuance.

We think it unnecessary to set out the revolting details of the testimony in this case,, further than to state that the proof on the part of the state was substantially as follows:

The complaining witness, Jessie Tucker, testified that on or about December 1, 1911,, the defendant had sexual intercourse' with her, and that he had sexual intercourse with her at other-times prior thereto-; that once or twice he made her go to bed! with him and had sexual intercourse with her, that her sisters Alice and Lily were present when he compelled her to go to* bed with him; that she was fourteen years of age ■ January 1, 1912; that she told her mother that the defendant had forced her to submit to sexual intercourse with him.

Alice Tucker, 18 ■ years old, daughter of the defendant, testified to several specific acts of sexual intercourse by the defendant with her sister Jessie, and that the 'defendant often threatened to kill them if they should tell of his misconduct.

Lily Tucker, 17 years old, testified to the same state of facts.

Two practicing physicians testified that in January, 1912, they examined the prosecutrix, and found that she was afflicted with a venereal disease.

The defendant’s theory of defense was that his wife had procured their daughter to make the complaint so that his wife might procure a divorce and get -his property, and that his daughters were wayward, and he had trouble with them, and had to whip them for disobeying him by going with questionable characters in the neighborhood, and they had entered' into a conspiracy to send him to the penitentiary. As ¡a witness in his own behalf, he stated that he was 43 years of age, and had lived in Custer county since 1897. He denied being guilty of any improper conduct towards the prosecutrix; that for several years he had- trouble with his daughters because they wanted to keep company with unfit persons, among others' Earl Fox and Oscar Stoughton; that he discovered his daughter Lily having improper -relations with Earl Fox, and whipped 'her, •and she stated in the presence of the -other girls and their mother that she was going to send him to the penitentiary for life; that he discovered prosecutrix having improper relations with Oscar Stoughton and whipped her, and she made threats that she was going to get him out -of the way; that when he was arrested, -and committed he was unable to give bail, and his wife sued him for a divorce and secured an injunction prohibiting him from transferring or incumbering his property.

The clerk of the superior court, called as -a witness for the defendant, produced records showing that an action for divorce had been filed by the wife of the defendant, and an injunction allowed restraining the defendant from selling or transferring any of his property, real or personal; that incestuous conduct with his daughters was one of the grounds.

In rebuttal, C. E. Cox testified that he was sometimes called Earl; that he lived with his folks near neighbors to the Tuckers, and the girls often came to visit his sisters; that he went with Lily Tucker, and took her home from preaching a few times, and there never was any improper relations between them; that the 'defendant tried to whip him for this, but he could not run fast enough to catch him.

Oscar Stoughton testified that he made his home with his brother, Tom, a son-in-law of the defendant, who lived in the same neighborhood, and that he went a half dozen times with Alice Tucker to Sunday school, and there was nothing improper in his relations with the defendant's daughters, nor did the defendant ever accuse him with doing anything wrong with his daughters.

Alice Tucker denied that she ever threatened to send her father to the penitentiary, except one time when he was mistreating her, and he said “there is no law .that can handle me;” that she never heard the defendant accuse any of her sisters of having intercourse with anybody.

Lily Tucker testified that the defendant never accused her of having improper relations with Earl Fox, but objected to her going with him; that she never threatened to send him to the penitentiary; that when he was guilty of improper conduct she said to him, “Don’t you know there is a law that can handle you for this,” and he swore and said, “There is none that can handle me.”

The prosecutrix denied that her father had ever caught her in the plum thicket acting improperly with Oscar Stough-ton, and .the only reason he whipped her was because she refused to willingly submit to his lecherous desire.

Finally, it is contended that error was committed by the court in permitting the prosecuting attorney in his argument to the jury to use the following language:

“If it hadn’t been for the cross-examination, you would never have known that defendant had sexual intercourse with his 'Other daughters, Alice' and Lily.”

No objection was made or exception saved to this remark, and, if made, it is not shown in the case-made, except as one of the grounds in the motion for a new trial.

By numerous decisions of this court the rule is settled that misconduct of a prosecuting attorney in his argument to the jury can only be shown by being properly incorporated, in the case-made, or by bill of exceptions duly allowed, and when not so preserved in the record cannot be shown by mere recitals in a motion for new trial. Therefore this assignment cannot be considered.

While there is some conflict in the testimony, it strongly tends to show the defendant’s guilt, and we find little in the case to make us look with favor upon the mere technical objections raised by the defendant. The trial was eminently a fair one. The jury were fully and properly instructed as to the law, and they found the defendant guilty of the offense charged, and we find no reason for disturbing their finding.

It follows that the judgment must be affirmed.

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


text:
    PETE STITES v. STATE.
    No. A-1614.
    Opinion Filed June 14, 1913.
    (132 Pac. 822.)
    1. TRIAL — Presence of Judge. When a criminal case is on trial in any court in this state, it is necessary for the trial judge to be present during each and every stage of the proceedings.,
    2. SAME — 'Ground for Reversal — Absence of Trial Judge. When during a trial a judge presiding finds it necessary to be absent from the courtroom or out of the presence and hearing of the trial, the proceedings should be suspended by him until his return. When this is not done, and the record shows affirmatively that the judge absented himself during any stage of the proceedings, a judgment of conviction cannot he upheld.
    .('Syllabus by the Court.)

      Appeal from County -Court; Woods County; W. M. Bicleel, Judge.

    Pete Stites was convicted of violating the prohibitory law, and he appeals.
    Reversed.

      Boss & Madwiger, for, plaintiff in error.

      Smith C. Matson and IS. Q. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in. error, Pete Stites, was convicted at the October, 1911, term of the county court of Woods county on a charge of unlawfully conveying from one place within Woods county to another place therein intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the- county jail for a period of 30 days.

This conviction would be affirmed were it not for the fact that the trial judge left the courtroom, during the progress of the trial, retired to the clerk’s office, and was there transacting other business. The statement in the record over the signature of the trial judge is as follows:

“I certify that the recital alleging that the trial judge was absent from the courtroom for some time during the argument of counsel is correct, this 13th day of February, 3 919. W. M. Bickel, Judge of the County Court.”

In Wright v. State, 7 Okla. Cr. 280, 123 Pac. 434, it is said:

“It is error for the presiding judge of a court to vacate the bench and retire from the courtroom, or from the presence and hearing of the proceedings of the trial. A judgment of conviction cannot be sustained when the record affirmatively discloses such a condition. The presence of the judge as the p Les'ding genius of the trial -is as necessary 'during the argument as it is during the taking of the testimony, or at any other time during the progress of ,such trial.”

And, further:

“It is just as serious an error for the court to retire to a remote place in the courtroom, out of hearing and control of the proceedings in progress, as it would be to absent himself from the courtroom entirely. It is his duty to preside over and control the trial. If he loses this control by being out of the hearing 'and presence of the jury, it is just as prejudicial to the rights of the party on trial as it would be for him to leave town. It is the supervision and control of the trial in person by the trial judge that the law requires.”

In Cochran v. State, 4 Okla. Cr. 379, 111 Pac. 974, it is said:

“If, for any reason, a judge finds it necessary to retire from the courtroom during the trial of a criminal case, he should order that business shall be suspended during his absence. The judge in criminal oases should have the court under his immediate control every moment of time in which it is open and transacting business.”

See, also, Slaughter v. United States, 5 Ind. T. 235, 82 S. W. 732.

Under the doctrine established by these eases, this judgment will have to be reversed. It is necessary for the trial judge to be present and exercise control over the trial during each and every stage thereof; and, if for any reason he finds it necessary to leave the courtroom and be out of the presence and hearing of the proceedings, the trial should be suspended by him until his return. This doctrine is settled in this jurisdiction, and it is necessary for the (trial courts to observe it if they expect their judgments to be upheld on appeal.

The judgment is reversed, and the cause remanded for a new trial.

DOYLE and FURMAN, NT.,. concur.


text:
    JOHN HOBBS v. STATE.
    No. A-1587.
    Opinion Filed June 14, 1913.
    (132 Pac. 822.)
    TRIAL — Instructions. It is error for the court to instruct the jury that they are not bound by any particular instruction or part of an instruction given.
    (Syllabus by the Court.)

      Appeal from County Court, Woods County; W. M. Biokel, Judge.

    John Hobbs was convicted of violating the prohibitory liquor law, and he appeals.
    Reversed.

      E. W. Snoddy, L. T. Wilson, and Giddings & Giddings, for appellant.

      '■Smith C. Matson, Asst. Atty. Gen., (Monroe Osborn, of counsel), for the State.
   FURMAN, J.

The instructions of the court are divided into separate paragraphs, each of which is numbered and signed by the court. The ninth and last instruction is as follows: “You are to consider these instructions as a whole, and not be bound by any particular instruction or part of 'an instruction.” To this instruction appellant excepted. What the court doubtless intended was to inform the jury that it was their duty to consider all of the various instructions given in connection with each other, and that they were not to act upon any one instruction to the exclusion of the other instructions, but that they should be harmonized with each other. But this is not what the court told the jury. On the contrary, they were informed that “they would not be bound by any particular instruction or part of an instruction.” This entirely eliminated the instruction upon the question of reasonable doubt, which is statutory, and by which juries must be bound, and to which the defendant is entitled in every criminal trial. Courts should exercise some care in the preparation of their instructions, and endeavor ¡as far as possible to make them so plain and explicit that men who are not learned in the law will not reasonably be misled thereby.

For the error above pointed out the judgment of conviction is reversed, and the cause is remanded for .a new trial.

ARMSTRONG, P. J\, and DOYLE, J., concur.


text:
    VIRGIL LANDRUM v. STATE.
    No. A-1613.
    Opinion Filed June 14, 1913.
    (132 Pac. 830.)
    INTOXICATING LIQUORS — Offenses—“Sale of Intoxicating Liquor”— What Constitutes. Where a liquor house situated in another stats has a representative in a town in Oklahoma who receives orders for whisky, and writes letters to the house directing that whisky be sent to persons who give such agent orders, and the whisky is sent to such persons, and the bill is sent to the agent of the house to collect payment for the same, this in law constitutes a sale of intoxicating liquors in Oklahoma, and such agent is liable to prosecution and conviction for violating the prohibitory law of the state.
    (Syllabus by the Court.)

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

      Virgil Landrum was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.
    The case was tried upon the following agreed statement of facts:
    “That on the 15th day of June, 1911, Ed Smith approached the defendant, Virgil Landrum, in the city of Ard-more, and requested him, Landrum, to order for him, Smith, one gallon of whisky; that he wrote a letter at Smith’s request, and signed Smith’s name to said letter, same being addressed to II. Brann & Co. of Ft. Worth, Tex., who are lawfully licensed and engaged in the sale of intoxicating liquors at Ft. Worth, Tex.; that this order was received by H. Brann & Co., who passed upon said order and accepted same, and shipped by Wells Fargo Express one gallon of whisky to’ said Smith, at Ardmore,' Oída.; that a bill for this was sent to Virgil Landrum, who afterwards collected from Smith the sum of $3.75, the price of said whisky; that Landrum was not in any way interested in the whisky, but remitted the amount collected to II. Brann & Co.; that II. Brann & Co. alone had authority to pass upon orders received by them, and accept or reject such orders, as .they saw fit; that Virgil Landrum was a collector for H. Brann & Co. and receives a commission on all money collected for them and received his regular commission on the above money.”

      Sigler & Howard, for appellant.

      O. J. Davenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

(after stating the facts as above). If the agreed statement of facts is susceptible of a reasonable construction which would warrant the conviction of appellant, it is our duty to affirm this judgment.

It appears . that Ed Smith had requested appellant to order for said Smith one gallon of whisky, but it does not appear that said Smith made any request of appellant as to the person or place from which the whisky should be ordered or made any agreement with appellant as to how the whisky was to be sent or paid for. That thereupon appellant of his own motion selected H. Brann & Co. of Ft. Worth, Tex., and wrote a letter to them to which he signed Smith’s name ordering a gallon of whisky to be sent to said Smith at Ard-more. Said H. Brann & Co. received the letter and shipped the whisky by Wells Fargo Express to said Smith at Ard-more; that, the bill for the whisky, which amounted $3.75, was sent by H. Brann & Co. to appellant at Ardmore, and that appellant collected for the same from said Smith. It further appears that appellant was ia collector for H. Brann & Co. and received a commission on all money collected by him for them.

In many respects there is a manifest difference between the case at bar and the case of Williams v. State, 5 Okla. Cr. 206, 114 Pad. 624. In Williams’ case the purchaser, of the whisky requested Williams to write a letter to E. G. Stafford & Co. of Sparta, Mo., ordering the whisky in question. The record does not .show that Williams was agent of or had any connection whatever with E. G. Stafford & Co., or had ever represented them in any business transactions, or that he collected the money for the whisky ordered, or that he was even .known to said E. G. Stafford & Co., or that he ever received a commission or compensation for his services. It simply presents a case of one friend writing a letter for another friend to entire strangers. Such is not the case at bar. Here appellant was the authorized agent of H. Brann & Co., and represented them in Ardmore. It was at his suggestion the order was sent to H. Brann & Co. and he wrote the letter directing H. Brann & Co. to send the whisky to Smith at Ardmore, and he received a commission upon the sale made. The fact that appellant was in no way interested in the whisky in no manner militates in his favor. He was prosecuted and convicted, not for having an interest in the whisky, but for participating in the sale of the whisky. If he did this, .although he received no compensation therefor, he would still be guilty. But the agreed statement of facts show .that he did receive a commission on this sale.' He therefore not only participated in the sale, but was financially interested therein. The fact that H. Braun & Co. alone had authority to pass upon orders received by them and to accept or reject such orders as they saw fit does not in any manner excuse appellant. In the regular course of business this right exists in all oases where drummers are authorized to take orders which they send to the houses they represent. In all such cases the house has the option to accept or reject the order as it sees fit. Far from helping appellant, the statement which we are now discussing clearly points to his guilt, for it is an admission that he was receiving orders for whisky in Oklahoma as agent of II. Brann & Co.

The trial court was authorized to find from the agreed statement of facts that this entire transaction was a cunningly devised subterfuge deliberately planned for the purpose of defeating the law. This case is but an illustration of the fact that men who are engaged in the illegal sale of intoxicating liquors in Oklahoma will resort to any expedient or subterfuge for the purpose of carrying on their illegal business. If this judgment is reversed, every liquor house in the United States could establish an agent in every town in Oklahoma to whom persons could apply and get such agent to write letters and sign the name of the purchaser and forward them to his house, which, seeing the letter written in the handwriting of their agent, would take it as an indorsement of the solvency of the purchaser, and would, upon receipt of such letter, ship whisky to entire -strangers of whom they knew nothing. If this can be done, the prohibitory law of Oklahoma will become the laughing stock of all intelligent persons, and this court would be open to the most severe censure for its misconstruction of -the law. It is our duty in good faith to so construe the laws of Oklahoma as to enable them to be enforced with reasonable certainty.

Under all of the circumstances appellant is clearly guilty of the crime charged.

The judgment of the lower court is affirmed.

ARMSTRONG, P. J., and DOYLE, J., concur.