text:
    Walter Cox v. Territory.
    No. 2223,
    Okla. T.
    Opinion Filed September 14, 1909.
    (104 Pac. 378.)
    1. VENUE — Jurisdiction in Either’ County. Where domestic animals, as named in section 2480 (Wilson’s Rev. & Ann. St. 1903) are stolen in one county in this state and taken into another, the jurisdiction of the offense is in either county, under section 5224, Wilson’s Rev. & Ann. St. 1903.
    2. APPEAL — Review—Questions of- Fact. This court will not disturb 'the judgment of the trial court for lack of evidence, when there is competent evidence reasonably tending to sustain the judgment of the lower court.
    3. LARCENY — Possession of Property Recently Stolen. An instruction in the following language: ‘‘You are instructed, as a matter of law, that if a person is found in the possession of. property which has been recently stolen, such possession is prima facie evidence that such person is guilty of the larceny of the property, unless such possession is satisfactorily explained to the jury” — is error.
    4. CONDUCT OF COUNSEL — Argument of ¡Prosecuting Attorney. A prosecuting attorney must confine his argument to a fair discussion of the issues in the case and the legitimate argument on the part of the defense.
    (Syllabus by the Court.)

      Appeal from District Cowt, Pawnee County; Bayard Earner, Judge.

    Walter Cox was convicted of stealing a horse, and he appeals.
    Reversed.
    This is an appeal from a judgment and sentence of the district court of Pawnee county. The plaintiff in error, Walter Cox, was tried and convicted in November, 1906, on an indictment drawn under section 248.0, Wilson’s iiev. & Ann. St. 1903, charging him with stealing a horse. The horse was stolen in Payne county, and taken into Pawnee county, where the prosecution was had.

      G. L. Burdick and L. W. Reece, for plaintiff in error.-
    — -Improper argument of prosecuting attorney: Hughes’ Cr. Law and Proe., pp.748 and 749; State v. Tennism. 42' Kan. 330; State v. Batch, 31 Kan. 465; People v. Quick, 58 Mich. 321; Wilson v. Territory, 9 Olda. 331; People v. Mitchell, 62 Colo. 411; Raggis v. People, 135 Ill. 545; State v. King, 64 Mo. 595.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the Territory.
   OWEN, Judge.

One assignment of error is that the indictment was improperly returned for the reason that the deputy clerk acted in some instances and discharged certain duties by statute assigned to the clerk. Since counsel for defendant have not considered this point of sufficient importance to brief it, or cite any authorities for the assistance of this court in determining the question, Ave shall not consider this assignment.

Four reasons are urged for reversing the case: First, that the district court of Pawnee county did not have jurisdiction to try the defendant, for the reason that the horse Avas stolen in Payne county and taken into Pawnee county; second, that the evidence was not sufficient to warrant a conviction; third, -that the court erred in the instructions to the jury; fourth, that the county attorney, in closing the argument for the state, made the statement that if the evidence in this case did- not bring about a conviction, he would quit -prosecuting horse thieves in Pawnee county. We shall determine these questions in the order named.

In order to determine the question as to the jurisdiction of the court, it Avill be necessary to determine whether there was any statute that made it a crime to steal property in one county and carry it into another county of Oklahoma; i. e., whether the carrying the property into another county would continue the offense. Counsel for defendant urges that there was no such statute in force at the time this case was tried-. Section 5224, Wilson's Eev. & Ann. St. Olda. 1903-, is as follows:

“When property taken in one county, by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense is in either county," etc.

It is contended that the term “larceny" as used here, does not include the crime of “stealing" a horse, and therefore this section does not apply to this case. If this section does not apply, then it must be conceded that the trial court had no jurisdiction. The question to be determined is whether under section 5224 the court had jurisdiction. It had if the term “larceny” as used here includes “stealing” a horse. The indictment in this case was returned under section 2480, Wilson's Eev. & Ann. St. 1903, which is a-s follows:

“That if any person shall steal any stallion, mare, colt, gelding, ridgling, * * * he shall be guilty of a felony, and on conviction thereof shall be punished by confinement in the territorial penitentiary for a term of not less than one or more than ten years.”

It is urged that this statute makes stealing a domestic animal a separate statutory offense from larceny, and that the law of larceny does not apply to this offense. In other words, that stealing a horse under this section is not larceny, and that larceny in the sense used in section 5224 does not include stealing a horse. 'Counsel relies on the cases of Hughes v. Territory, 8 Okla. 28, 56 Pac. 708; Sullivan v. Territory, 8 Okla. 499, 58 Pac. 650; Woodring v. Territory, 14 Okla. 250, 78 Pac. 85; Howard v. Territory, 15 Okla. 199, 79 Pac. 733; Woodring v. Territory, 15 Okla. 309, 81 Pac. 631. A careful consideration of these cases has convinced us that they do not support the contention of counsel.

The statutory definition of larceny, as found in section 2465, Wilson's Eev. & Ann. St. 1903, is as follows:

“Larceny is the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof.”

In the case of Hughes v. Territory, referred to above, the defendant was convicted of the crime of stealing a cow. The point at issue was that the instructions of the trial court were defective and prejudicial to the defendant because the jury was instructed that the intent need not be established; that it would be presumed from an unlawful taking. The court in that case, on page 29 of 8 Okla. 56 Pac. 709, says:

“It is urged that this instruction is defective and prejudicial to the defendant, in that it instructs the jury that intent need not be established; that it is presumed from an unlawful taking. The instruction may have been framed by the trial court upon the theory that intent was not an ingredient or element of the crime of which the defendant was being tried. In order that we may fully understand the issues presented we will have to look to the language of the statute which creates the offense. It is as follows: ‘That if any person shall steal any ass, genet or mule, or any bull, cow, calf, steer or stag, he shall be guilty of a felony, and, on conviction thereof shall be punished by confinement in the territorial penitentiary for a term of not less than one nor more than ten- years/ The statute does not say one word about intent. Intent is nowhere expressed in the entire act. And this court has held that where a statute creates an offense and does not make intent a necessary ingredient of such offense, it is unnecessary to plead or prove it. * * * But does this offense fall within that rule? The statute says ‘that if any person shall steal any stallion/ etc., ‘he shall be guilty of a felony, and, on conviction thereof, shall be punished by confinement in the territorial penitentiary/ etc. What did the Legislature mean when it used the word ‘steal’? There is nothing about the act in which the word appears to indicate that it was intended to place upon it a meaning different from that given to it in its ordinary and legal use. ‘The word “steal” has a uniform signification, and in common, as well as legal, parlance, means the felonious taking and carrying away of the personal goods of another/ ”

Again, on page 32 of 8 Okla., 56 Pac. 709, in the same case, we find the following:

“An examination of the authorities will show that ‘larceny’ and ‘stealing’ at common law had the same meaning; and consequently stealing, as here defined, is the wrongful or fraudulent taking and removing of personal property, by trespass, with a fel-onions intent to deprive the owner thereof, and to convert the same to his (the taker’s) own use.”

We quote at length from this decision to make clear the fact that the issue there was as to whether the intent to deprive the owner of the property, and the intent to convert the property to the taker’s use, must be pleaded and proven. That is not the issue in the case under consideration. The court in that case held ^hat it was necessary to prove, an intent, because the word .“steal” as used in that section of the statute was used in its ordinary sense and common law meaning, and that it was understood to mean “taking with a felonious intent to deprive the owner thereof and to convert the same to the taker’s use.” »

In the ease of Sullivan v. Territory, above referred to, the court holds that an indictment drawn under section 2480 was defective because it failed, to allege an intent, using this language, as it appears on page 501 of 8 Okla., 58 Pac. 651:

“The indictment is fatally defective under the 1895 statute, for the reason that it fails to charge that the cow was taken by the defendant with a felonious intent to convert the same to his (the taker’s) own use. It is also fatally defective under the 1893 statute, for the reason that it does not allege the value-of the animal charged to have been stolen. The demurrer to the indictment should therefore have been sustained.”

The 1895 statute (Laws 1895, p. 104, c. 20, art. 1, §. 1) referred to by the court is section 2480 above quoted, and the 1893 statute (section 2371) referred to is section 24615, above quoted. Thus we see the court in Hughes’ Case held that the word “steal” meant to take with a felonious intent, and therefore it was necessary to prove the intent; and in the Sullivan C'ase the court held the indictment defective because it failed to charge the felonious intent.

In the case of Woodring, 14 Okla. 250, 78 Pac. 85, the court, in construing section 2480, held that it was not necessary to allege the value of the animal stolen. In the case of Howard v. Territory, 15 Okla. 199, 79 Pac. 773, and Woodring v. Territory, 15 Okla. 309, 81 Pac. 631, the court, in construing section 2480, held that an indictment need not allege the value of the animal stolen.

In order to determine the issue in this ease it is not neces-vsary for its to either approve or condemn the holding in these five cases. The issue here is not as to whether it was necessary to allege and prove intent, or whether it was necessary to allege and prove value. The issue here is, does the term “larceny” in section 5224 include stealing in violation of section 2480? And, in order to determine that question, we must determine what is meant by the word “steal” as used in section 2480. It must be conceded that under the common law the words “steal” and “larceny” have been used interchangeably. Anderson’s Law Dictionary defines steal: “To commit larceny.” Webster’s International Dictionary defines the word thus: “Steal: To take and carry away feloniously; to take without right or leave, and with intent to keep feloniously; as to steal the personal goods of another; to practice, or be guilty of, theft; to commit larceny or theft.” The same authority defines “larceny” to be “the unlawful taking and carrying away of things personal, with intent to deprive the right owner of the same; theft.” Blaekstone uses the words “larceny,” “steal,” and “theft” interchangeably. We have seen that our statutory definition of larceny, as given in section 246'5, is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof. Stealth, according to Webster, is “the act of stealing; theft.” Then, we may read section 2465 as meaning, “Larcen}' is taking personal property by stealing; by theft”; and we may read section 5224 as meaning “when property taken in one count}'' by stealing or by theft,” etc.

Counsel insists that because section 2480 specifically prohibits the stealing of any live stock, and provides a punishment greater than that prescribed under section 2469 for grand larceny, section 2480 creates a distinct statutory offense, and takes the stealing of a horse out of the larceny class; that this section, in prescribing a greater punishment for' taking a horse and using the word “steal,” repeals the statute against larceny, so far as it applies to live stock. Section 2469 provides that grand larceny is punishable by imprisonment in the .territorial penitentiary not exceeding five years. One of the established rules to govern in the construction of statutes is that an existing statute is not repealed by the passing of a subsequent statute pertaining to the same matter, unless the two are so inconsistent that they cannot stand together. These statutes can be construed together and all of them stand.

A similar question arose in Arkansas under a very similar condition with reference to the statutes governing larceny cases. Section 1627,. as found in Mansfield’s Digest of the Statutes of Arkansas, provided a punishment in the penitentiary for the larceny of property where the value exceeded $10. Section 1628 of the same statute, but of a later act of the Legislature, provided a punishment for “every person who shall * * * steal * * * any kind of cattle.” This section makes no reference to1 value. Section 1655 of the same statute provides that it shall not be larceny to take cattle from the open range, if they are not branded, and are more than 12 months of age. The question arose as to whether one of these statutes repealed the other, and the Supreme Court, in passing on the question in the case of Thompson v. State, 60 Ark. 59, 28 S. W. 794, used this language:

“This rule as to the repeal of a prior by a subsequent statute is well stated in Chamberlain v. Slate, 50- Ark. 137, 6 S. W. 524, by Judge Smith as follows-: ‘'But subsequent laws do not abrogate prior ones, unless they are irreconcilably in conflict. The courts have always leaned against implied repeals. A general affirmative statute does not repeal a prior particular statute, unless negative words are used, or unless there be an invincible repug-nancy between the two. The more specific provision controls the general, without regard to their order and dates. The two acts are interpreted as operating together; the-specific provisions furm ishing exceptions and qualifications to the'general rule.’”’

And the court cites with approval. State v. Kirk, 53 Ark. 337, 13 S. W. 925; Ex parte Coleman, 54 Ark. 237, 15 S. W. 470.

Section 2468 of our statute provides that grand larceny is committed when the property taken is of value exceeding $20, or when the property taken, although not of value exceeding $20, is taken from the person of another. Section 2469 prescribes thq punishment for grand larceny. Section 2480 modifies section 2469 as to the punishment when the property taken was any of the domestic animals named in section 2480. In construing section 2480, in the case of Hughes v. Territory, above referred to, on page 35 of 8 Okla., 56 Pac. 710, the court used the following lam guage:

“The act is entitled ‘An act for the better protection of stock raisers/ Cattle stealing had become so common, particularly in the western part of the territory, that it became necessary for the Legislature to pass a law which would more fully protect those who had herds of cattle in the western counties; the general law on larceny being inadequate.”

The court proceeds to point out the difference between the punishment prescribed in this section of' the new statute and section 2469 of the old statute, and then uses this language:

“There is a reason for this difference. The persons who steal cattle and other domestic animals, as a> rule, steal them from' the owners thereof with the intent to appropriate . the same to their own use. They steal for gain; for the purpose of selling and profiting thereby. In fact the persons that the statute was more particularly intended to punish were the persons who were stealing cattle and other domestic animals as a means of livelihood; and the law on larceny, as divided into degrees under the Statutes of 1893, was wholly inadequate. Many of the animals stolen w.ere not of the value of more than $20; and therefore the law did not prevent the commission of the crime, and the punishment for petit larceny was not sufficient to prevent the larceny of such animals. Hence the creation of the statute of 1895:”

We see that the court in that case, in effect, held that section 2480 made a different degree of larceny. Section 2467, which was part of the act of Í893' (St. 1893, §§ 237Í-23'84),'enacted the common-law degrees of larceny. The punishment for petit larceny was a fine and imprisonment in tlie county jail; for grand larceny imprisonment not to exceed live years, and in order to make the offense grand larceny the value must be $20. "VVe think the reasons given in the Hughes Case as to why the Legislature passed the act of 1895, which is section 2480 here, making the punishment greater for stealing live stock, are probably correct. But the reasons given do not take the offense of stealing live stock out of the class of offenses included in the term “larceny.”

Stealing a domestic animal named in section 2480 is larceny in the sense in which the word “larceny'” is used in section 5224, and the court in Pawnee county had jurisdiction where the offense consisted of stealing á horse in Payne county and taking him into Pawnee county. It has been uniformly held in similar cases that each instant that the stolen property continues in the possession of the accused the trespass amounts to a new offense, and the crime is considered as having actually been committed in the .-county where the offender is found with the property; and the law will adjudge that the- offense has in truth been committed ■there; that is, in the county into which the' stolen property' has been brought. Haskins v. People, 16 N. Y. 344; Com. v. Dewitt, 10 Mass. 154; Com. v. Rand, 7 Metc. (Mass.) 475, 41 Am. Dec. 455; Keith v. Territory, 8 Okla. 307, 57 Pac. 834.

As to the second reason urged — i. e., that the evidence is not sufficient to support the verdict — the jury are the judge of the facts, the weight of the evidence, and the credibility of the witnesses. This court will not disturb a verdict where there is competent-evidence in the record reasonably tending to sustain the verdict. In this case it was made a question of fact as to whether the defendant did in fact take the horse in Payne county. The issue was made on that question, and the proof directed to it. There being competent testimony on the part of the state, reasonably tending to prove the issue, the verdict will not be disturbed for that reason. The decisions are uniform as to the rule that the judgment of the trial court will not be disturbed -where there was competent evidence reasonably tending to sustain the judgment. Jenks et al. v. McGowan, 9 Okla. 306„ 60 Pac. 239; Bank v. Earle, 2 Okla. 617, 39 Pac. 391; Light v. Bank, 2 Okla. 543, 37 Pac. 1075; Mullaney et al. v. Humes, 48 Kan. 368, 29 Pac. 691; Gardner v. King, 37 Kan. 671, 15 Pac. 920; Harrington v. Stone, 39 Kan. 176, 17 Pac. 853.

The third reason alleged — i. e., that' the court erred in its instructions to the jury — we deem more serious. The objection is well taken. Exceptions were saved to each of the instructions. The instructions, as given, seem to be substantially correct, except instruction 8, found on page 48 of the record. This instruction is in the following language:

“You are instructed, as a matter of law, that if a person is found in the possession of property which has been recently stolen, such possession is prima facie evidence that such person is guilty of larceny of the property unless such possession is satisfactorily explained to the jury. And in this case, if you find from the evidence that the property described in the indictment was stolen, and that shortly thereafter the same was found in the possession of the defendant, and that the defendant has failed to explain, to the satisfaction of the jury, how he obtained possession thereof. then such fact may be considered by the jury, in connection with all the other evidence, in determining whether or not the defendant is guilty of the offense charged in the indictment.”

The giving of this instruction was reversible error. It has been urged by the attorney for the state, conceding that the first sentence of the instruction is error, that the last sentence cures the error. In this we cannot agree. The first sentence states to the jury what the law is; the last sentence undertakes to apply it to the ease at bar. We can easily understand how the prosecuting attorney could emphasize the first sentence; then proceed to argue the explanation offered by defendant and his witnesses. This is not the law. Possession of property recently stolen, unexplained, is a circumstance to be considered and given such weight as the jury may see lit. The jury is the sole judge as to what weight should be given this circumstance; and, even though the defendant makes no attempt at explanation of the possession, the jury would not be authorized to convict unless from all the facts and circumstances in the case, after giving such weight as they pee fit to such possession, they believed the defendant guilty. This court held a similar instruction reversible error in • the case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110. Again in the cases of Askew v. United States, ante, p. 155, 101 Pac. 121, and Pickering v. United States, ante, p. 197, 101 Pac. 123. The authorities cited and reasons given in those cases are approved here, and we deem it unnecessary to cite additional authorities on this question.

As to the fourth reason urged — i. e., that the county attorney in . his closing argument to the juiw made the statement that if the evidence in this case did not bring about a conviction, he would quit prosecuting horse thieves in this count)' — we think this'statement improper, and calculated to prejudice the minds of the jury against the defendant. It was' the statement of an officer of-the court, in the discharge of his dut)', and was to the effect that, after his investigation of the case, ho was so thoroughly convinced of the guilt of the defendant that a failure to convict would be an .outrage on justice, and that he, the sworn officer of the court, .would feel so' outraged that he would not prosecute any more horse thieves. We think this statement was calculated to influence the minds of the jurors and arouse their prejudice against the defendant. True, the court instructed the jury not to consider the statement, but in our opinion this did not sufficiently-cure the evil. The attorney did not retract or withdraw the threat. Attorneys, on either side, in their arguments ought not go out of the record, and they ought not throw into the scales with the evidence their personal and official opinion and desire as- to what should be done. The jwoseeuting attorney in closing the argument should be confined to a replj' to the legitimate argument on part of the defense and a fair discussion of matters in the record. The average juror holds in high regard, and properly so, the regularly elected prosecuting attorney. The people by electing him have reposed great confidence in his ability and integrit)', and the power thus given him ought not be used to supply the lack of evidence, or. to make greater the weight of the evidence in any ease. The authorities are numerous as to what constitutes improper conduct. They are uniform in holding any statement improper that is calculated to inflame the minds of the jurors, arouse their prejudice or appeal to their passions.

In the case of People v. Quick, 58 Mich. 321, 25 N. W. 302, the prosecuting attorney made this statement:

“I stand here to-day under the solemnity of my official oath, and say to you, as a man and a citizen, that I believe they not only lied, but I believe they committed wilful and deliberate perjury. I do not believe that they were there that night, nor do 1 believe that that man, the defendant, ever in God’s world took that watch from the sidewalk, but he stole it from the person of David Wright, and then hid it away within five minutes.”

The Supreme Court, in condemning the statement, in part, say:

'"This language came from an officer whose sworn duty required him to act only in furtherance of justice, and who is bound by statutory requirements to stand entirely impartial between the complainant and the prisoner. When such an officer gives the jury to understand that what he says is under the sanction of his official oath, and the court, when applied to, declines to correct that statement, it cannot be supposed that jurors may not give credence to it; and govern their decision more or less by it. The impropriety of expressing a personal opinion to the jury upon disputed facts has always been regarded as great, and has in some notable instances led to unpleasant strictures on the character of celebrated counsel. -Whatever allowance may be made for professional enthusiasm, a deliberate and solemn averment of counsel’s opinion should never be allowed to influence the jury and, when given, as here, as an opinion under oath, it should have been at once shut out, and its influence guarded against by proper instructions as requested. For these reasons the judgment must be reversed.”

In the case of People v. Fielding, 158 N. Y. 542, 53 N. E. 497, 46 L. R. A. 641, 70 Am. St. Rep. 495, the court, in part, sa3’: ' .

“While public prosecutors should not be restricted in ‘fair argument, comment or appeal’ to the jury, .they should not be allowed to state facts not proved, or to make inflammatory appeals to passion and prejudice, or to threaten the jury with popular denunciation, or to tell the jurors that they would commit the ‘unpardonable sin’ if they failed to convict the defendant.”

In the ease of Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467, this court, in an opinion by Judge Doyle, in passing'on the statements made by the prosecuting attorney, in part, says:

vThe overnourished zeal of counsel, displayed in the attempt to seek conviction for crime, frequently calls for condemnation on the part of appellate courts, especially when in the closing argument- to the jury the attorney for the state travels outside the evidence for his subject-matter, or indulges in truculent abuse of the accused. Smith v. People, 8 Colo. 459, 8 Pac. 920; Martin v. State, 63 Miss. 505, 56 Am. Rep. 813; Garlitz v. State, 71 Md. 293, 18 Atl. 39, 4 L. R. A. 601. * * * When remarks of the prosecuting attorney to the jury, by appeal • either to their fears or vanity, tend to coerce and cajole them, then a verdict of conviction is error. People v. Lange, 90 Mich. 454, 51 N. W. 534. * * * A public prosecutor is presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by'vituperation of the prisoner, and appeals to prejudice, seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and seeks no conviction through the aid of passion, sympathy or resentment. The only way to secure fair trials is/to set aside the verdicts so procured.”

The attorney for the state urges in the case under consideration that the error was corrected by the court’s instruction to the jury that they should not consider the statement made by the county attorney. The admonition from the court could not cure the evil. The jurors had received the impression; they could not forget the' intense feeling displayed by the words and manner of the prosecuting attorney. Wilson v. Territory, 9 Okla. 331, 60 Pac. 112; State v. Boyd, 5 Kan. App. 802, 48 Pac. 998; State v. Tennnison, 42 Kan. 332, 22 Pac. 429; State v. Balch, 31 Kan. 465, 2 Pac. 609. In the case of State v. Balch, the court said:'

“Nor can the principle be tolerated that convictions for violated law may be procured or brought about by the inauguration and accomplishment of other violations of the law. It is also true that in this -case the court below instructed the jury that the statement made by the county attorney should not be allowed to work any prejudice to the rights or interests of the defendant. But under the authorities, the evil done by such an infringement of the law — an infringement of the law by the prosecuting officer of the state — cannot be remedied or cured by any mere instruction of the court. The only complete remedy, if the defendant is convicted, is to grant a new trial on his motion.”

For the errors mentioned, the case will be reversed and remanded to the district court of Pawnee county, with instructions to grant a new trial.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: FURMAN, Presiding Judge.

license: Public Domain

text:
    Ollie Lancaster et al. v. State.
    No. 298.
    Opinion Filed September 21, 1909.
    (103 Pac. 1065.)
    1. INDICTMENT AND INFORMATION — Amendment—Le¡ave of - Court. An information may be amended before announcing- ready for trial without leave of the court.
    2. ' SAME. After the parties announce ready for trial, an information may toe amended by leave of the court upon such conditions as will not materially interfere with the rig-hits of the defendant.
    3. CONSPIRACY — Persons .Liable — Person Not Present. Where the evidence shows that two or more persons are acting together in the commission of an offense, they are both guilty, although one of them may not be present when the offense is committed.
    4. INTOXICATING LIQUORS — Unlawful Sale — Evidence—Joint Violators. Where the evidence shows that two persons are engaged in running a joint, which is furnished with a bar and the usual furniture and glasses which are found in a saloon, and that a quantity of beer and whisky was found in suoh place and in the warehouse adjacent and attached thereto, and that liquors ' had been brought from the depot to such place, and that one of such persons has sold whisky during the absence .of the other party, both of them are guilty of the offense committed, because they were jointly engaged in violating the law, and the act of one was the act of both!
    5. APPEAL — Brief—Waiver of Errors. When counsel in their brief merely refer to alleged errors in the record, and fail to state them with sufficient clearness to enable this court to intelligently understand th.em, and fail to present their arguments and authorities in support of the positions assumed, this court will treat as waived all alleged errors set up in the motion for a new trial or in the assignment of error which refer to mere irregularities in the proceedings. This court will presume that all proceedings in courts of record are regular, and the burden is upon him who assails such proceedings to show clearly the irregularity complained of.
    (Syllabus iby the Court.)

      Appeal from Ponloloc County Cowlj Joel Terrell, Judge.

    Ollie Lancaster and Luke Jenkins were convicted of viola-ing the prohibition laws, and they appeal.
    Affirmed.
    The defendants were prosecuted by information for violating the prohibition laws. They were found guilty by the jury and the punishment of the defendant Luke Jenkins was assessed at a fine of $250 and imprisonment in the county jail for 60 days, and the punishment of the defendant Ollie Lancaster was assessed at a fine -of $500 and imprisonment in the county jail for 60 days.

      Dulce Stone, for appellants.

      Fred S. Caldwell, for the State.
   FURMAN, Presiding Judge.

First. The defendants complain that the court erred in permitting the county attorney to amend the information after the defendant had pleaded thereto and the parties had announced ready for trial and the jury had been impaneled. Section 530?, Wilson's Rev. & Ann. St. 1903, is as follows:

“An information may be, amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the rights of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

The original information charged the sale of whisky to L. L. Sherwood and Settler Lance. The amended information charged the sale of whisky to L. L. Sherwood alone. This did not add to, but it took from. It did not increase, but it diminished the accusation against the defendants. It in no manner altered the condition of the defendants to their injury. The court did not err in permitting the amendment to the information and in refusing to grant a continuance on account of such amendment.

Second. The counsel for the defendants insist that the evidence against the. defendant Lancaster is not sufficient to sustain the verdict. It is true that no witness swore that Lancaster sold the whisky to Sherwood or was present when it was sold to him. It was proven that the whisky was sold in the place of business of Luke Jenkins and Ollie Lancaster, and that this place of business was what is called a joint. It was proven that, soon after the sale for which these defendants were convicted was made, this joint was raided, and 52 bottles of beer were found in the refrigerator behind the bar, and that beer and whisky were found in the warehouse behind the main building. It was proven that the place of business of defendants was fitted up with a bar and fixtures usually found in such resorts. It was proven that Lancaster paid the rent on the building. It was proven that Lancaster paid a drayman for hauling cases of liquor from the depot to- the place of business conducted by defendants. In the light of the record, we are of the opinion that the evidence not only sustains, but that - it required, the verdict renderecl by the jury.

Third. In their brief counsel for the defendants say:

“The defendants also insist that there was error in refusing special requested instructions Nos. S' and 5, for the reason that a great deal of evidence had been offered on the part of the state showing the receipt of liquor from the depot by the defendants.”

But the instructions refused are not set out' in the brief. and are only referred to in the most general and indefinite manner. Counsel must in their briefs clearly state the precise error complained of, and must give the arguments upon which they rely, and cite the authorities which sustain their propositions. The matter suggested is not stated with sufficient clearness to enable- this court to understand just’ what is relied upon. Our docket is now overcrowded with cases. We cannot spend days in hunting through records to see if we cannot find errors. We are bound to- presume that all proceedings in courts of record-are regular, and those who assail these proceedings must show, and show clearly, wherein they are irregular.

There are some other matters complained of in the motion for a new trial and set out in the assignment of errors, but as they are not presented in the brief, and as they refer only to mere irregularities, they will be treated as waived. We find no material error in the record.

The judgment of the lower court is therefore affirmed.

DOYLE and OWEN, Judges, concur.


author: FUBMAN, Presiding Judge.

text:
      Ex parte Dick Cook.
    No. A-311.
    Opinion Filed September 21, 1909.
    (103 Pac. 1041.)
    COURTS — -'Records—Amendment—Power of Court. The failure of the cleric or recording- officer to make a correct record does not vitiate the proceedings in a court of record. The court may, at any time during the term at which the procee,dings are had, correct, amend, or supply omissions, to make the record speak the truth. Such records, when so corrected, relate to the time when the proceedings were in fact had.
    (Syllabus by the Court.)
    Application on habeas corpus by 'Dick Cook to be discharged ifrom custody of the sheriff of Garfield county.
    Petition dismissed.

      Buckner & Buckner, for petitioner.

      Chas. L. Moore, Asst. Atty. Gen., and EL Q. McKeever, Co1. Atty., for the State,
    cited and discussed; Clarke v. Bank of Hen-nessey, 14 Okla. 579; In re McQuown, 19 Okla. 347; Johnson v. State, 1 Okla. Cr. 321.
   FUBMAN, Presiding Judge.

This is an application by the defendant to be discharged, upon habeas corpus, from imprisonment on account of a conviction in the county court of Garfield county for violating the prohibition law. The applicant contends that the record of the county court of Garfield county did not •show the opening of the July term of court, or the date, required by statute, and that the record further disclosed that more than three days had passed, after the term had opened, during which no court was held, and which was not covered by an adjournment, and that thereby the term had lapsed. The state concedes that the record was in the condition contended for by the defendant at the date of the trial, but further contended and proved that these errors were the mistakes of the clerk of the court, who kept the record,' and that before the petition for habeas corpus was presented to this court the county judge had discovered the errors complained of, and at the same term of the court had caused the record to be amended so as to speak the truth, and that the record now shows the opening of the court on the proper day and that the term had not lapsed.

The only question for us to decide is as to whether the county judge had the power to make these corrections in his records while the term was still in session. We are constrained to answer this question in the affirmative.

In Clark v. Bank of Hennessey, 14 Okla. 579, 79 Pac. 219, the Supreme Court of Oklahoma Territory said:

“It will be seen that the order made by the court was made while the case was stilly pending and before final judgment. It is not only within the powers.- of the trial court, while a case is pending before him, to see that the records speak the truth, but it is his duty; and where the clerk, by neglect or otherwise, has failed to make a proper record of the proceedings had in the case, the court has the unquestioned power to require' a correction or amendment of the record to conform to the facts, to the end that justice .may not be defeated by a mere oversight or clerical error, Section 4309, St. Okla. 1893, provides that: ‘When the judicial acts or other proceedings of any court have not been' regularly brought up and recorded by the clerk thereof, such court shall cause the same to be made up and recorded within such time as it may direct. When they are made up, and upon examination, found to be correct, the presiding judge of said court shall subscribe the same.'’ ”

The same question was passed upon in McQuown's Case, 19 Okla. 347, 91 Pac. 689, 11 L. R. A. (N. S.) 1136. The same court there said:

“The orders, judgments, and proceedings of a court of general jurisdiction are required to be recorded by the clerk of -the court. The failure of the clerk or recording officer to make such record does not vitiate the proceedings. The clerk may, at any time during the term at which.the proceedings are had, correct, amend, or supply omissions to make the record' speak -the truth; and the court may at any time, upon proper application, from the memory of the presiding judge or upon proper showing, by appropriate order mine pro tunc cause its .record to recite the truth, and may supply any omission from its records; and this may be done in a criminal as well as in a civil cause. Such records, when so supplied, relate to the time when the proceedings were in fact had, and may make valid that which was apparently defective. Wight v. Nicholson, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865; Gonzales v. Cunningham, 164 U. S. 612, 17 Sup. Ct. 182, 41 L. Ed. 572; Hyde v. Curling, 10 Mo. 359; State v. Clark, 18 Mo. 432; Nelson v. Barker, 3 McLean (U. S.) 379, Fed. Cas. No. 10,101; State v. Bilansky, 3 Minn. 246 (Gil. 169); Bishop’s New Crim. Proc. § 1345.”

Upon these authorities we hold that the action of the county icourt in correcting the record at 'the same term of the court, so as to make it speak the truth, was proper and legal, arid' the petition for the writ of habeas corpus is dismissed, at the expense of the petitioner, and the defendant is remanded to the custody of the sheriff of Garfield county.

DOYLE and OWEN, Judges, concur.


author: EUBMAN, Presiding Judge.

text:
      Ex parte R. E. P. Messall.
    No. A-301.
    Opinion Filed September 21, 1909.
    (103 Pac. 1040.)
    HABEAS CORPUS — Actual Confinement — Necessity. Habeas corpus proceeding's will not lie to test the jurisdiction of a court to render a given judgment, when no effort is being made to enforce the judgment, and the defendant is at liberty pending a motion for a new trial.
    (Syllabus by the Court.)

      Habeas corpus by B. E. P. Messall against S. C. Campbell, Sheriff of Garfield County, and another.
    Petition dismissed.

      Buchner cG Buchner, for petitioner.

      Charles L. Moore, Asst. Atty. Gen., and H. G. McKeever, Co. Atty., for the State.
   EUBMAN, Presiding Judge.

This is an application of B. E. P. Messall for a -writ of habeas corpus, wherein he alleges that he is illegally restrained of his liberty by S. C. Campbell, sheriff of Garfield county, and Hon. James B. Cullison, county judge of said county and state. The cause of petitioner’s álleged confinement is set out in the application for the writ of habeas corpus; but, in view of the disposition which we are constrained to make of the case, it is not necessary to state or discuss it. The return to the writ of habeas corpus is under oath, and is not impeached. It is as follows:

“Now on this 7th day of September, 1909, comes S. C. Campbell, sheriff of Garfield county, Okla, and James B. Cullison, •count]' judge of said county, and shows to the court: That the said R. E. P. Massall is not'now, and was not at the time of the issuing of the said writ of habeas corpus, in the custody of either the said sheriff of Garfield county, Olcla., or the said county judge, and was not restrained by either; that at that time, and at all times since, he has been out on bond, having previously and before his trial furnished a good and sufficient continuing bond for his appearance; that the said court wherein he was tried and wherein he complains of being illegally restrained has never passed sentence upon him by rteason of a verdict of any jury; and that the said R. E. P. Messall has failed in said court in his motion for a new' trial, which has by the court never been heard or passed upon, and by reason of which the said sheriff and county judge, not having the custody of the body of the said R. E. P. Messall or in any way restrained him, have not in obedience to said writ brought the body of the said R. E. P. Messall into court, and by reason of the foregoing facts the said sheriff and county judge pray the court to dismiss the said proceedings at the cost of defendant.”

Even if the contention of the defendant is correct, and the county court of Garfield county was without jurisdiction to render the judgment complained of, the validity of the judgment cannot be tested by proceedings on habeas corpus, unless some effort was being made to enforce it. This the record shows is not being done. The defendant is not being restrained of his liberty, either by the sheriff or the county judge of Garfield count]'. He is on bond. and is constructively in the custody, not of the sheriff or the county judge, but of his bondsmen.

The petition for the writ of habeas corpus is therefore dismissed, at the cost of the petitioner.

DOYLE and OWEN, Judges, concur.


author: OWEN, Judge,

text:
    Frayer Tyner v. United States.
    No. 819,
    Ind. T.
    Opinion Filed September 21, 1909.
    (103 Pac. 1057.)
    1. HOMICIDE — Assault to Kill — Elements. To sustain a charge ol assault with intent to kill under section 4352, Ind. T. Ann. St. 1899, it is not necessary to prove the elements of murder, but it is sustained if the defendant would have been guilty of any degree of homicide had death ensued.
    2. ASSAULT AND BATTERY — .Reckless Discharge of Weapon — Intent — ‘Presumption. Where one recklessly fires a pistol with criminal indifference as to the consequences and another is wounded, the person firing wall be guilty of assault, though the weapon was pointed in t.he range of the injured person by accident and with no intention or design to Inflict an injury. The la.w presumes that a parts; intends the probable and natural effect of his deliberate act.
    3. EVIDENCE — Voluntary Statements by Accused — Arrest—Duress. Voluntary statements made by a person under arrest, without duress or inducement, may properly be used against him on the trial of the offense for which he is under arrest.
    (.Syllabus by the Court.)

      Error from the United States Court for the Northern District of the Indian Territory: Joseph A. Qitl, Judge.

      ■ Frayser Tyner was convicted of assault with intent to kill, and he brings error.
    Affirmed.
    The plaintiff in error was tried and convicted in the United States court in the Northern district of the Indian Territory, at Claremore, on the 28th day of November, 1906, on indictment charging him with assault with intent to kill Harvey King, his punishment fixed by the jury at imprisonment at hard labor for one year. From that judgment lie appealed to the United States Court of Appeals at' South McAlester. On the admission of this state into the Union the ease .was transferred to the Supreme Court, and from that court to this when this court was organized.

      James S. Davenport and William M. I-Iall, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the United States.
    No copies of briefs reached the reporter.
   OWEN, Judge,

(after stating the facts as above). The plaintiff in error, hereinafter referred to as the. defendant, assigns 21 errors committed by the trial court. Counsel in their brief filed in this case consolidate these assignments, and argue them under seven general assignments.

First, it is contended that the court erred in refusing to give instruction No. 1, requested by the defendant, as follows:

“The court instructs you that, before you will be warranted in finding the defendant guilty, the government must prove to your minds beyond a reasonable doubt sufficient facts to constitute the crime of murder had death ensued from the assault alleged to have been committed by the defendant on Harvey King.”

This prosecution was under section 2142, Rev. St. U. S., in force in the Indian ’ Territory at the time this case was tried (section 4352, Ind. T. Ann. St. 1899), which is as follows:

“Every white person who shall make an assault upon an Indian, or other person, and every Indian who shall make an assault upon a white person within the Indian country, with a gun, rifle, sword, pistol, knife, or any other deadly weapon, with intent to kill or maim the person so assaulted, shall be punishable by imprisonment, at hard labor, for not more than five years, nor less than one year.”

There is no contention on the part of the defendant that any other section of the statute governed in the trial of this case.

■Counsel rely on the case of Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8, and Felker v. State, 54 Ark. 489, 16 S. W. 663. These cases are not in point. The court in these cases properly held -that, in order to warrant a conviction under the indictments charging assault with intent to murder, there must have been sufficient evidence to prove all the elements necessary to constitute the crime of murder if death had ensued.

The statute under which the indictments in those cases were returned is as follows:

“Whoever shall, feloniously, wilfully and with malice aforethought, assault any person with intent to murder or kill * * * shall, on conviction thereof, be imprisoned in the penitentiary not less than three nor more than twenty-one years.”

The difference between these two statutes is a very Raterial one. The statute under which the prosecution in this case was had uses the words, “every person who shall make an assault with intent to leill the person so assaulted.” The statute in Arkansas uses the words, “whoever feloniously, wilfully, and with malice aforethought assault any person with intent to murder or kill.” Under the statute in question here it was only necessary that the defendant would have been guilty of some degree of homicide, either murder or manslaughter, had death ensued, and it was not necessary to prove all of the elements of murder.

The second reason urged is that the court erred in refusing to give the third instruction, as requested by the defendant, which was as follows:

“You are instructed that unless you believe from the evidence that the defendant, Frayser Tyner, shot at Harvey King with the wilful and malicious intent to kill or maim the said Harvey .King, proof that the defendant fired shots in a malevolent and reckless manner would not be sufficient to warrant you in finding the defendant guilty of assault with intent to kill or maim Harvey King, even though it be shown by the evidence that one of the shots struck the body of Harvey King and inflicted a serious wound on him; the essence of the crime as alleged in the indictment being the felonious, malicious, and wilful intent. And, if you should find from the evidence that the said defendant did not assault the said Harvey King, as alleged in the indictment, you should acquit the defendant.”

The court properly refused to give this instruction. Tt is to the effect that the jury must not only find from the facts all of the elements necessary to constitute murder, but must in addition thereto find that the defendant had the specific intent to murder Harvey King. Neither proposition is sound.

The rule is well settled that, to constitute manslaughter, it is not necessary that the perpetrator should have intended and willed the death of the person killed. One who wilfully uses a deadly weapon upon another will be deemed to intend the necessary and probable consequences of his act.

The text-writers divide manslaughter into two degrees — voluntary and involuntary.

Voluntary manslaughter is the unlawful killing of another without malice in the heat of passion.

Involuntary manslaughter is where one doing an unlawful act, not felonious or tending to great bodily harm, or doing a lawful act without proper caution or requisite skill, undesignedlv kills another. According to the common-law writers, it is where death results unintentionally, SO' far as the defendant is concerned, from an unlawful act on his part not amounting to felony or from a lawful act negligently performed. At common law it included all those homicides which were below the grade of murder, and were neither justifiable nor excusable, and which were the accidental result of some unlawful act less than felony, not aimed or directed against the person slain. A definition which seems to have been universally adopted is: “An unintentional killing in the commission of an unlawful act.” Wharton on Homicide (3d Ed.) p. 6; Wharton, Cr. Law, p. 305; Anderson’s Law Dict.; Siberry v. State, 149 Ind. 684, 39 N. E. 936; Commonwealth v. Mink, 123 Mass. 422, 25 Am. Rep. 109; Jewell v. Territory, 4 Okla. 53, 43 Pac. 1075; McManus v. State, 36 Ala. 285.

The undisputed proof in this case was that some person passing along the public highway fired a pistol or gun three or four times, and that one of the shots struck Harvey King, a boy about 11 years of age,, who was walking across his father’s yard on his way to the barn. The defendant about the time that the shooting took place passed along the road by the place where the boy was shot. TJhe ’defendant stated to several witnesses that he fired three shots, but denied that he had fired in the direction of the boy. The jury evidently believed that he was the man who fired the shots. If one fires a gun recklessly or heedlessly, he will not be excused; and his offense will be at least manslaughter, though the weapon was pointed in range of the deceased by accident, with no intention or design of killing the deceased. If the act is attended with probable mortally dangerous consequences to •the deceased or persons generally, and death should ensue, the crime is murder or manslaughter, depending upon the.degree of deliberation. The law always presumes .that a party intended the probable and natural effect of his deliberate act.

The above rule was announced in the case of State v. Vance, 17 Iowa, 138, and the same is held to be the rule in the case of York v. Commonwealth, 82 Ky. 360. To the same effect,is the case of Adams v. State, 65 Ind. 565, and State v. Capps, 134 N. C. 622, 46 S. E. 730, as also the case of Pool v. State, 87 Ga. 530, 13 S. E. 556, and many other cases too numerous to mention. In the last named case, Pool v. State, the court says:

“The law infers guilty intention from reckless conduct; and, where the recklessness is of such a character as to justify this inference, it is the same as if the defendant had deliberately intended the act committed. When, therefore, one recklessly fires a pistol with criminal indifference as to the consequences, and another is killed, it is not necessarjr, in order to constitute this killing murder, that the accused should at the time of firing have been engaged in the commission of some unlawful act, independent of and in addition to the reckless firing itself.”

If death had ensued here, this defendant would have been guilty of manslaughter, and this makes him guilty of assault with intent to kill since death did not ensue.

It is urged that the trial court erred in this case because the jury was instructed that included in the indictment was the offense of aggravated assault, or assault with a deadly weapon. We are unable to understand how the defendant could possibly be injured by instructing as to a smaller offense than the one on which he was convicted. As a general rule'the graver offense includes the smaller. In this case the jury evidently believed the defendant guilty of the grave]- offense, and to say that they might, under the instructions, have convicted the defendant of a smaller offense, certainly does the defendant no injury. This would be an error, if error at all, in the defendant’s favor, of which he cannot complain.

The fourth reason urged is that the court erred in instructing the jury as follows:

"•In its broad legal sense any unlawful attempt, coupled with the present ability to commit a violent injury upon the person of another, is an assault. I will repeat that because that comprises the definition generally of all assaults. In its broad legal sense any unlawful attempt, coupled with the present ability to commit a violent injury upon the person of another, is an assault.”

Counsel for defendant urge that this definition was misleading to the jury, and did not give the proper definition of intent to kill or elements necessary to make'up this assault with intent to kill, and that any instruction by the court upon any kind of assault was an' error, and calculated to mislead the jury. Counsel failed to point out in what particular the definition is wrong; or in what way it could possibly .mislead the jury. We think it was proper for the court to instruct as to the different degrees of assault, and it was not necessary for the court to charge the jury that they must find a specific intent to assault Harvey King.

The statute in force in the Indian Territory at the time this case was tried defined assault (section 905, Ind. T. Ann. St. 1899; Mansf. Dig. § 1562) as follows:

“An assault is an unlawful attempt, coupled with present ability to commit a violent injuiy upon the person of another.”

We think the instruction complained of was not substantially different in its definition from the statute.

Assault is defined by Wharton.in his work on Criminal Law ([10th Ed.] section 603) as follows:. “Assault is an apparent attempt by violence to do corporal hurt to another.” The same author at section 608' says: “Reckless shooting into a crowd is an assault, and an assault on several indiscriminately is an assault on each individual.”

Tlie fifth reason urged is that the court in its instructions read to the jury section 1800, Mansf. Dig. (Ind, T. Ann. St. 1899, § 1143), which is, in part, as follows:

“If any person shall wilfully or maliciously disturb, either by day or night, the 'peace and quiet of any town, village, neighborhood or family by loud or unusual noise, or by abusive, violent, obscene or profane language, whether addressed to the party so disturbed or some other person, or by threatening to fight, quarreling or challenging to fight, or fighting, or shooting off any fire-arms, or brandishing the same, or by running any horse at unusual speed along any street * * * he shall be deemed guilty of a misdemeanor,” etc.

Counsel for defendant complain that this instruction was calculated to mislead the jury for the reason that there was evidence to the effect that the defendant had ridden out of town at a rapid rate of speed, and that he had discharged a revolver at or about the time he was passing the premises where the boy was shot, and insists that it was error because the defendant was not on trial for disturbing the peace, and that discharging a pistol is not an element of an assault with intent to kill. We cannot agree with counsel upon this proposition. The defendant yiolated this section of the statutes if he was running his horse by the premises at an unusual speed and shooting off his pistol, and if the jury found that he was guilty of such conduci, and while engaged in that conduct he shot the boy, Harvey King, they were authorized in finding him guilty of assault with intent to kill.

The sixth reason assigned is that the court erred in the following instruction:

“The shooting of a human being by or with a dangerous weapon in any case except in necessary self-defense or in defense of habitation, person, or property against one who manifestly intends or endeavors by violence or surprise to commit a known felony, or where the shooting of such person is excusable by misadventure, where the person doing the shooting is doing a lawful act without any intention of shooting the person and yet unfortunately does so, is in the Indian Territory an assault with intent to kill or maim the person so assaulted.
“•Or it. is an aggravated assault under the definition of the statute.”

This instruction,' in effect, tells the jury that the shooting of a human being with a dangerous'weapon in the Indian Territory 'constitutes assault with intent to kill or an aggravated assault on the person so assaulted, except in the following cases: (a) In necessary self-defense; (b) in defense of habitation, person, or property against one who manifestly intends or endeavors by violence or surprise to commit a known felony; or (c) where the person doing the shooting is engaged in a lawful act, without any intention of shooting the person assaulted, but from lack of proper caution does so.

The court uses the word “aggravated” assault in the last sentence of the instruction, referring to assault with a deadly weapon as defined in section 1566, Mansf. Dig. (Ind. T. Ann. St. § 909). The offense under this section is commonly referred to by the courts and members of the bar as aggravated assault to distinguish this offense from the other degrees of assault. The defendant could not have been injured by this instruction.

The seventh and last reason urged by defendant appears in the brief of counsel for defendant in the following language:

“The plaintiff in error further contends that the court over his objections permitted Rock Flannigan, Dr. Wilkerson, Clarence King, William Twishell, Hugh Richardson, and Pies Thompson to testify to certain statements made by the plaintiff in error after he had been arrested which were incompetent and tended to prejudice the plaintiff’s rights before the jury.”

Nowhere in the brief do counsel point out to this court how this evidence of these witnesses injured the defendant. We have carefully examined the bill of exceptions, and the testimony of these witnesses was directed principally to statements made by the defendant after he had been arrested and to some of the witnesses while he was in the custody of the officers. There is no contention on the part, of the defendant that these statements were made under duress, or that any inducement was held out to him.

The testimony of the several witnesses is to the effect that, when he was arrested, he inquired of the persons making the arrest as to why he was wanted. They explained to him that in'“shooting up the town” he had shot a bojr, and stated to him where the boy was at the time he was shot. The defendant replied, in substance, that he was at a loss to know how he could have shot the boy when he fired three shots in the opposite direction. This evidence was competent, and the court did not err in admitting it over the objection of the defendant.

The judgment of the trial court will be affirmed.

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


author: FURMAN, Presiding Judge. PER CURIAM.

text:
    W. H. Stack v. State.
    No. 309.
    Opinion Filed September 25, 1909.
    (103 Pac. 1068.)
    1. APPEAL — Review—Briefs. Questions not clearly presented in the brief of counsel for the defendant will be treated as waived, unless they relate to fundamental errors.
    2. SAME — Review—Conflict of Evidence. When the record contains testimony from which the jury could legitimately draw the conclusion of the guilt of the defendant, a verdict will not be set aside on account of a conflict in the evidence.
    (Syllabus by the Court.)

      Appeal from Comanche County Court; James-II. Wolverton, Judge.

    W. H. Stack was convicted of violating the prohibitory law, and he appeals.
    Affirmed.

      S. M. Cunningham, for appellant.

      Fred S. Caldwell, for the State.
   FURMAN, Presiding Judge.

The brief of counsel for the defendant sets out the motion for a new trial as follows:

“Motion for New Trial. State of Oklahoma, County of Comanche. In the County Court of Comanche County, Oklahoma. State of Oklahoma v. W. II. Stack. Comes now the defendant, W. H. Stack, and moves the court to set aside the verdict rendered against him in the above styled case on the 1st day of April, 1908, and grant him a new trial because the same is not supported by the law and the testimony. [Signed.] S. M. Cunningham, Attorney for Defendant.”

Under the repeated rulings of this court all questions not clearly presented in the brief of counsel, unless involving fundamental errors, are waived. The motion for a new trial, copied in the brief, does not point out any specific error, or in any manner raise an}r other issue except that the verdict is not supported by the law and the evidence. There is no reference to any questions saved by exceptions. So there is but one question before us, and that is as to the sufficiency of the evidence to support the verdict.

W. T.'Glen, a deputy sheriff of Comanche county, testified that on the 28th da)r of November, 1907, he met a man named Hall on the streets of Lawton, and that Hall was drinking, and he asked Hall where he got his whisky. Upon objection the witness was not allowed to tell what Hall said. The witness then iwent with Hall to the back door of defendant’s place of business. Witness searched Hall, and Hall did not have a bottle of whisky on him. Hall then entered the defendant’s place of business. The witness climbed up on a barrel and looked into the room through a glass window, and saw the defendant in the room. The witness saw the defendant go around behind a bar in the room and get a bottle and give it to Hall. Hall then opened the door and came out and began to drink. Witness got down off of the barrel, and took the bottle away from Hall. Witness testified positively that the bottle contained whisky and that this occurred in Comanche country, Olda.

I. I. Mitchell testified that he was a constable. His testimony was substantially the same as that of the preceding witness, except that this witness did not look in at the window and did not swear positively to the contents of the bottle which Hall got in defendant’s place of business. This witness said it looked like “booze.” The defendant denied having sold or given any whisky to Hall. It was simply a question as to the credibility of the witnesses, and, the jury having believed the testimony for the state, there is nothing left for this court to do except affirm the judgment of the lower court.

Denied December 7, 1909.

(105 Pac. 320.)

1. TRIAL — Objections Waived. After a defendant has voluntarily gone to trial, it is too late to make the objection that lie has not been informed of the nature and cause of the accusation against him, and has not been served with a copy thereof.

2. PROSECUTION FOR MISDEMEANOR — Arraignment. A new trial will not be granted in a misdemeanor ease because the record does not show th.it the defendant was arraigned, or that he waived arraignment.

(Syllabus by the Court.}

DOYLEl and OWEN, Judges, concur.'

On Motion For Rehearing.

PER CURIAM.

In their motion for a rehearing, counsel complain that in the original opinion this court overlooked two of the propositions relied upon by the. defendant and presented in their brief, as grounds for the reversal of the judgment of the lower court, viz.: (1) That the record does not show that the defendant was ever furnished with a copy of the information; (2) that the record does not show that the defendant was ever arraigned and entered his plea to the information, or that arraignment and plea ivere waived.

First. It is true that section 20 of the Bill of Rights (article 2) of the state Constitution, among other things,-does say:

“He shall be informed of the nature and cause of the accusation against him and have a copy thereof.”

The defendant voluntarily went to trial without objection upon the ground that he had not been informed of the nature -and cause of the accusation against him. It is now too late to raise this question. Even if this were not true, the record shows that the defendant demurred to the information. This conclusively shows that he did know the nature and cause of the' accusation against him, and had access to a copy thereof.

The other ground is equally as unfounded. The clerk’s minutes of the trial are made a part of the record by our statute. These show that the defendant was arraigned and pleaded not guilty. But, even if this were not so, a new trial would not be granted in a misdemeanor ease upon the ground relied upon.

In Markinson v. State, ante, p. 323, 101 Pac. 353, Judge Doyle, speaking for this court, said:

“The first question that is presented by defendant for our consideration is that ‘defendant was never arraigned, or even entered any plea, or was given-any opportunity to plead.’ The record does not show that the defendant was arraigned and pleaded to the amended information. No objection appears to have been made upon this ground in the court below. The record .shows that on March 31, 1908, after a demurrer to the original information had been sustained an amended information was filed, and on April 1, 1908, defendant filed his demurrer to said amended information, which demurrer was by the court overruled. Whereupon' defendant filed his motion to ' quash the panel and array of jurors, which motion was by the court overruled. The case proceeded to trial without further objection, and the defendant was duly tried. We cannot reverse a judgment in a misdemeanor case for the reason alone that the record does not show an arraignment and plea by the defendant. Section 5307, Wilson’s Eev. & Ann. St. 1903, provides: ‘An information may be amended in matter and substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant, no amendment shall cause any delay of. the trial, unless for good cause shown by affidavit.’ And section 5380, Wilson’s Eev. & Ann. St. 1903 provides: ‘If the indictment is for a felony the defendant must be personally present, but if for a misdemeanor only, his personal appearance is unnecessary, and he may appear upon the arraignment by counsel/ Under this provision of our statute, the personal appearance of the defendant in a misdemeanor is unnecessary for the purpose of arraignment and plea. Where the record does not, as in this case, disclose an arraignment and plea, unless there is something to show affirmatively that the defendant was not arraigned and did not plead, such arraignment will be presumed; and where the record fails to show any objection to proceeding to trial, the question will Dot be considered by this court when raised for the first time in the petition in error.”

The motion for a rehearing is denied.


text:
    Cory Elerick v. State.
    No. A-8.
    Opinion Filed September 25, 1909.
    (103 Pac. 1038.)
    APPEAL — Briefs—¡Failure to File — Scope of Review. When no briefs are filed on behalf of the appellant, this court will confine its investigations to the information or indictment, the evidence in ■ ’ the case, the instructions to the jury, and the judgment, and if it appears that the evidence is sufficient to sustain the verdict, and 'that the information or indictment is regular, and that no material error was committed in the instructions, and that the judgment is in proper form, the conviction will be affirmed.
    (Syllabus .by the Court.)

      Appeal from Caddo County Courtj B. F. Holding. County Judge.

    Cory Elerick was convicted of violating the prohibitory law, and he appeals.
    Affirmed.

      Fred 8. Caldwell, for the State.
   FURMAN, Presiding Judge.

This appeal was filed in this court on the 16th day of September, 1908. No brief for appellant has been filed in this1 court. On the 2'd day of March, 1909, the attorney for the state filed a motion to dismiss the appeal for want of prosecution. The case has finally readied us for determination. Under these conditions we can only examine the record' for material errors appearing therein.

The information is as follows:

“State of Oklahoma, Caddo Count}' — ss.: In the County Court of Caddo County, State of Oklahoma. State of Oklahoma v. Cory Elerick—ss.: Now comes Theodore Pruett, county attorney, and gives the court to know and be informed that one Cory Elerick, late of the county of Caddo and state of Oklahoma, on the 25th day of March, in the year of our Lord one thousand nine hundred and eight, at and within the said county and state, did then and there intentionally, wilfully,, and unlawfully carry and convey certain' intoxicating liquors, to wit, one-half pint of whisky, from the building situated on lot twenty-five (25) in block, thirty-five (35) in the city of Anadarko in said county and’ state, to the crossing at Fifth (5th) street and Broadway in said city of Anadarko, a distance of one-half block, the same not being then and there a conveyance of a lawful purchase as authorized by the laws of the state of Oklahoma contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma. Bandall Livesay, Deputy County Attorney.”

This information ivas properly verified by the positive oath of O. Draper. This information is sufficient. The instructions gave the defendant the benefit of every legal principle to which he was entitled. In fact they are even more liberal to the defendant than the law required. The evidence was positive and direct, and was not disputed, and conclusively established the guilt of the defendant. • The judgment is regular in form. The conviction and sentence is therefore affirmed.

DOYLE and OWEN, Judges, concur.


text:
    A. J. Michael v. State.
    No. 311.
    Opinion Filed September 25, 1909.
    (103 Pac. 1069.)
    INTOXICATING LIQUORS — Violation of Enforcement Act — Information. In an information for having prohibited liquors in one’s possession with the intent to violate the provisions of the enforcement act, the information must state the provision of the act which, .the defendant intended to violate.
    (Syllabus by the Court.)

      Appeal from Craig County Court; Theo: D. B. Frear, Judge.

    A. J. Michael was convicted of violating the prohibitory law, and he appeals.
    Reversed and remanded.

      Bidclle cG Clapham, for appellant.

      Fred 8. Caldwell, for the State.
   FURMAN, Presiding Judge.

On the 4th day of May, 1908, an information was filed in the county court of Craig county against the defendant, the charging part of which is as follows:

“That Jack Michael in the aforesaid county, on the 2d day of May, A. D. 1908, in the county of Craig, state of Oklahoma, then and there being, did then and there wilfully and unlawfully have in his possession fermented and intoxicating liquors, to wit, four pints of whisky, with intent to use the same in violating the law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

Counsel for the defendant filed a motion to quash the information upon the ground that it did not state facts sufficient to constitute a public offense. This motion was overruled, and the defendant reserved an exception. The defendant was found guilty by a jury, and prosecutes this appeal.

An indictment or information must describe the offense charged with sufficient certainty to enable the defendant to understand just what he will be required to defend against at the trial, and also to enable the court to determine from an inspection of the accusation as to whether the facts charged constitute a violation of the law. Section 1, art. 3, Enforcement Act (Sess. Laws Okla. 1907-08, p. 603, c. 69), among other things provides that it shall be unlawful for any person to have the possession of any prohibited liquors with the intention of violating any of the provisions of this act. To the extent of charging defendant with having possession of the prohibited liquors the information is sufficient. But this alone would not subject the defendant to punishment. Something more is necessary. Such possession must be accompanied by the intention and be for the purpose of violating some one of the provisions of the statute. In order to identify the offense charged, the information should have gone further, and stated the particular provision of tire statute which the defendant intended to violate. The defendant would then have notice pf the nature and cause of the accusation against him, and would be able to prepare for trial. The court could then examine the statute, and see if the offense charged did in fact come within any' of the provisions of .the 'statute.

For these reasons, the information is fatally defective. The judgment of the lower court is reversed, and the cause remanded, with directions to set aside the verdict of the jury, and sustain the motion to quash the information.

DOYLE. and OWEN, Judges, concur.


text:
    Joe Belt v. State.
    No. 301.
    Opinion Filed September 25, 1909.
    (103 Pac. 1069.)
    APPEAL — Briefs—Failure to File — Scope of 'Review. When no briefs are filed, this court will only examine the record for fundamental errors, and, if the information is correctly drawn, the evidence is sufficient, if the instructions are free from error, and the judgment is regular, it will be affirmed.
    (.Syllabus by the Court.)

      Appeal from, Pontotoe County Court; Joel Terrell. County Judge.

    Joe Belt was convicted of an offense, and he appeals.
    Affirmed.

      Fred S. Caldwell, for-the State.
   FURMAN, Presiding Judge.

This case has been in this court since June, 1908, and has not been disposed of sooner because not reached on the docket. There are no briefs on file. There being nothing presented by brief, we have examined the record for fundamental errors. We find the information correctly drawn. The testimony fully sustains the verdict, the instructions are free from objections, and the judgment is in regular form. In fact, the case was carefully tried, and the evidence against the defendant is direct and positive. We find no error in the record The judgment of the lower court is affirmed.

' DOYLE and OWEN, Judges, concur.


author: OWTSN, Judge.

text:
    State v. Nick Carter.
    No. A-3.
    Opinion Filed September 25, 1909.
    (103 Pac. 1042.)
    GAMING — ‘Indictment—Sufficiency. An indictment, which charges that the defendant “did unlawfully play at a game of cards, played for money, and commonly known as poker, contrary to the form of .the statutes,” etc., charges the defendant with the commission of a crime, and is sufficient under sections 2617 and 2618, Wil' son’s Rev. & Ann. St. 1903.
    (.Syllabus by the Court.)

      Error from Goal County Court, Bitting at Goalgate; R. H. Wells, Judge.

    Nick Carter was indicted for playing poker. The cause was transferred to the County -Court, where a demurrer to the indictment was sustained, and the State brings error.
    Reversed and remanded, with directions.

      Chas. West, Atty. Gen., Chas. L. Moore, Asst. Att}’. Gen., and Jas. R. Wood, Co. Atty., for the State,
    cited Bweitzer v. Territory, 5 Okla. 297; Proctor v. Territory, 18 Okla. 379; 20 Cjq. 903, 904; Wi/n/ya/rd v. State, 13 Ga. 396'.
   OWTSN, Judge.

The indictment in this case charged:

“* * *. jn saj¿ county of Coal, in said state of Oklahoma, on the - day of February, in the yenv of our Lord one thousand nine hundred and eight, one Nick Carter, late of Coal county, and within the jurisdiction of this court, did unlawfully play at and against a game at cards played for money, and commonly known as poker, contra^ to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

There is no appearance here for the defendant in error, and the record does not disclose the specific objections made to this indictment or the reasons assigned by the court for sustaining the demurrer.

Section £6173 Wilson’s Kev. & Ann. St. 1903, makes it a misdemeanor for any person to deal or play at any game of faro,-monte, poker, roulette, craps, or any banking or percentage game played with dice, cards, or any device, for money, checks, credit, or any representative of value. Section £618 of the same statute provides that:

‘‘'Every person who bets or plays at or against any of said prohibited games is guilty of a misdemeanor, and is punishable,” etc.

Section 5357, Wilson’s Eev. & Ann. St. 1903, provides that the indictment must contain:

“First: The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties. Second: A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

Section 5363 of the same statute provides:

“The words used in an indictment must be construed in their usual acceptation, in common language, except words and phrases defined by law, which- are to be construed according to their legal meaning.”

The indictment in this case alleges that the defendant did unlawfully play at and against a game of cards, played for money, and commonly known as “poker.” Section 2617 of the .statutes prohibits any person from dealing or carrying on the games mentioned in the section, and poker is one of these games. Section 2618 makes it a misdemeanor to play at the game of poker. It is not contended here that the defendant was misled by that term. The indictment alleges that he played at a game of cards, that he played for money, and that this game is commonly known as “poker.” It was not necessary that the indictment should' allege the names of the other persons playing at the game. It was sufficient to inform him that he was charged with plajdng for money.

The Supreme Court of the Territory of Oklahoma, in the case of Sweitzer v. Territory, reported in 5 Okla. 297, 47 Pac. 1094, in construing the section under which the indictment' in this case was drawn, used this language on page 298 of 5 Okla., page 1094 of 47 Pac.:

“The statute names and prohibits this particular game of poker, and it was unnecessary that the indictment should state any of the particulars of the game, nor the person or persons with whom it was played”—citing Wharton, Crim. Plead. & Prac. § 155; Schilling v. Territory, 2 Wash. T. 283, 5 Pac. 926; State v. Light, 17 Or. 358, 21 Pac. 132.

dire indictment in this case was sufficient under the statute, and the demurrer shorrld have been overruled.

The case is reversed and remanded, with directions to overrule the demurrer.

FURMAN, PRE,siding Judge, and T)OYUE, Judge, concur.


author: DOYLE, Judge.

text:
      Ex parte F. C. Mingle.
    No. A-274.
    Opinion Filed September 25, 1909.
    (104 Pac. 68.)
    1. HABEAS CORPUS — Nature of Writ — Constitutional Guaranty. ■Section 10 of the Bill of Rights provides: “The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.” Held, that the writ of habeas corpus is a writ of righ.t, and cannot be abrogated or its efficiency impaired by statute, and the casos within the relief afforded by the writ at common law cannot be placed beyond its reach under the constitutional guaranty.
    2. CONSTITUTIONAL LAW — Deprivation of Liberty — Imprisonment Pending Appeal from 'Life Sentence. The act of criminal procedure of Oklahoma (Wilson’s Rev. & Ann. St. 1903, sec. 5771; Sess. Laws 1905, p. 334, e. 29, art. 2, see. 1) provides that upon conviction and sentence for a crime punishable by death or imprisonment for life the crime is not bailable, and that in all cases where the sentence is for a crime not bailable the appeal shall suspend execution, until the matter is determined and the defendant in the meantime shall be confined to the state prison. Held, upon petitioner’s demurrer to respondent’s answer -and return showing conviction and sentence to imprisonment for life, commitment issued, and appeal taken, that said provision do.es not disparage any substantial rights or constitutional guaranty, and is not repugnant to or inconsistent with the Constitution of Oklahoma.
    3. HABEAS CORPUS — Scope of Writ — Irregular Conviction — Jurisdiction. If the judgment and sentence or commitment under which a defendant is restrained is irregular or erroneous merely, and the court rendering the judgment and issuing -the commitment * had jurisdiction to render such judgment and issue the commitment, the Criminal Court of Appeals will not interfere by writ of habeas corpus.
    4. TRIAL — Absence of Judge. Upon an agreed statement of facts ■ showing that during the progress of the trial the trial judge at divers times during adjournments before the final submission of the case to the jury left Oklahoma county and went to Canadian county, but was present the entire time the jury were deliberating of their verdict, held, that the absence of the trial judge during the adjournments could in no way affect the legality of the proceedings, and did not deprive the court of the power or jurisdiction to render judgment and issue process for the imprisonment of the defendant. In re Patswald, 5 Otete. 789, 50 Pac. 139, distinguished.
    (Syllabus by the Court.)

      Habeas corpus on petition of Forest Cecil Mingle.
    Writ denied.

      G-iddings & Giddings and Ross N. Lillard, for petitioner.

      E. E. Reardon, County Atty., for respondent.
   DOYLE, Judge.

The petitioner, Forest Cecil Mingle, was tried and convicted in the district court of the Thirteenth judicial district, sitting in and for Oklahoma county, of the crime of murder, and sentenced to be imprisoned in the state penitentiary at hard labor for the term of his natural life. The petition avers that all of the proceedings under which he was tried and convicted were coram non judice, and void, and that he is deprived of his liberty without due process of law. The answer and return to the writ show that the petitioner is held by Id. D. Garrison, sheriff of Oklahoma county, under commitment, containing a certified copy of the entry of the judgment and sentence in said case. The (defendant interposed a demurrer to the answer and return oí respondent on tbe ground that the law, which provides that, after conviction and sentence for a crime punishable by death or by imprisonment for life in the state penitentiary, the crime is not bailable, and that in all cases where the sentence is for a crime •not bailable the appeal shall suspend execution until the matter is determined b3r the Criminal Court of Appeals, and the defendant in the meantime shall be confined to the state prison (Wilson’s Bev. & Ann. St. 1903, § 5771; Sess. Laws 1905, p. 334, c. 29, art. 21, § 1), is unconstitutional, in this, that it deprives petitioner of his liberty by confining him in the state penitentiary 'pending his appeal to this court.

The argument of counsel for petitioner is: That this pro■vision of the laws of Oklahoma Territory is repugnant to the Constitution, and did not become a part of the law of this state. But no particular provision of the Constitution inconsistent therewith has been pointed out. We cannot agree with counsel in their contention. The Constitution grants power to the legislative branch of tire government to provide by proper legislation the manner in which appeals in criminal cases may be taken. The language of the law is plain and unambiguous, and provides that the appeal shall suspend execution until the matter is dietermined upon the appeal, and the defendant in the meantime shall be confined in the state prison. The defendant is entitled to the advantage of every right which the law secures to him before his conviction is made final. He has the right of appeal, and in this class of crimes, while his appeal is pending although confined in the penitentiary, it is his privilege not to be held at hard labor. To this extent only the pendency of his appeal stays the execution of the judgment and sentence. We do not see that this provision of the law deprives the petitioner of •any constitutional right. The offense is not bailable, and he stands committed'by a court of competent "jurisdiction. The demurrer is therefore overruled. It is, however, apparent from the record before this court that there is a defect in the judgment aha sentence. It does not include imprisonment at hard labor, the penalty prescribed by the law. This should be corrected by a nunc p'o tunc order.

The cause was submitted on an agreed statement of facts. The pertinent part is set forth in the fourth and sixth paragraphs, as follows:

“Fourth. That during the progress of said cause and on the 16th day of July, 1909, and at other times, the district judge presiding in said cause, John J. Carney, left Oklahoma City, where said cause was being tried, after adjourning court for the day, and went to Canadian county, and that upon several occasions during the trial of said cause, which commenced upon the 28th day of June, 1909, and ended on the 17th day of July, 1909,' the said district judge was absent from the county of Oklahoma and in Canadian county, Oklahoma; and that at the time that the said judge John J. Carney was absent from the county of Oklahoma during the trial of said cause it was after the adjournment or suspension of the functions of the jury and the court in said cause.-”
“Sixth. There was no court in session in Canadian during the progress of this said trial, and during the entire time the jury in the aforesaid case were deliberating the judge of the district court, John J. Carney, was present, and could have been reached by the said jury at any time they could have wanted his presence.”

The primary proposition presented in this cause is that of the function of a writ of habeas corpus, where the petitioner stands committed on a final judgment of conviction by a court of competent jurisdiction. Section 4867, Wilson’s Eev. &• Ann. St. 1903, provides:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * Second. TJpon any process issued on any final judgment of a court of competent jurisdiction.” * * *

It is obvious that the proposition presented is not open for consideration in a habeas corpus proceeding. This court will not look bej^ond the judgment in habeas .corpus proceedings, except when the question of power or want of jurisdiction is raised. Other questions must be .tested on appeal or writ of error.

Counsel for petitioner seem to rely upon and earnestly argue that the doctrine announced by the Supreme Court of the Territory in the case of In re Patswald, 5 Okla. 789, 50 Pac. 139, is directly the contrary of the views herein expressed. The holding of the Territorial Supreme Court in that case meets the approval of this court, but that cáse is clearly distinguished from the ease at bar. In the Patswald Case the agreed statement of facts shows that at the November term, 1895, of the district court of Oklahoma county, the petitioner was tried for the crime of perjury; that on the 2'lst day of December, 1895, the cause was submitted to the jury, and they retired in charge of bailiffs to deliberate and consider of their verdict; that the court upon the retirement of the jury adjourned until the 2Sd inst.; that on the 23d it adjourned until the 2'4th, when the court was again adjourned until the 26th. When the court was adjourned on December 24th, Judge Scott, the presiding judge, immediately left Oklahoma Gity and went to Norman, in Cleveland county, and there opened an adjourned term of the district court of Cleveland county, and there transacted a large amount of business. On December 26th Judge Scott returned to Oklahoma City, opened court, and received the verdict of the jury in this case. During all the time the presiding judge was absent from Oklahoma City, the jury remained in charge of the bailiffs and in consideration of the case, and were deliberating upon the case and of their verdict. Mr. Justice Tarsney, delivering the opinion of the court, in part says:

“We concede the correctness of the proposition of counsel That a judge has power to adjourn his court from time to time, and nothing that he does in the interval can have the .effect of depriving him of the power of holding his court when the recess expires/ That proposition is not involved here. It is not necessary to review authorities to show that Judge Scott, when he returned to Oklahoma City on December 26th, might have resumed business and taken up any other matters then pending in his court. We concede this, and we concede that the presiding judge need not sit at his bench or remain in a courtroom while a jury are deliberating of a verdict. He may take a recess or adjourn as to all other business from day to day, or for rest or refreshment, but he cannot suspend the functions of the court as to the case of which the jury are deliberating.' He need not remain actually on the bench or in the courtroom, but he must remain where he may exercise his functions as a court; that is, at. the place where the court is by law required to be held. He cannot be at another place or engaged in another business which precludes the exercise of such functions. Section 5242 of our Statutes of 1893 provides: ‘While the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for every purpose connected with the cause submitted to them, until a verdict is rendered or the jury discharged/ The court cannot be adjourned or its functions suspended as to the cause submitted to the jury.”

And in conclusion says:

“This court takes judicial knowledge that Oklahoma county is in the Third judicial district; that the district' is composed of the counties of Oklahoma, Cleveland, and Pbttawatomie; that Hon. Henry W. 8cott was the presiding judge of said district. There is but one district court and one district judge in the district. Courts cannot be held in two counties in the same district simultaneously. In re Millington, 24 Kan. 214; In re Dosselt, 2 Okla. 369, 37 Pac. 1071. A court cannot be actually in session in one county and constructively in session in another at the same time. When the district court of Cleveland county was open and transacting business on December 24, 1895, it was not and could not be open for any purpose in Oklahoma county at the same time. The action of the judge in leaving the place where the court could be held for the trial of the cause suspended the functions of the court in the cause to the substantial prejudice of the defendant, closed the court in violation of the statute which required it to be kept open until the jury had returned a verdict or until they should be discharged, and thereby, by operation of law, discharged the jury, and, in our opinion, all the subsequent proceedings in the cause were comm non judice, and void.”

Under the territorial rule two terms of a district court could not be held in one district on the same day, and, when Judge Scott convened court in Cleveland county, the .term in Oklahoma county became adjourned by operation of law while the jury were deliberating upon their verdict, and therefore further proceedings in the case were extrajudicial and void.

In the case of In re Millington, supra, Mr. Justice Brewer, delivering the opinion of the court, said:.

“The organic law of the state provides for one district judge in each judicial district, to be elected by the people of the district. Const, art. 3, § 5. * * * The commencement of a term is a legislative command to the elected judge to be present and discharge the judicial duties devolving upon him-in that county. It operates as a suspension of his duties in all other counties in his district, and suspends or closes the terms in those counties. * * * And the Legislature by terms name the time of his attendance. Impliedly, thereby commanding him to attend in one icountjr, it equally commands him to leave all the others. The case of Grable v. State, 2 G. Greene (Iowa) 559, is strongly in point. Under similar provisions, the Supreme Court of Iowa there held that the term in one county was closed on the day the term was bjr law to commence in another. It saj^s: ‘From the constitution of our judicial system it is apparent that the court cannot be held in two counties in the same district on the same day, and by one and the same judge.5 So we say here there is but one district court and one district judge in a district. The officer is not to be duplicated, and, when a term commences in one county, the court everywhere else in the district is closed or suspended.55

The Constitution of the state of Oklahoma has no provision similar to those construed in the foregoing cases. The provision of the state Constitution is as follows:

“Whenever the public business shall require it, the Chief Justice may appoint any district judge of the state to hold court-in any district, and two or more district judges may sit in any district separately at the same time.55 (Const, art. 7, § 9.)

In the case of In re Dossett, 2 Okla. 369, 37 Pac. 1066, Mr. Justice Scott has■ well said that:

“Courts in all civilized countries are instituted for the dispatch of public business, and are not to be circumscribed by legal technicality, ’ in this rapid commercial era, by the rusty usages of the past, but, adapting themselves to the progressive march of civilization, must conform their rules of procedure to meet the necessities of the age.”

By reason and authority, the objections urged by the petitioner against the legality of his trial must be decided against him. This court takes judicial knowledge that Oklahoma county and Canadian county comprise the Thirteenth judicial district, and that said district has two regular divisions under the Constitution. The fact that the trial judge visited his home within the district during adjournments prior to the final submission of thecase to the jury could in no way affect the legality of the proceedings. The presence of the trial judge was not essential during the adjournments. It follows that petitioner is lawfully imprisoned under said judgment and sentence.

Therefore the application and writ o£ hateas corpus will be denied.

FTJBMAN, PRESIDING Judge, and OWEN, Judge, concur.


author: FURMAN, PRESIDING Judge.

text:
    Walter Edwards v. State.
    No. A-42.
    Opinion Filed September 25, 1909.
    (103 Pac. 1072.)
    APPEAL — Necessity of Petition in Error. To perfect an appeal to this court the case-made or transcript of the record must be attached to, and accompanied by, a petition in error. If this is not done, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from Carter County Courtj I. B. Mason, Judge.

    Walter Edwards was convicted of violating the prohibition law, and he appeals.
    Dismissed.

      Fred S. Caldwell, for the State.
   FURMAN, PRESIDING Judge.

No briefs have been filed by counsel for the defendant. The record is regular, and no errors appear therein. The case would be affirmed were it not for the fact that no petition in.-error is attached to or accompanied -the case-made, as is required by section 5612, Wilson’s Rev. & Ann. St. 1903. The language of the statute is mandatory. It is as follows: “Such original case-made shall be filed with the petition in error.” _ There being no petition in error filed in this case, there is nothing for the court to consider.

The attempted appeal is therefore dismissed.

DOYLE and OWEN, Judges, concur.